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diff --git a/33540.txt b/33540.txt new file mode 100644 index 0000000..f2408ad --- /dev/null +++ b/33540.txt @@ -0,0 +1,25229 @@ +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: ASCII + +*** 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 + + + + + + + + + +VIEW + +OF + +THE STATE OF EUROPE + +DURING + +THE MIDDLE AGES. + + +BY HENRY HALLAM, LL.D., F.R.A.S., + +FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE. + + +IN THREE VOLUMES.--VOL. III. + +_NEW EDITION._ + + +LONDON: + +JOHN MURRAY, ALBEMARLE STREET. + +1860. + + +_The right of Translation is reserved._ + + + + +PRINTED BY W. CLOWES AND SONS, STAMFORD STREET AND CHARING CROSS. + + + + +CONTENTS + +OF + +THE THIRD VOLUME. + + + + + CHAPTER VIII. + + PART III. + + THE ENGLISH CONSTITUTION. + + 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. Page 1 + + NOTES TO CHAPTER VIII., PART III. 204 + + CHAPTER IX. + + ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES. + + PART I. + + 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. 268 + + PART II. + + 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--Provencal + Poets--Norman Poets--French Prose Writers--Italian--early Poets in that + Language--Dante--Petrarch--English Language--its Progress--Chaucer--4. + Revival of Classical Learning--Latin Writers of the Twelfth Century-- + Literature of the Fourteenth Century--Greek Literature--its Restoration + in Italy--Invention of Printing. 318 + + NOTES TO CHAPTER IX. 474 + + INDEX. 487 + + + + +VIEW + +OF + +THE STATE OF EUROPE + +DURING THE MIDDLE AGES. + + + + +CHAPTER VIII. + +PART III. + +THE ENGLISH CONSTITUTION + + 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. + + +[Sidenote: Accession of Edward I.] + +Though 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 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. + +[Sidenote: Confirmation of the Charters.] + +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.[1] These encroachments +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.[2] + +It was enacted by the 25 Edw. I. that the charter of liberties, and that +of the forest, besides being explicitly confirmed,[3] 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, 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.[4] + +[Sidenote: Constitution of parliament.] + +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. + +[Sidenote: The spiritual peers.] + +One constituent branch of the great councils held by William the +Conqueror and all his successors was composed of the bishops and the +heads of 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, 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.[5] 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;[6] but the former reasoning appears less technical and +confined.[7] + +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.[8] Every 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. + +[Sidenote: Question as to the nature of baronies.] + +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. + +[Sidenote: Theory of Selden;] + +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. + +But about the latter end of John's reign, some only of the most eminent +tenants in chief were summoned by particular writs; the rest by one +general summons through the sheriffs of their several counties. This is +declared in the 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 praeterea 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.[9] + +[Sidenote: of Madox,] + +[Sidenote: and observations on both.] + +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.[10] 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.[11] +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.[12] The former of these seem to be the majores barones of King +John's Charter. And the secundae dignitatis barones, said by a +contemporary historian to have been present in the parliament of +Northampton, were in all probability no other than the knightly tenants +of the crown.[13] For the word baro, originally meaning 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.[14] + +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.[15] 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;[16] 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 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.[17] + +[Sidenote: Whether mere tenants in chief attended parliament under Henry +III.] + +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 _represented_ even from its +beginning. I rather incline to a different opinion. + +In the Magna Charta of 1 Henry III. it is said: Pro hac donatione et +concessione ... archiepiscopi, episcopi, comites, barones, milites, et +libere tenentes, et omnes de regno nostro, dederunt nobis quintam +decimam partem omnium bonorum suorum mobilium.[18] So in a record of 19 +Henry III.: Comites, et barones, et omnes alii de toto regno nostro +Angliae, spontanea voluntate sua, concesserunt nobis efficax +auxilium.[19] 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 _qui de nobis tenent in +capite_. And it seems to have been a general practice to assume the +common consent of all ranks to that which had actually been agreed by +the higher. In a similar writ, 21 Henry III., the rants of men are +enumerated specifically; archiepiscopi, episcopi, abbates, priores, et +clerici terras habentes quae ad ecclesias suas non pertinent, comites, +barones, milites, et liberi homines, pro se et suis villanis, nobis +concesserunt in auxilium tricesimam partem omnium mobilium.[20] 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 Angliae.[21] + +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. + +[Sidenote: Origin and progress of parliamentary representation.] + +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. + +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 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."[22] 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.[23] + +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. Praecipimus tibi quod omnes milites ballivae tuae +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 _quatuor discretos milites_ 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;[24] but it remains problematical whether +these four knights (the only clause which concerns our purpose) were to +be elected by the county or returned in the nature of a jury, at the +discretion of the sheriff. Since there is no sufficient proof whereon to +decide, we can only say with hesitation, that there _may_ have been an +instance of county representation in the fifteenth year of John. + +We may next advert to a practice, of which there is very 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.[25] 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.[26] + +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 (caeteri magnates) +were to meet at London three weeks after Easter, with horses and arms, +for the purpose of sailing into Gascony, requires the sheriff to compel +all within his jurisdiction, who hold twenty pounds a year of the king +in chief, or of those in ward of the king, to appear at the same time +and place. And that besides those mentioned he shall cause to come +before the king's council at Westminster, on the fifteenth day after +Easter, two good and discreet knights of his county, whom the men of the +county shall have chosen for this purpose, in the stead of all and each +of them, to consider, along with the knights of other counties, what aid +they will grant the king in such an emergency.[27] 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.[28] + +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 praemissis colloquium habituros.[29] It is not +absolutely certain that these knights were elected by their respective +counties. But even if they were so, this assembly has much less the +appearance of a parliament, than that in the thirty-eighth of Henry III. + +At length, in the year 1265, the forty-ninth of Henry III., 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. + +[Sidenote: Whether the knights were elected by freeholders in general.] + +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. + +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 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 comitatus. 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 +though they should be purchased by a lord.[30] 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.[31] + +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 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.[32] 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."[33] 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 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. + +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.[34] But Brady and Carte are of a different opinion.[35] 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.[36] + +[Sidenote: Progress of towns.] + +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 raised by law of the +latter monarch to the dignity of a Thane.[37] 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.[38] Besides the regular 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.[39] 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. + +[Sidenote: Towns let in fee-farm.] + +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.[40] 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.[41] The burgesses held their lands by +burgage-tenure, nearly analogous to, or rather a species of, free +socage.[42] 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, 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. + +[Sidenote: Charters of incorporation.] + +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[43] 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.[44] +These grants, however, were not in general so extensive till the reign +of John.[45] 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 poverty. +These were called guilds, from the Saxon verb _gildan_, to pay or +contribute, and exhibited the natural, if not the legal, character of +corporations.[46] 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.[47] 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;[48] and +these were successively consolidated and sanctioned by charters from +the crown. In towns not large enough to admit of distinct companies, one +merchant guild comprehended the traders in general, or the chief of +them; and this, from the reign of Henry II. 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.[49] + +[Sidenote: Prosperity of English towns.] + +[Sidenote: London.] + +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.[50] 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.[51] It paid 15,000_l._ out of 82,000_l._, raised by Canute +upon the kingdom.[52] If we believe Roger Hoveden, the citizens of +London, on the death of Ethelred II., joined with part of the nobility +in raising Edmund Ironside to the throne.[53] Harold I., according to +better authority, the Saxon Chronicle and William of Malmsbury, was +elected by their concurrence.[54] 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.[55] 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.[56] These numbers, the enjoyment of privileges, and the +consciousness of strength, infused a free and even a mutinous spirit +into their conduct.[57] 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.[58] 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.[59] + +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, 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,[60] 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. + +[Sidenote: First summoning of towns to parliament, in 49 H. III.] + +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.[61] After a long controversy almost all +judicious inquirers seem to have acquiesced in admitting this origin of +popular representation.[62] The argument may be very concisely stated. +We find from innumerable records that the king imposed tallages upon his +demesne towns at discretion.[63] 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;[64] 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.[65] 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. + +[Sidenote: Authorities in favour of an earlier date. St. Albans.] + +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 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.[66] + +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 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 _latest_ 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.[67] It is more unequivocally +stated by another annalist that they were present in the first +parliament of Edward I. held in 1271.[68] 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.[69] And the writs are extant +which summon every city, borough, and market town to send two deputies +to a council in the eleventh year of his reign. I call this a council, +for it undoubtedly was not a parliament. The sheriffs were directed to +summon personally all who held more than twenty pounds a year of the +crown, as well as four knights for each county invested 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.[70] 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.[71] It is a slight cavil to object that these +were not directed as usual to the sheriff of each county, but to the +magistrates of each place. Though a very imperfect, this was a regular +and unequivocal 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.[72] + +[Sidenote: Barnstaple.] + +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 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.[73] + +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.[74] 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, _and ever has been_, a member of parliament."[75] And +the consenting suffrage of our older law-books must be placed in the +same scale. The first gainsayers, I think, were Camden and Sir Henry +Spelman, who, upon probing the antiquities of our constitution somewhat +more exactly than their 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.[76] + +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 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.[77] + +[Sidenote: Causes of summoning deputies from boroughs.] + +There is no great difficulty in answering the question why the deputies +of boroughs were finally and permanently ingrafted upon parliament by +Edward I.[78] 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,[79] it was a more +prudent counsel to try the willingness of his people before he forced +their reluctance. And the success of his innovation rendered it worth +repetition. Whether it were from the complacency of the commons at being +thus admitted among the peers of the realm, or from a persuasion that +the king would take their money if they refused it, or from inability to +withstand the plausible reasons of his ministers, or from the private +influence to which the leaders of every popular assembly have been +accessible, much more was granted in subsidies after the representation +of the towns commenced than had ever been extorted in tallages. + +To grant money was, therefore, the main object of their meeting; and if +the exigencies of the administration could have been relieved without +subsidies, the citizens and 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 plena potestate pro se et tota communitate comitatus praedicti ad +consulendum et consentiendum pro se et communitate illa, his quae +comites, barones, et proceres praedicti concorditer ordinaverint in +praemissis. That of the next year runs, ad faciendum tunc quod de communi +consilio ordinabitur in praemissis. 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 plena potestate audiendi et faciendi quae 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 _performing_ or of _enacting_; whether the +representatives of the commons were merely to learn from the lords what +was to be done, or to bear their part in advising upon it. The earliest +writ, that of 22 E. I., certainly implies the latter; and I do not know +that any of the rest are conclusive to the contrary. In the reign of +Edward II. the words ad consentiendum alone, or ad faciendum et +consentiendum, begin; and from that of Edward III. this form has been +constantly used.[80] 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.[81] + +[Sidenote: At what time parliament was divided into two houses.] + +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.[82] These distinct grants +imply distinct grantors; for it is not to be imagined that the commons +intermeddled in those affecting the lords, or the lords in those of the +commons. In fact, however, there is abundant proof of their separate +existence long before the seventeenth of Edward III., which is the epoch +assigned by Carte,[83] 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."[84] 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.[85] 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.[86] And indeed the preamble of 1 E. III., stat. 2, is +apparently capable of no other inference. + +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.[87] This +appears, however, beyond doubt in the first of Edward III.[88] 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.[89] + +The proper business of the House of Commons was to petition for redress +of grievances, as much as to provide for the necessities of the crown. +In the prudent fiction of English law no wrong is supposed to proceed +from the source of right. The throne is fixed upon a pinnacle, which +perpetual beams of truth and justice irradiate, though 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."[90] 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."[91] By what persons, and under what limitations, this +jurisdiction in parliament was exercised will come under our future +consideration. + +[Sidenote: Edward II. Petitions of parliament during his reign.] + +The efficacy of a king's personal character in so imperfect a state of +government was never more strongly 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. + +"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;[92] 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 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.[93] + +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.[94] 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.[95] 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.[96] 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. + +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,[97] appears in a remarkable and revolutionary proceeding, the +appointment of the Lords Ordainers in 1312.[98] 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.[99] + +[Sidenote: Edward III. The commons establish several rights.] + +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. + +[Sidenote: Remonstrances against levying money without consent.] + +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, 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,[100] 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."[101] + +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. + +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, 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.[102] 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 chalange.)"[103] + +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 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."[104] + +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.[105] + +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 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."[106] + +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.[107] 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."[108] 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 of great necessity, and for the defence of his +kingdom.[109] But this more humble language indicates a change in the +spirit of government, which, after long fretting impatiently at the +curb, began at length to acknowledge the controlling hand of law. + +These are the chief instances of a struggle between the crown and +commons as to arbitrary taxation; but there are two remarkable +proceedings in the 45th and 46th of Edward, which, though they would not +have been endured in later times, are rather anomalies arising out of +the unsettled state of the constitution and the recency of parliamentary +rights than mere encroachments of the prerogative. In the former year +parliament had granted a subsidy of fifty thousand pounds, to be +collected by an assessment of twenty-two 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.[110] 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.[111] 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."[112] + +[Sidenote: The concurrence of both houses in legislation necessary.] + +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.[113] 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.[114] But there is no appearance that it received +the direct assent of the lower house. In the next reigns we shall find +more remarkable instances of assuming a consent which was never +positively given. + +[Sidenote: Statutes distinguished from ordinances.] + +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.[115] 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."[116] So much scruple did they entertain about tampering +with the statute law of the land. + +Ordinances which, if it were not for their partial or temporary +operation, could not well be distinguished from laws,[117] 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.[118] 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.[119] +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 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."[120] + +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. + +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.[121] This is the first instance of a +protest on the roll of parliament against the passing of an act. +Nevertheless they were compelled to swear on the cross of Canterbury to +its observance.[122] + +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.[123] 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.[124] + +[Sidenote: Advice of parliament required on matters of war and peace.] + +Notwithstanding the king's unwillingness to permit this control of +parliament over his administration, he suffered, or rather solicited, +their interference in matters which have since been reckoned the +exclusive province of the crown. This was an unfair trick of his policy. +He was desirous, in order to prevent any murmuring about subsidies, to +throw the war upon parliament as their own act, though none could have +been commenced more selfishly for his own benefit, or less for the +advantage of the people of England. It is called "the war which our lord +the king has undertaken against his adversary of France by common assent +of all the lords and commons of his realm in divers parliaments."[125] +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.[126] "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."[127] 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 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."[128] 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."[129] A few years before they had made a similar answer to some +other propositions from Scotland.[130] 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. + +[Sidenote: Right of the commons to inquire into public abuses.] + +A third important acquisition of the house of commons during this reign +was the establishment of their right to 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.[131] 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.[132] + +[Sidenote: Parliament of 50 E. III.] + +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.[133] 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."[134] 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 +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.[135] 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."[136] + +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. 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.[137] 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.[138] So +little security will popular assemblies ever afford against arbitrary +power, when deprived of regular leaders and the consciousness of mutual +fidelity. + +The policy adopted by the prince of Wales and earl of March, in +employing the house of commons as an engine of attack against an +obnoxious ministry, was perfectly novel, and indicates a sensible change +in the character of our 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 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. + +[Sidenote: Richard II. Great increase of the power of the commons.] + +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.[139] 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.[140] 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.[141] At the request of the lower house, the +lords, in the king's name, appointed nine persons of different +ranks--three bishops, two earls, two bannerets, and two bachelors--to +be a permanent council about the king, so that no business of importance +should be transacted without their unanimous consent. The king was even +compelled to consent that, 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.[142] + +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 +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. + +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.[143] + +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.[144] 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.[145] +In the next parliament (3 Ric. II.) it was set forth that only +22,000_l._ 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_l._ The king, in +short, was more straitened than ever. His distresses gave no small +advantage to the commons. Their speaker was instructed to declare that, +as it appeared to them, if the affairs of their liege lord had been +properly conducted at home and abroad, he could not have wanted aid of +his commons, who now are poorer than before. They pray that, as the king +was so much 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;[146] but a commission as requested was made out to three prelates, +three earls, three bannerets, three knights, and three citizens.[147] +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. + +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 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 about the king, and of +his council, the best lords and knights that can be found in the +kingdom. + +"And be it known (the entry proceeds) that, after the king our lord with +the peers of the realm and his council had taken advice upon these +requests made to him for his good and his kingdom's as it really +appeared to him, willed and granted that certain bishops, lords, and +others should be appointed to survey and examine in privy council both +the government of the king's person and of his household, and to suggest +proper remedies wherever necessary, and report them to the king. And it +was said by the peers in 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."[148] 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. + +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 grace) +till they had done what they ought. They renewed, at length the usual +tax on wool and leather.[149] + +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.[150] + +[Sidenote: Character of Richard.] + +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 +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.[151] + +[Sidenote: He acquires more power on his majority.] + +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.[152] But the king, in granting their request, reserved his +right of naming any others.[153] 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.[154] 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.[155] Yet this was little in comparison of their former +proceedings. + +[Sidenote: Proceedings of parliament in the tenth of Richard.] + +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,[156] 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 +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.[157] + +[Sidenote: Impeachment of Suffolk.] + +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.[158] + +[Sidenote: Commission of reform.] + +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.[159] The commons were content to waive the prosecution of any other +ministers; but they rather chose a scheme of reforming the +administration, which should avert both the necessity of punishment and +the malversations that provoked it. They 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.[160] 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. + +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 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?"[161] 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. + +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 +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. + +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. + +[Sidenote: Answers of the judges to Richard's questions.] + +Before the dissolution of parliament Richard made a verbal protestation +that nothing done therein should be in prejudice of his rights; a +reservation not unusual when any 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. + +[Sidenote: Subsequent revolution.] + +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 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.[162] + +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. + +[Sidenote: Greater harmony between the king and parliament.] + +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.[163]. They were provident enough, however, to +grant conditional subsidies, to be levied only in case of a royal +expedition against the enemy; and several were accordingly remitted by +proclamation, this 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.[164] + +[Sidenote: Disunion among some leading peers.] + +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.[165] 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;[166] 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 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. + +[Sidenote: Richard's prosecution of Haxey.] + +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;[167] 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. + +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, 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. + +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,[168] 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.[169] + +[Sidenote: Arbitrary measures of the king.] + +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 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.[170] 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.[171] + +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 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."[172] 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.[173] 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.[174] They imposed a perpetual oath on +prelates and lords for all time to come, to be taken before obtaining +livery of their lands, that they would maintain the statutes and +ordinances made by this parliament, or "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.[175] 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. + +[Sidenote: Quarrel of the dukes of Hereford and Norfolk.] + +[Sidenote: Necessity for deposing Richard II.] + +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 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.[176] 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.[177] 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 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. + +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.[178] + +[Sidenote: Circumstances attending Henry IV.'s accession.] + +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 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."[179] 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) 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. + +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.[180] In this contrivance, more than in all the rest, we +may trace the hand of lawyers. + +[Sidenote: Retrospect of the progress of the constitution under Richard +II.] + +[Sidenote: Its advances under the house of Lancaster.] + +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 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. + +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.[181] 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 impositions on wool and leather, +without consent of parliament, _if any there be_.[182] 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.[183] 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.[184] After his triumph over the popular +party towards the end of his reign, he obtained large sums in this way. + +Under the Lancastrian kings there is much less appearance of raising +money in an unparliamentary course. Henry IV. obtained an aid from a +great council in the year 1400; but they did not pretend to charge any +besides themselves; though it seems that some towns afterwards gave the +king a contribution.[185] 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.[186] There is, however, 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.[187] 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."[188] 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."[189] + +[Sidenote: Appropriation of supplies.] + +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.[190] A +similar precaution was adopted in the next session.[191] + +[Sidenote: Attempt to make supply depend on redress of grievances.] + +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 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."[192] + +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.[193] +This, an historian tells us, Henry IV. had vainly laboured to +obtain;[194] 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. + +[Sidenote: Legislative rights of the commons established.] + +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 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."[195] +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.[196] 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.[197] + +[Sidenote: Dispensing power of the crown.] + +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 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.[198] + +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. + +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;[199] unrepealed, except by desuetude, and by inference +from the acts of much later times. + +This commendable reluctance of the commons to let the clergy forge +chains for them produced, as there is much 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 +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.[200] 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.[201] 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.[202] + +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.[203] 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. + +"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 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. + +"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."[204] + +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 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,[205] 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.[206] + +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 +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.[207] + +[Sidenote: Interference of parliament with the royal expenditure.] + +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,[208] 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.[209] 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 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."[210] + +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.[211] 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.[212] + +But no parliament came near, in the number and boldness of its demands, +to that held in the eighth year of Henry IV. The commons presented +thirty-one articles, none of which the king ventured to refuse, though +pressing very severely upon his prerogative. He was to name sixteen +counsellors, by whose advice he was solely to be guided, none of them to +be dismissed without conviction of misdemeanor. The chancellor and privy +seal to pass no grants or other matter contrary to law. Any persons +about the court stirring up the king or queen's minds against their +subjects, and duly convicted thereof, to lose their offices and be +fined. The king's ordinary revenue was wholly appropriated to his +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.[213] + +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; 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.[214] + +[Sidenote: Henry V. His popularity.] + +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;[215] 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.[216] 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 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;[217] 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.[218] +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.[219] + +[Sidenote: Parliament consulted on all public affairs.] + +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.[220] 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.[221] Yet a few years afterwards, on a similar reference, the +commons rather declined to give any opinion.[222] They confirmed the +league of Henry V. with the emperor Sigismund;[223] 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.[224] 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 +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.[225] 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.[226] This article +was afterwards repealed.[227] + +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 subpoena out of chancery.[228] 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.[229] 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_l._, and +the annual expense of the household to 24,000_l._, while the ordinary +revenue was not more than 5000_l._[230] + +[Sidenote: Impeachments of ministers.] + +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 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.[231] 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 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.[232] + +[Sidenote: Privilege of parliament.] + +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.[233] Several authorities +may be found in Mr. Hatsell's Precedents; of which one, in the 9th of +Edward II., is conclusive.[234] 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,[235] 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.[236] +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.,[237] +and of Clerke, himself a burgess, in the 39th of the same king,[238] it +was thought necessary to effect their 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. + +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." + +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, made such haste and speed according to this +command, that they presented a new speaker for approbation the next +day.[239] + +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.[240] + +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.[241] + +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. + +"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,[242] 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 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 +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."[243] + +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.[244] + +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.[245] + +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, +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.[246] 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.[247] 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[248] as his council +might provide for redressing the abuse of purveyance; to which they +assented. + +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."[249] 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 been made the basis of extravagant assertions as to the +privileges of parliament;[250] 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. + +[Sidenote: Contested elections how determined.] + +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.[251] 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.[252] 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.[253] 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 petition.[254] 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.[255] 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.[256] 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 (whatever might be the +case in petty boroughs) sought for a share in the national +representation. + +[Sidenote: In whom the right of voting for knights resided.] + +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."[257] 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. + +[Sidenote: Elections of burgesses.] + +The representation of towns in parliament was founded upon two +principles--of consent to public burthens, and of advice in public +measures, especially such as related to trade and shipping. Upon both +these accounts it was natural for the kings who first summoned them to +parliament, little 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.[258] + +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, till, about the beginning of the third's +reign, they were confounded with ordinary burgesses.[259] 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.[260] + +[Sidenote: Power of the sheriff to omit boroughs.] + +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;[261] 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 king's accession.[262] 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.[263] + +It has been suggested, indeed, by Brady,[264] 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.[265] Those of burgesses were half +that sum;[266] but even this pittance 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.[267] 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.[268] + +[Sidenote: Reluctance of boroughs to send members.] + +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 parliaments, and +then ceased for ever.[269] 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.[270] But this immunity, from whatever reason, was not regarded, +Colchester having continued to make returns as before. + +The partiality of sheriffs in leaving out boroughs, which were +accustomed in old time to come to the parliament, was repressed, as far +as law could repress it, by a statute of Richard II., which imposed a +fine on them for such neglect, and upon any member of parliament who +should absent himself from his duty.[271] 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.[272] 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. + +[Sidenote: Who the electors in boroughs were.] + +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.[273] 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 such and such persons by the assent of the +community;[274] 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.[275] + +[Sidenote: Members of the house of commons.] + +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 hundred and eighty.[276] 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.[277] 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.[278] This probably was truly alleged, as we may guess +from the vast number of proposals for changing the course of legal +process which fill the rolls during this reign. It is not to be doubted, +however, that many practising lawyers were men of landed estate in their +respective counties. + +An act in the first year of Henry V. directs that none be chosen +knights, citizens, or burgesses, who are not resident within the place +for which they are returned on the day of the date of the writ.[279] +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.[280] 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.[281] 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.[282] + +[Sidenote: Irregularity of elections.] + +[Sidenote: Influence of the crown upon them.] + +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.[283] 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.[284] 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,[285] 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.[286] 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.[287] Thus also that +of Henry VI., held at Coventry in 1460, wherein the duke of York and his +party were attainted, is said to have been unduly returned by the like +means. This is rendered probable by a petition presented to it by the +sheriffs, praying indemnity for all which they had done in relation +thereto contrary to law.[288] 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.[289] 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.[290] + +[Sidenote: Constitution of the house of lords.] + +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.[291] 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 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,[292] may be dimly traced to the latter +years of Edward III.[293] 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. + +[Sidenote: Baronial tenure required for lords spiritual.] + +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.[294] 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 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.[295] Their want of baronial +tenure, in all probability, prevented the repetition of writs which +accident or occasion had caused to issue.[296] + +[Sidenote: Barons called by writ.] + +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.[297] 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. They even sat after the death of their wives, as +tenants by the courtesy.[298] 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.[299] 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.[300] + +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 _caeteris_ praelatis, 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, 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 haeredes +vestros masculos de corpore vestro legitime exeuntes barones de Vescy +existere. But this Sir Henry de Bromflete was the lineal heir of the +ancient barony de Vesci.[301] 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.[302] 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.[303] 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,[304] and has since been too fully established by +repeated precedents to be shaken by any reasoning. The foregoing +observations relate to the more ancient history of our constitution, +and to the plain matter of fact as to those times, without considering +what political cause there might be to prevent the crown from +introducing occasional counsellors into the house of lords.[305] + +[Sidenote: Bannerets summoned to house of lords.] + +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.[306] 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 haec 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.[307] 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.[308] But they seem to have been more highly +estimated at the date of this writ. + +The distinction, however, between barons and bannerets died away by +degrees. In the 2nd of Henry VI.[309] 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.[310] 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.[311] + +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 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 caeteris de consilio nostro, and their names are entered +after those of the peers.[312] 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.[313] +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 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;[314] 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.[315] + +[Sidenote: Creation of peers by statute.] + +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 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.[316] 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.[317] 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.[318] Henry V. created his +brothers dukes of Bedford and Gloucester by request of the lords and +commons.[319] 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.[320] + +[Sidenote: And by patent.] + +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. 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.[321] + +[Sidenote: Clergy summoned to attend parliament.] + +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 praemunientes (from its first word) in the writ to each +bishop proceeds from the crown, and enjoins the attendance of the clergy +at the national council of parliament.[322] + +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.[323] They preceded, therefore, by a few +years the house of commons; but the introduction of each was founded +upon the same principle. The king required the clergy's money, but +dared not take it without their consent.[324] 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 praemunientes clause in +the 22nd, 23rd, 24th, 28th, and 35th years of the same king; but in some +other parliaments of his reign the praemunientes clause is omitted.[325] +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.[326] + +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.[327] 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 praemunientes +clause; since the province of Canterbury could not have been present in +convocation at a city beyond its limits.[328] 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.[329] They are +summoned in the earliest year extant (23 E. I.) ad tractandum, +ordinandum et faciendum nobiscum, et cum caeteris praelatis, 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, quae 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.[330] 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.[331] + +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 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. + +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.[332] 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 alone of the province of Canterbury to +be intended.[333] 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;[334] 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 praemunientes clause +or otherwise, deserve some notice in a constitutional history. + +In the sixth year of Edward III. the proctors of the clergy are +specially mentioned as present at the speech 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.[335] 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.[336] +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 be granted till he and his council should +have considered whether it would turn to the prejudice of the lords or +commons.[337] + +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.[338] 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."[339] 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.[340] + +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.[341] If the clergy of +both provinces were actually present, as is here asserted, it must of +course have been as a house of parliament, and not of convocation. It +rather seems, so far as we can trust to the phraseology of records, +that the clergy sat also in a national assembly under the king's writ in +the second year of the same king.[342] 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.[343] 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 so as to pass into statutes, +unless approved by the convocation.[344] But, on the other hand, +scarcely any temporal laws appear to have passed by the concurrence of +the clergy. Two instances only, so far as I know, are on record: the +parliament held in the eleventh of Richard II. is annulled by that in +the twenty-first of his reign, "with the assent of the lords spiritual +and temporal, _and the proctors of the clergy_, and the commons;"[345] +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.[346] Both these were stronger exertions of legislative +authority than ordinary acts of parliament, and were very likely to be +questioned in succeeding times. + +[Sidenote: Jurisdiction of the king's council.] + +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.