Skip to main content

Full text of "History Of Europe During The Middle Ages Volume II"

See other formats 


940.1    H18a     v*2     55-03Q93 

Ha 11am 

History  of  Europe  during  the 

middle  ages 


940*1  H18a  v.2  65-03093 

Hallam 

History  of  Europe  during  the 

middle  ages 


KANSAS  CITY    MO    PUBLIC  LIBRARY 

""jlflllli 

fliniiiiiilii 
D  DD01  03171=013  1 


Sfp 


fukOrifr''  iL     Hfe.      SB,       i-uM»J          'Warf"    V»f^     %cum 


.-  -i 


...L. 


g^^  1  1 

=  -,  A" 


•THE -WORLD'S 
GREAT -CLASSICS 


ZDSL  ••AAZgtfi,. ,  *&..-  .'X^..^-x.Ajig^j&.ak- 


I 


ijj.«jj.w'j-i.»j.iuijjjj-v>j-ijjjjjj.^jj-fjj-r 

r  L  i  B  RARY" 


COMMITTEE 


TIMOTHY  DWIGHT,  D.D.  LLD. 
RICHARD  HENRY^TODDARD 
ARTHWR.ICHMONDMARSH.AB. 
PAVLVAN  DYRE.D.D. 
ALBERT  ELLERY  BERGH 


•1LLV5TRATED  •  WITH-  NEARLY -TWO- 
*  HVNDRED  •  PHOTOGRAVVEES  •  ETCH' • 
•INOS-COLORED-PLATES-AND-FVLL- 
•PACE'PORTRAITS'OF-GREAT-AVTHORS' 

CLARIENCE  COOK  ••  ART  EDITOR* 


THE-  COLONIAL-  PRESS 

•  NEW-YORK  4k  MDCCCXCIX 


a}/i^/fs^/?s\jjffi^?^^ 


^^ 


HISTORY  OF  EUROPE 

DURING  THE  MIDDLE  AGES 


HENRY  HALLAM 


WITH  A  SPECIAL  INTRODUCTION  BY 
ARTHUR  RICHMOND  MARSH,  A.B. 

PROFESSOR    OF    COMPARATIVE    LITERATURE 
AT  HARVARD  UNIVERSITY 


REVISED  EDITION 


COPYRIGHT,  1899, 
BY  THE  COLONIAL  PRESS 


SDmwe  neuj  fuwic  tnoflrr 
guae  memeq^  if}  tea  ftta  cot 


ILLUSTRATIONS 

FACING  PAGE 

FIRST  PAGE  OF  A  PSALTER          ....     Frontispiece 

Fac- simile  Illumination  of  the  Sixteenth  Century 

BATTLE  SCENE  FROM  THE  LIVRE  D'HEURES  ii 

Fac-simile  example  of  Printing  and  Engraving  in  fhe  Fifteenth  Century 

A  FLORENTINE  POET 130 

Photogravure  from  a  painting 

CHARLES  V  AND  FRANCIS  1 190 

Photogravure  from  a  painting 

JEANNE  D'ARC 266 

Photogravure  from  a  painting 


BOOK  V. 
HISTORY  OF  GERMANY. 


BOOK  V. 

HISTORY    OF    GERMANY    TO    THE    DIET    OF   WORMS 

IN  1495- 

Sketch  of  German  History  under  the  Emperors  of  the  House  of  Saxony 
— House  of  Francoma — Henry  IV. — House  of  Suabia — Frederic  Bar- 
barossa— Fall  of  Henry  the  Lion— Frederic  IL— Extinction  of  House 
of  Suabia— Changes  in  the  Germanic  Constitution— Electors— Terri- 
torial Sovereignty  of  the  Princes — Rodolph  of  Hapsburg — State  of 
the  Empire  after  his  Time— Causes  of  Decline  of  Imperial  Power— 
House  of  Luxemburg— Charles  IV.— Golden  Bull— House  of  Austria 
Frederic  III.— Imperial  Cities— Provincial  States— Maximilian— Diet 
of  Worms— Abolition  of  Private  Wars— Imperial  Chamber— Aulic 
Council — Bohemia — Hungary — Switzerland. 