[347] 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 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.[348] + +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. + +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, 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.[349] 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."[350] This unsatisfactory answer proves the arbitrary spirit in +which Richard was determined to govern. + +The judicial power of the council was in some instances founded upon +particular acts of parliament, giving it power to hear and determine +certain causes. Many petitions 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 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."[351] This was repeated in a short act of the +twenty-eighth of his reign;[352] 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.[353] 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 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.[354] 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.[355] + +Such was the nature of the king's ordinary council in itself, as the +organ of his executive sovereignty, and such the jurisdiction which it +habitually exercised. But it is also to be considered in its relation +to the parliament, during whose session, either singly or in conjunction +with the lords' house, it was particularly conspicuous. The great +officers of state, whether peers or not, the judges, the king's +serjeant, and attorney-general, were, from the earliest times, as the +latter still continue to be, summoned by special writs to the upper +house. But while the writ of a peer runs ad tractandum nobiscum et cum +caeteris praelatis, magnatibus et proceribus, that directed to one of the +judges is only ad tractandum nobiscum et cum caeteris de consilio nostro; +and the seats of the latter are upon the woolsacks at one extremity of +the house. + +In the reigns of Edward I. and 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.[356] + +But from the beginning of Edward III.'s reign it seems that the council +and the lords' house in parliament were often blended together into one +assembly. This was denominated the great council, being the lords +spiritual and temporal, with the king's ordinary council annexed to +them, as a council within a council. And even in much earlier times the +lords, as hereditary counsellors, were, either whenever they thought fit +to attend, or on special summonses by the king (it is hard to say +which), assistant members of this council, both for 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."[357] 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. + +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. 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.[358] + +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.[359] Another indubitable branch +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. + +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.[360] 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.[361] But their influence upon +the balance 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. + +[Sidenote: General character of the government in these ages.] + +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. + +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, the +testimony of historians and lawyers, before we could assert that England +acquiesced in those abuses and oppressions which it must be confessed +she was unable fully to prevent. + +The word prerogative is of a peculiar import, and scarcely understood by +those who come from the studies of political philosophy. We cannot +define it by any theory of executive functions. All these may be +comprehended in it; but also a great deal more. It is best, perhaps, to +be understood by its derivation, and has been said to be that law in +case of the king which is law in no case of the subject.[362] 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. + +[Sidenote: Purveyance.] + +The real prerogatives that might formerly be exerted were sometimes of +so injurious a nature, that we can hardly separate them from their +abuse: a striking instance is that of purveyance, which will at once +illustrate the definition above given of a prerogative, the limits +within which it was to be exercised, and its tendency to transgress +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.[363] 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. + +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 assistance.[364] 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.[365] + +[Sidenote: Abuses of feudal rights.] + +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. + +[Sidenote: Forest laws.] + +The charter of the forests, granted by Henry III. along with Magna +Charta,[366] 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.[367] The foresters, I suppose, might find a +compensation for their want of the common law in that easy and +licentious way of life which they affected; but the 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. + +[Sidenote: Jurisdiction of constable and marshal.] + +The constable and marshal of England possessed a jurisdiction, the +proper limits whereof were sufficiently narrow, as it seems, to have +extended only to appeals of treason committed beyond sea, 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.[368] 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 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.[369] + +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.[370] 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.[371] + +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 +Angliae, so explicit and weighty, that no writer on the English +constitution can be excused from inserting it. This eminent person, +having been chief justice of the King's Bench under Henry VI., was +governor to the young prince of Wales during his retreat in France, and +received at his hands the office of chancellor. It must never be +forgotten that, in a 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. + +[Sidenote: Sir John Fortescue's doctrine as to the English +constitution.] + +"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 afford, both to yourself and subjects, the +greatest security and satisfaction."[372] + +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."[373] + +[Sidenote: Erroneous views taken by Hume.] + +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.[374] But these, corroborated as they are by the statute-book +and by the rolls of parliament, are surely conclusive against the +notions which pervade Mr. Hume's History. I have already remarked that a +sense of the glaring prejudice by which some Whig writers had been +actuated, in representing the English constitution from the earliest +times as nearly arrived at its present 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.[375] 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.[376] + +[Sidenote: Instances of illegal condemnation rare.] + +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.[377] The 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[378] 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 confession. +The proceedings against Sir John Mortimer in the 2nd of Henry VI.[379] +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. + +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 but a mockery of popular +privileges, hardly recognised in theory, and never regarded in +effect.[380] + +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. + +[Sidenote: Causes tending to form the constitution.] + +By what means the English acquired and preserved this political liberty, +which, even in the fifteenth century, was the admiration of judicious +foreigners,[381] 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 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,[382] 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. + +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 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. + +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 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. + +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! + +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 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. + +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 repaired to their satisfaction; saving our person, and +our queen and children. And when it shall be repaired they shall obey us +as before."[383] 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. + +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.[384] + +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 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. + +[Sidenote: Influence which the state of manners gave the nobility.] + +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, 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.[385] Even proceedings in courts of justice were often liable +to intimidation and influence.[386] 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.[387] + +[Sidenote: Prevalent habits of rapine.] + +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,[388] 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.[389] Highway robbery was from the earliest 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,"[390] it may be perceived +how thoroughly these sentiments had pervaded the public mind. + +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.[391] Nor 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."[392] + +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 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.[393] +The last provision indicates that the robbers plundered the country in +formidable bands. One of these, in a subsequent part of Edward's reign, +burned the town of Boston during a fair, and obtained a vast booty, +though their leader had the ill fortune not to escape the gallows. + +The preservation of 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.[394] 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.[395] Such a jurisdiction was hardly more arbitrary +than, in a free and civilized age, it has been thought fit to vest in +magistrates; but it was ill endured by a people who placed their notions +of liberty in personal exemption from restraint rather than any +political theory. An act having been passed (2 R. II. stat. 2, c. 6), in +consequence of unusual riots and outrages, enabling magistrates to +commit the ringleaders of tumultuary assemblies without waiting for +legal process till the next arrival of justices of 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.[396] So sensitive +was their jealousy of arbitrary imprisonment, that they preferred +enduring riot and robbery to chastising them by any means that might +afford a precedent to oppression, or weaken men's reverence for Magna +Charta. + +There are two subjects remaining to which this retrospect of the state +of manners naturally leads us, and which I would not pass unnoticed, +though not perhaps absolutely essential to a constitutional history; +because they tend in a very 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. + +[Sidenote: Villenage of the peasantry. Its nature and gradual +extinction.] + +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.[397] If a villein +purchased or inherited land, the lord might seize it; if he accumulated +stock, its possession was equally precarious. Against his lord he had no +right of action; because his indemnity in damages, if he could have +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 probanda, 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.[398] + +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."[399] 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.[400] + +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.[401] 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.[402] 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 were secure from seizure, his person from +injury, and he might leave the land whenever he pleased.[403] + +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.[404] 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. + +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. + +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 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. + +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.[405] Some of these, perhaps, might be villeins by blood; but free +tenants in villenage were still more likely to obtain this precision in +their services; and from claiming a customary right to be entered in the +court-roll upon the same terms as their predecessors, prevailed at +length to get copies of it for their security.[406] 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."[407] 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.[408] +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. + +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, 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.[409] 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.[410] 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.[411] + +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 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.[412] + +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 +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.[413] + +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.[414] + +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. + +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;[415] 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 probanda +that the party's father was born in the county of Kent.[416] + +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,[417] 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."[418] Riots were turned into treason by a law of +the same parliament.[419] 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.[420] 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.[421] + +From henceforward we find little notice taken of villenage in +parliamentary records, and there seems to have been a rapid tendency to +its entire abolition. But the fifteenth century is barren of materials; +and we can only infer that, as the same causes which in 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. + +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.[422] So in the twelfth of +Edward III. certain of the king's villeins are enfranchised on payment +of a fine.[423] 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;[424] and perhaps a commission of the +latter princess in 1574, directing the enfranchisement of her bondmen +and bondwomen on certain manors upon payment of a fine, is the last +unequivocal testimony to the existence of villenage;[425] though it is +highly probable that it existed in remote parts of the country some time +longer.[426] + +[Sidenote: Reign of Henry VI.] + +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. + +[Sidenote: Historical instances of regencies:] + +[Sidenote: during the absence of our kings in France;] + +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.[427] 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;[428] and Richard his son, when still +younger, in 1372, during Edward III.'s last expedition into France.[429] + +[Sidenote: at the accession of Henry III.;] + +[Sidenote: of Edward I.;] + +[Sidenote: of Edward III.;] + +[Sidenote: of Richard II.;] + +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.[430] 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 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.[431] 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.[432] 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.[433] 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 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. + +[Sidenote: of Henry VI.] + +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.[434] 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." 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."[435] A few more councillors were added by the next +parliament, and divers regulations established for their +observance.[436] + +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[437] "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 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 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."[438] + +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 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. + +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.[439] 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. + +[Sidenote: Henry's mental derangement.] + +[Sidenote: Duke of York made protector.] + +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 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 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.[440] + +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.[441] 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,[442] 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."[443] The +archbishop of Canterbury answered for the lords that they would take +into consideration what the commons had suggested. Two days 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."[444] + +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 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. + +[Sidenote: Duke of York's claim to the crown.] + +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.[445] From this time the duke of +York, next heir in presumption while the king was childless, might +innocently contemplate the prospect of royalty; and when such ideas had +long been passing through his mind, 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;[446] 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. + +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 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.[447] 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.[448] 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." + +[Sidenote: War of the Lancastrians and Yorkists.] + +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 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.[449] 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.[450] 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,[451] +and might justly convince reflecting men that it were better to risk +the chances of a new dynasty than trust the kingdom to an exasperated +faction. + +[Sidenote: Edward IV.] + +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.[452] 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. + +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,[453] 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."[454] 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. + +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 +influence of Warwick, and compelled Henry VII. to treat his memory with +respect, and acknowledge him as a lawful king.[455] 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.[456] Many indeed of these lands had been +restored, and others lavished away in grants, but the surplus revenue +must still have been considerable. + +Edward IV. was the first who practised a new method of taking his +subjects' money without consent of parliament, under the plausible name +of benevolences. These came in place of the still more plausible loans +of former monarchs, and were principally levied on the wealthy traders. +Though no complaint appears in the parliamentary records of 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."[457] 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.[458] 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.[459] +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. + +[Sidenote: Conclusion.] + +At this epoch I terminate these inquiries into the English constitution; +a sketch very imperfect, I fear, and 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 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. + + +FOOTNOTES: + +[1] 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. + +[2] Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73. + +[3] Edward would not confirm the charters, notwithstanding his promise, +without the words, salvo jure coronae nostrae; 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. + +[4] 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. + +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. + +[5] 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. + +[6] Hody, p. 128. + +[7] [Note I.] + +[8] 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. + +In Rymer's Foedera, 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. + +[9] Selden's Works, vol. iii. p. 713-743. + +[10] Lyttelton's Henry II. vol. ii. p. 212. + +[11] Hody on Convocations, p. 222, 234. + +[12] Lib. ii. c. 9. + +[13] 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. + +[14] [Note II.] + +[15] M. Paris, p. 785. The barons even tell the king that this was +contrary to _his_ charter, in which nevertheless the clause to that +effect, contained in his father's charter, had been omitted. + +[16] 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. + +[17] 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. + +[18] Hody on Convocations, p. 293. + +[19] Brady, Introduction to History of England. Appendix, p. 43. + +[20] Brady's History of England, vol. i. Appendix, p. 182. + +[21] Brady's Introduction, p. 94. + +[22] Hist. of Common Law, vol, i. p. 202. + +[23] 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 _verbatim_; 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 +_in_) singulis totius patriae comitatibus. This might be construed of the +king's selection; but perhaps the common interpretation is rather the +better. + +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 compatriotae, 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. + +[24] 2 Prynne's Register, p. 16. + +[25] 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. + +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. + +[26] Brady's Hist. of England, vol. i. Appendix, p. 227. + +[27] 2 Prynne, p. 23. + +[28] "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. + +[29] 2 Prynne, p. 27. + +[30] 12 Ric. II. c. 12. Prynne's 4th Register. + +[31] Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law +was not regularly acted upon till 1587. p. 368. + +[32] What can one who adopts this opinion of Dr. Brady say to the +following record? Rex militibus, liberis hominibus, et _toti +communitati_ comitatus Wygorniae 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 coronae nostrae +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. + +[33] Madox, Firma Burgi, p. 99 and p. 102 note Z. + +[34] Prynne's 2nd Register, p. 50. + +[35] Carte's Hist. of England, ii. 250. + +[36] The present question has been discussed with much ability in the +Edinburgh Review, vol. xxvi. p. 341. [Note III.] + +[37] Wilkins, p. 71. + +[38] Burgensis Exoniae urbis habent extra civitatem terram duodecim +carucatarum: quae 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. + +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. + +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 Angliae, et gildam suam mercatoriam de +hominibus civitatis et de aliis mercatoribus comitatus, sicut illam +habuerunt tempore predictorum, antecessorum nostrorum, regum Angliae, +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 +Angliae. Rymer, t. i. p. 40 (edit. 1816). + +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. [Note IV.] + +[39] Madox, Hist. of Exchequer, c. 17. + +[40] 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. + +[41] Madox, p. 12, 13. + +[42] Id. p. 21. + +[43] 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. + +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 +_dapifer regis_; but he is not so named in the charter. Dugdale's +Baronage, p. 132. The date, therefore, still seems problematical. + +[44] 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. + +[45] 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. + +[46] 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 orae (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. + +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. + +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. + +[47] See a grant from Turstin, archbishop of York, in the reign of Henry +I., to the burgesses of Beverley, that they may have their _hanshus_ +(i.e. guildhall) like those of York, et ibi sua statuta pertractent ad +honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816. + +[48] Madox, Firma Burgi, p. 189. + +[49] Idem, passim. A few of an earlier date may be found in the new +edition of Rymer. + +[50] Lyttelton's History of Henry II., vol. ii. p. 170. Macpherson's +Annals of Commerce, vol. i. p. 331. + +[51] Macpherson, p. 245. + +[52] Id. p. 282. + +[53] Cives Lundinenses, et pars nobilium qui eo tempore consistebant +Lundoniae, Clitonem Eadmundum unanimi consensu in regem levavere. p. 249. + +[54] 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. + +[55] Londinenses, qui sunt quasi optimates pro magnitudine civitatis in +Anglia. 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. + +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, a tempore quo Roma primo fundata fuit, et +civitatem Lundoniae, eodem tempore fundatam, talem debere habere +libertatem per totam Angliam, et ratione civitatis privilegiatae quae 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. + +[56] 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 a 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. + +The subsidy-roll of 1377, published in the Archaeologia, 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. [Note V.] + +[57] 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. + +[58] 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 +Angliae eadem die intraverunt Londonias; et in crastino praedictus +Johannes frater regis, et archiepiscopus Rothomagensis, et omnes +episcopi, et comites et barones, et cives Londonienses cum illis +convenerunt in atrio ecclesiae 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. + +[59] 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. + +[60] 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 +ultimae 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. + +[61] 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 caeteris burgis Angliae. 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. + +[62] 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. [Note VII.] + +[63] Madox, Hist. of Exchequer, c. 17. + +[64] 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, _ac nobiles portuum maris habitatores_, +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. + +[65] Thus Matthew Paris tells us that in 1237 the whole kingdom, regni +totius universitas, repaired to a parliament of Henry III. p. 367. + +[66] Brady's Introduction to Hist. of England, p. 38. + +[67] Convocatis universis Angliae 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. + +[68] Hoc anno ... convenerunt archiepiscopi, episcopi, comites et +barones, abbates et priores, et de quolibet comitatu quatuor milites, et +de qualibet 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. + +[69] The statute of Marlebridge is said to be made convocatis +discretioribus, tam majoribus quam 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. + +[70] Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. p. +257. + +[71] 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. + +"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. + +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 a Acton Burnell, and again mentions l'avant +dit statut fait a Acton Burnell. This seems to afford a voucher for what +is said in my text, which has been controverted by a learned +antiquary.[*] It 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. + +* Archaeological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne. + +[72] [Note VI.] + +[73] Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist. +of Hen. II. vol. iv. p. 89. + +[74] 6 Ric. II. stat. 2, c. iv. + +[75] Rot. Parl. vol. iv. p. 22. + +[76] 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 Scotiae Willelmus +magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt +se daturos decem mille marcas: praeter 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. + +[77] [Note VII.] + +[78] 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. + +[79] 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. + +[80] 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. + +[81] 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great +council), p. 48. + +[82] Brady's Hist. of England, vol. ii. p. 40; Parliamentary History, +vol. i. p. 206; Rot. Parl. t. ii. p. 66. + +[83] Carte, vol. ii. p. 451; Parliamentary History, vol. i. p. 234. + +[84] Rot. Parl. vol. i. p. 289. + +[85] Id. p. 430. + +[86] Id. vol. ii. p. 7. + +[87] Id. p. 289, 351, 430. + +[88] Id. p. 5. + +[89] Id. p. 86. + +[90] Rot. Parl. vol. i. p. 285. + +[91] 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. + +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. + +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. + +[92] 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. + +[93] Prynne's 2nd Register, p. 68. + +[94] Id. p. 75. + +[95] Madox, Firma Burgi, p. 6; Rot. Parl. vol. i. p. 449. + +[96] Rot. Parl. vol. i. p. 430. + +[97] 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. + +[98] Rot. Parl. vol. i. p. 281. + +[99] 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 +grante de notre franche volonte, par nos lettres ouvertes aux prelatz, +countes, et barons, _et communes de dit roiaume_, qu'ils puissent eslire +certain persones des prelatz, comtes, et barons, &c. Rot. Parl. i. 281. +The inference therefore of the committee seems erroneous. [Note VIII.] + +[100] "La commonaltee" seems in this place to mean the tenants of land, +or commons of the counties, in contradistinction to citizens and +burgesses. + +[101] 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. + +[102] Rot. Parl. vol. ii. p. 104. + +[103] Id. + +[104] Rot. Parl. vol. ii. p. 161. + +[105] 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. + +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. + +[106] Rot. Parl. p. 160. + +[107] p. 161, 166, 201. + +[108] 25 E. III. stat. v. c. 8. + +[109] Rot. Parl. vol. ii. p. 366. + +[110] Prynne's 4th Register, p. 289. + +[111] Rot. Parl. p. 304. + +[112] 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. + +[113] 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. + +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. + +[114] Rot. Parl. p. 239. + +[115] Rot. Parl. p. 113. + +[116] p. 280. + +[117] "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. + +[118] 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. + +[119] Rot. Parl. ii. 206. + +[120] Rot. Parl. ii 253, 257. + +[121] Id. p. 131. + +[122] Rot. Parl. ii. p. 128. + +[123] 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. + +[124] 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 +(rancon) 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. + +[125] Rymer, t. v. p. 165. + +[126] p. 148. + +[127] 21 E. III. p. 165. + +[128] 28 E. III. p. 261. + +[129] 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. + +[130] Rymer, p. 269. + +[131] p. 114. + +[132] p. 304. + +[133] 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. + +[134] Rymer, p. 322. + +[135] Rymer, p. 322. + +[136] p. 329. + +[137] Anonym. Hist. Edw. III. ad calcem Hemingford, p. 444, 448. +Walsingham gives a different reason, p. 192. + +[138] 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. + +[139] 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. + +[140] Rot. Parl. vol. ii. p. 374. + +[141] vol. iii. p. 12. + +[142] Rot. Parl. vol. iii. p. 12 + +[143] Rot. Parl. p. 35-38. + +[144] Id. p. 57. + +[145] See p. 47 of this volume. + +[146] 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. + +[147] 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. + +[148] Rot. Parl. 5 R. II. p. 100. + +[149] Rot. Parl. 5 R. II. p. 104. + +[150] 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. + +[151] Walsing. p. 290, 315, 317. + +[152] Rot. Parl. 5 R. II. p. 100; 6 R. II. sess. 1, p. 134. + +[153] p. 145. + +[154] Rot. Parl. 9 R. II. p. 209. + +[155] 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. + +[156] Knyghton, in Twysden x. Script. col. 2680. + +[157] 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. + +[158] Rot. Parl. vol. iii. p. 219. + +[159] 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. + +[160] Rot. Parl. p. 221. + +[161] Rot. Parl. p. 281. + +[162] 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. + +[163] Rot. Parl. 14 R II. p. 279; 15 R. II. p. 286. + +[164] Rot. Parl. 13 R. II. p. 258. + +[165] 17 R. II. p. 313. + +[166] Rymer, t. vii. p. 583, 659. + +[167] 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. + +[168] 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. + +[169] 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 volonte 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. + +[170] 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. + +[171] Rot. Parl, 21 R. II. p. 347. + +[172] 21 R. II. p. 369. + +[173] 13 R. II. p. 256. + +[174] 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 minime expeditas. Cujus concessionis +colore personae sic deputatae processerunt ad alia generaliter +parliamentum illud tangentia; et hoc de voluntate regis; in derogationem +status 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 praedictae. 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. + +[175] Rot. Parl. p. 372, 385. + +[176] 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. + +[177] Rot. Parl. 1 H. IV. p. 420, 426; Walsingham, p. 353, 357; +Otterburn, p. 199; Vita Ric. II. p. 147. + +[178] 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. + +[179] Rot. Parl. p. 423. + +[180] 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. + +[181] 2 R. II. p. 56. + +[182] 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. + +[183] 2 R. II. p. 62. This did not find its way to the statute-book. + +[184] Rymer, t. vii. p. 544. + +[185] 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. + +[186] Rymer, t. viii. p. 412, 488. + +[187] Rot. Parl. vol. iv. p. 216. + +[188] Id. p. 301. + +[189] Id. p. 302. + +[190] Id. vol. iii. p. 546. + +[191] Id. p. 568. + +[192] Rot. Parl. vol. iii. p. 453. + +[193] Id. vol. iv. p. 63. + +[194] Walsingham, p. 379. + +[195] 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. + +[196] 15 R. II. p. 285. See, too, 16 R. II. p. 301, where the same power +is renewed in H. IV.'s parliaments. + +[197] 13 H. IV. p. 643. + +[198] Rot. Parl. v. 4 H. V. p. 6, 9. + +[199] 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. + +[200] 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. + +[201] p. 626. + +[202] 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 _by the king and peers of the +realm_. 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. + +[203] Rot. Parl. vol iii. p. 102. + +[204] 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. + +[205] 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. + +[206] 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. + +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 communaute 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. + +[207] 8 H. V. vol. iv. p. 127. + +[208] 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. + +[209] 5 H. IV. p. 505. + +[210] Rot. Parl. vol. iii. p. 529, 568, 573. + +[211] p. 547. + +[212] 13 H. IV. p 624. + +[213] Rot. Parl. 8 H. IV. p. 585. + +[214] 13 H. IV. p. 648, 658. + +[215] Rot. Parl. vol. iii. p. 549, 568, 574, 611. + +[216] 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. + +[217] Rot. Parl. 8 H. V. vol. iv. p. 125. + +[218] p. 128. + +[219] p. 130. + +[220] 7 R. II. vol. iii. p. 170. + +[221] p. 215. + +[222] 7 R. II. p. 315. + +[223] 4 H. V. vol. iv. p. 98. + +[224] p. 135. + +[225] Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277. + +[226] p. 371. + +[227] 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. + +[228] Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343. + +[229] vol. v. 18 H. VI. p. 17. + +[230] 28 H. VI. p. 185. + +[231] Rot. Parl. vol. iii. p. 430, 449. + +[232] Rot. Parl. 28 H. VI. vol. v. p. 176. + +[233] 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. + +[234] Hatsell, vol. i. p. 12. + +[235] Rot. Parl. 5 H. IV. p. 541. + +[236] 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. + +[237] Rot. Parl. vol. iv. p. 357. + +[238] vol. v. p. 374. + +[239] Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29. + +[240] Upon this subject the reader should have recourse to Hatsell's +Precedents, vol. i. chap. 1. + +[241] 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. + +[242] This parliament sat at Gloucester. + +[243] Rot. Parl. vol. iii. p. 611. + +[244] 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 Angliae rite et debite convocatos, videlicet per prelatos et +clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508. + +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. + +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. + +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. + +[245] Rot. Parl. vol. iii. p. 623. + +[246] Rot. Parl. 5 R. II. p. 100. + +[247] Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7. + +[248] 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 _ne le roy_ 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. + +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. + +[249] Rot. Parl. vol. iii. p. 244. + +[250] Coke's 4th Institute, p. 15. + +[251] Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12. + +[252] 4 Prynne, p. 261. + +[253] Glanvil's Reports, ibid. from Prynne. + +[254] Glanvil's Reports, ibid. from Prynne. + +[255] Id. ibid. and Rot. Parl. vol. iii. p. 530. + +[256] Rot. Parl. vol. v. p. 7. + +[257] 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. + +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. + +[258] 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 _real_ 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. + +[259] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in +Peckwell's Reports, vol. i. p. 178. + +[260] Littleton, s. 162, 163. + +[261] Brady, p. 97. + +[262] 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. + +[263] Willis, Notitia Parliamentaria, vol. i. preface, p. 35. + +[264] p. 117. + +[265] 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_l._ 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. + +[266] 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. + +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. + +[267] 3 Prynne, p. 165. + +[268] 4 Prynne, p. 317. + +[269] 4 Prynne, p. 320. + +[270] 3 Prynne, p. 241. + +[271] 5 R. II. stat. ii. c. 4. + +[272] 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. + +[273] 3 Prynne, p. 252. + +[274] 3 Prynne, p. 257, de assensu totius communitatis praedictae +elegerunt R. W.; so in several other instances quoted in the ensuing +pages. + +[275] 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. + +[276] Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p. +224, &c. + +[277] 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. + +[278] Rot. Parl. vol. ii. p. 310. + +[279] Rot. Parl. 1 H. V. c. 1. + +[280] 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. + +[281] 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. + +[282] 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. + +[283] Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii. + +[284] Prynne's third Register, p. 171. + +[285] 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. + +[286] Vita Ricardi II. p. 85. + +[287] 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. + +[288] Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367. + +[289] Prynne's second Reg. p. 450. + +[290] vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243. + +[291] 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. + +[292] 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. + +[293] 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. + +[294] Prynne, p. 142, &c.; West's Inquiry. + +[295] Prynne, p. 141. + +[296] 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. + +[297] 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 _homagio_ 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 _ligeantia_, till the +46th of Edw. III. Prynne's first Register, p. 206. + +[298] Collins's Proceedings on Claims of Baronies, p. 24 and 73. + +[299] 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. + +[300] 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. [Note IX.] + +[301] 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. + +[302] Lord Abergavenny's case, 12 Coke's Reports; and Collins's +Proceedings on Claims of Baronies by Writ, p. 61. + +[303] 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. + +[304] 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. + +[305] 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, _arguendo_, "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. + +[306] Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol. +iv. p. 374. Rymer, t. vii. p. 161. + +[307] 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. + +[308] Puis un fut chalenge 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. + +[309] Rot. Parl. vol. iv. p. 201. + +[310] Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365. + +[311] 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. + +[312] 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 caeteris. 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. + +[313] 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 _banneret_ 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. + +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. + +[314] Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio edit). + +[315] Rot. Parl. vol. iii. p. 427. + +[316] Rot. Parl. vol. ii. p. 290. + +[317] vol. iii. p. 209. + +[318] Id. p. 263, 264. + +[319] vol. iv. p. 17. + +[320] Id. p. 401. + +[321] 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. + +[322] Hody's History of Convocations, p. 12. Dissertatio de antiqua et +moderna Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia, +t. 1. + +[323] 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. + +[324] Hody, p. 381; Atterbury's Rights of Convocations, p. 221. + +[325] Hody, p. 386; Atterbury, p. 222. + +[326] Hody, p. 391. + +[327] Gilbert's Hist. of Exchequer, p. 47. + +[328] Rot. Parl. vol. i. p. 189; Atterbury, p. 229. + +[329] 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. + +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. + +[330] Hody, p. 392. + +[331] The praemunientes 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. + +[332] 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. + +[333] 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 praemunientes 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. + +[334] Atterbury, p. 46. + +[335] Rot. Parl. vol. ii. p. 64, 65. + +[336] 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. + +[337] Rot. Parl. vol. ii. p. 151. + +[338] 25 E. III. stat. 3. + +[339] p. 368. The word _they_ is ambiguous; Whitelocke (on Parliamentary +Writ, vol. ii. p. 346) interprets it of the commons: I should rather +suppose it to mean the clergy. + +[340] 50 E. III. c. 4 & 5. + +[341] 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. + +[342] Rot. Parl. vol. iii. p. 37. + +[343] 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 _because the estate of +clergy had not been present thereat_, 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 praelati _et clerus utriusque provinciae Cantuar' +et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus +interessendi in singulis parliamentis_ domini nostri regis et regni +Angliae pro tempore celebrandis, necnon tractandi et expediendi in eisdem +quantum ad singula in instanti parliamento pro statu et honore domini +nostri regis, necnon regaliae suae, ac quiete, pace, et tranquillitate +regni judicialiter justificandis, venerabili viro domino Thomae 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 provinciae. +Rot. Parl. vol. iii. p. 348. + +[344] Atterbury. p. 346. + +[345] 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led +me to this act, which I had overlooked. + +[346] Rot. Parl. vol. iii. p. 582. Atterbury, p. 61. + +[347] 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. + +[348] The words "privy council" are said not to be used till after the +reign of Henry VI.; the former style was "ordinary" or "continual +council." But a distinction had always been made, according to the +nature of the business: the great officers of state, or, as we might now +say, the ministers, had no occasion for the presence of judges or any +lawyers in the secret councils of the crown. They become, therefore, a +council of government, though always members of the _consilium +ordinarium_; and, in the former capacity, began to keep formal records +of their proceedings. The acts of this council though, as I have just +said, it bore as yet no distinguishing name, are extant from the year +1386, and for seventy years afterwards are known through the valuable +publication of Sir Harris Nicolas. + +[349] Rot. Parl. vol. iii. p. 84. + +[350] Ibid. p. 266. + +[351] 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. + +[352] 28 E. III. c. 3. + +[353] 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 +_the council of divers lords and ladies_, 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. + +[354] 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. + +[355] 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, _in which case there is no remedy +unless one is ordered by parliament_, 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 subpoena 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. [Note X.] + +[356] Rot. Parl. vol. i. p. 416. + +[357] L. ii. c. 2. + +[358] [Note XI.] + +[359] 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 o 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." Archaeologia, 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 _in fact_; 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. + +[360] 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. + +[361] Rot. Parl. vol. iii. p. 427. + +[362] Blackstone's Comment. from Finch, vol. i. c. 7. + +[363] 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. + +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. + +[364] Rymer, t. vi. p. 417. + +[365] Idem, t. xi. p. 852. + +[366] 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. + +[367] 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 absolute, sed justum secundum legem forestae dicatur. I +believe my translation of _justum_ is right; for he is not writing +satirically. + +[368] 13 R. II. c. 2. + +[369] Rot. Parl. vol. iii. p. 530. + +[370] 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. + +[371] 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 quae in curia constabularii Angliae ab antiquo, viz. tempore dicti +Gulielmi conquaestoris, seu aliquo tempore citra, tractari, audiri, +examinari, aut decidi consueverunt aut _jure debuerant aut debent_. +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. + +[372] Fortescue, De Laudibus Legum Angliae, c. 9. + +[373] Id. c. 13. + +[374] 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. + +[375] 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 _rude_ 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 _accuracy_, but at a subtle refinement in verbal +logic, which none of his own metaphysical treatises could surpass. + +[376] [Note XII.] + +[377] 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, _licet hoc in regno Angliae +nunquam visum fuerit vel auditum_? Et si torquendi sunt, utrum per +clericos vel laicos? Et dato, quod _nullus omnino tortor inveniri +valeat_ in Anglia, 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.' + +[378] Rot. Parl. vol. iv. p. 65. + +[379] Rot. Parl. vol. iv. p. 202. + +[380] This was written in 1811 or 1812; and is among many passages which +the progress of time has somewhat falsified. + +[381] 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. + +[382] 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. + +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. + +[383] Brady's Hist. vol. i.; Appendix, p. 148. + +[384] Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p. +41. + +[385] 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 _tolled_, 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. + +[386] 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. + +[387] 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. + +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." + +[388] Thus to select one passage out of many: Eodem anno (1332) quidam +maligni, fulti quorundam magnatum praesidio, regis adolescentiam +spernentes, et regnum perturbare intendentes, in tantam turbam +creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori +essent. Walsingham, p. 132. + +[389] 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. + +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. + +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. + +[390] Difference between an Absolute and Limited Monarchy, p. 99. + +[391] 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. + +[392] 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. + +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. + +[393] The statute of Winton was confirmed, and proclaimed afresh by the +sheriffs, 7 R. II. c. 6, after an era of great disorder. + +[394] Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203. + +[395] 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. + +[396] 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. + +[397] Glanvil, 1. v. c. 5. + +[398] 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 terrae 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. [Note XIII.] + +[399] 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 _status +villenagii_, 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. + +[400] Littleton, sect. 189, 190, speaks only of an appeal in the two +former cases; but an indictment is a fortiori; and he says, sect. 194, +that an indictment, though not an appeal, lies against the lord for +maiming his villein. + +[401] 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 probanda, 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. + +[402] [Note XIV.] + +[403] Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172. + +[404] Glanvil, 1. iv. c. 5. + +[405] 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. + +[406] Gurdon on Courts Baron, p. 574. + +[407] 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. + +[408] 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. + +[409] 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. + +[410] 1. v. c. v. + +[411] 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. + +[412] Stat. 23 E. III. + +[413] [Note XV.] + +[414] 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: + + "When Adam delved and Eve span, + Where was then the gentleman?" + +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. + +[415] Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21. + +[416] 30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation +of Kent, p. 632. Somner on Gavelkind, p. 72. + +[417] 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. + +[418] Rot. Parl. vol. iii. p. 100. + +[419] 5 R II. c. 7. The words are, riot et rumour _n'autres semblables_; +rather a general way of creating a new treason; but panic puts an end to +jealousy. + +[420] 12 R. II. c. 3. + +[421] 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 _Upland_ apprenticing their children. + +[422] Blomefield's Norfolk, vol. iii. p. 571. + +[423] Rymer, t. v. p. 44. + +[424] 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. + +[425] Barrington, ubi supra, from Rymer. + +[426] 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. + +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. + +[427] 8 H. V. c. 1. + +[428] This prince having been sent to Antwerp, six commissioners were +appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107. + +[429] Rymer, t. vi. p. 748. + +[430] Matt. Paris, p. 243. + +[431] Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1. + +[432] Rot. Parl vol. ii. p. 52. + +[433] Rymer, t. vii. p. 171. + +[434] Rot. Parl. vol. iv. p. 169. + +[435] Rot. Parl. vol. iv. p. 174, 176. + +[436] Ibid. p. 201. + +[437] 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. + +[438] Rot. Parl. 6 H. VI. vol. iv. p. 326. + +[439] Rot. Parl. 8 H. VI. vol. iv. p. 336. + +[440] Rot. Parl. vol. v. p. 241. + +[441] 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. + +[442] 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 Archaeologia (xx. 519). The whole +number of the slain was but forty-eight, including, however, several +lords. + +[443] See some account of these in Paston Letters, vol. i. p. 114. + +[444] Rot. Parl. vol. v. p. 284-290. + +[445] Hall, p. 210. + +[446] 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. + +[447] Upon this great question the fourth discourse in Sir Michael +Foster's Reports ought particularly to be read. + +[448] Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736). + +[449] Rot. Parl. vol. v. p. 351. + +[450] 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. + +[451] 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. + +[452] 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. + +[453] 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. + +[454] Rot. Parl. vol. vi. p. 193. + +[455] 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 _de +facto_; 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. + +[456] Difference of Absolute and Limited Monarchy, p. 83. + +[457] Rot. Parl. vol. vi. p. 241. + +[458] 1 R. III. c. 2. + +[459] 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. + + + + +NOTES TO CHAPTER VIII. + +(PART III.) + + +NOTE I. Page 5. + +It 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. + +If we come to constitutional precedents, by which, 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. + +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 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. + +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. + +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 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. + +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.) + + +NOTE II. Page 9. + +The constitution of parliament in this period, antecedent to the Great +Charter, has been minutely and scrupulously investigated by the Lords' +Committee on the Dignity of a Peer in 1819. Two questions may be raised +as to the lay portion of the great council of the nation from the +Conquest to the reign of John:--first, Did it comprise any members, +whether from the counties or boroughs, not holding themselves, nor +deputed by others holding in chief of the crown by knight-service or +grand serjeanty? secondly, Were all such tenants _in capite_ personally, +or in contemplation of law, assisting, by advice and suffrage, in +councils held for the purpose of laying on burthens, or for permanent +and important legislation? + +The former of these questions they readily determine. The committee have +discovered no proof, nor any 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, _de honore_. + +They found more difficulty in the second question. It has generally been +concluded, and I may have taken it for granted in my text, that all +military tenants _in capite_ were summoned, or ought to have been +summoned, to any great council of the realm, whether for the purpose of +levying a new tax, or any other affecting the public weal. The +committee, however, laudably cautious in drawing any positive inference, +have moved step by step through this obscure path with a circumspection +as honourable to themselves as it renders their ultimate judgment worthy +of respect. + +"The council of the kingdom, however composed (they are adverting to the +reign of Henry I.), must have been assembled by the king's command; and +the king, therefore, may have assumed the power of selecting the persons +to whom he addressed the command, especially if the object of assembling +such a council was not to impose any burthen on any of the subjects of +the realm exempted from such burthens except by their own free grants. +Whether the king was at this time considered as bound by any +constitutional law to address such command to any particular persons, +designated by law as essential parts of such an assembly for all +purposes, the committee have been unable to ascertain. It has generally +been considered as the law of the land that the 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.) + +Though I do not perceive why we should assume any great subdivision of +tenures before the statute of _Quia Emptores_, 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 _in capite_ +(more numerous in Domesday than they perhaps were aware) a right to +assist at great councils. Still, as it is manifest from the early +charters, and explicitly admitted by the committee, that the king could +raise no extraordinary contribution from his 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 entitled to a voice, be it through general or special +summons, in the imposition of taxes which they were to pay. It will not +follow that they were summoned, or had an acknowledged right to be +summoned, on the few other occasions when legislative measures were in +contemplation, or in the determinations taken by the king's great +council. This can only be inferred by presumptive proof or +constitutional analogy. + +The eleventh article of the Constitutions of Clarendon in 1164 declares +that archbishops, bishops, and all persons of the realm who hold of the +king _in capite_, possess their lands as a barony, and are bound to +attend in the judgments of the king's court like other barons. It is +plain, from the general tenor of these constitutions, that "universae +personae regni" must be restrained to ecclesiastics; and the only words +which can be important in the present discussion are "sicut barones +caeteri." "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 _tenure per +baroniam_, as has been asserted, the Constitutions of Clarendon do not +assist to ascertain." (p. 45.) But this, as they point out, involves +the question whether the _Curia Regis_, 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. + +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,[460] 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. + +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 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 quae ad +coronam pertinent; baronias scilicet majores seu minores." (Lib. ii. +cap. 10.) It would be trifling to dispute that the tenant of a _baronia +major_ might be called a _baro major_. And what could the _secundae +dignitatis barones_ at Northampton have been but tenants _in capite_ +holding fiefs by some line or other distinguishable from a superior +class?[461] + +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 _in +capite_ were constitutionally members of the _commune concilium_ of the +realm during the Norman constitution. This _commune concilium_ the +committee distinguish from a _magnum concilium_, 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 this promise in the first year of Henry III. The +privilege of attending on such occasions, though legally general, may +never have been generally exercised. + +The committee seem to have been perplexed about the word _magnates_ +employed in several records to express part of those present in great +councils. In general they interpret it, as well as the word _proceres_, +to include persons not distinguished by the name "_barones_;" a word +which in the reign of Henry III. seems to have been chiefly used in the +restricted sense it has latterly acquired. Yet in one instance, a letter +addressed to the justiciar of Ireland, 1 Hen. III., they suppose the +word _magnates_ to "exclude those termed therein 'alii quamplurimi;' and +consequently to be confined to prelates, earls, and barons. This may be +deemed important in the consideration of many other instruments in which +the word _magnates_ has been used to express persons constituting the +'commune concilium regni.'" But this strikes me as an erroneous +construction of the letter. The words are as follows:--"Convenerunt apud +Glocestriam plures regni nostri magnates, episcopi, abbates, comites, et +barones, qui patri nostro viventi semper astiterunt fideliter et devote, +et alii quamplurimi; applaudentibus clero et populo, &c., publice fuimus +in regem Angliae inuncti et coronati." (p. 77.) I think that _magnates_ +is a collective word, including the "alii quamplurimi." It appears to me +that _magnates_, and perhaps some other Latin words, correspond to the +witan of the Anglo-Saxons, expressing the legislature in general, under +which were comprised those who held 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. + +The result of the whole inquiry into the constitution of parliament down +to the reign of John seems to be--1. That the Norman kings explicitly +renounced all prerogative of levying money on the immediate military +tenants of the crown, without their consent given in a great council of +the realm; this 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. + +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 _in capite_ to be summoned through the sheriff, when an +aid or scutage was to be demanded, will not of itself establish their +right of attending parliament on other occasions. We cannot absolutely +assume any to have been, in a general sense, members of the legislature +except the prelates and the _majores barones_. But who were these, and +how 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 _majores barones_, as already a +determinate rank, that the right is conferred. The extent of property +afforded no definite criterion; at least some baronies, which appear to +have been of the first class, comprehended very few knights' fees: yet +it seems probable that this was the original ground of distinction.[462] + +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 _in capite_ before +either could be levied, but gives the following reason for suspending +this and other articles of king John's charter:--"Quia vero quaedam +capitula in priori carta continebantur, quae gravia et dubitabilia +videbantur, _sicut de scutagiis et auxiliis assidendis_ ... placuit +supra-dictis praelatis et magnatibus ea esse in respectu, quousque +plenius consilium habuerimus, et tunc faciemus plurissime, tam de his +quam de aliis quae occurrerint emendanda, quae 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. + +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 _in +capite_. That these were constitutionally members of the great council, +at least in respect of taxation, has been sufficiently shown; but they +had hitherto come in 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. + + +NOTE III. Page 19. + +The Lords' committee, though not very confidently, take the view of +Brady and Blackstone, confining the electors of knights to tenants _in +capite_. They admit that "the 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. + +The question, as the committee have stated it, will turn on the +character of those who were suitors to the 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, _terrarum domini_; 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 _in +capite_ 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.[463] + +It may, however, be naturally inquired why, if the king's tenants in +chief were exclusively members of the national council before the era of +county representation, they did not retain that privilege; especially if +we conceive, as seems on the whole probable, that the knights chosen in +38 Henry 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 _Confirmatio Chartarum_. 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." + +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 _in capite_ 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 _Quia Emptores_ (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, 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 _Quia Emptores_, 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. + + +NOTE IV. Page 21. + +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 government, +unless when they involve some rights of property. + +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.) + +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 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.[464] The negative evidence extorted out of +Domesday has, therefore, little weight." (p. 313.) + +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,[465] became the first +mayor of London. But he also was nominated by the crown, and remained +twenty-four years in office. In the same year the first sheriffs are +said to have been made (_facti_). 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. + +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 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 Archaeological Journal (p. +273). + +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.] + + +NOTE V. Page 26. + +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 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. + +Even under Henry II., as we find by Fitz-Stephen, the prelates and +nobles had town houses. "Ad haec omnes fere episcopi, abbates, et +magnates Angliae, quasi cives et municipes sunt urbis Lundoniae; sua ibi +habentes aedificia praeclara; ubi se recipiunt, ubi divites impensas +faciunt, ad concilia, ad conventus celebres in urbem evocati, a 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 _cockney_ is not improbably derived from _cocayne_, the name of an +imaginary land of ease and jollity. + +The city of London within the walls was not wholly built, many gardens +and open spaces remaining. And the houses were never more than a single +story above the ground-floor, according to the uniform type of English +dwellings in the twelfth and following centuries. On the other hand, the +liberties contained many inhabitants; the streets were narrower than +since the fire of 1666; and the vast spaces now occupied by warehouses +might have been covered by dwelling-houses. Forty thousand, on the +whole, seems rather a low estimate for these two centuries; but it is +impossible to go beyond the vaguest conjecture. + +The population of Paris in the middle ages has been estimated with as +much diversity as that of London. M. Dulaure, on the basis of the +_taille_ in 1313, reckons the inhabitants at 49,110.[466] But he seems +to have made unwarrantable assumptions where his data were deficient. M. +Guerard, on the other hand (Documens Inedits, 1841), after long +calculations, brings the population of the city in 1292 to 215,861. This +is certainly very much more than we could assign to London, or probably +any European city; and, in fact, his estimate goes on two arbitrary +postulates. The extent of Paris in that age, which is tolerably known, +must be decisive against so high a population.[467] + +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. + + +NOTE VI. Page 32. + +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 +perhaps, more doubtful whether they were chosen by their constituents or +merely summoned as "potentiores." + +The words of the statute of Marlbridge (51 Hen. III.), which are +repeated in French by that of Gloucester (6 Edw. I.), do not satisfy the +committee that there was any representation either of counties or +boroughs. "They rather import a selection by the king of the most +discreet men of every degree" (p. 183). And the statutes of 13 Edw. I., +referring to this of Gloucester, assert it to have been made by the +king, "with prelates, earls, barons, and his council," thus seeming to +exclude what would afterwards have been called the lower house. The +assembly of 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 communaute 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. + +The Lords' committee, I must still incline to think, have gone too far +when they come to the conclusion that, on the whole view of the evidence +collected on the subject, from the 49th of Hen. III. to the 18th of Edw. +I., there seems strong ground for presuming that, after the 49th of Hen. +III., the constitution of the legislative assembly returned generally to +its old course; that the writs issued in the 49th of Henry III., being a +novelty, were not afterwards precisely followed, as far as appears, in +any instance; and that the writs issued in the 11th of Edw. I., "for +assembling two conventions, at York and Northampton, of knights, +citizens, burgesses, and representatives of towns, without prelates, +earls, and barons, were an extraordinary measure, probably adopted for +the occasion, and never afterwards followed; and that the writs issued +in the 18th of Edw. I., for electing two or three knights for each shire +without corresponding writs for election of citizens or burgesses, and +not directly founded on or conformable to the writs issued in the 49th +of Henry III., were probably adopted for a particular purpose, possibly +to sanction one important law [the statute _Quia Emptores_], and because +the smaller tenants in chief of the crown rarely attended the ordinary +legislative assemblies when summoned, or attended in such small numbers +that a representation of them by knights chosen for the whole shire was +deemed advisable, to give sanction to a law materially affecting all the +tenants in chief, and those holding under them" (p. 204). + +The election of two or three knights for the parliament of 18th Edw. I., +which I have overlooked in my text, appears by an entry on the close +roll of that year, directed to the sheriff of Northumberland; and it is +proved from the same roll that similar writs were directed to all the +sheriffs in England. We do not find that the citizens and burgesses were +present in this parliament; and it is reasonably conjectured that, the +object of summoning it being to procure a legislative consent to the +statute _Quia Emptores_, which put an end to the subinfeudation of +lands, the towns were thought to have little interest in the measure. It +is, however, another 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. + +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 years afterwards. This "seems to show, +either that the king's right to tax his demesnes at his pleasure was not +intended to be included in the word tallage in that statute [meaning the +supposed statute _de tallagio non concedendo_], or that the king acted +in contravention of it. But if the king's cities and boroughs were still +liable to tallage at the will of the crown, it may not have been deemed +inconsistent that they should be required to send representatives for +the purpose of granting a general aid to be assessed on the same cities +and boroughs, together with the rest of the kingdom, when such general +aid was granted, and yet should be liable to be tallaged at the will of +the crown when no such general aid was granted" (p. 244). + +If in these later years of Edward's reign the king could venture on so +strong a measure as the imposition of a tallage without consent of those +on whom it was levied, it is less surprising that no representatives of +the commons appear to have been summoned to one parliament, or perhaps +two, in his twenty-seventh year, when some statutes were enacted. But, +as this is merely inferred from the want of any extant writ, which is +also the case in some parliaments where, from other sources, we can +trace the commons to have been present, little stress should be laid +upon it. + +In the remarks which I have offered in these notes on the 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. + + +NOTE VII. Page 35. + +Two considerable authorities have, since the first publication of this +work, placed themselves, one very confidently, one much less so, on the +side of our older lawyers and in favour of the antiquity of borough +representation. Mr. Allen, who, in his review of my volumes (Edinb. Rev. +xxx. 169), observes, as to this point,--"We are inclined, in the main, +to agree with Mr. Hallam," lets us know, two or three years afterwards, +that the scale was tending the 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. + +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 +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." + +I do not know that it is necessary to believe in a properly feudal +_origin_ 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, 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. + +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 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. + + +NOTE VIII. Page 42. + +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), +_by the assent of the whole commonalty of the realm there being_, +unanimously elected the said duke to be guardian of the said kingdom; so +that the said duke and guardian should rule and govern the said realm in +the name and by the authority of the king his 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, _with the assent of the said +commonalty then being at Hereford_. It is plain that these were mere +words of course; for no parliament had been convoked, and no proper +representatives could have been either at Bristol or Hereford. However, +this is a very curious record, inasmuch as it proves the importance +attached to the forms of the constitution at this period. + +The Lords' committee dwell much on an enactment in the parliament held +at York in 15 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 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. + + +NOTE IX. Page 124. + +Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus, +et praelatis," 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 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 _in capite_, +could not, relatively to the rights of the superior order, have been +designedly relinquished. + +The committee wish to get rid of tenure as conferring a right to +summons; they also strongly doubt whether the 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 _majores barones_ 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.) + +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 _majores barones_ had by +prescription, antecedent to any statute or charter, been summoned to +parliament: but this prescription would not be broken by the omission, +through negligence or policy, of an individual tenant by barony in a few +parliaments. The prescription was properly in favour of the class, the +_majores barones_ generally, and as to them it was perfect, extending +itself in right, if not always in fact, to every one who came within its +scope. + +In the Third Report of the Lords' Committee, apparently drawn by the +same hand as the Second, they "conjecture that after the establishment +of the commons' house of parliament as a body by election, separate and +distinct from the lords, all idea of a right to a writ of summons to +parliament by reason of tenure had ceased, and that the dignity of +baron, if not conferred by patent, was considered as derived only from +the king's writ of summons." (Third 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."[468] (p. 33.) + +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 +_majores barones_. Nor will this be much affected by arguments from the +inexpediency or supposed anomaly of permitting the right of sitting as a +peer of parliament to be transferred by alienation. The Lords' committee +dwell at length upon them. And it is true that, in our original feudal +constitution, the fiefs of the crown could not be alienated without its +consent. But when this was obtained, when a barony had passed by +purchase, it would naturally draw with it, as an incident of tenure, the +privilege of being summoned to parliament, or, in language more +accustomed in those times, the obligation of doing suit and service to +the king in his high court. Nor was the alienee, doubtless, to be taxed +without his own consent, any more than another tenant _in capite_. 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.[469] + +If it be asked whether the posterity of a baron aliening the lands which +gave him a right to be summoned to the king's court would be entitled to +the privileges of peerage by nobility of blood, it is true that, +according to Collins, whose opinion the committee incline to follow, +there are 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. + +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' +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 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 _caput baroniae_, or principal +lordship, contained, as it were, the vital principle of the peerage, and +that its owner was the true baron; but this assumption seems uncertain. + +It is not very easy to reconcile this peremptory denial of peerage by +tenure with 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.) + +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 _in capite_; though this is the basis of +the crown's right to escheat, and though lands in common socage, which +the act with a strange confusion opposes to socage _in capite_, were as +much holden of the king or other lord as those by knight-service. +Whether it was 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.[470] + + +NOTE X. Page 142. + +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,[471] 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 of +another note. But he is more prominent when presiding in a separate +tribunal as a single judge. + +The Court of Chancery is not distinctly to be traced under Henry III. +For a passage in Matthew Paris, who says of Radulfus de Nevil--"Erat +regis fidelissimus cancellarius, et inconcussa columna veritatis, +singulis sua jura, praecipue pauperibus, juste reddens et indilate," may +be construed of his judicial conduct in the council. This province +naturally, however, led to a separation of the two powers. And in the +reign of Edward I. we find the king sending certain of the petitions +addressed to him, praying extraordinary remedies, to the chancellor and +master of the rolls, or to either separately, by writ under the privy +seal, which was the usual mode by which the king 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, _honestati_). +"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. + +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 'consuetudo +cancellariae' 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.) + +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. (Archaeologia, xxv. 345.) It +is difficult to say whether this fell within the modern rules of equity, +but the general principle is evidently the same. + +Another petition is from the commonalty of Suffolk to the council, +complaining of false indictments and presentments in courts-leet. It is +answered--"Si quis sequi voluerit 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. + +The Court of Chancery began to decide causes as a court of equity, +according to Mr. Hardy, in the reign of Edward III., probably about 22 +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 _Curia Regis_ in the Norman +period proceeded on equitable principles; and that this led to the +removal of plaints into it from the county-court. This is, perhaps, not +what we should naturally presume. The subtle and 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. + +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 _Curia Regis_. 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 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. + +"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 _Aula Regia_; and they all speak +of the Chancery, not as a court, but merely as an office for the making +and sealing of writs. There are no very early decisions of the +chancellors on points of law any more than of equity, to be found in the +Year-books or old abridgments.... By 'equitable jurisdiction' must be +understood the extraordinary interference of the chancellor, without +common-law process or regard to the common-law rules of proceeding, upon +the petition of a party grieved who 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 _secundum aequum et bonum_, +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 _Aula Regia_ 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.) + +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 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.) + +In the reign of Richard II. the writ of _subpoena_ 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, +_Quibusdam certis de causis, the words 'Et hoc sub poena centum +librarum nullatenus omittas_;' 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.) + +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 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.) + +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.) + +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 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. + +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 _subpoena_, 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 _subpoena_ 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 _subpoena_ 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. + +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 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 _de donis_ 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 _habeas corpus_. (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. + + +NOTE XI. Page 145. + +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. + +"It seems," he says, "that in the reign of Henry III. the council was +considered as a court of peers within the terms of Magna Charta; and +before which, as a court of original jurisdiction, the rights of tenants +holding _in capite_ or by barony were to be discussed and decided, and +it unquestionably exercised a direct jurisdiction over all the king's +subjects" (p. 34). The first volume of Close Rolls, published by Mr. +Hardy since Sir F. Palgrave's Essay, contains no instances of +jurisdiction exercised by the council in the reign of John. But they +begin immediately afterwards, in the minority of Henry III.; so that we +have not only the fullest evidence that the council took on itself a +coercive jurisdiction in 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 terrae." 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 _per pais_ which, in one form or another, is of immemorial +antiquity in our social institutions. + +"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). + +The irresistible conclusion from this passage is, that we have been +wholly mistaken in supposing the commons under Edward III. and his +successors to have resisted an illegal 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. + +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.[472] 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." + +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 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. + +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 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. + +We find, therefore, a recognition of the principle which had always been +alleged in defence of the ordinary council in this parliamentary +confirmation--the principle that breaches of the law, which the law +could not, through the weakness of its ministers, or corruption, or +partiality, sufficiently repress, must be reserved for the strong arm of +royal authority. "Thus," says Sir Francis Palgrave, "did the council +settle and define its principles and practice. A new tribunal was +erected, and one which obtained a virtual supremacy over the common law. +The exception reserved to their 'discretion' of interfering wherever +their lordships felt too much might on one side, and too much unmight on +the other, was of itself sufficient to embrace almost every dispute or +trial" (p. 81). + +But, in the first place, this latitude of construction was not by any +means what the parliament meant to allow, nor could it be taken, except +by wilfully usurping powers never 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. And there +is no doubt that, down to the final abolition of the Court of Star +Chamber (which was no other than the _consilium ordinarium_ under a +different name), these offences were cognizable in it, without the +regular forms of the common law.[473] + +"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.) + +It is really more than we can grant that the jurisdiction of the +_consilium ordinarium_ 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.[474] + +We cannot but discover, throughout the learned and 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, 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 _nisi prius_ 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. + + +NOTE XII. Page 156. + +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 _genus_ 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 _cyning_, +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. + +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 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 mediaeval clergy, as I have +observed in the text, were anything rather than upholders of despotic +power. + +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 _minimum_ 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 political one; it +relates to the positive law and positive sentiments of the English +nation in the mediaeval period. And here I cannot put a few 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. + +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 mediaeval period. + +The tenet of our law, that all the soil belongs theoretically to the +king, is undoubtedly an enormous fiction, and very repugnant to the +barbaric theory preserved by the Saxons, that all unappropriated land +belonged to the folk, and was unalienable without its consent.[475] 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. 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. + + +NOTE XIII. Page 172. + +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 Archaeologia (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." + +In the Laws of Henry I. we find the weregild of the twyhinder, or +villein, set at 200 shillings in Wessex, "quae caput regni est et legum" +(c. 70). But this expression argues an Anglo-Saxon source; and, in fact, +so much in that treatise seems to be copied, without regard to the +change of times, from old authorities, mixed up with provisions of a +feudal or Norman character, that we hardly know how to distinguish what +belongs to each period. It is far from improbable that villenage, in the +sense the word afterwards bore, that is, an absolutely servile tenure of +lands, not only without legal rights over them, but with an incapacity +of acquiring either immovable or movable property against the lord, may +have made considerable strides before the reign of Henry II.[476] 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 Archaeologia, above quoted, contains some +interesting matter; but he has too much confounded the _theow_, or +Anglo-Saxon slave, with the _ceorl_; not even mentioning the latter, +though it is indisputable that _villanus_ is the equivalent of _ceorl_, +and _servus_ of _theow_. + +But I suspect that we go a great deal too far in setting down the +descendants of these ceorls, that is, the whole Anglo-Saxon population +except thanes and burgesses, as almost universally to be counted such +villeins as we read of in our law-books, or in concluding that the +cultivators of the land, even in the thirteenth century, were wholly, or +at least generally, servile. It is not only evident that small +freeholders were always numerous, but we are, perhaps, greatly deceived +in fancying that the occupiers of villein tenements were usually +villeins. _Terre-tenants en villenage_ and tenants _par copie_, who were +undoubtedly free, appear in the early Year-books, and we know not why +they may not always have existed.[477] 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 +_villani_ or _bordarii_, according to the Domesday survey, were much +more extensive than the copyholds of the present day; and making every +allowance for enfranchisements, we can hardly believe that all these +lands, being, in fact, by far the greater part of the soil, were the +_villenagia_ of Glanvil's and Bracton's age. It would be interesting to +ascertain at what time the latter were distinguished from _libera +tenementa_; at what time, that is, the distinction of territorial +servitude, independent as it was of the personal state of the occupant, +was established in England. + + +NOTE XIV. Page 173. + +This identity of condition between the villein regardant and in gross +appears to have been, even lately, called in question, and some adhere +to the theory which supposes an inferiority in the latter. The following +considerations will prove that I have not been mistaken in rejecting +it:-- + +I. It will not be contended that the words "regardant" and "in gross" +indicate of themselves any specific 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 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 praestandum 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 _servi_, of whom we find 25,000 enumerated in +Domesday. Littleton says, "If a man and his ancestors, whose heir he is, +have been seised of a villein and of his ancestors, as of villeins in +gross, time out of memory of man, these are villeins in gross." (Sect. +182.) + +It has been often asserted that villeins in gross seem not to have been +a numerous class, and it might not be easy to adduce distinct instances +of them in the fourteenth and 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. +(Archaeologia, xxx. 228.) Even where they were sold along with land, +unless it were a manor, they would, as has been observed before, have +been villeins in gross. I have, however, been informed that in +valuations under escheats in the old records a separate value is never +put upon villeins; their alienation without the land was apparently not +contemplated. Few cases concerning villeins in gross, it has been said, +occur in the Year-books; but villenage of any kind does not furnish a +great many; and in several I do not 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. + +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 quaerere," +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. (Archaeologia, xxx. 228.) + +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. + + +NOTE XV. Page 179. + +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 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. + +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. + +"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. + +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 in +mediaeval poetry. These Latin songs could not, of course, have been +generally understood. But what the priests sung in Latin, they said in +English; the lower clergy fanned the flame, and gave utterance to what +others felt. It may, perhaps, be remarked, as a proof of general +sympathy with the democratic spirit which was then fermenting, that we +have a song of exultation on the great defeat which Philip IV. had just +sustained at Courtrai, in 1302, by the burgesses of the Flemish cities, +on whose liberties he had attempted to trample (p. 187). It is true that +Edward I. was on ill terms with France, but the political interests of +the king would not, perhaps, have dictated the popular ballad. + +It was an idle exaggeration in him who said that, if he could make the +ballads of a people, any one might make their laws. Ballads, like the +press, and especially that portion of the press which bears most analogy +to them, generally speaking, give vent to a spirit which has been at +work before. But they had, no doubt, an influence in rendering more +determinate, as well as more active, that resentment of wrong, that +indignation at triumphant 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.[478] They are said to have become afterwards less +frequent, though the wars of the Roses were likely to bring them, +forward. + +Some of the political songs are written in France, though relating to +our kings John and Henry III. 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. + + +FOOTNOTES: + +[460] 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. + +[461] 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. + +[462] 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. + +[463] 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 +praecipio, ut a 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 praecipio, 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. + +[464] See the ensuing part of this note. + +[465] 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. + +[466] Hist. de Paris, vol. iii. p. 231. + +[467] 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. + +[468] 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. + +[469] 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. + +[470] 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. + +[471] 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. + +[472] The words of the petition and answer are the following:-- + +"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." + +"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. + +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. + +[473] See Note in p. 145, for the statute 31 H. VI. c. 2. + +[474] See Constitutional History of England, vol. i. p. 49. (1842.) + +[475] It has been mentioned in a former note, on Mr. Allen's authority, +that the folcland had acquired the appellation _terra regis_ before the +Conquest. + +[476] 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 _cotset_ 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. + +[477] 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, _glebae adscripto_, de cujus fidelitate plenius confidebat quia +bonus agricola erat, et quia nesciebat loqui Gallice. p. 24. + +[478] 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. + + + + +CHAPTER IX.[479] + +ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES. + +PART I. + + 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. + + +It 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 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. + +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. + +[Sidenote: Decline of learning in Roman empire.] + +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 Caesars 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. + +[Sidenote: Its causes.] + +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 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.[480] 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. + +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 +incitement, the genial sunshine of approbation, has at all times +promoted the cultivation of literature in small republics rather than +large empires, and in cities compared with the country. 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. + +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. + +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.[481] +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 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. + +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. + +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. + +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 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. + +[Sidenote: Corruption of the Latin language.] + +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 +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.[482] + +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 +Litteraire de la France seem to imagine, by a sudden and arbitrary +innovation.[483] This is neither possible in itself, nor agreeable to +the testimony of Irenaeus, bishop of Lyons at the end of the second +century, who laments the necessity of learning Celtic.[484] 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. + +[Sidenote: Ancient Latin pronunciation.] + +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. It is indeed +capable of proof that in the purest ages of Latinity some variation +existed between these two. Those numerous changes in spelling which +distinguish the same words in the poetry of Ennius and of Virgil are +best explained by the supposition of their being accommodated, to the +current pronunciation. Harsh combinations of letters, softened down +through delicacy of ear or rapidity of utterance, gradually lost their +place in the written language. Thus _exfregit_ and _adrogavit_ assumed a +form representing their more liquid sound; and _auctor_ was latterly +spelled _autor_, which has been followed in French and Italian. _Autor_ +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 _m_ +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.[485] + +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 +_rei_, _via_, _diutius_, _ei_, _solius_, _eam_, _unius_, _suam_, +_divitias_, _senex_, _voluptatem_, _illius_, _semel_; 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 +_s_ in words ending with _us_ or _is_ 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. IV. The first syllable +of _ille_ 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 _apud_ is cut off, scen. i. v. 120; and scen. ii. v. 8. VI. +_Hodie_ is used as a pyrrhichius, in scen. ii. v. 11. VII. Lastly, there +is a clear instance of a short syllable, the antepenultimate of +_impulerim_, lengthened on account of the accent at the 113th verse of +the first scene. + +[Sidenote: Its corruption by the populace,] + +[Sidenote: and the provincials.] + +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.[486] 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 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. + +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 the Latin, and yet the vulgar +confuse their most ordinary forms. + +But, in all probability, the variation of these derivative languages +from popular Latin has been considerably less than it appears. In the +purest ages of Latinity the citizens of Rome itself made use of many +terms which we deem barbarous, and of many idioms which we should reject +as 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.[487] 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.[488] + +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 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.[489] + +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 _unus_, _ipse_, or _ille_ 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. + +[Sidenote: Pronunciation no longer regulated by quantity.] + +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.[490] + +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.[491] 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. + +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.[492] The 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.[493] 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.[494] + +[Sidenote: Change of Latin into Romance.] + +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.[495] Fortunatus +says, in his Life of St. Aubin of Angers, that he should take care not +to use any expression unintelligible to the people.[496] 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.[497] 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.[498] + +The corrupt provincial idiom became gradually more and more dissimilar +to grammatical Latin; and the lingua Romana rustica, as the vulgar +_patois_ (to borrow a word that I cannot well translate) had been +called, acquired a distinct character as a new language in the eighth +century.[499] 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 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.[500] After this it is unnecessary to multiply proofs of the +change which Latin had undergone. + +[Sidenote: Its corruption in Italy.] + +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.[501] 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.[502] + +[Sidenote: Ignorance consequent on the disuse of Latin.] + +When Latin had thus ceased to be a living language, the whole treasury +of knowledge was locked up from the eyes of the people. The few who +might have 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.[503] 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.[504] 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[505]), +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;[506] +and Alfred found difficulty in making a translation from the pastoral +instruction of St. Gregory, on account of his imperfect knowledge of +Latin.[507] + +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;[508] 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.[509] + +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.[510] Not one priest of a thousand in +Spain, about the age of Charlemagne, could address a common letter of +salutation to another.[511] 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.[512] +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.[513] The +homilies which they preached were compiled for their use by some +bishops, from former works of the same kind, or the writings of the +fathers. + +[Sidenote: Scarcity of books.] + +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.[514] +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. + +[Sidenote: Want of eminent men in literature.] + +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 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.[515] 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.[516] + +[Sidenote: Causes of the preservation of learning--religion.] + +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 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.[517] 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 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. + +[Sidenote: Superstitions.] + +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, 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.[518] 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.[519] 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 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.[520] 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.[521] + +[Sidenote: Enthusiastic risings.] + +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, 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.[522] + +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.[523] + +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 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.[524] 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.[525] + +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.[526] 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 exceedingly similar.[527] "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."[528] +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.[529] 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;[530] 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.[531] + +[Sidenote: Pretended miracles.] + +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 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.[532] 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.[533] + +[Sidenote: Mischiefs arising from this superstition.] + +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 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. + +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.[534] + +[Sidenote: Not altogether unmixed with good.] + +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.[535] 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 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.[536] 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 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.[537] + +[Sidenote: Vices of the monks and clergy.] + +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.[538] Doubtless there were many +communities, as well as individuals, to whom none of these reproaches +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."[539] + +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.[540] 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. + +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 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."[541] + +[Sidenote: Commutation of penances.] + +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.[542] 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 a Becket. This licensed vagrancy was naturally +productive of dissoluteness, especially among the women. Our English +ladies, in their zeal to obtain the spiritual treasures of Rome, are +said to have relaxed the necessary caution about one that was in their +own custody.