After  the  deposition  of  Charles  the  Fat  in  888,  which  finally 
severed  the  connection  between  France  and  Gerrnany,a  Ar- 
nulf,  an  illegitimate  descendant  of  Charlemagne,  obtained  the 
throne  of  the  latter  country,  in  which  he  was  succeeded  by  his 
son  Louis.fr  But  upon  the  death  of  this  prince  in  911,  the  Ger- 
man branch  of  that  dynasty  became  extinct.  There  remained 
indeed  Charles  the  Simple,  acknowledged  as  king  in  some 
parts  of  France,  but  rejected  in  others,  and  possessing  no  per- 
sonal claims  to  respect.  The  Germans  therefore  wisely  de- 
termined to  choose  a  sovereign  from  among  themselves.  They 
were  at  this  time  divided  into  five  nations,  each  under  its  own 
duke,  and  distinguished  by  difference  of  laws,  as  well  as  of 
origin:  the  Franks,  whose  territory,  comprising  Franconia 

a  There  can  be  no  question  about  this  cannot  affect  the  independence  of  the 
in  a  general  sense.  But  several  German  crown  m  that  age,  which  had  been  es- 
writers  of  the  time  assert  that  both  tabhshed  by  the  treaty  of  Verdun  in 
Eudes  and  Charles  the  Simple,  rival  843,  but  proves  the  weakness  of  the  corn- 
kings  of  France,  acknowledged  the  feu-  petitors,  and  their  want  of  patriotism 
dal  superiority  of  Arnulf  Charles,  says  In  Eudes  it  is  more  remarkable  than 
Regmo,  regnum  quod  usurpavent  ex  in  Charles  the  Simple,  a  man  of  feeble 
manu  ejus  percepit.  Struvius,  Corpus  character,  and  a  Carlovmgian  by  birth. 
Hist  German,  pp.  202,  203.  This  ac-  b  The  German  princes  had  some  hesi- 
knowledgment  of  sovereignty  in  Aniulf  tation  about  the  choice  of  Louis,  but 
King  of  Germany,  who  did  not  even  their  partiality  to  the  Carlovmgian  line 
pretend  to  be  emperor,  by  both  the  prevailed  Struvms,  p.  208:  quia  reges 
claimants  of  the  throne  of  France,  for  Francorutn  semper  ex  uno  genere  pro- 
such  it  virtually  was,  though  they  do  cedebant,  says  an  Archbishop  Hatto,  in 
not  appear  to  have  rendered  homage,  writing  to  the  pope. 


4  HALLAM 

and  the  modern  Palatinate,  was  considered  as  the  cradle  of 
the  empire,  and  who  seem  to  have  arrogated  some  superiority 
over  the  rest,  the  Suabians,  the  Bavarians,  the  Saxons,  under 
which  name  the  inhabitants  of  Lower  Saxony  alone  and  West- 
phalia were  included,  and  the  Lorrainers,  who  occupied  the 
left  bank  of  the  Rhine  as  far  as  its  termination.  The  choice  of 
these  nations  in  their  general  assembly  fell  upon  Conrad  Duke 
of  Franconia,  according  to  some  writers,  or  at  least  a  man  of 
high  rank,  and  descended  through  females  from  Charlemagne.* 
[A,D.  911.] 