[543] 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.[544] + +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.[545] + +[Sidenote: Want of law.] + +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. + +[Sidenote: Degradation of morals.] + +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 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.[546] One crime, as +more 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.[547] + +[Sidenote: Love of field sports.] + +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.[548] 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, 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.[549] + +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.[550] 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.[551] 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.[552] 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.[553] + +Though hunting had ceased to be a necessary means of procuring food, it +was a very convenient resource, on which the wholesomeness and comfort, +as well as the luxury, 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.[554] 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.[555] + +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.[556] +What effect this must have had on agriculture it is easy to conjecture. +The levelling of forests, the draining of morasses, and the extirpation +of mischievous animals which inhabit them, are the first objects of +man's 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. + +[Sidenote: Bad state of agriculture;] + +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.[557] 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. + +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 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.[558] 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.[559] + +[Sidenote: of internal trade;] + +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.[560] Rich men kept domestic artisans +among their servants; even kings, in the ninth century, had their +clothes made by the women upon their farms;[561] 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.[562] 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.[563] 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.[564] 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.[565] 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. +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. + +[Sidenote: and of foreign commerce.] + +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.[566] 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.[567] 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 +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.[568] 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.[569] 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.[570] + +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 subject does not admit of +anything approximating to chronological accuracy. It may, therefore, be +sometimes not improper to distinguish the first six of the ten centuries +which the present work embraces under the appellation of the _dark_ +ages; an 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. + + +FOOTNOTES: + +[479] 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. + +[480] The authors of Histoire Litteraire 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. + +[481] 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. + +[482] 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. + +[483] t. vii. preface. + +[484] It appears, by a passage quoted from the digest by M. Bonamy, Mem. +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. + +[485] 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 _Multum ille_, et _Quantum erat_: adeo ut +pene cujusdam novae literae sonum reddat. Neque enim eximitur, sed +obscuratur, et tantum aliqua inter duos vocales velut nota est, ne ipsae +coeant. Quintilian, Institut. 1. ix. c. 4, p. 585, edit. Capperonier. + +[486] 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 frequentissime coeunt, et consonantium quaedam insequente +vocali dissimulantur; utriusque exemplum posuimus; Multum ille et +terris. Vitatur etiam duriorum inter se congressus, unde _pellexit_ et +_collegit_, et quae alio loco dicta sunt. 1. ii. c. 3, p. 696. + +[487] 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. + +[488] M. Bonamy, in an essay printed in Mem. de l'Academie 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. + +[489] See Lanzi, Saggio della Lingua Etrusca, t. i. c. 431; Mem. de +l'Acad. des Inscrip. t. xxiv. p. 632. + +[490] 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:-- + + Praefatio nostra viam erranti demonstrat, + Respectumque bonum, cum venerit saeculi meta, + AEternum fieri, quod discredunt inscia corda. + Ego similiter erravi tempore multo, + Fana prosequendo, parentibus insciis ipsis. + Abstuli me tandem inde, legendo de lege. + Testificor Dominum, doleo, proh! civica turba + Inscia quod perdit, pergens deos quaerere vanos. + Ob ea perdoctus ignoros instruo verum. + +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:-- + +Paratus ad epulas, et refugiscere praecepta; or, Capillos inficitis, +oculos fuligine relinitis. + +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. + +[491] Archaeologia, vol. xiv. p. 188. The following are the first +lines:-- + + Abundantia peccatorum solet fratres conturbare; + Propter hoc Dominus noster voluit nos praemonere, + Comparans regnum coelorum reticulo misso in mare, + Congreganti multos pisces, omne genus hinc et inde, + Quos cum traxissent ad littus, tunc coeperunt separare, + Bonos in vasa miserunt, reliquos malos in mare. + +This trash is much below the level of Augustin; but it could not have +been later than his age. + +[492] Recueil des Historiens, t. i. p. 814; it begins in the following +manner:-- + + Praecelso expectabili bis Arbogasto comiti + Auspicius, qui diligo, salutem dico plurimam. + Magnas coelesti Domino rependo corde gratias + Quod te Tullensi proxime magnum in urbe vidimus. + Multis me tuis artibus laetificabas antea, + Sed nunc fecisti maximo me exultare gaudio. + +[493] 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. + +[494] Mem. de l'Academie des Inscriptions, t. xvii. Hist. Litteraire 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. + +[495] One stanza of this song will suffice to show that the Latin +language was yet unchanged:-- + + De Clotario est canere rege Francorum, + Qui ivi pugnare cum gente Saxonum, + Quam graviter provenisset missis Saxonum, + Si non fuisset inclitus Faro de gente + Burgundionum. + +[496] Praecavendum est, ne ad aures populi minus aliquid intelligibile +proferatur. Mem. de l'Acad. t. xvii. p. 712. + +[497] Rustico et plebeio sermone propter exemplum et imitationem. Id. +ibid. + +[498] Hist. Litteraire de la France, t. iii. p. 5. Mem. de l'Academie, +t. xxiv. p. 617. Nouveau Traite de Diplomatique, t. iv. p. 485. + +[499] Hist. Litteraire 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 _understand_ 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. + +[500] Mem. de l'Acad. des Insc. t. xvii. See two memoirs in this volume +by du Clos and le Boeuf, especially the latter, as well as that +already mentioned in t. xxiv. p. 582, by M. Bonamy. + +[501] Muratori, Dissert. i. and xliii. + +[502] + Usus Francisca, vulgari, et voce Latina. + Instituit populos eloquio tripici. + +Fontanini dell'Eloquenza Italiana, p. 15. Muratori, Dissert. xxxii. + +[503] Histoire Litteraire de la France, t. vi. p. 20. Muratori, Dissert. +xliii. + +[504] Nouveau Traite 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.) + +[505] 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. + +[506] 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 prospere +successit labor praeposterus ac sero inchoatus. + +Many are still unwilling to believe that Charlemagne could not write. M. +Ampere observes that the emperor asserts himself to have been the author +of the Libri Carolini, and is said by some to have composed verses. +Hist. Litt. de la France, iii. 37. But did not Henry VIII. claim a book +against Luther, which was not written by himself? _Qui facit per alium, +facit per se_, is in all cases a royal prerogative. Even if the book +were Charlemagne's own, might he not have dictated it? I have been +informed that there is a manuscript at Vienna with autograph notes of +Charlemagne in the margin. But is there sufficient evidence of their +genuineness? The great difficulty is to get over the words which I have +quoted from Eginhard. M. Ampere ingeniously conjectures that the passage +does not relate to simple common writing, but to calligraphy; the art of +delineating characters in a beautiful manner, practised by the copyists, +and of which a contemporaneous specimen may be seen in the well-known +Bible of the British Museum. Yet it must be remembered that +Charlemagne's early life passed in the depths of ignorance; and Eginhard +gives a fair reason why he failed in acquiring the art of writing, that +he began too late. Fingers of fifty are not made for a new skill. It is +not, of course, implied by the words, that he could not write his own +name; but that he did not acquire such a facility as he desired. [1848.] + +[507] Spelman, Vit. Alfred. Append. + +[508] Hist. Litteraire de la France, t. iii. p. 5. + +[509] 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 a l'Histoire de France, where some +learned dissertations by the Abbes Lebeuf and Goujet, a little before +the middle of the last century, are reprinted. [Note I.] + +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. + +[510] Tiraboschi, t. iii. p. 198. + +[511] Mabillon, De Re Diplomatica, 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. + +[512] 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. + +[513] Mabillon, De Re Diplomatica, 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. + +[514] 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. + +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 Diplomatica, 1. ii.; Muratori, +Antichita Italiane, Dissert. xliii. p. 602. But the authors of the +Nouveau Traite de Diplomatique speak of several manuscripts on this +material as extant in France and Italy. t. i. p. 493. + +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. + +[515] 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 Litteraire de la France, t. iv. p. 281 +et alibi. + +[516] 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 Naturae, the most +abstruse of his works, consider it as the development of an oriental +philosophy, acquired during his residence in Greece, and nearly +coinciding with some of the later Platonism of the Alexandrian school, +but with a more unequivocal tendency to pantheism. This manifests itself +in some extracts which have latterly been made from the treatise De +Divisione Naturae; but though Scotus had not the reputation of +unblemished orthodoxy, the drift of his philosophy was not understood in +that barbarous period. He might, indeed, have excited censure by his +intrepid preference of reason to authority. "Authority," he says, +"springs from reason, not reason from authority--true reason needs not +be confirmed by any authority." La veritable importance historique, says +Ampere, de Scot Erigene n'est donc pas dans ses opinions; celles-ci +n'ont d'autre interet que leur date et le lieu ou elles apparaissent. +Sans doute, il est piquant et bizarre de voir ces opinions orientales et +alexandrines surgir au IXe siecle, a Paris, a la cour de Charles le +Chauve; mais ce qui n'est pas seulement piquant et bizarre, ce qui +interesse le developpement de l'esprit humain, c'est que la question ait +ete posee, des lors, si nettement entre l'autorite et la raison, et si +energiquement resolue en faveur de la seconde. En un mot, par ses idees, +Scot Erigene est encore un philosophe de l'antiquite Grecque; et par +l'independance hautement accusee de son point de vue philosophique, il +est deja un devancier de la philosophie moderne. Hist. Litt. iii. 146. + +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. + +[517] 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. + +"We possess a catalogue," says M. Ampere (quoting d'Achery's +Spicilegium, ii. 310), "of the library in the abbey of St. Riquier, +written in 831; it consists of 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." Ampere, 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. + +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. + +[518] Robertson, Introduction to Hist. Charles V. note 13; Schmidt, +Hist. des Allemands, t. ii. p. 380; Hist. Litteraire de la France, t. +vi. + +[519] 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. + +[520] 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." Ampere, +Hist. Litt. de la France, iii. 180. Any one must have been very ignorant +who attributed the invention of ordeals to the church. But during the +dark ages they were always sanctioned. Agobard, from whom M. Ampere +gives a quotation, in the reign of Louis the Debonair wrote strongly +against them; but this was the remonstrance of a superior man in an age +that was ill-inclined to hear him. + +[521] 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 Archaeologia (vol. xv. p. 172) has shown that Emma, queen +of Edward the Confessor, did not perform her trial by stepping +_between_, as Blackstone imagines, but _upon_ 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. + +[522] 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, A.D. 1211; Velly, Hist. de France, t. +iv. p. 206. + +[523] Velly, t. iii. p. 295; Du Cange, v. Capuciati. + +[524] Velly, Hist. de France, t. v. p. 7; Du Cange, v. Pastorelli. + +[525] Velly, Hist. de France, t. viii. p. 99. The continuator of Nangis +says, sicut fumus subito evanuit tota illa commotio. Spicilegium, t. +iii. p. 77. + +[526] Velly, t. v. p. 279; Du Cange, v. Verberatio. + +[527] Something of a similar kind is mentioned by G. Villani, under the +year 1310. 1. viii. c. 122. + +[528] 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. + +[529] 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. + +[530] Villaret, t. xii. p. 327. + +[531] Rot. Parl. v. iii. p. 428. + +[532] This is confessed by the authors of Histoire Litteraire 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. + +[533] 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. + +[534] 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. + +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. + +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. + +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. + +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. + +[535] 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 mediaeval +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 _mirage_, which confuses and deludes the sight. If +those "ages of faith" were as noble, as pure, as full of human kindness, +as he has delineated them, we have had a bad exchange in the centuries +since the Reformation. And those who gaze at Mr. Digby's enchantments +will do well to consider how they can better escape this consequence +than he has done. Dr. Maitland's Letters on the Dark Ages, and a great +deal more that comes from the pseudo-Anglican or Anglo-catholic press, +converge to the same end; a strong sympathy with the mediaeval 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.] + +[536] 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. + +Piers Plowman is indeed a satirist; but he plainly charges the monks +with want of charity. + + Little had lordes to do to give landes from their heires + To religious that have no ruthe though it raine on their aultres; + In many places there the parsons be themself at ease, + Of the poor they have no pitie and that is their poor charitie. + +[537] Schmidt, Hist. des Allemands, t. i. p. 374. + +[538] 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 quaedam 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 publice 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 vitae suae turpitudinem. + +[539] 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. + +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.--_Note to +Fourth Edition._ 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.] + +[540] 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. + +[541] Greg. Tur. 1. ii. c. 40. Of Theodebert, grandson of Clovis, the +same historian says, Magnum se et in omni bonitate praecipuum 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 praemium. This is a mistake, inasmuch as +he was hanged; but it exhibits the character of the historian, +Hemingford, p. 21. + +[542] Fleury, Troisieme Discours sur l'Histoire Ecclesiastique. + +[543] Henry, Hist. of England, vol. ii. c. 7. + +[544] Du Cange, v. Peregrinatio. Non sinantur vagari isti nudi cum +ferro, qui dicunt se data poenitentia ire vagantes. Melius videtur, ut +si aliquod inconsuetum et capitale crimen commiserint, in uno loco +permaneant laborantes et servientes et poenitentiam agentes, secundum +quod canonice iis impositum sit. + +[545] I. de Vitriaco, in Gesta Dei per Francos, t. i.; Villani, 1. vii. +c. 144. + +[546] 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. + +[547] 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. + +[548] Muratori, Dissert. 23, t. i. p. 306 (Italian); Beckman's Hist. of +Inventions, vol. i. p. 319; Vie privee des Francais, t. ii. p. 1. + +[549] Vie privee des Francais, t. i. p. 320; t. ii. p. 11. + +[550] Ibid. t. i. p. 324. + +[551] Rymer, t. i. p. 61. + +[552] Whitaker's Hist. of Craven, p. 340, and of Whalley, p. 171. + +[553] Velly, Hist. de France, t. iii. p. 236. + +[554] 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 una bestiola perdere, quem unigentius Dei Filius sanguine +redemit suo. Quae ferae naturae sunt, et de jure occupantium fiunt, sibi +audet humana temeritas vindicare, &c. Polycraticon, p. 18. + +[555] Le Grand, Vie privee des Francais, t. i. p. 325. + +[556] 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. + +[557] 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. + +[558] 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. + +[559] 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. + +[560] 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. + +[561] Schmidt, t. i. p. 411; t. ii. p. 146. + +[562] Du Cange, Pedagium, Pontaticum, Teloneum, Mercatum, Stallagium, +Lastagium, &c. + +[563] Baluz. Capit. p. 621 et alibi. + +[564] 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. + +[565] Eadmer apud Recueil des Historiens des Gaules, t. xi. preface, p. +192. Pro ritu illius loci, a domino terrae captivitati addicitur. + +[566] 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. + +[567] 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. + +[568] 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. + +[569] 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. + +[570] 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. + + + + +PART II. + + 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--Provencal + Poets--Norman Poets--French Prose Writers--Italian--early Poets in + that Language--Dante--Petrarch--English Language--its Progress-- + Chaucer--4. Revival of Classical Learning--Latin Writers of the + Twelfth Century--Literature of the Fourteenth Century--Greek + Literature--its Restoration in Italy--Invention of Printing. + + +[Sidenote: European commerce.] + +The 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. + +[Sidenote: Woollen manufacture of Flanders.] + +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 manufactures occur in the twelfth century, and +some might perhaps be found even earlier.[571] A writer of the +thirteenth asserts that all the world was clothed from English wool +wrought in Flanders.[572] 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,[573] 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."[574] 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.[575] Ghent was one of the largest cities in Europe, and, +in the opinion of many, the best situated.[576] 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.[577] 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. + +[Sidenote: Export of wool from England.] + +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.;[578] 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 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.[579] + +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.[580] 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.[581] An early instance of that conflicting +selfishness of belligerents and neutrals, which was destined to +aggravate the animosities and misfortunes of our own time.[582] + +[Sidenote: English woollen manufacture.] + +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.[583] 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 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.[584] The +emigration of Flemish weavers into England continued during this reign, +and we find it mentioned, at intervals, for more than a century. + +[Sidenote: Increase of English commerce.] + +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 under +review;[585] 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.[586] + +[Sidenote: Manufactures of France and Germany.] + +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.[587] 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.[588] But the French towns were never so much 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.[589] + +[Sidenote: Baltic trade.] + +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.[590] 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. + +But the real importance of these cities is to be dated from their +famous union into the Hanseatic confederacy. The origin of this is +rather obscure, but it may certainly be nearly referred in point of time +to the middle of the thirteenth century,[591] 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.[592] 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.[593] The +English had also their factories on the Baltic coast as far as Prussia +and in the dominions of Denmark.[594] + +[Sidenote: Rapid progress of English trade.] + +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 own house in the Vintry, and +presented them with handsome gifts.[595] 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.[596] We find Richard obtaining a great deal from private +merchants and trading towns. In 1379 he got 5000_l._ from London, 1000 +marks from Bristol, and in proportion from smaller places. In 1386 +London gave 4000_l._ more, and 10,000 marks in 1397.[597] The latter sum +was obtained also for the coronation of Henry VI.[598] Nor were the +contributions of individuals contemptible, considering the high value of +money. Hinde, a citizen of London, lent to Henry IV. 2000_l._ in 1407, +and Whittington one half of that sum. The merchants of the staple +advanced 4000_l._ at the same time.[599] 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.[600] 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. + +[Sidenote: Intercourse with the south of Europe.] + +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 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,[601] 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 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. + +[Sidenote: Commerce of the Mediterranean countries.] + +[Sidenote: Amalfi.] + +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.[602] 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 +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. + +[Sidenote: Pisa, Genoa, Venice.] + +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.[603] 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."[604] 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 Alexandria, besides oil, saffron, and some of +the productions of Italy, and even wool and woollen cloths.[605] The +European side of the account had therefore become respectable. + +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 +podesta, 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.[606] + +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, +Nismes, and especially Montpelier, were distinguished for commercial +prosperity.[607] 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.[608] + +[Sidenote: Their manufactures.] + +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.[609] 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.[610] Among the trading companies into which the +middling ranks were distributed, those concerned in silk and woollens +were most numerous and honourable.[611] + +[Sidenote: Invention of the mariner's compass.] + +A property of a natural substance, long overlooked 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.[612] For some time, perhaps, even this wonderful +improvement in the art of navigation might not be universally adopted by +vessels sailing within the Mediterranean, and accustomed to their old +system of observations. But when it became more established, it +naturally inspired a more fearless spirit of 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. + +[Sidenote: Maritime laws.] + +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.[613] Besides regulations simply +mercantile, 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.[614] 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.[615] + +[Sidenote: Frequency of piracy.] + +[Sidenote: Law of reprisals.] + +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 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.[616] 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.[617] 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.[618] In the laws of Marseilles it is declared, "If a +foreigner take anything from 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."[619] 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_l._, 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.[620] 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;[621] and, in fact, there are instances +of granting such letters as late as the reign of Charles I. + +[Sidenote: Liability of aliens for each other's debts.] + +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."[622] 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.[623] 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.[624] + +[Sidenote: Great profits of trade,] + +[Sidenote: and high rate of interest.] + +[Sidenote: Money dealings of the Jews.] + +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;[625] 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.[626] 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.[627] 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.[628] Under Henry III., according to Matthew Paris, the +debtor paid ten per cent. every two months;[629] 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 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.[630] 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.[631] Raymond Roger, viscount +of Carcasonne, directs a writ "to his bailiffs, Christian and +Jewish."[632] 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.[633] 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.[634] 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 Christians a third part of what was owing by them to +Jews."[635] 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.[636] 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[637] took up the +business of remitting money by bills of exchange,[638] 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.[639] The Italian bankers were +frequently allowed to farm the customs in England, as a security +perhaps for loans which, were not very punctually repaid.[640] 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.[641] + +[Sidenote: Banks of Genoa and others.] + +The earliest bank of deposit, instituted for the accommodation of +private merchants, is said to have been that of Barcelona, in 1401.[642] +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.[643] 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 rate of private usury.[644] 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 _monte_, 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.[645] +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.[646] + +[Sidenote: Increase of domestic expenditure.] + +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. 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.[647] +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 Provencal knights +with their plumed helmets and golden collars, the chariot of his queen +covered with blue velvet and sprinkled with lilies of gold, astonished +the citizens of Naples.[648] 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.[649] + +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.[650] 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. + +[Sidenote: Sumptuary laws.] + +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 +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;[651] 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. + +[Sidenote: Domestic manners of Italy.] + +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.[652] 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 invigorate their bodies by a generous diet than to +dwell in well furnished houses, or to find comfort in cleanliness and +elegance.[653] 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;[654] 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.[655] + +[Sidenote: Civil architecture.] + +No chapter in the history of national manners would illustrate so well, +if duly executed, the progress of social life as that dedicated to +domestic architecture. The fashions of dress and of amusements are +generally capricious 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 Archaeologia.[656] Of these I shall make free use in the +following paragraphs. + +The most ancient buildings which we can trace in this island, after the +departure of the Romans, were circular towers of no great size, whereof +many remain in Scotland, erected either on a natural eminence or on an +artificial mound of earth. Such are Conisborough Castle in Yorkshire and +Castleton in Derbyshire, built perhaps, according to Mr. King, before +the Conquest.[657] 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 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,[658] and seem to have been designed for places of refuge. + +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, 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. + +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.[659] 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.[660] 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.[661] 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 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.[662] Stone houses are, however, mentioned as belonging to +citizens of London, even in the reign of Henry II.;[663] 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.[664] 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.[665] 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.[666] 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.[667] 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. + +[Sidenote: Meanness of ordinary mansion-houses.] + +It is an error to suppose that the English gentry were lodged in +stately or even in well-sized houses. Generally speaking, their +dwellings were almost as 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.[668] 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.[669] + +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,[670] any considerable dwellings mentioned before the reign of +Charles VII., and very few of so early a date.[671] Jacques Coeur, a +famous merchant unjustly persecuted by that prince, had a handsome house +at Paris, as well as another at Bourges.[672] 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. + +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.[673] 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. + +[Sidenote: Invention of chimneys and glass windows.] + +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; 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.[674] 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.[675] It is said that in the reign of Henry III. a few +ecclesiastical buildings had glazed windows.[676] Suger, however, a +century before, had adorned his great work, the abbey of St. Denis, +with windows, not only glazed but painted;[677] 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;[678] 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.[679] + +[Sidenote: Furniture of houses.] + +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.[680] 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 his house in St. +Botolph's Lane, A.D. 1481. There appear to have been no less than ten +beds, and glass windows are especially noticed as moveable furniture. No +mention however is made of chairs or looking-glasses.[681] 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.[682] It is in this sense, probably, that we must understand +AEneas 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.[683] Few +burghers of that town had mansions, I presume, equal to the palaces of +Dumferlin or Stirling, but it is not unlikely that they were better +furnished. + +[Sidenote: Farm-houses and cottages.] + +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.[684] 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.[685] 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.[686] + +[Sidenote: Ecclesiastical architecture.] + +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 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.[687] But about the middle of the twelfth century, this manner +began to give place to what is improperly denominated the Gothic +architecture;[688] 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;[689] nor from what source it was +derived--a question of no small difficulty. I would only venture to +remark, that whatever may be thought of the origin of the pointed arch, +for which there is more than one mode of accounting, we must perceive a +very oriental character in 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 +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.[690] + +[Sidenote: Agriculture in some degree progressive.] + +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.[691] Yet even 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.[692] +Several charters are extant, granted to convents, and sometimes to +laymen, of lands which they had recovered from a desert condition, after +the ravages of the Saracens.[693] 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.[694] 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.[695] + +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 famous survey was completed,[696] 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.[697] 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.[698] +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.[699] This early instance of +parochial inclosure is not to be overlooked in the history of social +progress. By the statute of Merton, in the 20th of Henry III., the lord +is permitted to approve, that is, to inclose the waste lands of his +manor, provided he leave sufficient common of pasture for the +freeholders. Higden, a writer who lived about the time of Richard II., +says, in reference to the number of hydes 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.[700] 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.[701] + +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.[702] 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.[703] 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,[704] though meadow was at double or treble that sum. But the +landlords were naturally solicitous to augment a revenue that became +more and more inadequate to their luxuries. They grew attentive to +agricultural 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_s._ 8_d._ in value, or that of barley 3_s._ + +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;[705] 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.[706] The usual price of land under Edward IV. seems to have +been ten years' purchase.[707] + +[Sidenote: Its condition in France and Italy.] + +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.[708] The state of Italy was far different; the +rich Lombard plains, still more fertilized by irrigation, became a +garden, and agriculture seems to have reached the excellence which it +still retains. The constant warfare indeed of 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.[709] Though Lombardy was extremely populous in the +thirteenth and fourteenth centuries, she exported large quantities of +corn.[710] 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. + +[Sidenote: Gardening.] + +The Italians of the fourteenth century seem to have paid some attention +to an art, of which, both as related to cultivation and to architecture, +our own forefathers were almost entirely ignorant. Crescentius dilates +upon horticulture, and gives a pretty long list of herbs both esculent +and medicinal.[711] 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;[712] yet one is said to have existed at the Louvre, of much +older construction.[713] 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.[714] The esculent vegetables now most in use were introduced +in the reign of Elizabeth, and some sorts a great deal later. + +[Sidenote: Changes in value of money.] + +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. + +The first of these difficulties is capable of being removed by a +circumspect use of authorities. When this part of statistical history +began to excite attention, which was hardly perhaps before the +publication of Bishop Fleetwood's Chronicon 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.[715] +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 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.[716] + +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.[717] 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.[718] The value +of cattle is, of course, dependent upon their breed and condition, and +we have unluckily 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.[719] 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;[720] 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_s._ 8_d._, a point no doubt above the average; +and the private documents of that period, which are sufficiently +numerous, lead to a similar result.[721] Sixteen will be a proper +multiple when we would bring the general value of money in this reign to +our present standard.[722] [1816.] + +But after ascertaining the proportional values of money at different +periods by a comparison of the prices in several of the chief articles +of expenditure, which is the only fair 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 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_l._ or 20_l._ 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_l._ per annum +passed for extremely rich.[723] Yet this was not equal in command over +commodities to 4000_l._ 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.[724] 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.[725] 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_s._ 8_d._, _with +four-pence for his dinner_"?[726] Though 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.[727] + +[Sidenote: Labourers better paid than at present.] + +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.[728] 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.[729] Several acts of +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_d._, equal to 6_s._ 8_d._ and 4_s._ 8_d._; 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_l._ 4_s._, equivalent to +about 20_l._, those of a common servant in husbandry 18_s._ 4_d._, with +meat and drink; they were somewhat augmented by the statute of +1496.[730] 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.[731] 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, was frequently endured.[732] 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.[733] 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.[734] + +[Sidenote: Improvement in the moral character of Europe.] + +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, 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. + +[Sidenote: Elevation of the lower ranks.] + +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 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. + +[Sidenote: Police.] + +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 Maximilian.[735] 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.[736] The same prince was with difficulty +prevented from passing a capital sentence on Enguerrand de Coucy, a +baron of France, for a murder.[737] Charles the Fair actually put to +death a nobleman of Languedoc for a series of robberies, notwithstanding +the intercession of the provincial nobility.[738] 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.[739] 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 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. + +[Sidenote: Religious sects.] + +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. + +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.[740] 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 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.[741] 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.[742] 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. 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.[743] 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.[744] The tenets ascribed to them +by all contemporary authorities coincide 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.[745] + +[Sidenote: Waldenses.] + +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.[746] 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.[747] + +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.[748] It is 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. + +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.[749] + +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 +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.[750] + +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.[751] In the eleventh +or twelfth century we find translations of the Psalms, Job, Kings, and +the Maccabees into French.[752] 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.[753] + +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.[754] 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. + +[Sidenote: Lollards of England.] + +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 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.[755] 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.[756] 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. + +[Sidenote: Hussites of Bohemia.] + +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.[757] Inferior to the +Englishman in ability, but exciting greater attention by his constancy +and sufferings, as well as by the memorable war which his ashes kindled, +the Bohemian martyr was even more eminently the precursor of the +Reformation. But still regarding these 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.[758] 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. + +[Sidenote: Institution of chivalry.] + +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. + +There are, if I may so say, three powerful spirits which have from time +to time moved over the face of the waters, and given a predominant +impulse to the moral sentiments and energies of mankind. These are the +spirits of liberty, of religion, and of 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. + +[Sidenote: Its origin.] + +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.[759] 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.[760] + +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 horseback, equipped with the coat +of mail. These were called Caballarii, from which the word chevaliers is +an obvious corruption.[761] 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 any calculation of their consequences, is not unlike +what we sometimes read of Arabian chiefs or the North American +Indians.[762] 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.[763] + +[Sidenote: Its connexion with feudal service.] + +[Sidenote: This connexion broken.] + +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 loricae, 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 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. + +[Sidenote: Effect of the crusades on chivalry.] + +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. + +[Sidenote: Chivalry connected with religion.] + +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.[764] We can hardly perceive indeed why the +assumption of arms to be used in butchering mankind should be treated as +a religious ceremony. The clergy, to do them justice, constantly opposed +the private wars in which the courage of those ages wasted itself; and +all bloodshed was subject in strictness to a canonical penance. But the +purposes for which men bore arms in a crusade so sanctified their use, +that chivalry acquired the character as much of a religious as a +military institution. For many 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.[765] + +[Sidenote: And with gallantry.] + +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 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 feast where eight hundred knights had each of them +a lady eating off his plate.[766] For to eat off the same plate was an +usual mark of gallantry or friendship. + +Next therefore, or even equal to devotion, stood gallantry among the +principles of knighthood. But all comparison between the two was saved +by blending them together. The love of 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.[767] 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."[768] 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."[769] + +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 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.[770] 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.[771] 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. + +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."[772] 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.[773] The violation +of 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. + +[Sidenote: Virtues deemed essential to chivalry.] + +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. + +[Sidenote: Loyalty.] + +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 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.[774] + +[Sidenote: Courtesy.] + +[Sidenote: Liberality.] + +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."[775] 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 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."[776] 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.[777] + +[Sidenote: Justice.] + +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 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. + +[Sidenote: Resemblance of chivalrous to eastern manners.] + +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 a circumstantial account of the ceremonies, as well +as duties, which the institution required.[778] 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. + +[Sidenote: Evils produced by the spirit of chivalry.] + +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 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.[779] + +[Sidenote: Circumstances tending to promote it.] + +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. + +[Sidenote: Regular education for knighthood.] + +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 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.[780] + +[Sidenote: Encouragement of princes. Tournaments.] + +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.[781] 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 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.[782] 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.[783] 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.[784] + +[Sidenote: Privileges of knighthood.] + +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.[785] 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.[786] + +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. + +[Sidenote: Connexion of chivalry with military service.] + +[Sidenote: Knights-bannerets and bachelors.] + +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 +honour rewarded individual bravery.[787] It may here be mentioned that +an honorary distinction was made between knights-bannerets and +bachelors.[788] 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.[789] 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.[790] 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.[791] +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 +them sometimes to defer it for great part of their lives, in hope of +signalizing their investiture by some eminent exploit. + +[Sidenote: Decline of chivalry.] + +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.[792] 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 found a very congenial +soil.[793] 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. + +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.[794] + +[Sidenote: Literature.] + +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. 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.[795] 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. + +[Sidenote: Civil law.] + +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 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.[796] +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.[797] + +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.[798] 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[799] 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 Naples, Padua, +and other places, where the Roman law was the object of peculiar +regard.[800] + +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. + +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 +Toulouse.[801] 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;[802] 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.[803] 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.[804] 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.[805] + +[Sidenote: Its introduction into England.] + +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.[806] 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.[807] Every where, however, the clergy +combined its study with that of their own canons; it was a maxim that +every canonist must be a civilian, and that no one could be a good +civilian unless he were also a canonist. In all 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.[808] + +[Sidenote: The elder civilians little regarded.] + +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.[809] 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 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.[810] + +[Sidenote: Public schools established by Charlemagne.] + +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;[811] 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.[812] His two next successors, Louis the +Debonair and Charles the Bald, were also encouragers of letters; and +the schools of Lyons, Fulda, Corvey, Rheims, and some other cities, +might be said to flourish in the ninth century.[813] 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.[814] 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.[815] Alcuin was, in his old +age, against reading the poets;[816] 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.[817] + +[Sidenote: University of Paris.] + +[Sidenote: Abelard.] + +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.[818] 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 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.[819] 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.[820] 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.[821] 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;[822] 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.[823] + +[Sidenote: University of Oxford.] + +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,[824] 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.[825] +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.[826] In the +reign of Henry II., or at least of Richard I., Oxford became a very +flourishing university, and in 1201, according to Wood, contained 3000 +scholars.[827] The earliest charters were granted by John. + +[Sidenote: University of Bologna.] + +[Sidenote: Encouragement given to universities.] + +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;[828] 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.