Conrad  dying  without  male  issue,  the  crown  of  Germany 
was  bestowed  upon  Henry  the  Fowler,  Duke  of  Saxony,  an- 
cestor of  the  three  Othos,  who  followed  him  in  direct  succes- 
sion. [A  D.  919.]  To  Henry,  and  to  the  first  Otho  (Otho  I., 
A.D.  936;  Otho  IL,  973;  Otho  III.,  983),  Germany  was  more 
indebted  than  to  any  sovereign  since  Charlemagne.  The  con- 
quest of  Italy,  and  recovery  of  the  imperial  title,  arc  indeed 
the  most  brilliant  trophies  of  Otho  the  Great ;  but  he  conferred 
far  more  unequivocal  benefits  upon  his  own  country  by  com- 
pleting what  his  father  had  begun,  her  liberation  from  the 
inroads  of  the  Hungarians.  Two  marches,  that  of  Misnia, 
erected  by  Henry  the  Fowler,  and  that  of  Austria,  by  Otho, 
were  added  to  the  Germanic  territories  by  their  victories.^ 

A  lineal  succession  of  four  descents  without  the  least  oppo- 
sition seems  to  show  that  the  Germans  were  disposed  to  con- 
sider their  monarchy  as  fixed  in  the  Saxon  family.  Otho  II. 
and  III.  had  been  chosen  each  in  his  father's  lifetime,  and  dur- 
ing legal  infancy.  The  formality  of  election  subsisted  at  that 
time  in  every  European  kingdom ;  and  the  imperfect  rights 
of  birth  required  a  ratification  by  public  assent.  If  at  least 
France  and  England  were  hereditary  monarchies  in  the  tenth 
century,  the  same  may  surely  be  said  of  Germany ;  since  we 
find  the  lineal  succession  fully  as  well  observed  in  the  last  as 
in  the  former.  But  upon  the  early  and  unexpected  decease  of 
Otho  III.,  a  momentary  opposition  was  offered  to  Henry 

c  Schmidt,  Hist,  des  Allemands,  t  IL  able  tendency  to  promote  the  improve- 

p.  288.    Struvius,  Corpus  Historic  Ger-  ment  of  that  territory,  and,  combined 

manicse,  p,  210     The  former  of  these  with  the  discovery  of  the  gold  and  sil- 

writers  does   not  consider  Conrad  as  ver  mines  of  Goslar   under   Otho    I., 

Duke  of  Franconia.  rendered  it  the  richest  and  most  impor- 

d  Many  towns  in  Germany,  especially  tant  part  of  the  empire,    Struvius,  pp. 

on  the  Saxon  frontier*  were  built  by  225   and   351.     Schmidt,   t.   i\.   p.   322. 

Henry  I,,  who  is  said  to  have   com-  Putter,  Historical  Development  of  the 

pelled  every  ninth  man  to  take  ttp  his  German  Constitution,  vol.  i,  p.  ns. 
residence  in  them.    This  had  a  remark- 


THE  MIDDLE  AGES  5 

Duke  of  Bavaria,  a  collateral  branch  of  the  reigning  family, 
[A.D.  1002.]  He  obtained  the  crown,  however,  by  what  con- 
temporary historians  call  an  hereditary  title/  and  it  was  not 
until  his  death  in  1024  that  the  house  of  Saxony  was  deemed  to 
be  extinguished. 