[829] A respectable contemporary writer asserts that there were +full 10,000 at Bologna about the same time.[830] 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.[831] +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,[832] Toulouse and Montpelier, +Cambridge and Salamanca.[833] 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.[834] 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.[835] The fifteenth century produced +several new academical foundations in France and Spain. + +A large proportion of scholars in most of those institutions were drawn +by the love of science from foreign countries. The chief universities +had their own particular departments of excellence. Paris was unrivalled +for scholastic theology; Bologna and Orleans, and afterwards Bourges, +for jurisprudence; Montpelier for medicine. Though national prejudices, +as in the case of 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.[836] 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,[837] had a separate vote in the +faculty of arts at Paris. But foreign students were not, I believe, so +numerous in the English academies. + +If endowments and privileges are the means of quickening a zeal for +letters, they were liberally bestowed in the last three of the middle +ages. Crevier enumerates fifteen 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.[838] 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. + +[Sidenote: Causes of their celebrity.] + +[Sidenote: Scholastic philosophy.] + +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 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;[839] 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.[840] This work, condemned at first by the decrees of popes and +councils on account of its supposed tendency to atheism, acquired by +degrees an influence, to which even popes and councils were obliged to +yield. The Mendicant Friars, established throughout Europe in the +thirteenth 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.[841] + +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 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.[842] 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.[843] + +But all discovery of truth by means of these controversies was rendered +hopeless by two insurmountable obstacles, the authority of Aristotle and +that of the church. Wherever 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;[844] 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.[845] 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 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.[846] 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?[847] 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.[848] But this unproductive waste of the +faculties 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![849] + +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 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,[850] and Roger Bacon was fully +acquainted with them.[851] 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 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.[852] + +[Sidenote: Cultivation of the new languages.] + +[Sidenote: Division of the Romance tongue into two dialects.] + +[Sidenote: Troubadours of Provence.] + +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.[853] 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 Provencal 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.[854] This 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 Provencal 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 referred to a higher +antiquity.[855] This institution perhaps still remains; but even in its +earliest period it did not establish the name of any Provencal 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.[856] + +[Sidenote: Their poetical character.] + +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 +Provencal 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.[857] 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 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 Provencal 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. Ginguene, seem to possess a +sort of charm that has evaporated in translation. Upon this harmony, and +upon the facility with which mankind are apt to be deluded into an +admiration of exaggerated sentiment in poetry, they 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.[858] + +[Sidenote: Northern French poetry and prose.] + +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 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.[859] 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.[860] They are written in an +idiom so far removed from the Provencal, 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.[861] + +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.[862] In 1126, a charter was granted by Louis VI. to the city +of Beauvais in French.[863] 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 +Boeuf, 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.[864] 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.[865] 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 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.[866] + +[Sidenote: Norman romances and tales.] + +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.[867] 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.[868] An equally imaginary history of 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. + +[Sidenote: Roman de la Rose.] + +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 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. + +[Sidenote: Works in French prose.] + +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 (Provencal 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."[869] 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.[870] Besides some charters, there are +said to have been prose romances before the year 1200.[871] 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 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 Caesar, Suetonius, Ovid, and parts of +Cicero, which are, due to his successor Charles V.[872] + +[Sidenote: Spanish language.] + +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;[873] 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 Spain had been +corrupted by the Provencal 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.[874] + +[Sidenote: Early writers in the Italian.] + +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 Provencal than Italian), +noticed by Muratori.[875] 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.[876] 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 Provencal love +strains at the courts of princes. The Milanese and other Lombard +dialects were, indeed, exceedingly rude; but this rudeness separated +them more decidedly from Latin: nor is it possible that the Lombards +could have employed that language intelligibly for any public or +domestic purpose. And indeed in the earliest Italian 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,[877] 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, which, in their diction and turn of thought, are sometimes +not unworthy of Petrarch.[878] + +[Sidenote: Dante.] + +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.[879] 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. + +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. + +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. + +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 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.[880] + +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.[881] 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 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.[882] + +[Sidenote: Petrarch.] + +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.[883] But +every thing was forgiven to a man who was 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.[884] +But the most conspicuous 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. + +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,[885] +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.[886] 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. + +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 Provencal 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.[887] + +[Sidenote: English language.] + +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 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.[888] 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.[889] About the beginning of Edward I.'s reign, Robert, a monk +of Gloucester, composed a metrical 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.[890] 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.[891] 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. + +[Sidenote: Cause of its slow progress.] + +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.[892] Ralph 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.[893] 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 is +said to bear the date of 1343.[894] 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.[895] 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. + +[Sidenote: Chaucer.] + +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.[896] It is chiefly, indeed, as a comic poet, and a minute +observer of manners and circumstances, that Chaucer excels. In serious +and moral poetry he is frequently languid and diffuse; but he springs +like Antaeus from the earth, when his subject changes to coarse satire, +or merry narrative. Among his more elevated compositions, the 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. + +[Sidenote: Revival of ancient learning.] + +[Sidenote: In the twelfth century;] + +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 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.[897] + +[Sidenote: much more the fourteenth.] + +[Sidenote: Invention of linen paper.] + +[Sidenote: Libraries.] + +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;[898] 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.[899] +Princes became far more attentive 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.[900] 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.[901] At the +beginning of the fourteenth century, only four classical manuscripts +existed in this collection; of Cicero, Ovid, Lucan, and Boethius.[902] +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.[903] 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.[904] Charles V. increased the royal library at Paris to nine +hundred volumes, which the duke of Bedford purchased and transported to +London.[905] 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,[906] 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.[907] + +[Sidenote: Transcription of manuscripts.] + +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 +passed in the fourteenth century. A treatise of Cicero upon Glory, which +had been in his possession, was afterwards irretrievably lost.[908] 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.[909] 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.[910] 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. + +[Sidenote: Industry of the fifteenth century.] + +[Sidenote: Poggio.] + +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.[911] 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.[912] 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. + +[Sidenote: Greek language unknown in the West.] + +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 part of Italy.[913] Thus +Charlemagne is said to have established a school for Greek at +Osnaburg.[914] 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.[915] 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 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.[916] Nor is there probably a single +line quoted from any poet in that language from the sixth to the +fourteenth century. + +[Sidenote: Its study revives in the fourteenth century.] + +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.[917] Leontius +Pilatus, a native of Thessalonica, was encouraged some years afterwards +by Boccaccio to give public lectures upon Homer at Florence.[918] +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 Palaeologus 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.[919] His school was afterwards +removed successively to Pavia, Venice, and Rome; and during nearly +twenty years that he taught in Italy, most of those eminent scholars +whom I have already named, and who distinguish the first half of that +century, derived from his instruction their knowledge of the Greek +tongue. Some, not content with being the 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.[920] + +[Sidenote: State of learning in Greece.] + +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, 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. + +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.[921] But about the middle of the ninth century it +revived pretty suddenly, and with considerable success.[922] 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.[923] The +Turkish ravages and destruction of monasteries 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.[924] + +[Sidenote: Literature not much improved beyond Italy.] + +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.[925] 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 +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.[926] 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.[927] Much less had Germany thrown off her ancient +rudeness. AEneas 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.[928] 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.[929] + +[Sidenote: Invention of printing.] + +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, Schoeffer, +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. + +The first book that issued from the presses of Fust 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.[930] 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.[931] 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.[932] 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 Schoeffer 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.[933] 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.[934] 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 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 Ginguene, and a Roscoe. + + +FOOTNOTES: + +[571] 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). + +[572] Matthew Westmonast, apud Macpherson's Annals of Commerce, vol. i. +p. 415. + +[573] 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. + +[574] Terra marique mercatura, rerumque commercia et quaestus peribant. +Non solum totius Europae mercatores, verum etiam ipsi Turcae aliaeque +sepositae nationes ob bellum istud Flandriae magno afficiebantur dolore. +Erat nempe Flandria totius prope orbis stabile mercatoribus emporium. +Septemdecim regnorum negotiatores tum Brugis sua certa habuere domicilia +ac sedes, praeter complures incognitas paene gentes quae undique +confluebant. Meyer, fol. 205, ad ann. 1385. + +[575] Meyer; Froissart; Comines. + +[576] 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. + +[577] Guicciardini, p. 362; Mem. de Comines, 1. v. c. 17; Meyer, fol. +354; Macpherson's Annals of Commerce, vol. i. p. 647, 651. + +[578] 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. + +[579] 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. + +[580] Rymer, t. ii. p. 32, 50, 737, 949, 965; t. iii. p. 533, 1106, et +alibi. + +[581] Rymer, t. iii. p. 759. A Flemish factory was established at +Berwick about 1286. Macpherson. + +[582] In 1295 Edward I. made masters of neutral ships in English ports +find security not to trade with France. Rymer, t. ii. p. 679. + +[583] 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. + +[584] Rymer, t. v. p. 137, 430, 540. + +[585] 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. + +[586] 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. + +[587] Schmidt, t. iv. p. 18. + +[588] Considerable woollen manufactures appear to have existed in +Picardy about 1315. Macpherson ad annum. Capmany, t. iii. part 2, p. +151. + +[589] The sheriffs of Wiltshire and Sussex are directed in 1253 to +purchase for the king 1000 ells of fine linen, lineae telae pulchrae 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. + +[590] Adam Bremensis, de Situ Daniae, p. 13. (Elzevir edit.) + +[591] Schmidt, t. iv. p. 8. Macpherson, p. 392. The latter writer thinks +they were not known by the name of Hanse so early. + +[592] Pfeffel, t. i. p. 443; Schmidt, t. iv. p. 18; t. v. p. 512; +Macpherson's Annals, vol. i. p. 693. + +[593] Macpherson, vol. i. passim. + +[594] Rymer, t. viii. p. 360. + +[595] Macpherson (who quotes Stow), p. 415. + +[596] Walsingham, p. 211. + +[597] Rymer, t. vii. p. 210, 341; t. viii. p. 9. + +[598] Rymer, t. x. p. 461. + +[599] Rymer, t. viii. p. 488. + +[600] Macpherson, p. 667. + +[601] 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 Inglenoi +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 _Cracow_. +Harris's Voyages, vol. i. p. 554. + +[602] The Amalfitans are thus described by William of Apulia, apud +Muratori, Dissert. 30. + + Urbs haec dives opum, populoque referta videtur, + Nulla magis locuples argento, vestibus, auro. + Partibus innumeris ac plurimus urbe moratur + Nauta, maris coelique vias aperire peritus. + Huc et Alexandri diversa feruntur ab urbe, + Regis et Antiochi. Haec [etiam?] freta plurima transit. + Hic Arabes, Indi, Siculi noscuntur, et Afri. + Haec gens est totum prope nobilitata per orbem, + Et mercanda ferens et amans mercata referre. + +[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.] + +[603] 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. + +[604] Villani, 1. vii. c. 144. + +[605] Macpherson, p. 490. + +[606] 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 haec fert, illic iter +[instituent] eam egressuri, nec antea substituri, quam Gange et Caucaso +superato, ad Indos atque extremos Seres et Orientalem perveniatur +Oceanum. En quo ardens et inexplebilis habendi sitis hominum mentes +rapit! Petrarcae Opera, Senil. 1. ii. ep. 3, p. 760 edit. 1581. + +[607] Hist. de Languedoc, t. iii. p. 531; t. iv. p. 517. Mem. de l'Acad. +des Inscriptions, t. xxxvii. + +[608] Capmany, Memorias Historicas de Barcelona, t. i. part 2. See +particularly p. 36. + +[609] 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. + +[610] 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. + +[611] 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. + +[612] 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. Litteraire de la France, t. ix. p. 199; Mem. de l'Acad. +des Inscript. t. xxi. p. 192; and several other works. Guinizzelli has +the following passage, in a canzone quoted by Ginguene, Hist. Litteraire +de l'Italie, t. i. p. 413:-- + + In quelle parti sotto tramontana, + Sono li monti della calamita, + Che dan virtute all'aere + Di trarre il ferro; ma perche lontana, + Vole di simil pietra aver aita, + A far la adoperare, + _E dirizzar lo ago in ver la stella._ + +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. + +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. + +[613] 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. + +[614] Macpherson, p. 358. Boucher supposes them to be registers of +actual decisions. + +[615] 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. + +[616] Hugh Despenser seized a Genoese vessel valued at 14,300 marks, for +which no restitution was ever made. Rym. t. iv. p. 701. Macpherson, A.D. +1336. + +[617] 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. + +[618] Muratori, Dissert. 53. + +[619] Du Cange, voc. Laudum. + +[620] 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. + +[621] 27 E. III. stat. ii. c. 17, 2 Inst. p. 205. + +[622] Rymer, t. i. p. 839. + +[623] 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. + +[624] Rymer, t. ii. p. 891. Madox, Hist. Exchequer, c. xxii. s. 7. + +[625] 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. + +[626] Muratori, Dissert. 16. + +[627] 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. + +[628] Du Cange, v. Usura. + +[629] Muratori, Diss. 16. + +[630] Greg. Turon. I. iv. + +[631] Hist. de Languedoc, t. ii. p. 517; t. iii. p. 531. + +[632] Id. t. iii. p. 121. + +[633] Id. p. 163. + +[634] Marina, Ensayo Historico-Critico, p. 143. + +[635] Martenne Thesaurus Anecdotorum, t. i. p. 984. + +[636] Velly, t. iv. p. 136. + +[637] 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. + +[638] 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 literae cambitoriae, 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. + +[639] Usury was looked upon with horror by our English divines long +after the Reformation. Fleury, in his Institutions au Droit +Ecclesiastique, 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. + +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. + +[640] Macpherson, p. 487, et alibi. They had probably excellent +bargains; in 1329 the Bardi farmed all the customs in England for 20_l._ +a day. But in 1282 the customs had produced 8411_l._, and half a century +of great improvement had elapsed. + +[641] Villani, 1. xii. c. 55, 87. He calls these two banking-houses the +pillars which sustained great part of the commerce of Christendom. + +[642] Capmany, t. i. p. 213. + +[643] Macpherson, p. 341, from Sanuto. The bank of Venice is referred to +1171. + +[644] G. Villani, 1. xi. c. 49. + +[645] Matt. Villani, p. 227 (in Muratori, Script. Rer. Ital. t. xiv.). + +[646] Bizarri, Hist. Genuens. p. 797 (Antwerp, 1579); Machiavelli, +Storia Fiorentina, 1. viii. + +[647] 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. + +[648] Murat. Dissert. 23. + +[649] + Bellincion Berti vid' io andar cinto + Di cuojo e d'osso, e venir dallo specchio + La donna sua senza 'l viso dipinto, + E vidi quel di Nerli, e quel del Vecchio + Esser contenti alla pelle scoverta, + E sue donne al fuso ed al pennechio. + + Paradis. canto xv. + +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. + +[650] 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. + +[651] 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, Traite de +la Police, t. i. 1. iii. + +[652] Muratori, Antichita Italiane, Dissert. 23, t. i. p. 325. + +[653] "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). + +[654] Pfeffel, t. i. p. 293. + +[655] AEneas 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 solum subjiciuntur, cujus jugum est instar libertatis; +nec profecto usquam gentium tanta libertas est, quanta fruuntur +hujuscemodi civitates. Nam populi quos Itali vocant liberos, hi +potissimum serviunt, sive Venetias inspectes, sive Florentiam aut Caenas, +in quibus cives, praeter paucos qui reliquos ducunt, loco mancipiorum +habentur. Cum nec rebus suis uti, ut libet, vel fari quae velint, et +gravissimis opprimuntur pecuniarum exactionibus. Apud Germanos omnia +laeta sunt, omnia jucunda; nemo suis privatur bonis. Salvo cuique sua +haereditas est, nulli nisi nocenti magistratus nocent. Nec apud eos +factiones sicut apud Italas urbes grassantur. Sunt autem supra centum +civitates hac libertate fruentes. p. 1058. + +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. Fenestrae +undique vitreae perlucent, et ostia plerumque ferrea. In domibus multa et +munda supellex. Altae domus magnificaeque visuntur. Unum id dedecori est, +quod tecta plerumque tigno contegunt, pauca latere. Caetera aedificia muro +lapideo consistunt. Pictae domus et exterius et interius splendent. +Civitatis populus 50,000 _communicantium_ 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 AEneas Sylvius weakens the value of his testimony, on whichever +side it is given. + +[656] Vols. iv. and vi. + +[657] 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 +Archaeologia, 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. + +[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.] + +[658] Whitaker's Hist. of Whalley; Lysons's Cumberland, p. ccvi. + +[659] 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. + +[660] Archaeologia, vol. vi. + +[661] Blomefield's Norfolk, vol. iii. p. 242. + +[662] Whitaker's Hist. of Whalley. + +[663] Lyttelton, t. iv. p. 130. + +[664] 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. + +[665] Hist. of Whalley. + +[666] "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. + +[667] Archaeologia, vol. i. p. 143; vol. iv. p. 91. + +[668] 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. + +[669] 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. +[Note II.] + +[670] Melanges tires d'une grande bibliotheque, 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 privee des Francais which was to have +comprehended the history of civil architecture. Villaret has slightly +noticed its state about 1380. t. ii. p. 141. + +[671] 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 _chateau_ was not retained without meaning. + +[672] Melanges tires, &c. t. iii. For the prosperity and downfall of +Jacques Coeur, see Villaret, t. xvi. p. 11; but more especially Mem. +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 Coeur at +Beaumont-sur-Oise; but this was probably by mistake, as I do not +recollect, nor can find, any authority for it. + +[673] Giannone, Ist. di Napoli, t. iii. p. 280. + +[674] 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, Archaeol. 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. + +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. + +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 peres n'avoient qu'un unique chauffoir, qui etoit +commun a toute une famille, et quelquefois a plusieurs. t. iii. p. 133. +In another place, however, he says: Il parait que les tuyaux de +cheminees etaient deja tres en usage en France, t. xxxi. p. 232. + +[675] Du Cange, v. Vitreae; Bentham's History of Ely, p. 22. + +[676] Matt Paris; Vitae Abbatum St. Alb. 122. + +[677] Recueil des Hist. t. xii. p. 101. + +[678] Paulmy, t. iii. p. 132. Villaret, t. xi. p. 141. Macpherson, p. +679. + +[679] 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. + +[680] 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_l._ +7_s._ 10_d._, 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. + +[681] 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_l._; his jewels at 23_l._; his +funeral expenses come to 73_l._ 6_s._ 8_d._ p. 119. + +[682] 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. + +[683] Cuperent tam egregie Scotorum reges quam mediocres Nurembergae +cives habitare. AEn. Sylv. apud Schmidt, Hist. des Allem. t. v. p. 510. + +[684] t. iii. p. 127. + +[685] Crescentius in Commodum Ruralium. (Lovaniae, absque anno.) This old +edition contains many coarse wooden cuts, possibly taken from the +illuminations which Paulmy found in his manuscript. + +[686] 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. + +[687] 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 Archaeologia, +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. + +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 facade 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. + +[688] 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. +Ginguene, Hist. Litter. 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. + +[689] 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. Litteraire 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. Melanges tires +d'une grande bibliotheque, 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. + +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. + +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.] + +[690] 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 +Encyclopaedia Britannica is worth reading. + +[691] 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. + +[692] "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. + +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, Lecon 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 Mem. de +l'Acad. des Sciences Morales et Politiques, iii. 708. + +Guizot has appreciated the rule of St. Benedict with that candid and +favourable spirit which he always has brought to the history of the +church: anxious, as it seems, not only to 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 mediaeval prejudices, Guizot stands forward as an equitable +and indulgent arbitrator. In this spirit he says of the rule of St. +Benedict--La pensee morale et la discipline generale en sont severes; +mais dans le detail de la vie elle est humaine et moderee; plus humaine, +plus moderee que les lois barbares, que les moeurs generales du temps; +et je ne doute pas que les freres, renfermes dans l'interieur d'un +monastere, n'y fussent gouvernes par une autorite, a tout prendre, et +plus raisonnable, et d'une maniere moins dure qu'ils ne l'eussent ete +dans la societe civile. + +[693] 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 Septimania trahens, had possessed by a charter of +Charlemagne. See too p. 773, and other places. Du Cange, v. Eremus, +gives also a few instances. + +[694] 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. + +[695] 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. + +[696] 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, praecaventes 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 sua generalitate omnia tenementa +totius terrae integre continente; that is, it was as general and +conclusive as the last judgment will be. + +[697] This of course is subject to the doubt as to the authenticity of +Ingulfus. + +[698] 1 Gale, XV Script. p. 77. + +[699] Communi plebiscito viritim inter se diviserunt, et quidam suas +portiones agricolantes, quidam ad foenum conservantes, quidam ut prius +ad pasturam suorum animalium, separaliter jacere permittentes, terram +pinguem et uberem repererunt. p. 94. + +[700] 1 Gale, XV Script. p. 201. + +[701] 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. + +[702] 1. ii. c. 8. + +[703] Cullum, p. 100, 220. Eden's State of Poor, &c. p. 48. Whitaker's +Craven, p. 45, 336. + +[704] I infer this from a number of passages in Blomefield, Cullum, and +other writers. Hearne says, that an acre was often called Solidata +terrae; because the yearly rent of one _on the best land_ was a shilling. +Lib. Nig. Scacc. p. 31. + +[705] Rot. Parl. vol. v. p. 275. + +[706] 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. + +[707] Rymer, t. xii. p. 204. + +[708] 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. + +[709] Muratori, Dissert. 21. + +[710] Denina, 1. xi. c. 7. + +[711] Denina, 1. vi. + +[712] t. iii. p. 145; t. xxxi. p. 258. + +[713] De la Mare, Traite de la Police, t. iii. p. 380. + +[714] Eden's State of Poor, vol. i. p. 51. + +[715] 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, A.D. 1514, at 20_s._ a +quarter: whereas it appears to have been at 9_s._ 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_s._ to 6_l._ 8_s._ a quarter, vol. i. p. 18. +Certainly, if any chronicler had mentioned such a price as the latter, +equivalent to 150_l._ 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_s._ 8_d._ for 6_l._ 8_s._, 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. + +[716] 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." + +[717] M. Guerard, editor of "Paris sous Philippe le Bel," in the +Documens Inedits (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 (Mem. de l'Acad. des Inscript. Nouvelle Serie, xiv. 230) +calculates the power of silver under Charlemagne, compared with the +present day, to have been as nearly eleven to one. It fell afterwards to +eight, and continued to sink during the middle ages; the average of +prices during the fourteenth and fifteenth centuries, taking corn as the +standard, was six to one; the comparison is of course only for France. +This is an interesting paper, and contains tables worthy of being +consulted. + +[718] 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_s._ 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. + +[719] 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]. + +[720] 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 Angliae 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 saeculum pro tali moneta, et fiebant commutationes +plurimae 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. + +[721] 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_s._ to 6_s._--barley from 3_s._ 2_d._ to +4_s._ 10_d._--oats from 1_s._ 8_d._ to 2_s._ 4_d._--oxen from 12_s._ to +16_s._--sheep from 1_s._ 2_d._ to 1_s._ 4_d._--butter 3/4_d._ per +lb.--eggs twenty-five for 1_d._--cheese 1/2_d._ 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. + +[722] 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. + + ------------------+----------------+------------- + | Value of | + | pound | + | sterling, | + | present money. | Proportion. + +----------------+------------- + | L. s. d. | + Conquest, 1066 | 2 18 1-1/2 | 2.906 + 28 E. I. 1300 | 2 17 5 | 2.871 + 18 E. III. 1344 | 2 12 5-1/4 | 2.622 + 20 E. III. 1346 | 2 11 8 | 2.583 + 27 E. III. 1353 | 2 6 6 | 2.325 + 13 H. IV. 1412 | 1 18 9 | 1.937 + 4 E. IV. 1464 | 1 11 0 | 1.55 + 18 H. VIII. 1527 | 1 7 6-3/4 | 1.378 + 34 H. VIII. 1543 | 1 3 3-1/4 | 1.163 + 36 H. VIII. 1545 | 0 13 11-1/2 | 0.698 + 37 H. VIII. 1546 | 0 9 3-3/4 | 0.466 + 5 E. VI. 1551 | 0 4 7-3/4 | 0.232 + 6 E. VI. 1552 | 1 0 6-3/4 | 1.028 + 1 Mary 1553 | 1 0 5-3/4 | 1.024 + 2 Eliz. 1560 | 1 0 8 | 1.033 + 43 Eliz. 1601 | 1 0 0 | 1.000 + ------------------+----------------+------------- + +[723] Macpherson's Annals, p. 424, from Matt. Paris. + +[724] Difference of Limited and Absolute Monarchy, p. 133. + +[725] Hist. of Hawsted, p. 141. + +[726] 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. + +[727] Paston Letters, vol. i. p. 224; Cullum's Hawsted, p. 182. + +[728] Hist. of Hawsted, p. 228. + +[729] 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. + +[730] See these rates more at length in Eden's State of the Poor, vol. +i. p. 32, &c. + +[731] In the Archaeologia, 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. + +[732] 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. + +[733] 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. + +[734] 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.] + +[735] 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. + +[736] Henault, Abrege Chronol. a 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, Traite de la +Police, 4 vols. in folio. A sketch of them may be found in Velly, t. v. +p. 349, t. xviii. p. 437. + +[737] 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. + +[738] Velly, t. viii. p. 132. + +[739] Id. xviii. p. 437. + +[740] Fleury, 3me Discours sur l'Hist. Eccles. + +[741] 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, prothumos anathematizousi Maneta. 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 pater epouranios, 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. + +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: ouk exestin hemin tois kosmikois ousi tauta +anaginoskein, ei me tois hiereusi monois. 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. + +[742] 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. + +[743] 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 (Antichita 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. Litteraire 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. + +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 _know +no evidence_ 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. + +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. + +[744] M. Paris, p. 267. (A.D. 1223.) Circa dies istos, haeretici +Albigenses constituerunt sibi Antipapam in finibus Bulgarorum, Croatiae +et Dalmatiae, nomine Bartholomaeum, &c. We are assured by good authorities +that Bosnia was full of Manicheans and Arians as late as the middle of +the fifteenth century. AEneas Sylvius, p. 407; Spondanus, ad an. 1460; +Mosheim. + +[745] 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 +omnino repudiabant, praeter quasdam auctoritates, quae de Veteri +Testamento Novo sunt insertae, quas ob Novi reverentiam Testamenti +recipere dignum aestimabant. 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 haeretici 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. + +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 Manicheisme, 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. + +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. + +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.] + +[746] 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 Loicon, 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. + + Ben ha mil et cent ans compli entierament, + Che fu scritta loro que sen al derier temp. + + Eleven hundred years are now gone and past, + Since thus it was written; These times are the last. + +See Literature of Europe in 15th, 16th, and 17th Centuries, chap. 1, Sec. +33. + +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 Latinae ecclesiae Christianorum fidem, laici +ex Suavia, Suicia, et Bavaria humiliare voluerunt; homines seducti ab +antiqua progenie simplicium hominum, qui Alpes et viciniam habitant, et +semper amant antiqua. In Suaviam, Bavariam et Italiam borealem saepe +intrant illorum (ex Suicia) mercatores, qui biblia ediscunt memoriter, +et ritus ecclesiae aversantur, quos credunt esse novos. Nolunt imagines +venerari, reliquias sanctorum aversantur, olera comedunt, raro +masticantes carnem, alii nunquam. Appellamus eos idcirco Manichaeos. +Horum quidam ab Hungaria 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. + +[747] The Waldenses were always considered as much less erroneous in +their tenets than the Albigenses, or Manicheans. Erant praeterea alii +haeretici, says Robert Monachus in the passage above quoted, qui +Waldenses dicebantur, a quodam Waldio nomine Lugdunensi. Hi quidem mali +erant, sed comparatione aliorum haereticorum longe 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 Manichaei, +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 acutissime 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. + +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. + +[748] 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 a catto; quia +osculantur posteriora catti; in cujus specie, ut aiunt, appareret iis +Lucifer, p. 146. This notable charge was brought afterwards against the +Templars. + +As to the Waldenses, their innocence is out of all doubt. No book can be +written in a more edifying manner than La Noble Loicon, 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 Provencal 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. + + Que sel se troba alcun bon que vollia amar Dio e temer Jeshu Xrist, + Que non vollia maudire, ni jura, ni mentir, + Ni avoutrar, ni aucire, ni penre de l'autruy, + Ni venjar se de li sio ennemie, + Illi dison quel es Vaudes e degne de murir. + +[749] 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. + +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. + +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 _vauderie_, 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 _vauderie_. 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 _vauderie_, 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. + +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. + +[750] 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. + +[751] Schilteri Thesaurus Antiq. Teutonicorum. + +[752] Mem. de l'Acad. des Inscript. t. xvii. p. 720. + +[753] 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." + +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 Inedits, 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 Provencal 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.] + +[754] 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. + + Di voi pastor s' accorse 'l Vangelista, + Quando colei, chi siede sovra l'acque, + Puttaneggiar co' regi a lui fu vista. + + Inferno, cant. xix. + +[755] 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. + +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. + +[756] Lewis's Life of Wicliffe, p. 115; Lenfant, Hist. du Concile de +Constance, t. i. p. 213. + +[757] 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. + +[758] Lenfant, Hist. de la Guerre des Hussites et du Concile de Basle; +Schmidt, Hist. des Allemands, t. v. + +[759] Nihil neque publicae neque privatae rei nisi armati agunt. Sed arma +sumere non ante cuiquam moris, quam civitas suffecturum probaverit. Tum +in ipso concilio, vel principum aliquis, vel pater, vel propinquus, +scuto frameaque juvenem ornant; haec apud eos toga, hic primus juventae +honos; ante hoc domus pars videntur, mox reipublicae. De Moribus German. +c. 13. + +[760] William of Malmsbury says that Alfred conferred knighthood on +Athelstan, donatum chlamyde coccinea, gemmato balteo, ense Saxonico cum +vagina aurea. 1. ii. c. 6. St. Palaye (Memoires 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. + +[761] Comites et vassalli nostri qui beneficia habere noscuntur, et +_caballarii_ omnes ad placitum nostrum veniant bene preparati. +Capitularia, A.D. 807, in Baluze, t. i. p. 460. + +[762] 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. + +[763] 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 Coeur 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. + +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, + + a quo, ceu fonte perenni, + Vatum Pieriis ora rigantur aquis. + +[764] 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. + +[765] Du Cange, v. Miles, and 22nd Dissertation on Joinville, St. +Palaye, Mem. 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). + +[766] Y eut huit cens chevaliers seant a table; et si n'y eust celui qui +n'eust une dame on une pucelle a 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. + +[767] Le Grand, Fabliaux, t. iii. p. 438; St. Palaye, t. i. p. 41. I +quote St. Palaye's Memoires from the first edition in 1759, which is not +the best. + +[768] Statuimus, quod omnis homo, sive miles sive alius, qui iverit cum +domina generosa, salvus sit atque securus, nisi fuerit homicida. De +Marca, Marca Hispanica, p. 1428. + +[769] Le Grand, t. i. p. 120; St. Palaye, t. i. p. 13, 134, 221; +Fabliaux, Romances, &c., passim. + +[770] St. Palaye, p. 222. + +[771] Froissart, p. 33. + +[772] St. Palaye, p. 268. + +[773] The romances will speak for themselves; and the character of the +Provencal morality may be collected from Millot, Hist. des Troubadours, +passim; and from Sismondi, Litterature du Midi, t. i. p. 179, &c. See +too St. Palaye, t. ii. p. 62 and 68. + +[774] St. Palaye, part ii. + +[775] Non laudem meruit, sed summae potius opprobrium vilitatis; nam idem +facinus est putandum captum nobilem vel ignobilem offendere, vel ferire, +quam gladio caedere cadaver. Rolandinus, in Script Rer. Ital. t. viii. p. +351. + +[776] 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. + +[777] 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. + +[778] Fabliaux de Barbasan, t. i. + +[779] Joinville in Collection des Memoires, t. i. p. 43. + +[780] St. Palaye, part i. + +[781] Du Cange, 5me Dissertation sur Joinville. St. Palaye, t. i. p. +87, 118. Le Grand, t. i. p. 14. + +[782] St. Palaye, t. i. p. 191. + +[783] 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. 6me +Dissertation sur Joinville. + +[784] 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. + +[785] St. Palaye, part iv. Selden's Titles of Honour, p. 806. There was +not, however, so much distinction in England as in France. + +[786] 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: + + Quoslibet ex humili vulgo, quod Gallia foedum + Judicat, accingi gladio concedit equestri. + +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 paterna, was +fined in the king's court. The king, however, (Philip III.) confirmed +the knighthood. Daniel, Hist. de la Milice Francoise, 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. + +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 _Lyndia_ 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. + +[787] St. Palaye, part iii. passim. + +[788] 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: + + "A yonge Squire, + A lover, and a lusty _bachelor_." + +[789] Du Cange, Dissertation 9me 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. + +[790] Ibid. Olivier de la Marche (Collection des Memoires, 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 Francoise, 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. + +[791] Froissart, part i. c. 241. + +[792] Mem. sur la Chevalerie, part v. + +[793] 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. + +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. + +[794] 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 Mem. 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. + +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, Lecon 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. + +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 pensee morale des hommes s'eleve et aspire fort au +dessus de leur vie. Et gardez vous de croire que parce qu'elle ne +gouvernait pas immediatement les actions, parceque la pratique demontait +sans cesse et etrangement la theorie, l'influence de la theorie fut +nulle et sans valeur. C'est beaucoup que le jugement des hommes sur les +actions humaines; tot ou tard il devient efficace. + +It may be thought by many severe judges, that I have over-valued the +efficacy of chivalrous sentiments in 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. + +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.] + +[795] Four very recent publications (not to mention that of Buhle on +modern philosophy) enter much at large into the middle literature; those +of M. Ginguene 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 Ginguene 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. + +[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.] + +[796] Heineccius, Hist. Juris German. c. 1. p. 15. + +[797] Giannone, 1. iv. c. 6. Selden, ad Fletam, p. 1071. + +[798] Tiraboschi, t. iii. p. 359. Ginguene, Hist. Litt. de l'Italie, t. +i. p. 155. + +[799] 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. + +[800] Tiraboschi, t. iv. p. 38; t. v. p. 55. + +[801] Tiraboschi, t. v. Vaissette, Hist. de Languedoc, t. ii. p. 517; t. +iii. p. 527; t. iv. p. 504. + +[802] Duck, de Usu Juris Civilis, 1. ii. c. 6. + +[803] Idem, 1. ii. 2. + +[804] Duck, 1. ii. c. 5, s. 30, 31. Fleury, Hist. du Droit Francois, p. +74 (prefixed to Argou, Institutions au Droit Francois, 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 Decisions, art. Droit-ecrit,) the +affirmative prevailed. It is plain at least by the Causes Celebres, that +appeal was continually made to the principles of the civil law in the +argument of Parisian advocates. + +[805] Crevier, Hist. de l'Universite de Paris, t. i. p. 316; t. ii. p. +275. + +[806] Johan. Salisburiensis, apud Selden ad Fletam, p. 1082. + +[807] 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. + +[808] Duck, De Usu Juris Civilis, 1. i. c. 87. + +[809] Gravina, Origines Juris Civilis, p. 196. + +[810] 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. + +[The civil lawyers of the mediaeval period are not at all forgotten on +the continent, as the great work of Savigny, History of Roman Law in the +Middle Ages, sufficiently proves. It is certain that the civil law must +always be studied in Europe, nor ought the new codes to supersede it, +seeing they are in great measure derived from its fountain; 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.] + +[811] Ante ipsum dominum Carolum regem in Gallia nullum fuit studium +liberalium artium. Monachus Engolismensis, apud Launoy, De Scholis per +occidentem instauratis, p. 5. See too Histoire Litteraire 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, Lecon 16; and Ampere, Hist. Litt. de la +France, iii. p. 4. But, perhaps, philology, logic, philosophy, and even +theology were not taught, as sciences, in any of the French schools for +these two centuries; and consequently those established by Charlemagne +justly make an epoch. + +[812] 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. + +[813] Hist. Litteraire, p. 217, &c. + +[814] This division of the sciences is ascribed to St. Augustin; and we +certainly find it established early in the sixth century. Brucker, +Historia Critica Philosophiae, t. iii. p. 597. + +[815] Schmidt, Hist. des Allemands, t. ii. p. 126. + +[816] Crevier, Hist. de l'Universite de Paris, t. i. p. 28. + +[817] Brucker, t. iii. p. 612. Raban Maurus was chief of the cathedral +school at Fulda, in the ninth century. + +[818] Crevier, p. 66. + +[819] Crevier, p. 171; Brucker, p. 677; Tiraboschi, t. iii. p. 275. + +[820] Brucker, p. 750. + +[821] 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 Remusat, in 1845, with the +title Abelard, containing a copious account both of the life and +writings of that most remarkable man, the father, perhaps, of the theory +as to the nature of universal ideas, now so generally known by the name +of _conceptualism_. + +[822] 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. + +[823] Crevier, t. i. p. 279. The first statute regulating the discipline +of the university was given by Robert de Courcon, legate of Honorius +III., in 1215, id. p. 296. + +[824] 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. + +[825] 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 _Cambridge_ 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. + +[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.] + +[826] 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. + +[827] 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. + +[828] Tiraboschi, t. iii. p. 259, et alibi; Muratori, Dissert. 43. + +[829] "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. + +[830] 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. + +[831] 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. + +[832] Tiraboschi, t. iv. p. 43 and 46. + +[833] 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. + +[834] Crevier, Hist. de l'Universite de Paris, t. ii. p. 216; t. iii. p. +140. + +[835] Pfeffel, Abrege Chronologique de l'Hist. de l'Allemagne, p. 550, +607. + +[836] Rymer, t. vi. p. 292. + +[837] Crevier, t. ii. p. 398. + +[838] Crevier and Villaret, passim. + +[839] Brucker, Hist. Crit. Philosophiae, t. iii. p. 678. + +[840] 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. Ginguene, Hist. Litt. de l'Italie, t. i. p. 212 +(on the authority of M. Langles). + +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. + +[841] Brucker, Hist. Crit Philosophiae, 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. + +[842] 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. + +[843] 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. + +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. + +[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 Remusat, in their +excellent labours on Abelard, have restored the mediaeval philosophy to a +place in transcendental metaphysics, which, during the prevalence of the +Cartesian school, and those derived from it, had been refused. 1848.] + +[844] 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. + +[845] 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. + +[846] 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! Mem. de Petrarque, t. iii. p. 759. +Tiraboschi, t. v. p. 162. + +[847] Brucker, p. 898. + +[848] 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 _emanating_ 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. + +[849] 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. + +[850] Tiraboschi, t. iv. p. 150. + +[851] 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. + +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, _praerogativae_ +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 quaestionem; sed non certificat neque +removet dubitationem, ut quiescat animus in intuitu veritatis, nisi eam +inveniat via experientiae; 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 laedit 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 assumta experientia +combustionis certificatur animus et quiescit in fulgore veritatis, quo +argumentum non sufficit, sed experientia. p. 446. + +[852] See the fate of Cecco d'Ascoli in Tiraboschi, t. v. p. 174. + +[853] Le Boeuf, Mem. de l'Acad. des Inscript. t. xvii. p. 711. + +[854] Gregorius, cognomento Bechada, de Castro de Turribus, professione +miles, subtilissimi ingenii vir, aliquantulum imbutus literis, horum +gesta praeliorum materna lingua 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 vero vilesceret propter verbum vulgare, non sine praecepto 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 Labbe, Bibliotheca nova MSS. t. ii. p. 296. + +[855] De Sade, Vie de Petrarque, t. i. p. 155. Sismondi, Litt. du Midi, +t. i. p. 228. + +[856] For the Courts of Love, see De Sade, Vie de Petrarque, t. ii. note +19. Le Grand. Fabliaux, t. i. p. 270. Roquefort, Etat de la Poesie +Francoise. p. 94. I have never had patience to look at the older writers +who have treated this tiresome subject. + +[857] Histoire Litteraire des Troubadours Paris, 1774. + +[858] Two very modern French writers, M. Ginguene (Histoire Litteraire +d'Italie, Paris, 1811) and M. Sismondi (Litterature 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. + +[859] Hist. Litt. de la France, t. vii. p. 58. Le Boeuf, 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 _au plus tard_. 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 Poesie Francoise, p. 206. Le Boeuf's fragment may be found in this +work, p. 379; it seems nearer to the Provencal than the French dialect. + +[860] Gale, XV Script. t. i. p. 88. + +[861] 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.] + +[862] Hist. Litt. t. ix. p. 149; Fabliaux par Barbasan, vol. i. p. 9, +edit. 1808; Mem. de l'Academie des Inscr. t. xv. and xvii, p. 714, &c. + +[863] 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 +Traite 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. + +[864] Ravaliere, Revol. de la Langue Francoise, p. 116, doubts the age +of this translation. + +[865] Archaeologia, vols. xii. and xiii. + +[866] Millot says that Richard's sirventes (satirical songs) have +appeared in French as well as Provencal, 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. Ginguene, as +well as Le Grand d'Aussy, considers Richard as a trouveur. + +[Raynouard has since published, in Provencal, 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 Francais, 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.] + +[867] 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. + +[868] [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.] + +[869] 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 +_biblia_ is ever used except for the Scriptures; and the Italian +translator renders it, cioe 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. + +[870] The Assises de Jerusalem 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. + +[871] 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 Ravaliere 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 Poesie Francaise dans les 12me et 13me +siecles, Paris, 1815 p. 147. + +[872] Villaret, Hist. de France, t. xi. p. 121; De Sade, Vie de +Petrarque, 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 accoutumee entre les princes. Collect. de +Mem. t. v. p. 103, 190, &c. + +[873] 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. + +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. + +[874] 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 Provencal dialect, as well as those who wrote +in Castilian. + +[875] Dissert. 32. + +[876] Tiraboschi, t. iv. p. 340. + +[877] Dante, in his treatise De vulgari Eloquentia, 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. + +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. + +[878] Tiraboschi, t. iv. p. 309-377. Ginguene, 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 _Tesoro_ 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 _que la +parleure en est plus delitable et plus commune a toutes gens_. 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. +Ginguene, vol. i. p. 384. + +[879] + Tu proverai si (says Cacciaguida to him) come sa di sale + Il pane altrui, e come e duro calle + Il scendere e 'l salir per altrui scale. + + Paradis. cant. 16. + +[880] Paradiso, cant. 16. + +[881] Velli, Vita di Dante. Tiraboschi. + +[882] 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 AEneid 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. Ginguene, t. ii. p. 8. + +[883] 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 +invidiae. AUG. Utinam non tibi magis superbia quam invidia nocuisset: nam +hoc crimine, me judice, liber es. De Contemptu Mundi, edit. 1581, p. +342. + +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. + +[884] 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. + +[885] 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 +_perturbationibus_, instead of _partubus_. Two manuscripts in the royal +library at Paris have the contraction _ptbus_, 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. + +[886] [Note III.] + +[887] [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.] + +[888] 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. + +[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. + +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 +_a_ as an article--the change of the Anglo-Saxon terminations _a_ and +_an_ into _e_ and _en_, 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 _to_ before infinitives, and occasional +use of weak preterites of verbs and participles instead of strong--the +constant recurrence of _er_ for _or_ 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.] + +[889] Warton's Hist. of English Poetry, Ellis's Specimens. + +[890] This conjecture of Scott has not been favourably received by later +critics. + +[891] 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. + +[892] 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. + +[893] Rymer, t. v. p. 490; t. vi. p. 642, et alibi. + +[894] Ritson, p. 80. There is one in Rymer of the year 1385. + +[895] [Note IV.] + +[896] 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. + +[897] Warton's Hist. of English Poetry, vol. i. Dissertation II. +Roquefort, Etat de la Poesie Francaise du douzieme Siecle 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. + + Solverat interea zephyris melioribus annum + Frigore depulso veris tepor, et renovari + Coeperat et viridi gremio juvenescere tellus; + Cum Rea laeta Jovis rideret ad oscula mater, + Cum jam post tergum Phryxi vectore relicto + Solis Agenorei premeret rota terga juvenci. + +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. + +[898] 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. Litteraire 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. + +[899] 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 Traite 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. Sec. 58. + +[900] Warton's Hist. of English Poetry, vol. ii. p. 122. + +[901] Velly, t. v. p. 202; Crevier, t. ii. p. 36. + +[902] Warton, vol. i; Dissert. II. + +[903] Ibid. + +[904] 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. + +[905] Ibid.; Villaret, t. xi. p. 117. + +[906] 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. + +[907] Schmidt, Hist. des Allemands, t. v. p. 520. + +[908] He had lent it to a needy man of letters, who pawned the book, +which was never recovered. De Sade, t. i. p. 57. + +[909] Tiraboschi, p. 89. + +[910] Idem, t. v. p. 83; De Sade, t. i p. 88. + +[911] Tiraboschi, p. 101. + +[912] Tiraboschi, t. vi. p. 104; and Shepherd's Life of Poggio, p. 106, +110; Roscoe's Lorenzo de' Medici, p. 38. + +[913] 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. + +[914] Hist. Litteraire de la France, t. iv. p. 12 + +[915] Greek characters are found in a charter of 943, published in +Martenne, Thesaurus Anecdot. t. i. p. 74. The title of a treatise peri +phuseon merismou, and the word theotokos, 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 ousia 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. + +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. + +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, Sec. 7.] + +[916] Nemo est qui Graecas literas norit; at ego in hoc Latinitati +compatior, quae sic omnino Graeca abjecit studia, ut etiam non noscamus +characteres literarum. Genealogiae Deorum, apud Hodium de Graecis +Illustribus, p. 3. + +[917] Mem. de Petrarque, t. i. p. 407. + +[918] Mem. de Petrarque, t. i. p. 447; t. iii. p. 634. Hody de Graecis +Illust. p. 2. Boccace speaks modestly of his own attainments in Greek: +etsi non satis plene perceperim, percepi tamen quantum potui; nee +dubium, si permansisset homo ille vagus diutius penes nos, quin plenius +percepissem. id. p. 4. + +[919] 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. + +[920] Tiraboschi, t. vi. p. 102; Roscoe's Lorenzo de' Medici, vol. i. p. +43. + +[921] 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 Saeculum 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. + +[922] The honour of restoring ancient or heathen literature is due to +the Caesar Bardas, uncle and minister of Michael II. Cedrenus speaks of +it in the following terms: epemelethe de kai tes exo sophias, (en gar ek +pollou chronou pararrhueisa, kai pros te meden holos choresasa te ton +kratounton argia kai amathia) diatribas hekaste ton epistemon aphorisas, +ton men allon hope per etuche, tes d' epi pason epochou philosophias +kat' auta ta basileia en te Magnaura; kai houto ex ekeinou anebaskein +hai epistemai erxanto. k. t. l. 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. + +[923] Du Cange, Praefatio ad Glossar. Graecitatis 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, ten archaian +glottan huper ten idioten meletousi. Du Cange, ibid. p. 11. It is well +known that the popular, or _political_ 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. + +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 thelo. See some instances +of this in Lesbonax, peri schematon, ad finem Ammonii, cura Valckenaer. + +[924] 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 Isaeus, 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. +AEneas 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 _Menandro_ 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. AEn. 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. + +An useful summary of the lower Greek literature, taken chiefly from the +Bibliotheca Graeca of Fabricius, will be found in Berington's Literary +History of the Middle Ages, Appendix I.; and one rather more copious in +Schoell, Abrege de la Litterature Grecque. (Paris, 1812.) + +[925] Wood's Antiquities of Oxford, vol. i p. 537. + +[926] Roper's Vita Mori, ed. Hearne, p. 75. + +[927] Crevier, t. iv. p. 243; see too p. 46. + +[928] Incredibilis ingeniorum barbaries est; rarissimi literas norunt, +nulli elegantiam. Papiensis Epistolae, 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 violasse. Troops committing outrages in a city are accused +virgines vestales incestasse. 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. + +[929] 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. + +[930] De Bure, t. i. p. 30. Several copies of this book have come to +light since its discovery. + +[931] Id., p. 71. + +[932] Mem. 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. + +[933] Tiraboschi, t. vi. p. 140. + +[934] 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. + + + + +NOTES TO CHAPTER IX. + + +NOTE I. Page 288. + +A rapid decline of learning began in the sixth century, of which Gregory +of Tours is both a witness and an example. It is, therefore, properly +one of the dark ages, more so by much than the eleventh, which concludes +them; since very few were left in the church who 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. + +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 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 Ferrieres, 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.[935] But his more celebrated +correspondent, Eginhard, went beyond him. Both his Annals and the Life +of Charlemagne are very well written, in a classical spirit, unlike the +church Latin; though a few words and phrases may not be of the best age, +I should place Eginhard above Alcuin and Lupus, or, as far as I know, +any other of the Caroline period. + +The tenth century has in all times borne the worst name. Baronius calls +it, in one page, _plumbeum_, _obscurum_, _infelix_ (Annales, A.D. 900). +And Cave, who dubs all his centuries by some epithet, assigns _ferreum_ +to the tenth. Nevertheless, there was considerably less ignorance in +France and Germany during the latter part of this age than before the +reign of Charlemagne, or even 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 +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. + +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, +Caedmon, and Alcuin; to whom, if Ireland will permit us, we may desire to +add Scotus, who came a little afterwards, but whose residence in this +island at any time appears an unauthenticated tale. But we know how +Alfred speaks of the ignorance of the clergy in his own age. Nor was +this much better afterwards. Even the eleventh century, especially +before the Conquest, is a very blank period in the literary annals of +England. No one can have a conception how wretchedly scanty is the list +of literary names from Alfred to the Conquest, who does not look to Mr. +Turner's History of the Anglo-Saxons, or to Mr. Wright's Biographia +Literaria. + +There could be no general truth respecting the past, as it appeared to +me, more notorious, or more incapable of being denied with any +plausibility, than the characteristic ignorance of Europe during those +centuries which we commonly style the Dark Ages. A powerful stream, +however, of what, as to the majority at least, I must call prejudice, +has been directed of late years in an opposite direction. The mediaeval +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. + +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. 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. + +The Letters on the Dark Ages relate principally to the theological +attainments of the clergy during that period, which the author assumes, +rather singularly, to extend from A.D. 800 to 1200; thus excluding +midnight from his definition of darkness, and replacing it by the break +of day. And in many respects, especially as to the 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. 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 _dark_ is commonly used, either +in reference to the body of the laity or to the general extent of +liberal studies in the church, and as it involves a comparison with +prior or subsequent ages, it cannot be improper in such a sense, even if +the manuscripts of the Bible should have been as common in monasteries +as Dr. Maitland supposes; and yet his proofs seem much too doubtful to +sustain that hypothesis. + +There is a tendency to set aside the verdict of the most approved +writers, which gives too much of a polemical 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. Ampere, in his Histoire Litteraire de la +France avant le douzieme siecle (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. + +I shall conclude by remarking that one is a little tempted to inquire +why so much anxiety is felt by the advocates of the mediaeval church to +rescue her from the charge of ignorance. For this ignorance she was not, +generally speaking, to be blamed. It was no crime of the clergy that the +Huns burned their churches, or the Normans pillaged their monasteries. +It was not by their means that the Saracens shut up the supply of +papyrus, and that sheep-skins bore a great price. Europe was altogether +decayed in intellectual character, partly in 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--Sperma puros sozousa. 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.] + + +NOTE II. Page 350. + +The account of domestic architecture given in the text is very +superficial; but the subject still remains, comparatively with other +portions of mediaeval antiquity, but imperfectly treated. The best sketch +that has hitherto been given is in an article with this title in the +Glossary of Ancient 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,[936] the lower story vaulted, with no +internal communication 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.[937] + +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 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. + +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. + +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 mediaeval 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. + +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 Archaeological Journal (vol. i. +p. 212), where proofs are adduced from the fabliaux of Barbasan. [1848.] + + +NOTE III. Page 451. + +The Abbe 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 Castita, 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: + + Quod tibi perpetuus pudor, et sine labe juventas + Pura fuit, quod nulla tori libata voluptas, + En etiam tibi virginei servantur honores. + Epitaphium Damonis. + +2. The coldness of Laura towards so passionate and deserving a lover, if +no insurmountable obstacle intervened during his twenty years of +devotion, would be at least a mark that his attachment was misplaced, +and show him in rather a 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 Provencal 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 haesitantem trepidumque direxerit, et quod caecis fieri +solet, manu apprehensum non tenuit, quo et gradiendum foret admonuit? +PETR. 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 aetatem, adversus multa et varia quae flectere +adamantium spiritum debuissent, inexpugnabilis et firma permansit? +Profecto animus iste foemineus quid virum decuit admonebat, +praestabatque ne in sectando pudicitiae studio, ut verbis utar Senecae, aut +exemplum aut convitium deesset; postremo cum lorifragum ac praecipitem +videret, deserere maluit potius quam sequi. AUGUST. Turpe igitur aliquid +interdum voluisti, quod supra negaveras. At iste vulgatus amantium, vel, +ut dicam verius, amantium furor est, ut omnibus merito dici possit: volo +nolo, nolo volo. Vobis ipsis quid velitis, aut nolitis, ignotum est. +PET. Invitus in laqueum offendi. Si quid tamen olim aliter forte +voluissem, amor aetasque coegerunt; nunc quid velim et cupiam scio, +firmavique jam tandem animum labentem; contra autem illa propositi tenax +et semper una permansit, quare constantiam foemineam quo magis +intelligo, magis admiror: idque sibi consilium fuisse, si unquam debuit, +gaudeo nunc et gratias ago. AUG. Semel fallenti, non facile rursus fides +habenda est: tu prius mores atque habitum, vitamque mutavisti, quam +animum mutasse persuadeas; mitigatur forte si tuus leniturque ignis, +extinctus non est. Tu vero 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. + + +NOTE IV. Page 456. + +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):-- + +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 _en Englois_; and the +like circumstance is noted in 37 and 38 Edw. III.[938] In the 5th year +of Richard II., the chancellor is stated to have made _un bone +collacion en Engleys_ (introductory, as was then sometimes the usage, to +the commencement of business), though he made use of the common French +form for opening the parliament. A petition from the 'Folk of the +Mercerye of London,' in the 10th year of the same reign, is in English; +and it appears also that in the 17th year the Earl of Arundel asked +pardon of the Duke of Lancaster by the award of the King and Lords, in +their presence in parliament, in a form of English 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,[939] 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 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. + + +FOOTNOTES: + +[935] The writings of Lupus Servatus, abbot of Ferrieres, were published +by Baluze; and a good account of them will be found in Ampere'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). + +[936] This is rather equivocal, but it is certainly not meant that there +were ever two _floors_ above that on the ground. In the review of the +"Chronicles of the Mayors and Sheriffs," published in the Archaeological +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 _story_, 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. + +[937] See a full description in the Archaeological 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 Archaeological 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. + +[938] References are given to the Rolls of Parliament throughout this +extract. + +[939] All the acts passed in the same session are legally one statute; +the difference of language was in separate chapters or acts. + + + + +INDEX. + + +*** _The Roman Numerals refer to the Volumes--the Arabic Figures to the +Pages of each Volume._ + + Abbassides, encouragement of science and art by the, ii. 121; + progress of their dynasty, 122; + its decadence, 123. + + Abdalrahman proclaimed khalif of Cordova, ii. 122. + + Abelard (Peter), enthusiasm excited by the teachings of, iii. 420; + his erratic career, 421. + + Acre, consequences to commerce by the capture of, iii. 329; + vices of its inhabitants, _ib. note_ m. + + Adorni and Fregosi factions, disruption of Genoa by the, i. 496. + + Adolphus of Nassau elected emperor of Germany, ii. 82. + + Adrian II. (pope), attempts to overawe Charles the Bald, ii. 173. + + Adrian IV. (the only English pope), insolence of, towards Frederic + Barbarossa, ii. 195; + his system of mandats, 212. + + Adventurers (military). See Military Systems. + + AEneas Sylvius (afterwards Pius II.), instance of the political foresight + of, i. 504; + he abets the war against the Turks, ii. 137; + specimen of his oratory, 138 _note_; + his singular suggestion to Mahomet II., _ib. note_; + he plays into the hands of the pope, 253; + he obtains the repeal of the Pragmatic Sanction, 255; + his sketch of Vienna, iii. 345 _note_ u. + + Agriculture, cause of the low state of, iii. 312, 359 and _note_ m; + superior cultivation of church lands, 360; + exemplary labours of the Benedictines, _ib. note_ n; + agricultural colonies, 361 and _notes_ p and q; + early enclosures and clearances, 362; + exportation of corn, how limited, 364; + usual prices of land, _ib._; + high state of Italian agriculture, _ib._; + effects of pestilence, 365; + excellence of the Italian gardens, _ib._; + neglect of horticulture in England, 366. + + Alaric, tolerance of, towards his catholic subjects, i. 3 _note_ f; + defeated by Clovis, 4; + laws compiled by his order, iii. 414. + + Albert I. of Germany, ii. 82; + his rule in Switzerland, 108; + his expulsion and assassination, 109; + the French crown offered to him, 231. + + Albert II. succeeds Sigismund as emperor of Germany, ii. 88. + + Albigensian heresy, spread of the, i. 28; + massacre of the Albigeois, _ib._, 29 _notes_; + See Religious Sects. + + Albizi, ascendency in Florence regained by the, i. 496; + Cosmo de' Medici banished at their instigation, 499; + their overthrow, _ib._; + exclusion of their family from the magistracy, 499. + + Alcuin teaches Charlemagne, iii. 419; + he discourages secular learning, 420; + character of his poetry, 474. + + Alexander II. (pope), election of, ii. 184; + he deposes the English prelates, 305 _note_ h. + + Alexander III. (pope), supports Thomas a Becket, ii. 195; + adopts the system of mandats, 212. + + Alexander V. elected pope, ii. 243; + his successor, _ib._ + + Alexander III. king of Scotland, opposition to papal domination by, + ii. 217. + + Alexius Comnenus attacks the Turks, ii. 128; + he recovers the Greek territories, _ib._ and _note_. + + Alfonso I. of Aragon bequeaths his kingdom to the Knights Templars, + ii. 8. + + Alfonso III. of Aragon compelled to apologise to his people, ii. 45. + + Alfonso V. of Aragon (the Magnanimous), i. 490; + adopted by Joanna II. of Naples, _ib._; + she revokes the adoption, 491; + his accession, _ib._; + his imprisonment by the Genoese, 492; + his alliance with Milan, _ib._, 493; + his virtues and patronage of the arts, 493; + his literary medicine, 494 _note_; + his love of Naples, ii. 42. + + Alfonso V. and VI. of Castile, towns incorporated by, ii. 6. + + Alfonso VII. of Castile, unwise division of his dominions by, ii. 9. + + Alfonso X. of Castile, scientific acquirements and governmental + deficiencies of, ii. 12; + law promulgated by him, 37; + his election as emperor of Germany, 76; + tithes established in his reign, 146 _note_ a; + clerical encroachments favoured by him, 220 _note_ r; + he exempts the clergy from civil jurisdiction, 226. + + Alfonso XI. of Castile assassinates his cousin, ii. 14; + his disregard of law, 36. + + Alfred the Great, rescue of the Anglo-Saxon monarchy by, ii. 271; + his alleged division of the kingdom into counties, &c., 280; + ascription of trial by jury to him, 285; + his high claim to veneration, 289; + extent of his acquaintance with Latin, iii. 286; + his declaration of the ignorance of the clergy, 288; + his zeal for learning, _ib. note_ n. + + Aliens held liable for each other's debts, iii. 336. + + Almamun and Almansor, khalifs of Bagdad, patronage of letters by, + ii. 121. + + Alodial tenure, characteristics of, i. 147, 148 and _notes_; + converted into feudal tenure, 163; + except in certain localities, 164 and _note_; + causes of the conversion, 317, 318; + alodial proprietors evidently freemen, 324. + + Alvaro de Luna. See Luna. + + Amadeus (duke of Savoy), elected pope, ii. 248. + + Amalfi, early commercial eminence of, iii. 328 and _note_; + its decline, _ib._; + alleged invention of the mariner's compass there, 332 and _note_; + discovery of the Pandects, 415. + + Amurath I., progresses of the Turkish arms under, ii. 132. + + Amurath II., rout of the Hungarians by, ii. 105; + reunion of the Ottoman monarchy under him, 135; + he perfects the institution of the Janizaries, 137. + + Anastasius confers the dignity of consulship on Clovis, i. 107; + elucidatory observations thereon, 107-111. + + Andalusia, conquest of, by Ferdinand III., ii. 9. + + Andrew of Hungary married to Joanna of Naples, i. 486; + his murder imputed to Joanna, _ib._ + + Anglo-Normans. See England. + + Anglo-Saxons, divisions of England under the, ii. 270; + their Danish assailants, 271; + Alfred and his successors, 272, 273; + descent of the crown, 273; + influence of provincial governors, 274; + thanes and ceorls, 275; + condition of the ceorls, _ib._; + privileges annexed to their possession of land, 276; + position of the socage tenants, 277; + condition of the British natives, _ib._; + absence of British roots in the English language, 278 and _note_ g; + constitution of the Witenagemot, 279, 374-379; + administration of justice, and divisions of the land for the + purpose, 280; + hundreds and their probable origin, 280, 281, 379-381; + the tything-man and alderman, 282, and 283 _note_ u; + the county court and its jurisdiction, 282; + contemporary report of a suit adjudicated in the reign of Canute, 283, + 284 and _note_ y; + trial by jury and its antecedents, 285-288; + introduction of the law of frank-pledge, 289, 290; + turbulence of the Anglo-Saxons, 290; + progress of the system of frank-pledges, 291; + responsibilities and uses of the tythings, 292, 293 and _notes_; + probable existence of feudal tenures before the Conquest, 293-301, + 408-410; + observations on the change of the heptarchy into a monarchy, 352-356; + consolidation of the monarchy, 356-358; + condition, of the eorls and ceorls further elucidated, 358-371; + proportion of British natives under the Anglo-Saxon rule, 371-374; + judicial functions of the Anglo-Saxon kings, 381; + analogy between the French and Anglo-Saxon monarchies, 383; + peculiar jurisdiction of the king's court, 384-386. + + Anjou (Louis, duke of), seizure of Charles V.'s treasures by, i. 65, 66; + his claim as regent, 68 and _note_; + his attempt on the crown of Naples, and death, 69. + See Charles of Anjou. + + Anselm (archbishop), cause of his quarrel with William II. and Henry I., + ii. 194; + Descartes's argument on the Deity anticipated by him, iii. 428. + + Appanages, effect of the system of, i. 88. + + Aquinas (Thomas), metaphysical eminence of, iii. 427; + comparative obsoleteness of his writings, 428 _note_ i. + + Aquitaine, extent of the dominions so called, i. 116; + character of its people 116, 117; + effect of the wars of the Merovingian kings, 282. + + Arabia and the Arabs. See Mohammed. + + Aragon, bequest of to the Templars by Alfonso I., and reversal thereof, + ii. 8; + rise of the kingdom in political importance, 39; + struggle for the succession to its crown, 39-41; + points of interest in its form of government, 43; + privileges of its nobles and people, 43, 44; + its natural defects and political advantages, 45; + statistics of its wealth, population, &c., _ib. note_ r; + grant of the "privilege of union," 46; + supersession thereof, 48; + the office of justiciary, _ib._; + instances of that officer's integrity and courage, 49; + and of the submission of kings to his decrees, 53, 54; + duration and responsibilities of the office, 54; + the Cortes of Aragon, 56; + social condition of the kingdom, 58; + its union with Castile, _ib._; + its burgesses, iii. 331 _note_ u. + + Archers (English), invincibility of the, at Crecy and Poitiers, i. 54. + See Military Systems. + + Architecture, as illustrative of domestic progress, iii. 346; + early castles in England, _ib._; + improvements thereon, 347; + early houses, 348; + revival of the use of bricks, 349; + arrangement of ordinary mansion-houses, 350; + dwellings in France and Italy, 350, 351; + introduction of chimneys and glass windows, 351-353 and _notes_; + house furniture and domestic conveniences, 353, 354 and _notes_; + farm-houses and cottages, 355; + ecclesiastical architecture, its grandeur and varieties, 355-359 + and _notes_; + domestic architecture of the 12th and 14th centuries, 479-482. + + Arian sovereigns, tolerance of the, i. 3 and _note_ f. + + Aribert declared king of Aquitaine, i. 115. + + Aristocracy. See Nobility. + + Aristotle, writings of, how first known in Europe, iii. 426 and _note_ f; + ignorance of his translators, 429 and _note_ k; + character of the Aristotelian philosophy, 430; + its influence on religion, _ib. notes_. + + Armagnac (count of), opposes the duke of Burgundy, i. 71; + massacre of himself and partizans, 72; + assassination of a later count of Armagnac, 89. + + Armagnacs, rise of the faction of the, i. 71; + tactics of the dauphin towards them, 72; + their league with Henry IV. of England, 74; + their defeat by the Swiss, ii. 112. + + Armorial bearings, general introduction of, i. 190; + instances of their earliest use, 191 _note_. + + Armorican republic, questionable existence of the, i. 2; + hypothesis of Dubos relative thereto, _ib. note_; + further elucidation thereof, 103; + supposed extent of its territories, 103, 104. + + Armour. See Military Systems. + + Artois. See Robert of Artois. + + Arundel (bishop and archbishop), remonstrates with Richard II., iii. 67; + deprived of, and reinvested with, the great seal, 73; + his subsequent deprivation and banishment, 77. + + Arundel (earl of, _temp._ Richard II.), favoured by the parliament, + iii. 65; + his conduct as a lord appellant, 72; + his breach with the duke of Lancaster, 74; + refuses to aid in legitimating Lancaster's children, 75; + his decapitation, 77. + + Aschaffenburg, concordats of, ii. 253. + + Athens (duke of). See Brienne. + + Augustin (St.), specimen of the verses of, iii. 282 _note_ o. + + Aulic council, powers and jurisdiction of the, ii. 99. + + Auspicius (bishop of Toul), character of the poetry of, iii. 282; + specimen thereof, _ib. note_ p. + + Austrasia, characteristics of the people of, i. 118. + + Auxiliary verb active, probable cause of the, iii. 280. + + Averroes, error relative to, iii. 422 _note_ o; + his eminence as a philosopher, 426 _note_ f; + tendency of his commentaries, 430. + + Avignon, removal of the papal court to, ii. 233; + rapacity of its popes, 237, 238; + its abandonment by the popes, 240. + + Azincourt (battle of), i. 74 and _note_. + + + Bacon (Roger), a true philosopher, iii. 429 _note_ k; + his acquaintance with mathematics, 432; + parallel between him and Lord Bacon, _ib. note_ s; + his knowledge of Greek, 464. + + Bagdad, celebrity of the early khalifs of, ii. 121; + character of its later khalifs, 122; + frequency of their assassination, 123; + defection of its provinces, 124. + + Bajazet, military successes of, ii. 132; + defeated and captured by the Tartars, 134. + + Baltic trade. See Trade. + + Banks and bankers of Italy, iii. 340, 341. + + Barbiano (Alberic di), military eminence of, i. 474; + his pupils, 481. + + Barcelona, feudal submission to France of the counts of, i. 10, _note_; + its early commercial eminence, iii. 331; + its code of maritime laws, 333 and _note_; + and of marine insurance, 339 _note_ c; + its bank of deposit, 340. + + Bardas, revival of Greek literature by, iii. 468 _note_ z. + + Bardi, Florentine bankers, English customs farmed by the, iii. 340 + _note_ d. + + Barons (in France), occasional assemblages of the, i. 219; + consequences of their non-attendance at the royal council, 222; + they become subject to the monarch, 223; + their privileges curtailed by Philip IV., 226. + See Nobility. + + Barristers' fees in the 15th century, iii. 371. + + Basle, council of. See Council. + + Beaumanoir, definition of the three conditions of men by, i. 197, 200. + + Bedford (duke of), regent for Henry VI., i. 76; + his character, 77; + his successes in France, _ib._; + overthrow of his forces by Joan of Arc, 79. + + Belgrade, siege and relief of, ii. 106. + + Benedict XI. reconciles Philip the Fair to the holy see, ii. 232; + he rescinds the bulls of Boniface VIII., 233. + + Benedict XII., purport of his letter to Edward III., i. 51 _note_; + his rapacity, ii. 237. + + Benedict XIII. elected pope by the Avignon cardinals, ii. 242; + deposed by the council of Pisa, 243; + Spain supports him, _ib._ + + Benedictines, exemplary agricultural labours of the, iii. 360 _note_ n. + + Benefices, grants of land so called, i. 159; + conditions annexed to them, _ib._; + their extent, 160 and _note_; + their character under Charlemagne and Louis the Debonair, 313; + views of various writers concerning their nature, 313-315; + character of hereditary benefices, 320; + their regenerative effects upon the French people, _ib._ + + Benevolences, by whom first levied in England, iii. 200. + + Berenger I. and II. See Italy. + + Bermudo III. (king of Leon), killed in battle, ii. 4. + + Bernard (grandson of Charlemagne), deprived of sight by judicial + sentence, i. 14. + + Berry (duke of), appointed guardian of Charles VI., i. 65; + his character, 69. + + Bianchi. See Superstitions. + + Bianchi and Neri, factions of, i. 402; + iii. 445. + + Bigod (Roger, earl of Norfolk), patriotism of, iii. 2. + + Bills. See Parliament. + + Birth, privileges of. See Nobility. + + Bishops. See Church, Clergy. + + Blanchard (Alain), unjustifiable execution of, i. 84. + + Blanche of Castile, acts as regent during the minority of Louis IX., + i. 30; + quells the rebellion of the barons, _ib._; + instance of her undue influence over Louis, 32. + + Boccaccio, occasion of the Decamerone of, i. 57; + appointed to lecture on Dante, iii. 448. + + Boccanegra (Simon), first doge of Genoa, story of the election of, + i. 451. + + Bocland, nature of, ii. 294, 408. + + Bohemia, nature of its connection with Germany, ii. 100; + its polity, 101; + the Hussite controversy and its results, 102, 103. + + Bohun (Humphrey, earl of Hereford), patriotism of, iii. 2. + + Bolingbroke (earl of Derby and duke of Hereford), made lord appellant, + iii. 72; + he sides with the king, 74; + his quarrel with the duke of Norfolk, 79; + advantage taken of it by Richard II., 80 and _note_ z; + his accession to the throne, 81. + See Henry IV. + + Bolognese law-schools, iii. 415. + + Boniface (St.). See Winfrid. + + Boniface VIII. suspected of fraud towards Celestine V., ii. 228; + his extravagant pretensions, _ib._ and _note_; + disregard of his bulls by Edward I., 229; + his disputes with Philip the Fair, 230-232; + success of Philip's stratagem against him, 232; + his death, _ib._; + rescindment of his bulls, 233; + Ockham's dialogue against him, 236 _note_ n; + rejection of his supremacy by the English barons, 239. + + Boniface IX., elected pope, ii. 242; + his traffic in benefices, 245, 246; + his rapacity in England checked, 250, 251. + + Books and booksellers. See Learning. + + Boroughs. See Municipal Institutions, Parliament, Towns. + + Braccio di Montone, rivalry of, with Sforza, i. 481. + + Brienne (Walter de, duke of Athens), invested with extreme powers in + Florence, i. 427; + his tyranny and excesses, 428; + his overthrow, 429. + + Britany, origin of the people of, i. 98 and _note_; + grant of the duchy to Montfort, 99; + its annexation to the crown, 100; + alleged existence of a king of Britany, 103; + right of its dukes to coin money, 206. + + Brunehaut, queen of Austrasia, i. 5; + her character and conduct, 6 _note_; + her mayor, Protadius, 114; + her scheme of government, 117; + she falls into the hands of Clotaire II., and is sentenced to death, + 119; + cause of her overthrow, _note_ 157, 293, 309; + pope Gregory I.'s adulation towards her, ii. 162 _note_ q. + + Buchan (earl of), made constable of France, i. 78. + + Burdett (Thomas), cause of the execution of, iii. 199 and _note_ o. + + Burgesses. See Parliament. + + Burgesses of the palisades, origin of the, ii. 92. + + Burgundians, Roman provinces occupied by the, i. 1; + their tolerance, 3 _note_ f; + their mode of dividing conquered provinces, 146; + elucidatory observations thereon, 275-278. + + Burgundy (_Eudes_, duke of), undertakes the protection of his niece + Jane, i. 45; + he betrays her cause, 46. + + Burgundy (duke of), named guardian of Charles VI., i. 65; + loses his ascendency over the king, 69; + regains it, _ib._; + his death, 70. + + Burgundy (_John_, duke of, "Sans-peur"), assassinates the duke of + Orleans, i. 70; + his supposed provocation, _ib. note_; + obtains pardon for the crime, 71; + consequence of his reconciliation with the court, 71, 72; + is assassinated, 73 and _note_; + his defeat at Nicopolis, ii. 133 _note_. + + Burgundy (_Philip_, duke of), allies himself with Henry V., i. 76; + his French predilections, 82; + and treaty with Charles VII., _ib._ 90 _note_ r, 91 _note_ s; + splendour of his court, 91; + jealousy of his subjects concerning taxation, 93 _note_ x. + + Burgundy (_Charles_, duke of), character and ambitious designs of, i. + 91 and _note_, 92; + his contumacious subjects, 92; + his rash enterprises and failures, 93; + is defeated and killed, 94; + adventures of his diamond, _ib. note_. + + Burgundy (Mary, duchess of), defends her rights against Louis XI., i. 94 + and _notes_; + marries Maximilian of Austria, 95; + her death, 96. + + + Caballeros of Spain, privileges enjoyed by the, ii. 8. + + Calais, abject condition of the citizens of, i. 58 _note_ k; + terms of instruments signed there, 60. + + Calixtins, tenets of the, ii. 103. + + Calixtus II. (pope), compromise effected by, ii. 188; + he abolishes feudal services by bishops, 189. + + Calverley (Sir Hugh), characteristic anecdote of, i. 65. + + Cambridge university, first mention of, iii. 424 _note_ y. + + Canon law, promulgation of the, ii. 203; + its study made imperative, 204. + + Capet (Hugh), usurpation of the French throne by, i. 18; + antiquity of his family, _ib. note_ r; + state of France at his accession, 22; + opposition to, and ultimate recognition of his authority, 23 and + _note_ g; + period of his assumption of regal power, 128; + degree of authority exercised by his immediate descendants, 24, 136; + his sources of revenue, 208. + + Capitularies, what they were, i. 215; + their latest date, 218 and _note_. + + Caraccioli, favourite of Joanna II. of Naples, i. 489; + his assassination, 491 _note_. + + Carloman, inheritance of the children of, usurped by Charlemagne, i. 9 + _note_ y. + + Carlovingian dynasty, extinction of the, i. 17. + + Carrara (Francesco da), Verona seized by, i. 464; + killed in prison, 465. + + Carroccio, the, i. 467 and _note_ d. + + Castile and Leon united into one kingdom, ii. 4; + their subsequent re-division and reunion, 9; + composition and character of the cortes of Castile [see Cortes]; + the council and its functions, 33, 34; + administration of justice, 35; + violations of law by the kings, 36; + confederacies of the nobility, 37; + similarity of its polity to that of England, 38; + establishment of tithes in Castile, 146 _note_ a. + + Castle, graphic description of a, i. 322. + + Castruccio Castrucani, success of, i. 410. + + Catalonia, character of the people of, ii. 57; + severity of the state of villenage there, _ib. note_ c. + + Catharists, religious tenets held by the, iii. 384. + + Catholics, treatment of the, by their Gothic conquerors, i. 3 _note_ f. + + Cava (count Julian's daughter), legend of the seduction of, ii. 62. + + Celestine V., fraud of Boniface VIII. towards, ii. 228. + + Champ de Mars. See Field of March. + + Charlemagne, reunion of the Frankish empire under, i. 9 and _note_ y; + his victories in Italy and Spain, 9, 10; + obstinate resistance and ultimate submission of the Saxons to his + rule, 10; + his Sclavonian conquests, 11; + extent of his dominions, _ib._; + his coronation as emperor, _ib._ and _note_ c; + its consequences, 12; + his intellectual acquirements and domestic improvements, _ib._ and + _note_ e; + his vices, cruelties, religious edicts, 13; + his sons and successors, 14; + his control over the clergy, 16; + degeneracy of his descendants, 17; + state of the people under his rule, 18; + his dread of the Normans, 21; + his alleged election by the Romans as emperor discussed, 122-124; + question of succession involved in his elevation to the imperial + title, 124-126; + his wise provisions relative to fugitive serfs, 198 _note_ q; + his revenue, how raised, 208; + peculiarities of his legislative assemblies, 215, 216; + French ignorance of his character in the 14th century, 228; + his capitulary relative to tithes, ii. 145, 146 and _note_ z; + his authority over the popes, 182; + state of his education, iii., 286 and _note_ f; + his library, 292 _note_; + his encouragement of ordeals, 295; + his agricultural colonies, 361; + public schools in France due to him, 419; + becomes a disciple of Alcuin, _ib._ + + Charles the Bad. See Charles of Navarre. + + Charles the Bald, share of empire allotted to, i. 16, and _note_ on + p. 17; + ravages of the Normans during his reign, 21; + his imbecile government and its consequences, 135; + his slavish submission to the church, ii. 156, 157; + he disobeys pope Adrian II., 173, 174. + + Charles the Fat, accession and deposition of, i. 17; + position of Germany at his death, ii. 66; + arrogance of pope John VIII. towards him, 174. + + Charles the Simple, policy of, towards the Normans, i. 22. + + Charles IV. (the Fair) ascends the throne pursuant to the Salic law, + i. 48; + conduct of Edward III. of England after his death, _ib._ + + Charles V. (the Wise) submits to the peace of Bretigni, i. 59; + his summons to Edward the Black Prince, 63; + his treaty with Henry of Castile, _ib. note_ t; + his successes against the English, 64; + his premature death and character, 65; + seizure of his treasures by the duke of Anjou, 65, 66; + expenses of his household, 68 _note_ z; + his conflicts with the States-General, 230, 231; + he imposes taxes without their consent, 232. + + Charles VI., accession of, i. 65; + state of France during his reign, 66; + defeats the citizens of Ghent, 67; + misapplication of taxes during his minority, 68 and _note_ z; + his seizure with insanity, 69; + disgraceful conduct of his queen, _ib._ and _note_; + his death, 76; + his submission to the remonstrances of the States-General, 232. + + Charles VII., state of France at the accession of, i. 77; + his impoverished exchequer, 78; + his Scotch auxiliaries, _ib._; + his character, and choice of favourites, 79; + change wrought in his fortunes by Joan of Arc, 79, 80; + his connection with Agnes Sorel, 80 _note_ z; + restores Richemont to power, 80; + is reconciled with the duke of Burgundy, 82; + reconquers the provinces ceded to the English crown, 83; + his cruelty to English captives, 84; + consolidation of his power, 85; + insurrection of Guienne against taxation, 86 and _note_; + his conduct relative to the States-General, 234; + he levies taxes of his own will, 235; + he enacts the Pragmatic Sanction of Bourges, ii. 255. + + Charles VIII., accession of, i. 98; + contest for the regency during his minority, _ib._ 236; + marries Anne of Britany, 100; + consolidation of the French monarchy under his sway, 100, 101 and + _notes_; + proceedings of the States-General during his minority, 236, 237. + + Charles of Anjou (I. of Naples), seizure of the crown of Naples by, + i. 406; + he puts Conradin, the heir, to death, 407; + he defeats the Ghibelins and governs Tuscany, _ib._ and _note_; + revolt of his subjects, 410. + + Charles II. of Naples, war of the Sicilians against, i. 485; + his death, _ib._ + + Charles of Durazzo (III. of Naples), implicated in the murder of Andrew, + i. 486 _note_ q; + puts queen Joanna to death, 487; + his assassination, 488. + + Charles IV. of Germany, singular character of, ii. 85; + his Golden Bull, 86 and _note_ e; + he alienates the imperial domains, 94; + advancement of Bohemia under his rule, 102. + + Charles Martel, conquest of the Saracens by, i. 7; + site and importance of the battle, _ib. note_ q; + its object, 12; + his spoliation of the church, ii. 146. + + Charles of Navarre (the Bad), tumults in France excited by, i. 56; + his crimes, 57; + allies himself with Edward III., _ib._ + + Chartered towns. See Municipal Institutions, Towns. + + Chaucer (Geoffrey), testimony borne by his writings, iii. 160 _note_; + character of his works, 456, 457. + + Chaucer (Sir Thomas), rebuked by Henry IV., iii. 95. + + Childebert (son of Clovis), dominions allotted to, i. 4 and _note_ i; + his proposal relative to Clodomir's children, 311 _note_. + + Childeric III., deposition of, i. 8. + + Children, crusade undertaken by, iii. 296 _note_ z. + + Chilperic, guilty conduct of Fredegonde, the queen of, i. 5, 119; + oppressive taxes levied by him, 306; + tumult which ensued, _ib._; + what followed after his death, _ib._; + his attempts at poetry, iii. 283; + his attack on the sanctuary, 303. + + Chimneys. See Architecture. + + Chivalry, as a school of moral discipline, ii. 390; + remoteness of its origin, 391; + individual honour its keystone, 392; + types of chivalry, 392 and _note_ s; + its original connection with feudal service, 394; + effect of the crusades, 395; + its connection with religion, 395, 396; + enthusiasm inspired by gallantry, 396-398; + licentiousness incident to chivalry, 399; + virtues inculcated by it, 400; + practice of courtesy, liberality, and justice, 401-403; + obligations of chivalry to the East, 403; + its attendant evils, 404; + education preparatory to knighthood, 405; + chivalric festivals, 406; + tournaments and their dangers, 407; + privileges of knighthood, 408; + who were admissible thereto, _ib._ and _note_; + military service: knights and bachelors, 409, 410 and _notes_; + causes of the decline of chivalry, 411; + influences by which it was superseded, 412 and _note_ d. + + Christianity, impetus given to the formation of civic institutions by, + i. 121; + its beneficial effect upon the Normans, 136. + + Church, wealth of the, under the empire, ii. 140; + its position after the irruption of the barbarians, 141; + source of its legitimate wealth, 142; + its religious extortions, 143; + privileges attached to its property, 144; + institution of tithes, 144-146 and _notes_; + liability of church property to spoliation, 146; + origin of _precariae_, 147 _note_ d; + extent of the church's landed possessions, 148 and _note_ i; + its participation in the administration of justice, 149; + limitations interposed by Justinian, 150, 151; + its political influence, 152; + source thereof, 153; + its subjection to the state, _ib._; + Charlemagne's edicts relative to its affairs, 154, 155, and _notes_; + its assumption of authority over the French kings, 156, 157; + obsequiousness of England to its pretensions, 158; + investiture of its bishops with their temporalities, 181; + their simoniacal practices, _ib._ and _note_ q; + canons and chapters, 191; + liberties of the Gallican church, 256; + high church principles always dangerous, 257 _note_ x; + privileges of sanctuary, iii. 302, 303. + See Clergy, Monasteries, Papal Power. + + Clan service not based on feudality, i. 187. + + Clarence (duke of), put to death by Edward IV., iii. 199. + + Clarendon, constitutions of, ii. 221; + their influence on Thomas a Becket's quarrel with Henry II., 223. + + Cistertian monk, blasphemous saying attributed to a, i. 29 _note_ t. + + Cities. See Municipal Institutions and Towns. + + Civil Law. See Laws. + + Clement IV., effect of a bull promulgated by, ii. 215; + opposition of the Scotch king to his edict, 217. + + Clement V. ratifies Robert's claim to the crown of Naples, i. 485; + his maxim relative to benefices, ii. 215; + he removes the papal court to Avignon, 233; + his contests with the emperor Louis, 234; + England remonstrates with him, 238, 239 _notes_; + his outrageous edict against Venice, 260. + + Clement VI. acquits Joanna of Naples of murder, i. 487; + his licentiousness, ii. 238. + + Clement VII., circumstances relative to his election as pope, ii. 240; + division of the papacy thereupon, 242; + proceedings after his death, 242, 243. + + Clergy, ascendency of the (_temp._ Charles the Bald), i. 135; + their privileges under the feudal system, 195, 196; + fighting prelates, 195 _note_ f; + their participation in legislative proceedings, 213, 215; + privileges of their tenants, 319; + bishops in Lombardy and their temporalities, 364, 366 and _note_ x; + share of the citizens in their election, 366 and _note_ y; + a robber archbishop, ii. 95; + immense territorial possessions of the clergy, 148 and _notes_; + their acquisition of political power, 152, 153; + their neglect of the rule of celibacy, 176, 177; + sufferings of the married clergy, 177 and _note_ d; + lax morality of the English clergy, 178, 179 _notes_; + practice of simony, 179; + consent of the laity required in the election of bishops, _ib._; + interference of the sovereigns therein, 180 and _note_ n; + character of the clergy of Milan, 187 _note_ g; + taxation of the clergy by the kings, 216; + tribute levied on them by the popes, 216, 217; + their disaffection towards Rome, 218; + their exemption from temporal jurisdiction, 219-221; + extortions of Edward I., 229; + effects of Wicliff's principles, 252; + priests executed for coining, _ib. note_ e; + spiritual peers in the English parliament, iii. 4, 5; + their qualifications, 122; + clergy summoned to send representatives, 131; + cause of their being summoned, 132; + result of their segregating themselves from the commons, 133; + instances of their parliamentary existence, 135-138; + right of bishops to be tried by the peers, 204-207; + mediaeval clergy not supporters of despotism, 258; + their ignorance of letters, 287-289; + their monastic vices, 303; + why a bishop made a Danish nobleman drunk, 306 _note_ u. + See Church, Monasteries, Papal Power, Superstition. + + Clisson (constable de), immense wealth amassed by, i. 69. + + Clodomir (son of Clovis), dominions allotted to, i. 4; + proposed alternative relative to his children, 311 _note_. + + Clotaire, portion of dominions allotted to, i. 4; + union of the whole under him, 5; + re-division amongst his sons, _ib._; + criminality of his character, 119. + + Clotaire II., reunion of the French dominions under, i. 5; + nature of the authority exercised by him, 117. + + Clotilda converts her husband to Christianity, i. 3; + her sons, 4. + + Clovis invades Gaul and defeats Syagrius, i. 2; + accepts the title of consul, _ib._ and _note_ d; + defeats the Alemanni, 3; + his conversion to Christianity, _ib._; + defeats Alaric, 4; + his last exploits and sanguinary policy, _ib._ and _note_ g; + division of his dominions amongst his sons, 4, 5 and _notes_; + the last of his race, 8; + his alleged subjection to the emperors discussed, _Note_ III. 106-111; + his limited authority: story of the vase of Soissons, 155; + theory built on the story, 301, 302; + crimes of himself and his grandson, iii. 306 and _note_ u. + + Clovis II., accession of, i. 120. + + Cobham, lord (_temp._ Richard II.). banished, iii. 77. + + Coining, extensive practice of, amongst the French nobles, i. 205; + debased money issued by them, 206; + systematic adulteration of coin by the kings, 210, 228, 231; + measures adopted for remedying these frauds, 211 _note_ h; + grant of taxes made conditional on restoration of the coin, 230; + priests executed for coining, ii. 252 _note_ e; + an abbot hanged for the same offence, iii. 205; + clipping of coins by the Jews, 369 _note_ t. + + Cologne, antiquity of the municipal institutions of, i. 350. + + Coloni, characteristics