No  person  had  now  any  pretensions  that  could  interfere  with 
the  unbiassed  suffrages  of  the  nation ;  and  accordingly  a  gen- 
eral assembly  was  determined  by  merit  to  elect  Conrad,  sur- 
named  the  Salic,  a  nobleman  of  Franconia/  [A.D.  1024.]  From 
this  prince  sprang  three  successive  emperors,  Henry  III.,  IV., 
andV.  (Henry  III.,  A.D.  1039;  Henry  IV.,  1056 ;  Henry  V., 
1 106).  Perhaps  the  imperial  prerogatives  over  that  insubordi- 
nate confederacy  never  reached  so  high  a  point  as  in  the  reign 
of  Henry  III.,  the  second  emperor  of  the  house  of  Franconia. 
It  had  been,  as  was  natural,  the  object  of  all  his  predecessors, 
not  only  to  render  their  throne  hereditary,  which,  in  effect,  the 
nation  was  willing  to  concede,  but  to  surround  it  with  author- 
ity sufficient  to  control  the  leading  vassals.  These  were  the 
dukes  of  the  four  nations  of  Germany,  Saxony,  Bavaria, 
Suabia,  and  Franconia,  and  the  three  archbishops  of  the  Rhen- 
ish cities,  Mentz,  Treves,  and  Cologne.  Originally,  as  has 
been  more  fully  shown  in  another  place,  duchies,  like  counties, 
were  temporary  governments,  bestowed  at  the  pleasure  of  the 
crown.  From  this  first  stage  they  advanced  to  hereditary 
offices,  and  finally  to  patrimonial  fiefs.  But  their  progress  was 
much  slower  in  Germany  than  in  France.  Under  the  Saxon 
line  of  emperors,  it  appears  probable  that,  although  it  was 
usual,  and  consonant  to  the  prevailing  notions  of  equity,  to 
confer  a  duchy  upon  the  nearest  heir,  yet  no  positive  rule  en- 
forced this  upon  the  emperor,  and  some  instances  of  a  con- 
trary proceeding  occurred.*  But,  if  the  royal  prerogative  in 
this  respect  stood  higher  than  in  France,  there  was  a  counter- 
vailing principle  that  prohibited  the  emperor  from  uniting  a 
fief  to  his  domain,  or  even  retaining  one  which  he  had  pos- 
sessed before  his  accession.  Thus  Otho  the  Great  granted 

c  A  maxima  multitudine  vox  ttna  re-  g  Schmidt,  t.  ii.  pp.  293,  403.  Struvius, 
spondit;  Henncum,  Chnsti  adjutono,  p.  214,  supposes  the  hereditary  rights  of 
et  jure  haeredilano,  regnaturum  Dit-  dukes  to  have  commenced  under  Con- 
rnar  apud  Struvium,  p.  273.  See  other  rad  I. ;  but  Schmidt  is  perhaps  a  better 
passages  quoted  in  the  same  place.  authority;  and  Struvius  afterwards  men- 
Schmidt,  t.  u.  p.  410  tions  the  refusal  of  Otho  I.  to  grant  the 

f  Conrad     was     descended     from     a  duchy  of  Bavaria  to  the  sons  of  the  last 

daughter  of  Otho  the  Great,  and  also  duke,  which,  however,  excited  a  rebel- 

from  Conrad  I,    His  first  cousin  was  lion.    p.  235. 
Duke  of  Franconia,    Struvius;  Schmidt; 
Pfeffel. 


6  HALLAM 

away  his  duchy  of  Saxony,  and  Henry  II.  that  of  Bavaria. 
Otho  the  Great  endeavored  to  counteract  the  effects  of  this 
custom  by  conferring  the  duchies  that  fell  into  his  hands  upon 
members  of  his  own  family.  This  policy,  though  apparently 
well  conceived,  proved  of  no  advantage  to  Otho,  his  son  and 
brother  having  mixed  in  several  rebellions  against  him.  It  was 
revived,  however,  by  Conrad  II.  and  Henry  III.  The  latter 
was  invested  by  his  father  with  the  two  duchies  of  Suabia  and 
Bavaria.  Upon  his  own  accession  he  retained  the  former  for 
six  years,  and  even  the  latter  for  a  short  time.  The  duchy  of 
Franconia,  which  became  vacant,  he  did  not  rcgranl,  but  en- 
deavored to  set  a  precedent  of  uniting  fiefs  to  the  domain.  At 
another  time,  after  sentence  of  forfeiture  against  the  Duke  of 
Bavaria,  he  bestowed  that  great  province  on  his  wife,  the  Em- 
press Agnes./*  He  put  an  end  altogether  to  the  form  of  pop- 
ular concurrence,  winch  had  been  usual  when  the  investiture 
of  a  duchy  was  conferred ;  and  even  deposed  dukes  by  the  vSen- 
tence  of  a  few  princes,  without  the  consent  of  the  clieU'  ff  we 
combine  with  these  proofs  of  authority  in  the  domestic  admin- 
istration of  Henry  III.  his  almost  unlimited  control  over  papal 
elections,  or  rather  the  right  of  nomination  that  he  acquired, 
we  must  consider  him  as  the  most  absolute  monarch  in  the  an- 
nals of  Germany. 