and privileges of the, i. 325. + + Combat. See Trial. + + Comines (Philip de), characteristic note on taxation by, i. 236. + + Commodianus, literary remains of, iii. 281; + specimen thereof, _ib. note_ n. + + Comnenus. See Alexius. + + Conrad (duke of Franconia), elected emperor of Germany, ii. 67. + + Conrad II. (the Salic), important edict of, relative to feuds, i. 166, + 167 and _notes_; + elected emperor of Germany, ii. 68; + his ancestry, _ib. note_ f. + + Conrad III. joins in the second crusade i. 38; + elected emperor of Germany, ii. 72. + + Conrad IV., accession of, i. 392; + his struggles for dominion in Italy, and death, _ib._; + his difficulties in Germany, ii. 76. + + Conradin (son of Conrad IV.) attempts to regain his inheritance, i. 407; + put to death by Charles of Anjou, _ib._ + + Constance, council of. See Council. + + Constance, treaty of, i, 376. + + Constantine V. dethroned by his mother, i. 122. + + Constantinople, advantageous position of, ii. 125; + its resistance to the Moslem assaults, 126; + its capture by the Latins, 128; + its magnificence and populousness, 129, 130; + Vandalism of its conquerors, 130; + its recapture by the Greeks, 131; + besieged by Bajazet, 132, and by Amurath, 135; + attacked by Mahomet II., 136; + its fall, 136, 137; + unrealised schemes for its recovery, 137, 138. + + Constitution of England. See English Constitution. + + Cordova taken from the Moors, ii. 9; + its extent and wealth, _ib. note_ m. + + Corn. See Agriculture, Trade. + + Cortes of Castile, original composition of the, ii. 20; + dwindling down of their numbers, 21; + their remonstrance against corruption, 22; + spiritual and temporal nobility, 22, 23 and _notes_; + control of the Cortes over the taxes, 24, 25; + their resolute defence of their right, 26; + their control over expenditure, 27; + its active exercise, 28; + their forms of procedure, 29; + their legislative rights, and attempted limitations thereon by the + kings, 29-32; + their right to a voice in the disposal of the crown, 33, 34; + position of the clergy therein, iii. 106 _note_. + + Corvinus (Matthias) elected king of Hungary, ii. 106; + his patronage of literature, 107 and _note_ d. + + Council of Basle, enmity of the, towards the papal court, ii. 247; + reforms effected by it, 248 and _note_; + its indiscretions, _ib._ and 250 _note_. + + Council of Constance condemns John Huss and Jerome of Prague to be + burned, ii. 102; + deposes John XXIII., 243; + preponderance of Italian interests therein, 244; + French opposition to the English deputies, _ib. note_; + tactics of the cardinals, 246; + national divisions in the council, _ib._; + its breach of faith relative to Huss and Jerome canvassed, 250 and + _note_. + + Council of Frankfort convoked by Saint Boniface, ii. 165; + its importance in papal history, _ib._ + + Council of Lyons, i. 391, ii. 75. + + Council of Pavia, ii. 247. + + Council of Pisa, proceedings at the, ii. 243. + + Cours plenieres, character of the, i. 220. + + Courtney (archbishop), despoiled of his temporalities, iii. 66. + + Crecy, battle of, i. 55. + + Crescentius put to death by Otho III., i. 359 and _note_. + + Crusades, origin of the, i. 33; + energetic appeals of Peter the Hermit, 34; + inducements offered to those who joined in them, 35; + crimes and miseries attendant on them, 36; + results of the first crusade, 37; + second crusade, 38; + its failure, _ib._ and _notes_; + origin of the third crusade, 40; + its famous commanders and inconclusive results, _ib._; + crusades of St. Louis and their miserable ending, 41 and _note_; + cause of the cessation of crusades, iii. 305; + their demoralizing influence, 307. + + Cyprian's views relative to church government, ii. 159 _note_ h; + further observations thereon, 267, 268. + + + Dagobert I., insignificance of the successors of, i. 6; + nature of the authority exercised by him, 117; + progress of the arts in his reign, 119. + + Dagobert II., name of, how restored to history, i. 112. + + Damascus, degeneracy of the khalifs of, ii. 120, 121. + + Danes, England first infested by the, i. 21. + + Dante Alighieri expelled from Florence, i. 402; + his birth, iii. 445; + style of his Vita Nuova, _ib. note_; + characteristics of his great poem, 446-448; + enthusiasm which attended its publication, 448. + + Dauphine annexed to the French crown, i. 100; + its origin, 101, _note_ k. + + Defiance, institution of the right of, ii. 95; + its abolition, 96. + + De la Mare (Peter), opposes the duke of Lancaster, iii. 56; + conduct of the citizens on his imprisonment, 57; + elected speaker of the commons, 58. + + Della Bella (Giano), improves the Florentine constitution, i. 424; + driven into exile, 425. + + Derby (earl of). See Bolingbroke. + + Diet. See Council. + + Diet of Worms, important changes effected by the, ii. 94; + abolishes the right of defiance, 96; + establishes the imperial chamber, 97-99. + + Domesday Book, origin of the term, iii. 362 _note_ r. + + Domestic life in the middle ages, iii. 341-345; + income and style of living, 370. + + Douglas (earl of) aids Charles VII., i. 78. + + Duelling, introduction of the practice of, iii. 294 and _note_ u. + + Du Guesclin (Bertrand), proceeds to Castile, i. 58; + his character 64; + he serves against Peter the Cruel, ii. 15; + is taken prisoner, _ib._ + + Dunstan and Odo, and their treatment of Edwy and Elgiva, ii. 158; + elucidatory remarks relative thereto, 264-267. + + + Earl, origin of the title of, ii. 274 _note_ p. + + Ebroin, exercise of supreme power by, i. 6, 115, 120. + + Eccelin da Romano, tyrannic exercise of power by, i. 389; + pretexts to which his infamous cruelty gave birth, _ib. note_ f; + his fall, 406. + + Ecclesiastical jurisdiction. See Church, Clergy, Papal Power. + + Edessa, extent of the principality of, i. 37 and _note_ f. + + Edward the Confessor, popularity of the laws of, ii. 324, 351. + + Edward I. offends Philip IV. of France, i. 43 and _note_; + his brother Edmund outwitted by Philip, 44; + he curbs the power of the clergy, ii. 224; + his tyranny towards them, 228; + his reign a constitutional epoch, iii. 1; + his despotic tendencies, 2; + he confirms the charters, 3 and _note_ c. + + Edward II. marries Isabel of France, i. 45; + he yields to the pope, ii. 239. + + Edward III. lays claim to the French throne, i. 48; + its injustice shown, _ib._ and _note_ 49; + his policy prior to resorting to arms, 49; + his chances of success, 51; + attempt of the pope to dissuade him from the attempt, _ib. note_; + principal features in his character, 52; + extent of his resources, 53, 54, and _notes_; + excellence of his armies, 55 and _note_; + his acquisition after the battles of Crecy and Poitiers, 56; + his alliance with Charles the Bad, 57; + conditions of the peace of Bretigni, 59; + his stipulation relative to Aquitaine, 61 and _note_ p; + his reverses and their causes, 62, 63 and _notes_; + his opposition to the pope, ii. 239; + progress of parliament under him, iii. 42; + his attempts at encroachment, 44-47; + ascendency of Lancaster and Alice Perrers over him, 55; + ordinance against Alice, 56; + repeal thereof, 57; + revival of the prosecution against her, 58 and _note_ g; + his debts to Italian bankers, 340. + + Edward the Black Prince, character of, i. 52; + his victory at Poitiers, 55; + created prince of Aquitaine, 61; + his impolitic conduct in Guienne, 63; + summoned before the peers of France, _ib._ and _note_ t; + machinations relative to his heir, iii. 55 and _note_ a; + his jealousy of the duke of Lancaster, 56; + his death, 57. + + Edward IV. accepts a pension from Louis XI., i. 89; + his military force, _ib. note_ p; + Louis's reasons for declining a visit from him, 90; + his accession to the throne, iii. 198; + his inexcusable barbarities, 199; + popularity of his government, _ib._; + his system of benevolences, 200. + + Edwy and Elgiva. See Dunstan. + + England, first infested by the Danes, i. 21; + its resources under Edward III., 53, 54; + causes of the success of its armies, 55, 77; + high payment to its men-at-arms, 77 _note_ t; + discomfiture of its troops by Joan of Arc, 79; + impolicy touching its relations with France, 82; + deprived of its French possessions by Charles VII., 83; + its obsequiousness to the hierarchy, ii. 158; + its opposition to ecclesiastical jurisdiction, 222-225; + its protest against the exactions of the church, 238, 239 and _notes_; + its share in the council of Constance, 244 and _note_; + enactment of the statute of praemunire, 251; + effect of Wicliff's principles, 252; + progress of the country under the Anglo-Saxons [see Anglo-Saxons]; + its state at the period of the Norman conquest, 302, 303; + fruitless resistance of its people to Norman rule, 304 and _notes_; + expulsion of its prelates and maltreatment of its nobles, 305 and + _note_; + attempted suppression of its language, 306 and _note_; + wholesale spoliation of property, 308; + abject condition of English occupiers, 309, 310; + vastness of the Norman estates explained, 310; + conquered England compared with conquered Gaul, 311; + forest devastations and forest laws, 311, 312 and _notes_; + depopulation of the towns, 312; + establishment of feudal customs, 314; + preservation of the public peace, 315; + difference between feudalism in England and in France, 316, 317; + hatred by the English of the Normans, 318; + oppressions and exactions of the Norman government, 318, 320; + nature of the taxes then levied, 321, 322; + laws and charters of the Norman kings, 323, 324; + banishment of Longchamp by the barons, 325; + establishment of Magna Charta, 326; + difficulty of overrating its value, 327; + outline of its provisions, 321, 328; + confirmation thereof by Henry III., 329; + constitutional struggles between him and his barons, 331, 334; + limitations on the royal prerogative, 334, 335 and _notes_; + institution of the various courts of law, 336-338; + origin of the common law, 339-341; + character and defects of the English law, 341-343; + hereditary right of the crown established, 343-346; + legal position of the gentry, 346-348; + causes of civil equality, 348-351; + character of its government, iii. 147; + prerogatives of its kings, 147-150; + mitigation of the forest laws, 150 and _note_ p; + jurisdiction of its constable and marshal, 151, 152 and _notes_; + spirit of independence exhibited in mediaeval ballads, 265-267; + its customs farmed by Italian bankers, 339, 340 _note_ d. + + English constitution, character of the, iii. 152; + Sir John Fortescue's doctrine, 153-155; + Hume's erroneous views regarding it, 155, 158; + causes tending to its formation, 159; + effect of the loss of Normandy, 160; + real source of English freedom, 162; + principle involved in the relationship between lords and their + vassals, _ib._; + right of distress on the king's property, 163; + feudal sources of constitutional liberty, 164; + influence of the nobility, 165; + salutary provisions of Edward I., 169; + nature and gradual extinction of villenage, 171-183; + instances of regencies and principles whereon they are founded, + 184-190; + doctrine of prerogative, 257-260. + See Anglo-Saxons, England, Feudal System, Parliament. + + Erigena. See Scotus (John). + + Ethelwolf, grant of, relative to tithes, ii. 146 _note_ a, 263. + + Eudes elected king by the Franks, i. 127; + his qualifications for the dignity, _ib._ + + Eudes (duke of Burgundy). See Burgundy. + + Eudon signally defeats the Saracens, i. 116; + receives aid from Charles Martel, _ib._ + + Eugenius IV. (cardinal Julian) advises Uladislaus to break faith with + Amurath, ii. 105; + its fatal consequences, 106; + other instances of his perfidy, 210 _note_ e; + his contests with the councils, 247; + his deposition by the council of Basle, 247 and _note_ q. + + Euric, harsh treatment of his catholic subjects by, i. 3 _note_ f. + + + False Decretals. See Isidore. + + Famines in the middle ages, frequency and extreme severity of, i. 328. + + Felix V. (pope), election and supersession of, ii. 248. + + Ferdinand confirmed in his succession to the crown of Naples, i. 494; + attempt of John of Calabria to oust him, _ib._; + his odious rule, 503 and _note_. + + Ferdinand I. of Aragon, independence of the Catalans towards, ii. 57. + + Ferdinand II. of Aragon marries Isabella of Castile, ii. 18; + they succeed to the Castilian throne, _ib._; + Ferdinand invested with the crown of Aragon, 42; + arrangement of the united governments, 58, 59; + conquest of Granada, 59, 60. + + Ferdinand III. of Castile, capture of Cordova by, ii. 9. + + Ferdinand IV. of Castile, prevalence of civil dissensions in the reign + of, ii. 12, 13; + his gross violation of justice and remarkable death, 36. + + Feudal system, rise of the, i. 145; + nature of alodial and salic lands, 147-149 and _notes_; + distinction of laws, 151; + origin of nobility, 157-159, 189; + fiscal lands or benefices, their nature, condition, and, extent, + 159, 160; + introduction of subinfeudation, 161; + origin of feudal tenures, 163; + custom of personal commendation, 164; + its character, _ib._, 165; + edict of Conrad II., 166, 167, and _notes_; + principle of a feudal relation, 167; + rights and duties of vassals, _ib._; + ceremonies of homage, fealty, and investiture, 169; + obligations of the vassal to his lord, 170; + military service, its conditions and extent, 171 and _notes_; + feudal incidents: origin of reliefs, 172, 173; + of fines on alienation, 174; + the custom of _frerage_ in France, 176; + escheats and forfeitures, 177; + objects for which aids were levied, _ib._; + limitations thereof by Magna Charta, 178; + institution of wardships, _ib._; + their vexatious character in later times, 179; + extortionate and oppressive practices relative to marriages, 179, 180; + introduction of improper feuds, 181; + fiefs of office, their nature and variety, 181, 182 and _notes_; + feudal law-books, 182; + the Milanese collection, 183; + difference between that and the French and English systems, 183, 184; + the feudal system not of Roman origin, 185, 186; + localities over which it extended, 187, 188; + privileges of nobility, 191-194; + difference between a French _roturier_ and an English _commoner_, + 191 _note_ p; + condition of the clergy, 195, 196; + of the classes below the gentry, 196; + assemblies of the barons, 219; + the cours plenieres, 220, 248; + legislative and judicial assemblies [see Legislation, + States-General, Justice]; + decline of the feudal system, 249; + its causes: increase of the domains of the crown, 253, 254; + rise of the chartered towns, 255-261 [see Towns]; + commutation of military service, 261 [see Military Systems]; + decay of feudal principles, 268; + influence of feudalism upon the institutions of England and + France, 269; + civil freedom promoted by it, 270; + its tendency to exalt warlike habits, 271; + its value as an element of discipline, _ib._; + and as producing sentiments of loyalty, 272; + the _mundium_, 318 _note_; + essentials of the feudal system, 319; + its principles aristocratic and exclusive, 321; + Guizot's description of a feudal castle, 322; + laxity of feudal tenures in Italy, 365; + question of their existence in England prior to the Conquest, ii. + 293-301; + feudalism under the Normans, 314; + innovation introduced by William I., 315; + difference between the feudal policy of England and France, 316, 318; + tenure of folcland and bocland, 406-410; + abuses of feudal rights, iii. 150. + + Feuds, nature of, and derivation of the word, i. 316. + + Fiefs. See Benefices, Feudal System. + + Field of March (or Champ de Mars), origin of the assemblies so termed, + i. 212, 213; + their character, 213, 214; + not attended by the Roman inhabitants of Gaul, 282; + how often held, 308. + + Field Sports. See Sports. + + Fines, extent and singularity of, under the Anglo-Norman kings, ii. 320. + + Fire-arms. See Military Systems. + + Fiscal lands. See Benefices. + + Flanders, fraudulent conduct of Philip IV. towards the count of, i. 44; + successful resistance of its people, _ib._; + large capture of gilt spurs by them, _ib. note_ a; + their commerce with England, 54; + their rebellion against count Louis, 66, 67 and _notes_; + their insubordination, 92; + their resistance to taxation, 93 and _note_; + their woollen manufacture, iii. 318, 319; + their settlement in England, 320 _note_ h; + its policy relative thereto, 321 and _note_ o. + See Trade. + + Florence, curtailment of the power of, by Frederic Barbarossa, i. 420; + exclusion of the Ghibelins from offices of trust, _ib._; + Dante's simile relative to its unsettled state, _ib._; + corporations of the citizens, 421; + its magistracy, _ib._; + curious mode of election, 422; + the consiglio di popolo, 423; + defiance of law by the nobility, 424; + Giano della Bella reduces them to obedience, 424, 425; + rise of the plebeian aristocracy, 426; + Walter de Brienne invested with extraordinary powers, 427; + his tyranny and excesses, 428; + his overthrow, 429; + singular ordinances relative to the nobles, 430; + machinations of the Guelfs and persecutions of the Ghibelins, 431-433 + and _note_ c; + prostration of the Guelfs, 434; + insurrection of the Ciompi and elevation of Lando, 435; + his judicious administration, 436; + restoration of the Guelfs, 437; + comparative security of the Florentines, 438; + their territorial acquisitions, revenue, population, &c., 439, 440 + and _notes_; + Pisa bought by them, 443; + further disquietudes in their government, 496; + rise of the Medici [see Medici]; + first Florentine voyage to Alexandria, 499 and _note_; + Florentine bankers and their transactions, iii. 340 and _notes_. + + Folcland, nature of, ii. 406. + + Foreigners invested with power in Italian states, i. 397, 416, 421, + 427, 449. + + Forest laws of the Anglo-Norman kings, ii. 312; + mitigation of their severity, iii. 150; + punishments inflicted, 311. + + Fortescue (Sir John), on the English constitution, iii. 154. + + France, policy observed in the territorial division of, i. 4 _note_ i; + insignificance of its early monarchs, 6 and _note_ m; + loss of the English possessions in, 27; + increase of the French domains, 42-45; + its state at the commencement of hostilities by Edward III., 51; + its condition after the battle of Poitiers, 56; + assembly of the States-General, _ib._; + desolation of the kingdom by famine, 57 and _note_; + ravaged by banditti, 58; + the Jacquerie insurrection, _ib._ and _note_ k; + state of the country under Charles V. and VI., 65, 66; + under Charles VII., 77, 84; + consolidation of its dominions, 100; + its historians, 101 _note_ m; + its deplorable state under Charles the Bald, 135; + its provincial government under the Merovingian kings, 152; + succession to its monarchy, 154 and 217 _note_; + its progress from weakness to strength, 204; + revenue of its kings, how raised, 208; + its coinage, 210, 211; + taxation, 211, 212; + its constitution never a _free_ one, 229 _note_ b; + designs of its kings upon Naples, 503 _et seq._ + + Franconia, rise of the House of, ii. 68; + its extinction, 71. + + Frankfort, council of. See Council. + + Franks, territories occupied by the, i. 2 and _note_ c; + their probable origin, _Note_ II. 104, 105; + their position under Pepin, 117, 118; + their promise to Pepin, 127, 154; + character of their church dignitaries, 150 _note_ q; + increase of the power of their kings, 155; + serfdom and villenage amongst them, 198-200; + extent to which they participated in legislation, 213 and _note_; + origin of the Ripuarian Franks and Salian Franks, 279; + their numbers during the reign of Clovis, 291, 292; + presumed infrequency of marriages between them and the Romans, 296; + extent of power possessed by their kings, 301-309. + + Fredegonde, queen. See Chilperic. + + Frederic I. (Frederic Barbarossa), third crusade undertaken by, i. 40; + title conferred by him on the archbishop of Lyons, 45; + commencement of his career in Italy, 371; + he besieges Milan, 372; + subjugation and second rise of its citizens, _ib._; + destruction of their city, 373; + league of Lombardy against him, 374; + his defeat and flight, 375; + peace of Constance, 376; + his policy relative to Sicily, 378; + his response to Roman oratory, 415 and _note_; + his accession to the German throne, ii. 73; + Henry the Lion's ingratitude towards him, 74 and _note_ y; + he institutes the law of defiance, 95; + his forced submission to pope Adrian IV., 195; + his limitation on the acquisition of property by the clergy, 227; + his intellectual acquirements, iii. 286 _note_ d; + his patronage of learning, 422. + + Frederic II., position of, at his accession, i. 385; + cause of his excommunication by Gregory IX., 386; + rancour of papal writers against him, _ib. note_ c; + result of his crusade, 387; + his wars with the Lombards, _ib._; + his successes and defeats, 390; + animosity of the popes towards him, 390, 391; + sentence of the council of Lyons against him, 391; + his accession to the German throne, ii. 75; + his deposition, 76; + he restrains the right of defiance, 96; + his imperial tribunal, 97; + his poetry, iii. 442. + + Frederic III. of Germany, character of the reign of, ii. 88 and _note_; + his significant motto, 89 _note_ i; + objects of his diets, 96, 97; + he betrays the empire to the pope, 253. + + Freemasonry, and its connection with architecture, iii. 359 _note_ k. + + Freemen, existence of, prior to the tenth century, i. 323; + alodial proprietors evidently of this class, 324; + other freemen, 325; + consequence of their marriage with serfs, 333. + + Fregosi and Adorni factions, i. 496. + + Froissart, value of the Chronicles of, i. 67 _note_ x. + + Fulk's saucy reproof of Louis IV., iii. 286 _note_ e. + + + Gandia (duke of), claims the throne of Aragon, ii. 41; + his death and failure of his son, _ib. note_ e. + + Gaul invaded by Clovis, i. 2; + condition of its Roman natives, 149; + privileges of the "conviva regis," 150 _note_ r, 281 and _note_ e; + retention of their own laws by the Romans, 282; + their cities, 286; + their subjection to taxation, 287; + their accession to high offices, 293; + their right to adopt the laws of the Franks, 293, 294; + presumed infrequency of marriage between the two races, 296. + + Genoa, early history of, i. 444; + her wars with Pisa and Venice, _ib._; + victory of her fleet over Pisani, 445; + insolence of her admiral towards the Venetian ambassadors, 446; + her subsequent reverses, 447; + surrender of her forces to Venice, 448; + decline of her power, 449; + her government and its various changes, _ib._; + dissensions of the Guelfs and Ghibelins, 450; + her first doge, 451; + frequent revolutions of her citizens, _ib._; + the Adorni and Fregosi factions, 496; + commercial dealings of the Genoese, iii. 329; + their position in Constantinople, 330; + their manufactures, 331; + their money transactions, 337, 340; + state security taken by their bankers, 341. + + Germany conquered by Charlemagne, i. 9, 10; + held by Louis his grandson, 16; + passes away from his family, 17; + its Hungarian assailants, 19; + its first apostles, 121; + political state of ancient Germany, 145; + mode in which kings were chosen, _ib._; + lands in conquered provinces, how-divided, 146; + customs respecting alodial and salic lands, 147-149 and _notes_; + superior position of its rulers as compared with those of France, 204; + causes of the reversal of this state of things, _ib._; + degree of reliance due to Tacitus's accounts of German institutions, + 273-275; + character of its governments, 302; + limited power of its kings, 302-304; + its position at the death of Charles the Fat, ii. 66; + election of its emperors, in whom vested, 77-80; + partitions of territory amongst its princes, 83, 84; + importance of its free cities, 90; + privileges conferred on them, _ib._; + their warfare with the nobles, 91; + the sanctuary of the palisades, 92; + league of the cities, _ib._; + polity of the principalities, 93; + extent of the imperial domains, _ib._; + their gradual alienation by the emperors, _ib._; + the diet of Worms and its results, 94-98; + limits of the German empire at various periods, 100; + absence of towns, iii. 312; + pre-eminence of its robber chiefs, 314. + See Diet, Justice. + + Ghent, populousness and impregnability of, i. 92, 93; + policy of its people relative to taxation, 93 _note_; + its trading eminence, iii. 319; + its houses and population, 320 _note_ f. + + Ghibelins, origin of the word, ii. 73. + See Guelfs. + + Giovanni di Vicenza, singular success of the exhortations of, i. 403; + result of his attempts at sovereignty, 404. + + Gloucester, duke of (_temp._ Richard II.), speaks for the parliament, + iii. 67, 68 _note_ c; + made lord appellant, 72; + reinstated in the council, 73; + his animosity towards the duke of Lancaster, 74, 75; + his seizure by the king, 76; + his murder and posthumous attainder, _ib._ + + Godfrey of Boulogne, eastern domains assigned to, i. 38; + his reasons for refusing the title of king, _ib. note_ g; + his feats of strength, _ib. note_ h. + + Granada, fertility and importance of, ii. 60; + its unavailing resistance to Ferdinand, _ib._ + + Gratian, character of the Decretum compiled by, ii. 203. + + Greek church, marriage of priests permitted by the, ii. 176. + + Greek empire, degeneracy of the, ii. 120; + its theological dissensions, _ib._; + revival of its power, 124; + tactics of its emperors, 125 and _note_ n; + exploits of celebrated usurpers, 126; + results of the first crusade, 127; + expeditions of Alexius Comnenus, 128; + sacking of the capital, 128-130; + partition of the empire, 130; + its declining state, 132; + lukewarmness of the western Christians, 135; + fall of the empire, 136; + the last of the Caesars, _ib._; + Greek anti-exportation anecdote, iii. 315 _note_ a. + See Constantinople. + + Gregory I., character of, ii. 161; + he establishes the appellant jurisdiction, 162, _note_ r. + + Gregory II., design of, for placing Rome under Charles Martel's + protection, i. 122. + + Gregory IV. and V., submission of, to imperial authority, ii. 182. + + Gregory VII., projection of the crusades by, i. 34; + his obligations to the countess Matilda, 380; + his ascendency over the clergy, ii. 183, 184; + elected pope, 184; + his differences with, and excommunication of, Henry IV. of Germany, + 184, 185 and _note_; + rigorous humiliation imposed by him on Henry, 186; + his exile and death, 187; + his declaration against investitures, 189; + his illimitable ambition and arrogance, 192; + his despotism towards ecclesiastics, 193; + his arrogance eclipsed by Innocent III., 228. + + Gregory IX., excommunications of Frederic II. by, i. 387, 391; + his further designs against Frederic, _ib._; + Decretals published by his order, ii. 203; + his encroachments on the English church, 212; + his pretext for levying contributions, 216; + immense sum extorted by him from England, 217. + + Gregory X., tax levied on the church by, ii. 218. + + Gregory XI. reinstates the papal court at Rome, ii. 240. + + Gregory XII. elected and deposed, ii. 242. + + Grimoald, usurpation of supreme power by, i. 6. + + Grostete (Robert, bishop of Lincoln), notices of, ii. 217 _note_ f; + iii. 429 _note_ k, 464. + + Guarnieri (duke), systematic levy of contributions by, i. 471; + success of his operations, _ib._ + + Guelfs and Ghibelins, origin of the rival factions of, i. 382; + their German antecedents, 383 and _note_; + characteristics of the two parties, 384; + irrationality of the distinctions, 406; + temporary union of the factions, _ib._; + expulsion of the Ghibelins from Florence, 407; + revival of their party, 410; + origin of the name Guelfs, ii. 73; + See Florence, Genoa. + + Gui de Lusignan, cause of his flight from France, i. 36. + + Guienne, seized by Philip IV., i. 43; + restored to England, 44; + insurrection of its people against Charles VII., 86 and _note_; + suspicious death of Charles duke of, 89 and _note_. + + Guiscard (Robert), territorial conquests of, i. 363; + he takes Leo IX. prisoner, _ib._; + his English opponents at Constantinople, ii. 307. + + Guiscard (Roger), conquers Sicily, i. 363; + declared king by Innocent II., 364; + he shelters Gregory VII., ii. 187; + he subjugates Amalfi, iii. 328; + he introduces silk manufactures at Palermo, 331. + + Gunpowder. See Military Systems. + + + Hair, length of, a mark of nobility, i. 310; + Childebert's proposal relative to Clodomir's children, 311 _note_. + + Hanse towns, confederacy of the, iii. 325. + + Haroun Alraschid, magnificence of the rule of, ii. 121; + African principalities in his reign, 122. + + Hastings, lord (_temp._ Edward IV.), receives bribes from Louis XI., + i. 90; + his reason for refusing to give receipts for the same, _ib. note_ q. + + Hawkwood (Sir John), military renown acquired by, i. 472; + gratitude of the Florentines towards him, _ib._; + his skill as a general, 473. + + Haxey (Thomas), surrendered by the commons to the vengeance of Richard + II., iii. 76, 102; + important principles involved in his case, 76 _notes_. + + Henry II. of Castile rebels against Peter the Cruel, ii. 14; + his defeat and subsequent victory, 15; + his vow to preserve justice, 36. + + Henry III. of Castile marries John of Gaunt's daughter, ii. 15. + + Henry IV. of Castile, despicable character of, ii. 17; + deposed by a conspiracy of nobles, _ib._; + futile efforts of his daughter to succeed him, 18; + contests after his death, _ib._; + his reproof by the Cortes of Ocana, 33. + + Henry I. of England, extortions on the church by, ii. 216. + + Henry II. marries the repudiated wife of Louis VII., i. 25; + opposes the tyranny of the church of Rome, ii. 222; + cause of his dispute with Thomas a Becket, 223. + + Henry III. allows Italian priests in English benefices, ii. 213; + abets papal taxation on the clergy, 217; + his submissiveness, 226; + provisions contained in his charter, 327, 328; + worthlessness of his character, 329; + his perjuries, 330; + his pecuniary difficulties and extortions, 331; + his expensive foreign projects, 332; + demands of the pope and resolute conduct of the barons, 333; + his quarrel with, the earl of Pembroke, iii. 164. + + Henry IV., policy and views of, towards France, i. 65, 74; + circumstances attending his succession, iii. 81; + invalidity of his hereditary title, 82; + his tactics towards the parliament, 83; + aid granted to him in 1400, 85; + policy of the commons towards him, 86, 87; + limitations imposed on him, 93, 94; + he comes to terms with them, 94. + See Bolingbroke. + + Henry V., his exorbitant demands on proposing to marry Catherine of + France, i. 74 and _note_ n; + invasion of France by, _ib._ and _note_ o; + his negotiations with the duke of Burgundy, 75; + his marriage and death, 76; + life subsidies granted to him, iii. 87; + improbability of his alleged dissoluteness, 96; + his claims on popular affection, _ib._; + his clemency to the earl of March, 194. + + Henry VI., parliamentary policy during the minority of, iii. 97, 98; + unpopularity of his marriage, 98; + his conduct on Suffolk's impeachment, 99; + state of the kingdom during his minority, 183; + his imbecility, _ib._; + solemnities observed in nominating a regency during his infancy, + 186-190; + provisions in consequence of his mental infirmities, 190-194. + + Henry VII., conduct of, towards the memory of his predecessors, iii. 200 + and _note_ q. + + Henry I. of France, alleged large army levied by, i. 24 _note_ h; + extent of authority exercised by him, 137. + + Henry I. the Fowler, elected emperor of Germany, ii. 67; + his scheme for improving his territories, _ib. note_ d. + + Henry II. of Bavaria, elected emperor of Germany, ii. 68. + + Henry III. of Germany, imperial influence extended by, ii. 68; + instances of his exercise of absolute power, 69, 95; + his judicious nomination of popes, 183. + + Henry IV. of Germany, primary cause of the misfortunes of, ii. 69; + conspiracy against him during his infancy, 70 _note_ k; + his abduction by Hanno, _ib._; + his excommunication and its consequences, _ib._ and _note_ n; + his remains insulted by Rome, 71; + zeal of the cities in his cause, 90; + his contests with Gregory VII., 184, 185; + his humiliation by Gregory, 186; + the tables turned, 187; + animosity of Gregory's successors towards him, 187, 188. + + Henry V. of Germany, accession and death of, ii. 71; + privilege granted by him to the cities, 90; + his compromise with the popes, 188. + + Henry VI. of Germany, repudiates arrangements between his predecessor + and the popes, i. 381; + production of his alleged will, _ib._; + his ambitious project, ii. 74; + his death, 75. + + Henry VII. of Germany, acquires Bohemia for his son, ii. 85; + his opposition to the papal power, 234. + + Henry the Proud, ancestry and possessions of, ii. 72; + consequences of his disobedience to the emperor's summons, 72, 73. + + Henry the lion restored to his birthright, ii. 73; + fatal results of his ingratitude, 74. + + Hereditary succession, how far observed among the Franks, i. 154 + _note_ f, 299; + disregarded by the Anglo-Saxons, ii. 273; + establishment of the principle in England, 343-346; + elucidatory note upon the subject, 425-428. + + Hereford (earl and duke of). See Bohun, Bolingbroke. + + Hereward, brave resistance of, to William the Conqueror, ii. 304 + _note_ f. + + Hilary deposed by Leo the Great, ii. 161 _note_ p. + + Hildebrand. See Gregory VII. + + Honorius III., establishment of mendicant orders by, ii. 206; + refusal of his requests by France and England, 213. + + Hugh the Great of France, procures the election of Louis IV., i. 128. + + Hugh Capet. See Capet. + + Hungarians, ravages in Europe by the, i. 20; + their ferocity towards the clergy, _ib. note_ z; + their conversion to Christianity, ii. 104; + their wars with the Turks, 105-107. + + Hungary, kings and chiefs of. See Andrew, Corvinus, Hunniades, Ladislaus, + Louis of Hungary, Sigismund, Uladislaus. + + Hungerford (Sir Thomas), elected speaker, iii. 58. + + Hunniades (John), heroic career of, ii. 105, 106; + his death, 106. + + Huss (John), burned to death, ii. 102; + characteristics of his schism and his followers, iii. 389 and + _note_ m, 390. + + + Innocent III., persecution of the Albigeois by, i. 28; + his ambitious policy, 379; + his significant production of the will of Henry VI. of Germany, 381; + position of the Italian cities towards him, _ib._; + use made by him of his guardianship of Frederic II., 385; + increase of temporal authority under him, 416; + his accession to the papal chair, ii. 195; + extravagance of his pretensions, 196; + his scheme of universal arbitration, 197; + his decrees and interdicts, 199; + his interference with the German emperors, 200; + his claim, to nominate bishops, 212; + cause of his anger with the chapter of Poitiers, 213; + he levies taxes on the clergy, 216; + his pretext for exercising jurisdiction, 220; + he exempts the clergy from criminal process, 221; + his arrogance eclipsed by Boniface VIII., 228. + + Innocent IV., outrageous proceedings of, against Frederic II., i. 391; + his conduct towards Frederic's successors, 392; + he quarters Italian priests on England, ii. 213; + height of papal tyranny during his pontificate, 217; + his disposal of the crown of Portugal, 231 _note_ g; + anecdote of him, 238 _note_ r. + + Innocent VI. elected pope, ii. 242. + + Interdicts, ii. 172, 260 _note_ g, and 261. + See Papal Power. + + Ireland a mediaeval slave depot, iii. 316 and _note_ d. + + Irene, dethronement of Constantine V. by, i. 122; + Leo III.'s project of marriage between her and Charlemagne, _ib._ + + Isabel of Bavaria (queen of Charles VI.), infamous conduct of, towards + her husband, i. 69; + her hatred of Armagnac, and its consequences, 72; + joins in the treaty with Henry V., 76. + + Isabel of France, marries Edward II. of England, i. 45. + + Isabella of Castile. See Ferdinand II. + + Isidore, publication of the False Decretals of, ii. 166; + their character and object, 166, 167 and _notes_; + authority accorded to them by Gratian, 203. + + Italy, occupied by the Ostrogoths, i. 1; + its subjection by the Lombards, 8; + conquests of Pepin and Charlemagne, 9; + its king Bernard, 14; + its state at the end of the ninth century, 355; + authorities referred to for its history, _ib. note_; + its monarchs Berenger I. and II., 357 and _note_ c; + assumption of power by Otho the Great, _ib._; + execution of Crescentius by Otho III., 359; + election and subsequent troubles of Ardoin, _ib._; + condition of its people under Henry II., 360; + cause of its subjection to German princes, _ib._; + accession of Conrad II., and consolidation of Germanic influences, + 360, 361; + its Greek provinces, 361, 362; + incursions and successes of the Normans, 362-364; + progress of the Lombard cities [see Lombards]; + accession of Frederic Barbarossa, 370 [see Frederic I.]; + cause of the decadence of Italy, 377, 378; + its domestic manners, iii. 342, 344. + + + Jacquerie, insurrection of the, i. 58, and _note_ k. + + James II. of Aragon, renounces the Sicilian crown, i 485; + invested with the Sardinian crown, ii. 231 _note_ g. + + Jane of Navarre, treaty entered into on behalf of, i. 45; + betrayal of her cause by the duke of Burgundy, 47; + she recovers Navarre, _ib. note_ g. + + Janizaries, institution of the, ii. 137. + + Jerome of Prague, burned to death, ii. 102. + + Jerusalem, foundation of the kingdom of, i. 38; + its conquest by Saladin, 40; + restored to the Christians by the Saracens, 41; + oppressive system of marriages there, under the feudal system, 180; + title of the kings of Naples to sovereignty over it, 386 _note_ d. + + Jews, wealth amassed and persecutions endured by the, i. 209; + their early celebrity as usurers, _ib. note_ b; + their final expulsion from France, 210 and _note_ d; + ordinances against them, 222; + exorbitant rates paid by them in England, ii. 320; + their massacre by the Pastoureaux, iii. 297; + their liability to maltreatment, 305; + barbarous customs regarding them, _ib. note_; + the Jew-drowning story, 306 _note_ u; + their early money dealings, 338; + toleration vouchsafed to them, _ib._; + decline of their trade, 339; + their addiction to coin-clipping, 369 _note_ t. + + Joan of Arc, character, successes, and fate of, i. 79, 80; + her betrayer, 84 _note_ f; + her name and birthplace, 143; + great merit of Southey's poem, _ib._ + + Joanna of Naples, married to Andrew of Hungary, i 486; + her husband's murder imputed to her, _ib._ and _note_ q; + she dies by violence, 487. + + Joanna II. of Naples, and her favourites, i, 489; + her vacillation relative to her successors, 490; + puts Caraccioli to death, 491 _note_. + + John I. of Castile, accession of, ii. 15; + his merited defeat by the Portuguese, 16. + + John II. of Castile, wise government by the guardians of, during his + infancy, ii. 15, 16; + he disgraces and destroys his favourite Alvaro de Luna, 16, 17; + his death, 17; + its results, 58. + + John (king of England), cited before Philip Augustus, i. 26; + results of his contumacy, 27; + singular fines levied by him, ii. 320; + his rapacity, 326 and _note_ q; + Magna Charta, 326, 329; + curious instance of the unpopularity of his name, iii. 65 _note_ t. + + John I. of France, birth and death of, i. 46 and _note_ e. + + John II. of France, character of, i. 53; + taken prisoner at Poitiers, 58; + bestows his daughter on Charles of Navarre, 57; + submits to the peace of Bretigni, 59; + his response to the citizens of Rochelle, 63. + + John of Procida, designs of, on Sicily, i. 483; + result of his intrigues, 484. + + John VIII. (pope), insolence of, towards Charles the Fat, ii. 174; + asserts a right to nominate the emperor, _ib._ + + John XXII. (pope), claims supremacy over the empire, ii. 235; + his dispute with Louis of Bavaria, _ib._; + he persecutes the Franciscans, 237; + his immense treasures, 238; + his imposts on the clergy, 238 _note_ x. + + John XXIII. (pope), convokes and is deposed by the council of Constance, + ii. 243. + + Joinville (the chronicler), refuses to accompany St. Louis in his last + crusade, i. 42 _note_. + + Judith of Bavaria, marries Louis the Debonair, i. 16. + + Julian's betrayal of Spain to the Moors: credibility of the legend, + ii. 62-65. + + Jury. See Trial by Jury. + + Justice, administration of, under Charlemagne, i. 238; + various kinds of feudal jurisdiction, 239; + judicial privileges assigned to the owners of fiefs, 240; + cruel custom in Aragon, 241 _note_ q; + trial by combat, 242, 243 and _notes_; + the Establishments of St. Louis, 244; + limitations on trial by combat, 245, 246, 247 _note_ p; + royal tribunals and their jurisdiction, 246; + the court of peers, 247; + the parliament of Paris and its lawyers, 248; + jurisdiction of the court of the palace, 336, 337; + its constitution, 337; + imperial chamber of the empire, ii. 97; + its functions and jurisdiction, 98; + the six circles and the Aulic council, 99; + character of the king's court, in England, 336, 420-425; + importance of the office of chief justiciary, 336 _note_ r; + functions of the court of exchequer, 336 and _note_ s, 425; + institution of justices of assize, 337; + establishment of the court of common pleas, 338; + origin of the common law, 339; + difference between the Anglo-Saxon and Anglo-Norman systems of + jurisprudence, 339, 340; + complicated character of English laws, 341; + necessity for a reformation of the statute-book, 342 and _note_; + jurisdiction of the king's council, iii. 138-147, 249-257; + safeguard for the independence of judges, 152 _note_ t; + rarity of instances of illegal condemnation, 156-158; + origin and jurisdiction of the court of chancery, 241-249. + + + King's council (England), Jurisdiction of the, iii. 138; + its composition, _ib._; + its encroachments, 140; + limitations on its power, 141; + remonstrances of the commons, _ib._; + its legislative status, 143; + its frequent junction with the lords' house, 144-146 and _notes_; + views of Sir F. Palgrave on the subject, 249-257. + + Knighthood. See Chivalry. + + Knights Templars, institution of the order of, i. 40; + their large possessions and rapacity, _ib._ and _note_ s; + question of their guilt or innocence, 138, 139; + Count Purgstall's charges against them, 139-142; + Raynouard's attempted refutation, 142; + their estates and remarkable influence in Spain, ii. 8. + + Koran, characteristics of the, ii. 114-117. + + + Labourers, amount of wages paid to, iii. 372, 373; + degree of comfort thereby indicated, 373, 374 and _notes_. + + Ladislaus of Naples, accession of, i. 488; + energy displayed by him, 489; + his death, _ib._ + + Ladislaus of Hungary, defeat of the partisans of, ii. 105; + his accession to the throne, _ib._; + his death, _ib._; + suspicions relative thereto, 106 _note_. + + Lambertazzi (Imilda de), pathetic story of, i. 402. + + Lancaster (duke of), ascendency of, over Edw. III. iii. 55; + his ambitious projects, _ib._; + cause of his retirement from court, 58; + he curries favour with the commons, 65 and _note_ t; + his quarrel with Arundel and Gloucester, 74; + his marriage with Katherine Swineford, _ib._; + his antenuptial children by her, 75; + conduct of Richard II. on his death, 80. + + Lancastrians and Yorkists, wars of the, iii. 197. + + Lando (Michel di), cause of the elevation of, i. 435; + his just exercise of power, 436; + sent into exile, 438. + + Landwehr, antiquity of the, i. 263 _note_ e. + + Lanfranc (archbishop), arrogant conduct of, ii. 305 _note_ h. + + Languages, difficulty of accounting for the change of, i. 284, 285; + principles deducible from difference of language, 290, 291. + + Languedoc, spread of the Albigensian heresy in, i. 28 and _note_; + devastation of the country by the papal forces, 28, 29 and _notes_; + its cession to the crown of France, 29; + its provincial assembly, 234. + + Latimer (lord), impeached by the commons, iii. 56; + their further tactics regarding him, 59. + + Latin tongue, corruption of the, iii. 275. + See Learning. + + Laura (Petrarch's mistress). See Petrarch. + + Laws, characteristics of, at certain periods i. 297; + study of the civil law, iii. 414; + fame of the Bolognese school, 415; + necessity for legal knowledge in mediaeval magistrates, 416; + unpopularity of the Roman law in England, 417; + neglect of the elder civilians, 418, 419 and _note_ x. + See Justice. + + Learning, causes of the decline of, iii. 270; + neglect of pagan literature by the early Christians, 273; + blighting influence of superstition and asceticism, 274; + corruption of the Latin tongue, 275; + rules observed in its pronunciation, 276-278; + errors of the populace, 278; + changes wrought by the Italians and French, 279, 280; + neglect of quantity, 281; + specimens of verses by St. Augustin and others, 282-284 _notes_; + change of Latin into Romance, 283; + Italian corruptions of the Latin, 285; + effect of the disuse of Latin, 286; + ignorance of various sovereigns, _ib. notes_; + extent of Charlemagne's and Alfred's learning, 286 and _note_ f; + ignorance of the clergy, 287, 288, and _notes_; + scarcity of books, 289 and _note_ p; + erasure of manuscripts, 289; + lack of eminent learned men, _ib._; + John Scotus and Silvester II., 290 and _note_ r; + preservative effects of religion on the Latin tongue, 291-293; + non-existence of libraries, 292 _note_; + prevalence of superstitions, 293-295; + revival of literature, 413; + study of civil law, 414-419; + establishment of public schools, 419; + Abelard and the university of Paris, 420, 421; + Oxford university and its founders, 422, 423, and _notes_; + rapid increase of universities, 423-425; + causes of their celebrity, 425; + spread of the scholastic philosophy, 426; + its eminent disputants, 427; + influence of Aristotle and of the church, 429, 430; + unprofitableness of the scholastic discussions, 430, 431; + labours of Roger Bacon and Albertus Magnus, 432 and _note_ s, 433; + cultivation of the new languages, 433; + the troubadours and their productions, 434-436; + origin of the French language, 436; + early French compositions, 437, 438; + Norman tales and romances, 439; + the Roman de la Rose, 440; + French prose writings, 441, 442 and _notes_; + formation of the Spanish language: the Cid, 442, 443, and _notes_; + rapid growth of the Italian language, 443, 444; + excuses of Italians for writing in French, 445 _note_ z; + Dante and his Divine Comedy, 445-449; + Petrarch and his writings, 449-452; + dawn of the English tongue, 452; + Layamon's Brut, 453 and _note_ k; + Robert of Gloucester and other metrical writers, 453; + merit of Piers Plowman's Vision, 454; + cause of the slow progress of the English language, _ib._; + earliest compositions in English, 455; + pre-eminence of Chaucer, 456; + revival of classical learning, 457; + eminent cultivators thereof, 458; + invention of paper, 459; + transcribers and booksellers, _ib. note_ x; + rarity and dearness of books, 460; + recovery of classical manuscripts, 461; + eminent labourers in this field, 462, 463; + revival of the study of Greek, 465, 466; + state of learning in Greece, 466; + services rendered by the mediaeval Greeks, 467-469 and _notes_; + opposition to the study of Greek at Oxford, 470; + fame due to Eton and Winchester schools, _ib._; + invention of printing, 471; + first books issued from the press, _ib._; + first printing presses in Italy, 472; + elucidatory note on the state of learning in the dark ages, 474-476; + Dr. Maitland's views thereon, 476-479; + earliest use of the English language in public documents, 484-486. + + Legislation under the early French kings, i. 212; + the "Champ de Mars" or Field of March, 213, 214; + participation of the people in legislative proceedings, 214, 333-336; + Charlemagne's legislative assemblies, 215; + cessation of national assemblies, 218; + assemblies of the barons, 219; + the cours plenieres, 220; + limitation of the king's power, 221; + substitutes for legislative authority, _ib._; + ecclesiastical councils and their encroachments, 222; + general legislation, when first practised, _ib._; + increase of the legislative power of the crown, and its causes, + 223, 224; + convocation of the States-General, 224; + constitution of the Saxon witenagemot, ii. 279; + Anglo-Norman legislation, 322, 323 and _note_; + prerogatives of the crown, 410; + custom of the Anglo-Saxon kings, 412. + See Justice, Parliament, States-General. + + Leo the Great deposes Hilary, ii. 161 _note_ p. + + Leo III. invests Charlemagne with the imperial insignia, i. 11; + his design of marrying Charlemagne to Irene, 122; + Charlemagne's authority over him, ii. 182. + + Leo VIII. confers on the emperor the right of nominating popes, ii. 182 + and _note_ x. + + Leo IX. leads his army in person, i. 363; + devotion of his conquerors towards him, 363, 364. + See Papal Power. + + Leon, foundation of the kingdom of, ii. 3; + its king killed in battle, 4; + its union with Castile, 9. + + Leopold of Austria defeated by the Swiss, ii. 109. + + Libraries in the fourteenth and fifteenth centuries, iii. 460, 461, and + _notes_. + + Literature. See Learning. + + Lollards, rise of the, iii. 388; + their resemblance to the Puritans, 389. + + Lombards, original settlement of the, i. 8 and _note_ t; + extension of their dominions, _ib._; + defeated by Pepin and Charlemagne, 9; + their mode of legislating, 212; + position of their Roman subjects, 295; + progress of their cities, 365; + frequency of wars between them, _ib._; + acquisition of territories by them, 368; + democratic tyranny of the larger cities, 369; + destruction of Lodi by the Milanese, _ib._ and _note_ i; + courage of the citizens of Como, 370; + exclusion of royal palaces from Lombard cities, _ib._; + siege and subjugation of Milan by Frederic Barbarossa, 371, 372; + efforts of the Milanese to regain their freedom, 372; + destruction of Milan, 373; + league of the Lombard cities, 374; + defeat and flight of Barbarossa, 375; + peace of Constance, 376; + their successful resistance a lesson to tyrants, 376, 377; + their wars with Frederic II., 387; + party nature of these struggles, 388; + arrangement of the Lombard cities, 388, 389; + chequered results of their conflicts with Frederic, 390; + their papal supporters, _ib._; + causes of their success, 392; + their means of defence, 394, 395; + internal government of their cities, 395; + revival of the office of podesta, 396; + position of aristocratic offenders amongst them, 397; + duties and disabilities of the podesta, 397, 398; + their internal dissensions, 398, 399; + artisan clubs and aristocratic fortifications, 400; + vindictiveness of conquerors of all classes, 401; + inflammatory nature of private quarrels, and their disastrous results, + 402; + effect of Giovanni di Vicenza's exhortations, 403, 404; + moral deducible from the fall of the Lombard republics, 408, 409; + the Visconti in Lombardy, 464. + See Visconti. + + Longchamp (William, bishop of Ely), constitutional precedent established + by the banishment of, ii. 325. + + London, early election of the magistrates of, iii. 219; + its municipal divisions, 220; + its first lord mayor, 221; + not exclusively a city of traders, 223; + its extent and population, _ib._; + comparison with Paris, 224. + + Loria (Roger di), naval successes of, i. 484. + + Lothaire (son of Louis the Debonair), associated in power with his + father, i. 15; + his jealousy of his half-brother, 16; + territories allotted to him, 16, 17, and _notes_ o, p; + cause of his excommunication, ii. 169, 170. + + Lothaire (duke of Saxony), elected emperor of Germany, ii. 71 and + _note_ p; + failure of his scheme of succession, 72; + the picture and couplet relative to his coronation, 195 _note_ g. + + Louis of Bavaria, emperor of Germany, ii. 85; + his contest with the popes, 234; + he aids the Visconti, 235; + he dies unabsolved, 236. + + Louis I. (the Debonair) succeeds Charlemagne, i. 14; + his cruelty to his nephew, _ib._; + his character, 15; + associates his sons in power with him, _ib._; + his second marriage and its consequences, 16; + enmity of the clergy against him, _ib._; + his practice relative to the hearing of causes, 239, _note_ h; + his attempted deposition by the bishops, ii. 155, 156; + he prohibits trial by ordeal, iii. 295 _note_ x. + + Louis of Germany (son of the above) made king of Bavaria by his + father, i. 15; + share of empire allotted to him on his father's death, 16. + + Louis II. (the Stammerer), conditions exacted by the French nobles + from, i. 126. + + Louis IV. ("Outremer") elected king, i. 128; + Fulk's saucy retort, iii. 286 _note_ e. + + Louis V., i. 18, 128. + + Louis VI., state of France at the accession of, i. 24; + his contests with the Norman princes, 25; + his participation in judicial matters, 244 _note_ c. + + Louis VII., untoward marriage of, and its consequences, i. 25; + confirms the rights of the clergy, 27; + joins in the second crusade, 38; + his submissiveness to Rome, ii. 223. + + Louis VIII. opposes Raymond of Toulouse, i. 29; + issues an ordinance against the Jews, 222. + + Louis IX. (Saint Louis), accession of, i. 30; + revolt of the barons against him, _ib._; + excellences of his character, his rare probity, &c., 31, 32; + undue influence exercised over him by his mother, 32; + his superstition, 33 and _note_; + he embarks in the crusades, 33; + calamitous results of his first crusade, 41; + his second expedition and death, _ib._; + his Establishments, 222, 224, 244; + his open-air administrations of justice, 244; + the Pragmatic Sanction and its provisions, ii. 214 and _note_; + his submissiveness to the church, 226; + his restraint on the church holding land, 227 and _note_. + + Louis X. (Louis Hutin), accession and death of, i. 45; + treatment of his queen and family by Philip the Long, 46; + his edict for the abolition of serfdom, 202; + he renounces certain taxes, 227. + + Louis XI., accession of, i. 86; + his character and policy, 86, 87; + bestows Normandy on his brother as an appanage, 88; + and then deprives him of it, 89; + grants pensions to the English king and his nobles, 89, 90; + his contests with Charles of Burgundy, 90, 91, and _notes_; + and with Mary of Burgundy, 94, 95, and _notes_; + his last sickness and its terrors, 96; + his belief in relics, 97 and _note_; + court boast relative to his encroachments, 235; + civic liberty encouraged by him, 352; + he repeals the Pragmatic Sanction, ii. 255; + his people oppose the repeal, _ib._; + his treatment of cardinal Balue, 258, _note_ c. + + Louis XII. See Orleans. + + Louis of Hungary invades Naples, i. 486. + + Louis of Anjou adopted by Joanna of Naples, i. 487; + his death, 488. + + Louis II. of Anjou and Naples, accession of, i. 488; + subdued by Ladislaus, _ib._ + + Louis III. of Anjou and Naples called in by Joanna II., i. 489; + his doubtful prospects, and death, 491. + + Lucius II. (pope), cause of the death of, i. 416. + + Luna (Alvaro de), influence exercised by, ii. 16; + disgraced and beheaded, 17; + law on which his opponents relied, 38. + + Luna (Antonio de) assassinates the archbishop of Saragossa, ii. 41. + + Luna (Frederic count of) claims the throne of Aragon, ii. 41; + care taken of his interests by the court, _ib._ + + Luna (Peter de). See Benedict XIII. + + Lupus Servatus, literary performances of, iii. 475 _note_ a. + + Luxemburg (John of), execution of prisoners of war by, i. 84; + betrays Joan of Arc to the English, _ib. note_ f. + + + Magna Charta. See England. + + Mahomet the prophet. See Mohammed. + + Mahomet II. attacks the Venetians, i. 493; + his success, 495; + failure of his assault upon Belgrade, ii. 106; + he captures Constantinople, 136; + unrealised schemes for his expulsion, 136, 137; + his European successes and reverses, 138; + AEneas Sylvius's odd proposal, _ib. note_. + + Mandats and their abuses, ii. 212. + + Manfred, brave retention of the imperial throne by, i. 392; + killed, 406. + + Manicheans. See Religious Sects. + + Manners. See Chivalry, Domestic Life, Learning, Superstition. + + Manufactures. See Trade. + + Manuscripts. See Learning. + + Marcel (magistrate of Paris), why assassinated, i. 232. + + March (Roger, earl of) opposes the duke of Lancaster, iii. 56; + his significant policy, 57; + his popularity with the parliament, 65; + his exclusion from the throne, 82, 194; + clemency of Henry V. towards him, 194. + + Margaret of Anjou married to Henry VI., iii. 98; + consequences of her impolicy, 194, 197. + See Henry VI. + + Mariner's compass, tradition of the invention of the, iii. 332, 333. + + Maritime laws of early times, iii. 333; + prevalence of piracy, 334; + law of reprisals, 335. + + Marriages, capricious decrees of the popes concerning, ii. 208; + dispensations and their abuses, _ib._ + + Martin (prince of Aragon) marries the queen of Sicily, i. 490; + his death, _ib._ + + Martin (king of Aragon) succeeds to his son's Sicilian dominions, i. 490; + contests for the Aragonese throne at his death, ii. 39. + + Martin V. elected pope, ii. 246; + he convokes the council of Pavia, 247; + his anger at the English statute of praemunire, 251, _note_ y; + his concordat with England, 251; + powers reserved to him by the German concordats, 252, 253; + rejection of his concordat by France, 254. + + Mary of Burgundy. See Burgundy. + + Matilda (countess) bequeaths her dominions to Rome, i. 380. + + Matthias Corvinus. See Corvinus. + + Maximilian of Austria marries Mary of Burgundy, i. 96; + becomes king of the Romans, ii. 89 and _notes_; + ascends the German throne, 94; + he extinguishes the robber-nobles, 96; + institutes the Aulic council, 99; + extent of the empire at his accession, 100. + + Mayor of the palace, importance of the office of, i. 6, 113-115, 157. + See Charles Martel, Pepin Heristal, Ebroin. + + Medici (Salvestro de') proposes to mitigate the severity of the law in + Florence, i. 434; + rise of his family, 498; + character of Giovanni, _ib._ and _note_; + banishment and recall of Cosmo, 499; + his death: his son Piero, 500; + death of Julian: popularity and princely career of Lorenzo, 501; + his bankruptcy repaired at the cost of the state, 502 and _note_ q; + his title to esteem, 503. + + Mendicant friars, first appearance of the, ii. 205; + success of their preachings, 206; + their extensive privileges, 206, 207, and _notes_. + + Mercenary troops. See Military Systems. + + Merovingian dynasty, character of the times during which it ruled, i. 5; + chronological sketch of its career, 118-120. + + Middle ages, period comprised under the term, iii. 269. + + Milan, resolute conduct of the people of in the choice of a bishop, i. + 366 and _note_ y; + its siege by Frederic I., 372; + destruction of the city, 373; + its statistics in the 13th century, 393; + its public works, 394; + creation of the duchy of Milan, 412; + lax conduct of the Milanese clergy, ii. 187, _note_ g. + See Lombards. + + Military systems of the middle ages. + character of the English troops at Crecy, Poitiers, and Azincourt, + i. 55, 77; + disadvantages of feudal obligations in long campaigns, 262; + substitution of mercenaries, 264; + Canute's soldiers, and his institutes respecting them, 264 and + _note_ g; + the mercenaries of the Anglo-Norman kings, 265; + advantages of mercenary troops, _ib._; + high rate of pay to English soldiers, 77 and _note_ t, 266; + establishment of a regular force by Charles VII., 267; + military resources of the Italian cities, 467; + importance of their carroccio, 467 and _note_ d; + their foreign auxiliaries, 468; + arms and armour, 469 and _note_ k; + citizens excused from service, 469; + companies of adventurers: Guarnieri's systematic levies, 471; + spirited refusal of tribute by Florence, 472; + Sir John Hawkwood's career [see Hawkwood]; + eminent Italian generals and their services, 474, 475; + probable first instance of half-pay, 475 and _note_ u; + small loss of life in mediaeval warfare, 476, 477, and _notes_; + long bows and cross bows, 477, 478; + advantages and disadvantages of armour, 478; + introduction of gunpowder, 479; + clumsiness of early artillery and fire-arms, 480; + increased efficiency of infantry, 481. + + Mocenigo (doge), dying prophecy of, i. 465, 466, and _note_. + + Moguls, ravages of the, ii. 131; + their exploits under Timur, 133. + + Mohammed, advent of, ii. 114; + state of Arabia at the time, 115; + dearth of materials for his history, _ib. note_; + characteristics of his writings, 115, 116; + his knowledge of Christianity whence derived, 116, _note_ c; + martial spirit of his system, 117, 118; + career of his followers. + See Abbassides, Moors, Ottomans, Saracens, Turks. + + Monarchy in France, character of the, i. 217 _note_; + means by which it became absolute, 223; + its power of enacting laws unlimited, 229 _note_ h. + + Monasteries, cultivation of waste lands by, ii. 142; + less pure sources of income, 144; + their exemption from episcopal control, 168 and _note_ f; + preservation of books by them, iii. 292; + extent of their charities, 302 and _note_; + vices of their inmates, 303; + their anti-social influence, 304; + their agricultural exertions, 360 and _note_. + + Money, high interest paid for, iii. 337; + establishment of paper credit, 339 and _note_ b; + banks of Italy, 340; + securities for public loans, 341; + changes in the value of money, 366-369; + comparative table of value, 370 _note_ x; + See Coining. + + Montagu (minister of Charles VI.), arrest of, i. 68 _note_ z. + + Montfort (Simon de), heads the crusade against the Albigeois, i. 29. + + Montfort (Simon de, earl of Leicester), his writs of summons to the + towns of England, iii. 27. + + Montfort (ally of Edward III.) obtains the duchy of Britany, i. 99. + + Moors, successes of the Spaniards against the, ii. 3; + victories of Alfonso VI., 5; + Cordova taken from them, 9; + its fabulous extent and wealth, _ib._ _note_ m; + cause of their non-expulsion from Spain, 10, 11. + + Mosheim, error of, relative to Louis IX., i. 33 _note_ z. + + Mowbray (earl of Nottingham and duke of Norfolk), made lord appellant, + iii. 72; + he espouses the king's interest, 74; + his quarrel with Bolingbroke and its results, 79, 80 and _note_ z. + + Municipal institutions of the Roman provincial cities, i. 338; + importance of the office of defensor civitatis, 340; + duties appertaining to it, 340; + responsibilities of the decurions, 341; + the senatorial orders, 342-344; + civic position of the Frank bishops, 345; + municipal government of the Frank cities, 345-347; + corporate towns of Spain, 347; + of France, 348; + their struggles for freedom, 348, 349; + early independence of the Flemish and Dutch cities, 349; + origin of the French communes, 350, 351; + growth of the burgages, 352; + policy of Louis XI. relative to civic liberty, _ib._; + Italian municipalities, 353, 354 [see Lombards]; + free cities of Germany [see Germany]. + See Parliament, Towns. + + Murder, gradation of fines levied as punishment for, amongst the Franks, + i. 150, 151 and _notes_, 198 and _note_ q, 281; + rates of compensation amongst the Anglo-Saxons, ii. 275. + + + Naples subjugated by Roger Guiscard, i. 363, 364; + contest for its crown between Manfred and Charles of Anjou, 406; + murder of the rightful heir by Charles, 407; + schemes relative to the severance of Sicily, 483 [see Sicily]; + accession of Robert, 485; + queen Joanna and her murdered husband, 486 and _note_ q; + Louis of Anjou and Charles III., 488; + reign of Louis II., _ib._; + ambition of the young king Ladislaus, 489; + his death, _ib._; + Joanna II., her vices and her favourites, 489, 490, and 491 _note_; + career of Alfonso, 492 [see Alfonso V.]; + invasion of the kingdom by John of Calabria, 494; + his failure, _ib._; + Ferdinand secured on the throne, 495; + his odious rule, 503. + + Navarre, origin of the kingdom of, ii. 3, 4. + + Neustria, extent of the dominions so termed, i. 6 _note_ o; + its peculiar features as distinguished from Austrasia, 118; + when first erected into a kingdom, 119 and _note_; + destruction of its independence, 120. + + Nevil (lord) impeached by the commons, iii. 56. + + Nicolas II. (pope), innovations introduced by, ii. 183. + + Nobility, origin of, in France, i. 157, 158 and _note_, 189; + privileges conferred on the class, 191; + consequences of marriage with plebeians, 192; + letters of nobility when first granted, 193; + different orders, and rights belonging to each, 194; + their gallows distinctions, _ib._ _note_ c; + their right to coin money, 205, 206; + to levy private war, 207; + characteristics of the early Frank nobility 309-312; + excesses of the Florentine nobility, 423, 424; + turbulence of the Spanish nobles, ii. 13; + contests of the German nobles with the cities, 91, 92; + rural nobility, how supported, 94, 95; + their career, how checked, 95; + source of the influence of the English nobility, iii. 165; + their patronage of robbers, 169; + German robber lords, 314; + legislative province of the English nobility [see Parliament]. + + Norfolk (earl and duke of). See Bigod, Mowbray. + + Normans, piratical pursuits of the, i. 20; + their plan of warfare, 21; + sufferings of the clergy at their hands, 22; + their conversion and settlement in France, _ib._; + terror excited by their audacity, 134, 135; + beneficial effects of their conversion, 135; + their incursions into Italy, 363 and _note_ m; + successes of their leaders, 363, 364; + their invasion of England [see England]. + + Nottingham (earl of). See Mowbray. + + + Oaths, papal dispensations from, ii. 210; + notable instances thereof, _ib._ _note_ c. + + Odo (archbishop). See Dunstan. + + Oleron, laws of, iii. 334. + + Ordeals, nature of, iii. 294, 295; + stories of queens Emma and Cunegunda, 295 _note_ y; + instance of a failure of the water ordeal and its consequences, ii. + 339 _note_ b. + + Orleans (Louis, duke of), alleged amours of, with queen Isabel, i. 69 + _note_ c; + loses his popularity, 70; + his assassination and its probable causes, _ib._ and _notes_; + commotions which ensued, 71, 72. + + Orleans (Louis, duke of, afterwards Louis XII.) claims the regency during + the minority of Charles VIII., i. 98; + instigates the convocation of the States-General, 236. + + Ostrogoths, occupation of Italy by the, i. 1; + annihilation of their dominion, 8; + Roman jurisprudence adopted by them, 151. + + Othman. See Ottomans. + + Otho I. (the Great), benefits conferred upon Germany by, ii. 67. + + Otho II. and III. chosen emperors of Germany, ii. 67. + + Otho IV. aided by the Milanese, i. 382; + enmity of the pope towards him, 384; + its consequences, ii. 75; + obtains a dispensation from Innocent III., 209; + rights surrendered by him to Innocent, 211, 212 and _note_ f. + + Ottoman dynasty, founded by Othman, ii. 132; + their European conquests, _ib._; + their reverses and revival under Amurath, 134, 135; + they capture Constantinople, 136; + European alarm excited thereby, _ib._; + institution of the Janizaries, 137; + suspension of Ottoman conquests, 138. + + Oxford university. See Learning. + + + Pagan superstitions, cause of the limited influence of, i. 136. + + Palaces (royal), why excluded from Lombard cities, i. 370. + + Palermo, foundation of silk manufacture in, iii. 331. + + Palestine, commercial value of the settlements in, iii. 329. + See Crusades. + + Pandects, discovery of the, iii. 415. + + Papal power, first germ of the, ii. 158, 159; + preceded by the patriarchate, 160; + character of Gregory I., 161; + his wary proceedings, 162 and _notes_; + convocation of the synod of Frankfort by Boniface, 165, 166 and + _notes_; + effect produced by the False Decretals, 166, 167 and _notes_, 221; + papal encroachments on the hierarchy, 167; + exemption of monasteries from episcopal control, 168 and _note_ f; + kings compelled to succumb to papal supremacy, 169; + origin of excommunications, 170; + helpless position of excommunicated persons, 171; + interdicts and their disastrous consequences, 172; + further interference with regal rights by the popes, _ib._; + scandalous state of the papacy in the tenth century, 174; + Leo IX.'s reformatory efforts, 177; + prerogatives of the emperors relative to papal elections, 182; + innovations of pope Nicolas II., 183; + election and death of Alexander II., 184; + career of Gregory VII. [see Gregory VII.]; + contests of his successors with Henry IV. and V. of Germany, 188; + Calixtus II. and the concordat of Worms, _ib._; + papal opposition to investitures, 181, 188, 189 and _notes_; + abrogation of ecclesiastical independence, 193; + papal legates and their functions, 194; + Alexander III. and Thomas a Becket, 195; + career of Innocent III. [see Innocent III.]; + height of the papal power in the 13th century, 202; + promulgation of the canon law, 203; + its analogy to the Justinian code, 204 and _notes_; + establishment of the mendicant friars, 205; + dispensations of marriage, 208 and _notes_; + dispensations from oaths, 210; + encroachments on episcopal elections, 211; + and on rights of patronage, 212; + mandats and their abuse, _ib._; + the Pragmatic Sanction, 214 and _note_; + pretexts for taxing the clergy, 215, 216; + clerical disaffection towards the popes, 218; + progress of ecclesiastical jurisdiction, 219-221; + opposition thereto by England, 223 and _notes_; + faint opposition of France, 225; + career of Boniface VIII. [see Boniface VIII.]; + decline of the papacy, 232; + removal of the papal court to Avignon, 233; + its contests with Louis of Bavaria, 234; + growing resistance to the popes, 236; + rapacity of the Avignon popes, 237; + participation of the French kings in the plunder, 238; + independent conduct of England, _ib._ and _notes_; + return of the popes to Rome, 240; + contest between Urban VI. and Clement VII., _ib._; + the two papal courts, 242; + three contemporary popes, _ib._; + proceedings at the councils of Pisa, Constance, and Basle, 243 + [see Councils]; + reflections pertinent thereto, 248-251; + effects of the concordat of Aschaffenburg, 253; + papal encroachments in Castile, 254; + restraints thereon in France, 254-256; + further limits on ecclesiastical jurisdiction, 257-259 and _notes_; + decline of papal influence in Italy, and its causes, 259; + despicable nature of later Interdicts, 260 _note_. + See Church, Clergy, Monasteries. + + Paper from linen, when invented, iii. 459 and _note_ y. + + Paris, seditions at, i. 66; + defeat and harsh treatment of its citizens, 67 and _notes_; + their fear of the Normans, 134; + population of the city in early times, iii. 224; + See Parliament of Paris. + + Parishes, origin, of, ii. 144 and _note_ r; + their slow growth, 145. + + Parliament of England, constituent elements of the, iii. 4; + right by which the spiritual peers sit, 4, 5, 122; + earls and barons, 5, 6; + theories of Selden and Madox, 6-9; + tenants in chief in parliament, 10, 11; + first germ of representation, 11, 12 and _note_ a; + county representation, 12; + parliaments of Henry III., 13, 14 and _notes_; + knights of the shire, how elected, 15-19; + first summoning of towns to parliament, 27 and _note_ s; + question of an earlier date discussed, 28-30 and _notes_; + the parliament of Acton Burnell, 31 _note_ e; + the Barnstaple petition, 32; + cause of summoning deputies from boroughs, 35-37; + division of parliament into two houses, 37; + proper business of the house of commons, 38; + complaint of the commons in 1309, 40; + rights established by them, 42; + their struggle with the king relative to taxation, 42-47; + concurrence of both houses in legislation made necessary, 48; + distinction between statutes and ordinances, 49-52; + interference of parliament in matters of war and peace, 53, 54; + right to inquire into public abuses, 54; + increase of the power of the commons under Richard II., 58; + their protests against lavish expenditure, 59-61; + success of their demands for accounts, 61; + boldness of their remonstrances, 62-64; + they aid the duke of Lancaster, 65 _note_ t; + their charges against the earl of Suffolk, 67, 68; + submission of Richard to their demands, 69-71; + they come to an understanding with him, 73, 74; + they fall under his displeasure, 75; + servility of their submission, 76-78; + necessity for deposing Richard, 80; + cautious proceedings of parliament thereupon, 82, 83; + rights acquired by the commons during his reign, 83; + their constitutional advances under the house of Lancaster, 84; + their exclusive right of taxation, 84-86; + their right of granting and controlling supplies, 86; + and to make same depend in redress of grievances, 86, 87; + establishment of their legislative rights, 87-88; + falsification of their intentions how accomplished, 88-90; + their first petition in English, 90; + introduction of bills, public and private, 91, 92; + legislative divisions of king, lords, and commons, 92 _note_ h; + parliamentary interference with royal expenditure, 93; + limitations laid on Henry IV., 93, 94; + re-establishment of a good understanding with him, 95; + harmony between Henry V. and the parliament, 96; + parliamentary advice sought on public affairs, 97; + their right to impeach ministers, 98; + Henry VI.'s mode of evading Suffolk's impeachment, 99; + assertion of the privilege of parliament, 100; + cases of Lark and Clerke _ib._; + principles involved in Thorp's case, 101; + infringements on liberty of speech, 102; + privilege of originating money-bills, 103-106; + the three estates of the realm, 105 _note_ b; + course of proceeding on other bills, 106, 107; + instance of excess of privilege, 108; + contested elections and proceedings thereon, 109, 110; + county franchise, in whom vested, 111 and _note_; + representation of towns, 111, 112; + partial omission of boroughs, 113, 114 and _notes_; + reluctance of boroughs to send members, 115; + in whom the right to vote was vested, 116, 117 and _note_ m; + status of the members, 117; + exclusion of lawyers from the commons' house, 118; + members originally compelled to be residents, 118, 119; + election irregularities and crown interference, 120, 121; + constitution of the house of lords, 121; + qualification of spiritual barons, 122; + barons by writ, 123-126 and _notes_; + distinction between barons and bannerets, 126-129; + creation of peers by statute and by patent, 129, 130; + clergy summoned to send representatives, 131-138; + remonstrances of the commons against the encroachments of the + council, 140-142. + + Parliament of Paris, constitution and sittings of the, i. 248; + progress of its jurisdiction, 250; + enregistration of royal decrees confided to it, 251; + its spirited conduct in reference thereto, _ib._; + interference of the kings with its privileges, 251; + establishment of its independence by Louis XI., 252; + its claims on the respect of posterity, _ib._; + important ordinance of Charles V., iii. 152 _note_ t. + + Paschal II. (pope), opposition to investitures by, ii. 187 _note_ i, + and 189 _note_ o; + his animosity against Henry IV. of Germany, 188. + + Pastoureaux. See Superstitions. + + Paulicians. See Religious Sects. + + Pauperism, slavery chosen as a refuge from the miseries of, i. 328. + + Pecock (bishop), character of, iii. 389 _note_ i. + + Peers of England. See Nobility, Parliament. + + Peers of France, original constitution of the, i. 249. + + Pelagius II. and the bishop of Arles, ii. 164. + + Pembroke (William, earl of), resolute defiance of Henry III. by, + iii. 164. + + People, state of the, _temp._ Charlemagne and his successors, i. 18, + 19, _et seq._; + their lawlessness, iii. 307; + their general immorality, _ib._ + + Pepin Heristal, usurpation of supremacy by, i. 7; + his influence over the destinies of France, 117; + he restores the national council, 215. + + Pepin (son of Charles Martel) deposes Childeric III., i. 8; + ascends the throne, _ib._; + subdues the Lombards, 9; + his legislative assemblies, 215. + + Perjury, prevalence of, in the middle ages, iii. 309. + + Perrers (Alice). See Edward III. + + Peter the Great compared with Charlemagne, i. 13. + + Peter the Cruel, succession of crimes perpetrated by, ii. 14; + his apologists, _ib._ and _note_; + his discomfiture and death, 15. + + Peter the Hermit. See Crusades. + + Peter II. of Aragon surrenders his kingdom to the pope, ii, 200, 231. + + Peter III of Aragon assists John of Procida, i. 483; + he accepts the crown of Sicily, 484. + + Peter IV. of Aragon, character and reign of, ii. 39; + consequences of his attempts to settle the crown on his daughter, _ib._ + + Petrarch on the state of France in 1360, i. 59, _note_; + his extravagant views relative to Rome, 418, _note_; + his personal characteristics, iii. 449 and _note_ e; + his great popularity, 450; + his goldsmith host, _ib._ _note_ f; + his passion for Laura, 451; + character of his poetry, 452 and _note_; + his efforts for the preservation of manuscripts, 461; + was Laura married or single? 482-484. + + Philip Augustus, accession of, i. 26; + he cites John king of England before him, _ib._; + deprives the English crown of its French possessions, 27; + joins in the third crusade, 40; + his request to an abbot relative to coinage, 206; + pope Gregory's menaces towards him, ii. 192; + his fear of Innocent III., 197; + takes back his repudiated wife, 199. + + Philip III. (the Bold), accession of, i. 42; + his conduct towards the archbishop of Lyons, 45; + he taxes the clergy, ii. 219 _note_ h. + + Philip IV. (the Fair), accession of, i. 43; + policy adopted by him, _ib._; + his resentment against the English king, _ib. note_; + his fraudulent conduct towards him, 44; + successful resistance of the Flemings against his attacks, 44 and + _note_ a; + his further acquisitions, 44; + and siege of Lyons, 45; + claims a right to debase the coin, 206 _note_ q; + his character according to Guizot, 224 _note_; + he convokes the States-General, 225 and _note_; + his motives in embodying the deputies of towns, 226; + he taxes the clergy, ii. 228; + he arrests the pope's legate, 230; + he burns the pope's bulls, _ib._; + retaliation of the pope, 231; + his stratagem against the pope, 232; + its consequences, _ib._ + + Philip V. (the Long), assumption of the regency of France by, i. 45; + violates his treaty with his brother's widow, 46; + Salic law confirmed in his reign, 48 decrees the abolition of + serfdom, 202; + result of his attempt at an excise on salt, 228. + + Philip VI. (of Valois) regency and coronation of, i. 48; + sketch of his character, 53; + his debasements of the coin, 228. + + Philip of Suabia elected emperor of Germany, ii. 75; + his assassination, _ib._ + + Phocas, supposed concession to the popes by, ii. 162 _note_ s. + + Pickering (Sir James), tenor of a speech made by, iii. 59. + + Piedmont, comparative obscurity of the history of, i. 390 _note_. + + Piracy, temptations to the practice of, iii. 334; + difficulty of repressing it, 335. + + Pisa, early naval and commercial importance of, i. 441; + her wars with Genoa, 442; + her reverses and sale to Florence, 443; + effect of the crusades on her prosperity, iii. 329. + + Pisani (Vittor) defeated by the Genoese, and imprisoned by the Venetians, + i. 445; + his triumphant recall from prison, 446. + + Pius II. See AEneas Sylvius. + + Podesta, peculiarities of the office of, i. 397, 398. + + Podiebrad (George), vigorous rule of Bohemia by, ii. 104; + suspected of poisoning Ladislaus, 106 _note_ c. + + Poggio Bracciolini, services of, in the revival of learning, iii. 463. + + Poitiers, battle of. See Edward III. + + Poland, polity of, not based on feudality, i. 187. + + Pole (Michael de la, earl of Suffolk), succeeds Scrope as chancellor, + iii. 66; + refusal of Richard II. to dismiss him, 67; + his impeachment and sentence, 68; + subsequent proceedings relative to him, 72. + + Porcaro, revolt and death of, i. 419. + + Pragmatic Sanction of Bourges, ii. 255; + repealed by Louis XI., _ib._; + its popularity with the people, _ib._; + liberties secured by it, 256. + + Pragmatic Sanction of S. Louis, enactment of the, ii. 214 and _note_. + + Prague university, opposition of the nobles to the institution of, ii. + 102 _note_ t; + fate of its rector, _ib._ + + Precarious, origin of the adjective, ii. 147 _note_ d. + + Prerogative of the kings of England, observations on the, iii. 147, + 257-260. + See English Constitution. + + Prices of commodities, iii. 368-370. + + Printing, invention of, iii. 471; + first books printed, _ib._; + Italian presses, 472. + See Learning. + + Protadius, oppressive conduct of, i. 114. + + Provence annexed to the French dominions, i. 100; + _note_ upon its history, 101. + + Public weal, origin of the war of the, i. 85; + object of its chiefs, 87, 88 and _note_ n; + their fate, 89. + + Punishments amongst the Franks for murder, i. 150, 151 and _notes_, + 198 and _note_ q, 281; + amongst the Burgundians, 151 and _note_ s. + + Purveyance, oppressive operation of the prerogative of, iii. 148, and + 149 _note_. + + + Races, turbulence of the Carlovingian period ascribed to the antipathy + between, i. 128-134. + + Rachimburgii, the, i. 214; + difference between them and the Scabini, 216 _note_ z. + + Ravenna, conquest and reconquest of. i. 8, 9. + + Raymond VI. (count of Toulouse) excommunicated by Innocent III., i. 28; + reverses of his son Raymond, 29. + + Regencies, rule in France relative to, i. 68 and _note_ a; + instances of regencies in England, and principles deducible therefrom, + iii. 184-190. + + Religious sects, moral improvement accelerated by the growth of, iii. + 378; + tenets of the Manicheans and Paulicians, 378, 379 and _notes_; + the Albigenses, and controversies respecting them, 380, 381 and _note_; + origin of the Waldenses, 382, 383 and _notes_; + morality of their life, 384 _note_ b; + Manicheism of the Albigenses, 385; + persecutions at Oxford, _ib._ and _note_; + secret readings of the scriptures, 386; + persecutions for witchcraft, _ib._ _note_; + permissions and prohibitions concerning the sacred writings, 387; + continued spread of heresies, 388; + strictnesses of Lollardism, 389; + schism of the Hussites, 389, 390 and _note_ m. + + Representation of the towns. See Parliament, States-General. + + Representative legislation, first germ of, i. 216. + See Parliament. + + Revenues of the kings of France, how derived, i. 208-212. + See Taxation. + + Richard I., non-success of, against Philip Augustus, i. 26; + joins with Philip in the crusades, 40; + his prowess; terror excited by his name, _ib._ and _note_ t; + his refusal relative to the right of private war, 207 _note_ t; + his submission to the pope, ii. 197; + deposition of his chancellor, 325; + enactment of the laws of Oleron imputed to him, iii. 334; + his character as a troubadour, 439 and _note_ k. + + Richard II. loses ground in France, i. 64, 65; + his coronation, iii. 58; + his council during his minority, _ib._; + his struggles with parliament, 62-64; + sketch of his character, 65; + his dependence on favourites, 66; + his refusal to dismiss de la Pole, duke of Suffolk, 67; + determined conduct of the commons towards him, 67, 68; + he yields to their demands, 69; + his further attempts at independent rule, 73; + his complaint against the commons, 75; + their submission, 76; + his seizure of the duke of Gloucester and other arbitrary acts, 77-79; + necessity for his deposition, 80; + progress of the constitution during his reign, 83; + extent of his malpractices relative to the raising of money, 84, 85; + his attack upon Haxey, 76, 102. + + Richard (earl of Cornwall), chosen emperor of Germany, ii. 76; + absurdity of the choice, 77. + + Richard (duke of York). See York. + + Richer (a mediaeval historian), degree of value due to the testimony of, + i. 130. + + "Riding the city," meaning of the phrase, i. 429. + + Rienzi (Nicola di), sudden accession to power of, i. 417; + his exile, recall, and death, 418; + Petrarch's enthusiasm towards him, _ib. note_. + + Robert of Artois, impolitic act of forgery committed by, i. 47 _note_ k. + + Robert of Gloucester, and other metrical writers, iii. 453. + + Robert of Naples, wise rule of, i. 485; + singular provision made by him, ii. 226 _note_ x. + + Robert (count palatine) supersedes Wenceslaus as emperor of Germany, + ii. 87. + + Robertson (the historian), value of his treatise on private warfare, i. + 207 _note_ t. + + Rochelle, patriotism of the citizens of, i. 63. + + Roderick the last of the Goths, credibility of the legend relative to, + ii. 62-65. + + Rodolph of Hapsburg elected emperor of Germany, ii. 81; + Austria conferred upon his son, _ib._; + his ascendency in Switzerland, 107. + + Rollo of Normandy, conversion of, i. 22. + + Romance language, ascendency in the Frank dominions of the, i. 131. + See Learning. + + Romano (Eccelin da). See Eccelin. + + Rome, subversion of the empire of, i. 1; + its division by barbarous races, _ib._; + portion which remained subject to it, 2; + partition of its provinces amongst their conquerors, 146, 275-278; + its municipal institutions, 339, 340; + its internal state in the tenth century, 358; + infamous conduct of candidates for the papal chair, 359; + execution of the consul Crescentius, 359 and _note_; + schemes of Innocent III. for aggrandizing the holy see, 381, 382; + increase of the temporal authority of the popes, 414; + the Roman orator and Frederic Barbarossa, 415 and _note_; + expulsion of popes by the citizens, 416; + the senators and their jurisdiction, _ib._; + mutual animosities of the nobles, 417; + rise and fall of Rienzi, _ib._, 418; + transient revival of the republican spirit, 418; + miscarriage of Porcaro's revolutionary projects, 419. + See Papal Power. + + Romeo and Juliet, parallel to the story of, i. 402 and _note_. + + + Saint Bathilda, character of, i. 112. + + Saint Boniface. See Winfrid. + + Saint Denis, sum paid for redeeming the abbot of, i. 22. + + Saint John of Jerusalem, knights of, i. 40; + their saint, who he was, _ib. note_ r; + their enormous possessions, _ib._ and _note_ s. + + Saint Louis. See Louis IX. + + Saint Medard, parentage of, i. 296. + + Saint Pol (count of), anecdote of, i. 84 _note_ f; + executed on the scaffold, 89; + anecdote of his distrust of Louis XI, 97 _note_. + + Saint Wilfrid, historical service rendered by, i. 112. + + Saints, great addition to the calendar of, in the time of Clovis and + his sons, i. 111; + historical value of their lives, _ib._; + extent of their title to canonization, 112, 113. + + Saladin, conquest of Jerusalem by, i. 40. + + Salic lands, characteristics of, i. 147-149 and _notes_. + + Salic law, circumstances which led to the confirmation of the, i. 47, 48; + date of its enactment, 278, 279; + its incompleteness as a code, 280. + + Sancho the Great bestows Castile on his second son, ii. 4; + he incorporates Naxara, 6. + + Sancho IV. assassinates Don Lope, ii. 13; + clerical encroachments encouraged by, 220 _note_ r. + + Sanctuary, institution of the privilege of, iii. 302. + + Saracens, expulsion of the, from France, i. 7 and _note_ q; + their inroads upon Italy, 19 and _note_ u; + Eudon's great victory over them, 116; + their conflicts with the Christians [see Crusades]; + they conquer Spain, ii, 2; + encroachments of the Christians on their territories, 3; + mainspring of their heroism, 117; + their eastern conquests, 119; + their triumphs in the west, _ib._; + effect of their successes, _ib._; + their internal dissensions, 121. + See Crusades, Moors. + + Saragosa taken from the Moors, ii. 5. + + Sardinia conquered by the Pisans, i. 441; + its cession to the king of Aragon, 443. + + Saxons, obstinate resistance to Charlemagne by the, i. 10; + enormous number beheaded by him, 13; + true cause of their wars with the Franks, 120; + their early kings, 303. + See Anglo-Saxons. + + Scabini, representative character of the, i. 216; + difference between them and the Rachimburgii, _ib. note_ z; + their functions, 238 and _note_ g. + + Scanderbeg, protracted opposition to the Turks by, ii. 138. + + Scandinavia and her Sea Kings, ii. 271. + + Sclavonians, territories occupied by the, i. 19. + + Scotus (Duns), notices of, iii. 427, 428 _note_ i, 429. + + Scotus (John), an exception to the ignorance of his times, iii. 290 and + _note_ r; + character of the philosophy introduced by him, 430 _note_ p. + + Scrope (lord steward), answers to the commons by, iii. 60; + cause of his dismissal from office, 66. + + Serfdom and villenage, distinctive features of, i. 197-200. + See Villeins. + + Servitude enforced upon the cultivators of the soil in the middle ages, + i. 328, 329; + contrary hypothesis of M. Guerard, 329-331. + + Sforza Attendolo, rise to distinction of, i. 481; + his tactics relative to the crown of Naples, 489, 490. + + Sforza (Francesco), powerful position achieved by, i. 483; + becomes duke of Milan, _ib._; + joins in the quadruple league, 493; + his policy towards Naples, 504; + accession and assassination of his son Galeazzo, 496; + policy of Ludovico Sforza, _ib._; + he directs the French king's attention towards Naples, 505; + short-sightedness of his views, _ib._ + + Sheriffs, partiality of, in elections, iii. 113; + how originally appointed, 120 and _note_ y. + + Sicily, conquest of, by Roger Guiscard, i. 363; + its subsequent fortunes, 378; + its rebellion against Charles of Anjou, 483; + the Sicilian Vespers, 484 and _note_; + opposition of the Sicilians to Charles II. of Naples, 484; + settlement of the crown on Frederic, 485; + Sicilian possessions of the Chiaramonti, 490; + union of Sicily with Aragon, _ib._ + + Sigismund elected emperor of Germany, ii. 87 and _note_ g; + his safe-conduct violated, 102; + acquires the crown of Hungary, 104; + his conduct at the council of Constance, 249. + + Silk manufacture established in Palermo, iii. 331. + + Silvester II. (pope), scientific acquirements of, iii. 290, 291 _note_. + + Simony. See Church, Clergy. + + Slavery, existence of, in ancient times, i, 197; + its features amongst the Franks, 198 and _note_ q; + voluntarily submitted to from superstitious motives, 199; + edicts for its abolition, 202; + submitted to by the poor for subsistence sake, 328; + Venetian and English slave-trading, iii. 316 and _note_ d. + + Society, state of. + See Architecture, Chivalry, Clergy, Feudal System, Learning, + Superstition, Trade, Villenage. + + Sorel (Agnes), examination of the story of, i. 80 _note_ z. + + Southey's Joan of Arc, eulogium of a French writer upon, i. 143. + + Spain, character of the Visigothic kingdoms in, ii. 1; + its conquest by the Saracens, 2; + kingdoms of Leon, Navarre, Aragon, and Castile, 3, 4; + reverses of the Saracens, 5; + chartered towns, 6, 7, 8; + establishment of military orders, 8; + non-expulsion of the Moors, 10; + its probable cause, 11; + Alfonso X. and his shortcomings, 12; + frequent defection of the nobles, 13; + Peter the Cruel, 14; + accession of the Trastamare line, 15; + disgrace and execution of Alvaro de Luna, 16, 17; + contests after Henry IV.'s death, 18; + constitution of the national councils, 19; + composition of the Cortes, 21; + its trade relations with England, iii. 327. + See Aragon, Castile, Cortes. + + Spelman (Sir Henry), remarkable mistake of, i. 166 _note_ n. + + Sports of the field, popularity of, iii. 309; + addiction of the clergy thereto, 310; + evils attendant thereon, 311. + + States-General of France, memorable resistance to taxation by the, i. 66; + convoked by Philip IV., 225, 226; + probability of their earlier convocation canvassed, _ib. note_; + Philip's politic reasons for summoning them, 226; + extent of their rights as to taxation, 227, 228 and _notes_; + their resolute proceedings in 1355 and 1356, 228; + their protest against the debasement of the coin, 230 and _notes_; + disappointment occasioned by their proceedings in 1357, 231; + they compel Charles VI. to revoke all illegal taxes, 232; + effect of their limited functions, 233; + theoretical respect attached to their sanction, 234; + provincial estates and their jurisdiction, _ib._; + encroachments of Louis XI., 235; + the States-General of Tours, 236; + means by which their deliberations were jeopardized, _ib._; + unpalatable nature of their remonstrances, 237. + + Stephen (king), cruel treatment of the people in his reign, ii. 319 + _note_. + + Stratford (archbishop), circumstances attending the trial of, iii. 205. + + Succession to kingly and other dignities. See Hereditary Succession. + + Suevi, part of the Roman empire held by the, i. 1. + + Suffolk (duke of), impeachment of, iii. 99. + + Suffolk (earl of). See Pole. + + Sumptuary laws, enactment and disregard of, iii. 343, 344 and _notes_. + + Superstition, learning discouraged by, iii. 274; + its universal prevalence, 293; + instances of its results, 294; + ordeals, 294, 295 and _notes_; + fanatical gatherings: the White Caps, 296; + the Pastoureaux, _ib._; + the Flagellants, 297; + the Bianchi, 298; + pretended miracles, and their attendant evils, 298, 299; + miracles ascribed to the Virgin, 300 and _note_; + redeeming features of the system, 301; + penances and pilgrimages, 306, 307. + See Religious Sects. + + Surnames, introduction of, i. 190. + + Sweden, semi-feudal custom in, relative to military service, 188 + _note_ g. + + Swineford (Katherine), proceedings relative to the marriage of, iii. + 74, 75. + + Switzerland, early history of, ii. 107; + ascendency of Rodolph, _ib._; + expulsion and defeat of Albert and Leopold, 108, 109; + formation of the Swiss confederation, 109; + indomitable heroism of the Swiss, 111; + their military excellence, _ib._; + failure of Maximilian's attempt to subjugate them, 112. + + Syagrius, Roman provinces governed by, i. 2; + defeated by Clovis, _ib._ and 106. + + + Taborites, fanaticism and courage of the, ii. 103; + iii. 390. + + Tacitus, general accuracy of the descriptions of, i. 273; + qualifications necessary to be observed touching his account of the + Germans, 274. + + Tartars. See Moguls. + + Taxation, remarks on the philosophy of, i. 68; + clumsy substitutes for taxes in the middle ages, 208; + arbitrary course adopted by Philip Augustus, 212; + conditions annexed by the States-General to a grant of taxes, 230; + Philip de Comines on taxation, 236; + taxes under the Anglo-Norman kings, ii. 321, 322 and _notes_. + See States-General. + + Temple, knights of the. See Knights Templars. + + Tenure of land under the Anglo-Saxons and Anglo-Normans, ii. 293-301, + 406-410. + See Feudal System. + + Teutonic knights, establishment of the order of, i. 40. + + Theodebert, story of the wife of, iii. 306 _note_ u. + + Theodoric, disregard of learning by, iii. 275. + + Thierry (son of Clovis), territories possessed by, i. 4, and 5 _note_. + + Timur, conquering career of, ii. 133. + + Tithes, establishment of, ii. 144; + Charlemagne's capitulary relative thereto, 145 and _notes_; + origin of lay impropriators, 148; + _note_ relative to the subject, 263. + + Toledo taken from the Moors, ii. 5. + + Torriani. See Visconti. + + Toulouse, non-submission of the counts of, to the kings of France, i. 27 + and _note_ r; + their fall, 29. + See Raymond VI. + + Towns and cities, earliest charters granted to, i. 256; + considerations on the causes of such grants, _ib._ 257; + privileges of incorporated towns, 258; + their relationship towards the crown, 259-261; + independence of maritime towns, 261; + chartered towns of Spain, ii. 6; + their privileges and duties, 7, 8; + cause of their importance, 20; + cities of Germany [see Germany]; + cities of Italy [see Florence, Genoa, Milan, Pisa, Venice]. + + Towns of England, progress of the, iii. 19; + Canterbury, Lincoln, and Stamford, 20 _note_ r; + conversion of individual tributes into borough rents, 21; + incorporation of towns by charter, 22 and _notes_; + curious bond relative to Cambridgeshire, 23 _note_ b; + prosperity of the towns, 24; + early importance and populousness of London, 24, 25 and _notes_; + participation of its citizens in constitutional struggles, 26; + first summoning of towns to parliament, 27. + See Municipal Institutions. + + Trade and commerce, mediaeval non-existence of, iii. 313; + barriers to their progress, _ib._ 314; + extent of foreign commerce, 315; + home traffic in slaves 316 and _note_ d; + woollen manufactures and vacillating policy of the English kings + relative thereto, 318-323 and _notes_; + opening of the Baltic trade, 324; + growth of English commerce, 325; + opulence of English merchants, _ib._ 326; + increase of maritime traffic, 326-328; + commercial eminence of the Italian states, 328-330 and _notes_; + invention of the mariners' compass, 332, 333; + compilation of maritime laws, 333; + frequency and irrepressibility of piracy, 334; + practice of reprisals, 335, 336 and _notes_; + liability of aliens for each other's debts, 336; + trade profits and rates of interest, 337; + price of corn and cattle, 368. + + Trial by combat, ceremonials attending, i. 242, 243 and _notes_; + abolished by St. Louis, 244. + + Trial by jury and its antecedents, ii. 285-288; + early modes of trial, 386-388; + abolition of trial by ordeal, 390; + difference between ancient and modern trial by jury, 392; + original functions of juries, _ib._; + origin of the modern system, 402-404; + character of the early system, 405. + + Troubadours (the), and their productions, iii. 434-436. + + Troyes, conditions of the treaty of, i. 76 and _note_. + + Turks, Italian fears of the, i. 495; + triumphant progress of their arms, ii. 127; + their defeat by the crusaders and Alexius, 128; + their settlement under Othman, 132; + war declared against them at Frankfort, 136; + the Janizaries, 137. + See Ottomans. + + Tuscany (Boniface, marquis of), flogged for simony, ii. 181 _note_ q. + + Tuscany, league of the cities of, i. 382; + espousal of the papal cause, _ib._ 389; + progress of its cities. + See Florence. + + + Uladislaus crowned king of Hungary, ii. 105; + violates his treaty with the Turks, _ib._; + its fatal results, _ib._ + + Urban II., encouragement of the crusades by, i. 34; + he succeeds Gregory VII., ii. 187; + his concession to the kings of Castile, 190. + + Urban V. retransfers the papal court to Avignon, ii. 240. + + Urban VI. aids Charles of Durazzo in his designs on Joanna of Naples, + i. 487; + sanctions perjury towards heretics, ii. 210 _note_ c; + his contest with Clement VII., 240; + validity of his election, 241. + + Urgel (count of), lays claim to the crown of Aragon, ii. 40, 41; + rejection of his pretensions, 42; + consequences of his unwise resort to arms, _ib._ + + Usury treated as a crime, iii. 337, 339 _note_ c. + + + Valencia, constitution of the kingdom of, ii. 57. + + Valentinian III., authority of the holy see extended by, ii. 161. + + Vandals, portions of the Roman empire possessed by the, i. 1. + + Vase of Soissons, story of the, i. 155; + principle involved in the anecdote, 301, 302 and _note_ p. + + Vassals and Vassalage. See Feudal System. + + Vavassors, privileges attaching to the rank of, i. 194 and _note_ b; + their manorial courts, 219. + + Venice, conflicts of, with Genoa, i. 444; + defeat of her admiral by the Genoese, 445; + insolence of the latter towards her ambassadors, 446; + successful tactics of her doge, 447; + triumph of her fleet, 448; + her alleged early independence, 452; + her subjection to the emperors, 453 and _note_ n; + her Dalmatian and Levantine acquisitions, 454; + her government: powers of the doge, 455; + the great council, 456; + criminal jurisdiction, how exercised, 457; + checks to undue influence on the part of the doge, 458; + singular complication in ballots for the dogeship, 459; + Marin Falieri's treason, 460; + the council of ten and its secret proceedings, 460, 461; + exclusion of the nobles from trade, 461 _note_ y; + Venetian form of government not entitled to high admiration, 462, 463 + and _note_; + territorial acquisitions of Venice, 464; + prophecy of the doge Mocenigo, 465, 466 and _note_; + Venetian conquests under Carmagnola, 466; + wars of the republic with Mahomet II., 493, 495. + + Verdun, treaty of, i. 16; + its results, 17 and _notes_. + + Vere, favouritism of Richard II. towards, iii. 66; + his funeral, 74. + + Verona, seized by Francesco da Carrara, i. 464. + + Vienna, AEneas Sylvius's florid description of, iii. 345 _note_ u. + + Villani (John) falls a victim to the plague, i. 57 _note_. + + Villeins and villenage: conditions of villeins, i. 199; + consequences of their marriage with free persons, 200, and 201 + _note_ b; + privileges acquired by them, 201, 202 and _notes_; + their obligations, 331; + their legal position in England, 333; + villenage never established in Leon and Castile, ii. 6; + question of its existence among the Anglo-Saxons, 276; + dependence of the villein on his lord, iii. 171; + condition of his property and children, 172 and _note_ b; + legal distinctions, 172 and _notes_; + difficulties besetting the abolition of villenage, 173; + gradual softening of its features, 174-176; + merger of villeins into hired labourers, 177; + effects of the anti-poll-tax insurrection, 181; + disappearance of villenage, 181, 182; + elucidatory _notes_ on the subject, 260-264. + + Virgin, absurd miracles ascribed to the, iii. 300 _note_. + + Visconti and Torriani families, rivalry of the, i. 409, 410; + triumph of the Visconti, 410; + their power and unpopularity, 411; + their marriages with royalty, 412 and _note_ e; + tyranny of Bernabo Visconti, 439; + Giovanni Visconti's brutality, _ib._; + his assassination, 466; + Filippo Visconti's accession, _ib._; + his ingratitude to Carmagnola, _ib._; + his mistrust of Sforza, 482; + his alliance with Alfonso, 492; + quarrels of the family with the popes, ii. 235. + + Visigoths, portions of the Roman provinces possessed by the, i. 1; + conduct of their earlier rulers towards the catholics, 3 _note_ f; + their mode of dividing conquered provinces, 146; + their laws, how compiled, 151, 152 _note_ z; + difference between the Frank monarchy and theirs, ii. 1, 2. + + Voltaire, limited knowledge of early French history by, i. 213 _note_ p. + + + Wages, futility of laws for the regulation of, iii. 178. + See Labourers. + + Waldenses. See Religious Sects. + + Wales, causes of the turbulent state of, iii. 169 _note_. + + Walworth, and Philpot made stewards of a subsidy (temp. Richard II.), + iii. 59; + allegations relative to their stewardship, 60. + + Wamba (king of the Visigoths), question of his deposition discussed, + ii. 156. + + War, private, exercise of the right of, i. 207; + by whom checked and suppressed, _ib._ and _note_ t; + its prevalence amongst the German nobles, ii. 95, 96. + + Warna, circumstances which led to the battle of, ii. 105. + + Warwick (earl of), popularity of the, iii. 65; + made a lord appellant, 72; + banished by Richard II., 77. + + Water-Ordeal. See Ordeals. + + Wenceslaus, confirmed in the imperial succession, ii. 87; + his deposition, _ib._; + he abets the league of the Rhine, 93. + + Weregild, or compensation for murder. See Murder. + + Wicliff (John), influence of the tenets of, ii. 252; + iii. 179 and _note_ t, 388, 389. + + Widows in Burgundy, reason for the speedy remarriage of, i. 93 _note_ x. + + Wilfrid (bishop of Hexham), question involved in his appeal to the pope, + ii. 164 _note_ t. + + William of Holland elected emperor of Germany, ii. 76. + + William the Conqueror, separation of the ecclesiastical and civil + tribunals by, ii. 222 and _note_ a; + position of England at its conquest by him, 302; + his considerate treatment of Edgar, _ib._ _note_ b; + alleged inadequacy of the military forces of the Saxons, 303 _note_; + their fruitless rebellions against him, 304 and _notes_; + instances of his oppressive conduct, 305; + his devastating clearances for forests, 311; + and inhuman forest laws, 312 and _note_; + his enormous revenues, 313; + his feudal innovations, 314; + his preservation of public peace and efforts to learn English, 315 and + _note_; + policy of his manorial grants, 317; + tyranny of his government, 318. + + Winchester, early opulence and populousness of, iii. 225. + + Windsor castle, labourers for the erection of, how procured, iii. 150. + + Winfrid (St. Boniface), importance of the ecclesiastical changes effected + by, ii. 164. + + Winkelried, the Swiss patriot, heroic death of, ii. 111. + + Wisbuy, ordinances of, iii. 334 and _note_ a. + + Witchcraft, cruel treatment of persons charged with, iii. 385 _note_ c. + + Witikind, acknowledgment of Charlemagne's authority by, i. 10. + + Witenagemot, bishops appointed by the, ii. 180; + its characteristics, 279; + how often assembled, 411, 412. + See Anglo-Saxons. + + Women, legal position of, in Italy during coverture, i. 152 _note_ z; + perils attending their marriage with slaves, 200 _note_ a. + + Woollen manufacture established in Flanders, iii. 318; + impolitic regulations respecting it, 319 and _note_ c; + export of wool from England, 320; + English woollen manufacture, 321; + policy adopted towards the Flemings, _ib._ and _note_ o; + laws relative to the trade, 322; + relations of England and Spain regarding it, 323 _notes_. + + Worms, diet of. See Diet. + + Wykeham (bishop of Winchester) invested with the great seal, iii. 73. + + + York (Richard, duke of) appointed protector to Henry VI., iii. 191; + his claim to the throne, 194; + his cautious policy 195. + + Yorkists and Lancastrians, wars of the, iii. 197. + + + Zimisces (John), military exploits of, ii. 126. + + Zisca (John), the blind hero, victories of the Bohemians under, i. 481; + his exploits; enthusiasm of his followers, ii. 103. + + +THE END. + + +LONDON: PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET, AND CHARING +CROSS. + + ------------ + Transcribers note: + + In the original work the footnotes were alphabetical. 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