These  ambitious  measures  of  Henry  III.  prepared  fifty  years 
of  calamity  for  his  son.  It  is  easy  to  perceive  that  the  mis- 
fortunes of  Henry  IV.  were  primarily  occasioned  by  the  jeal- 
ousy with  which  repeated  violations  of  their  constitutional 
usages  had  inspired  the  nobility.;  The  mere  circumstance  of 
Henry  IV/s  minority,  under  the  guardianship  of  a  woman, 
was  enough  to  dissipate  whatever  power  his  father  had  ac- 
quired. Hanno,  archbishop  of  Mentz,  carried  the  young  king 
away  by  force  from  his  mother,  and  governed  Germany  iu  his 
name ;  till  another  archbishop,  Adalbert  of  Bremen,  obtained 
greater  influence  over  him.  Through  the  neglect  of  his  educa- 
tion, Henry  grew  up  with  a  character  not  well  fitted  to  retrieve 
the  mischief  of  so  unprotected  a  minority ;  brave  indeed,  well- 
natured,  and  affable,  but  dissolute  beyond  measure,  and  ad- 

Jt  Schmidt,  t.  iii  pp  23,  37-  bert  of  Aschaffenburg  to  have  formed 

*  Id  ,  p.  207.  a  conspiracy  to  depose  him,  out  of  re* 

3  In  tne  very  first  year  of  Henry's  sentment  for  the  injuries  they  had  sus« 

reign,  .while  he  was  but  six  years  old,  tained  from  his  father,    Struvms,  p.  306. 

tfie  princes  of  Saxony  are  said  by  I*PL-  St.  Marc,  t<  iii.  p.  348, 


THE  MIDDLE  AGES  7 

dieted  to  low  and  debauched  company.  He  was  soon  involved 
in  a  desperate  war  with  the  Saxons,  a  nation  valuing  itself  on 
its  populousness  and  riches,  jealous  of  the  house  of  Franconia, 
who  wore  a  crown  that  had  belonged  to  their  own  dukes,  and 
indignant  at  Henry's  conduct  in  erecting  fortresses  through- 
out their  country.  [A.D.  1073.] 

In  the  progress  of  this  war  many  of  the  chief  princes  evinced 
an  unwillingness  to  support  the  emperor.fe  Notwithstanding 
this,  it  would  probably  have  terminated,  as  other  rebellions  had 
done,  with  no  permanent  loss  to  either  party.  But  in  the  mid- 
dle of  this  contest  another  far  more  memorable  broke  out  with 
the  Roman  see,  concerning  ecclesiastical  investitures.  The 
motives  of  this  famous  quarrel  will  be  explained  in  a  different 
book  of  the  present  work.  Its  effect  in  Germany  was  ruin- 
ous to  Henry.  A  sentence,  not  only  of  excommunication,  but 
of  deposition,  which  Gregory  VII.  pronounced  against  him, 
gave  a  pretence  to  all  his  enemies,  secret  as  well  as  avowed,  to 
withdraw  their  allegiance.^  [A.D.  1077.]  At  the  head  of  these 
was  Rodolph  Duke  of  Sttabia,  whom  an  assembly  of  revolted 
princes  raised  to  the  throne.  We  may  perceive,  in  the  con- 
ditions of  Rodolph's  election,  a  symptom  of  the  real  principle 
that  animated  the  German  aristocracy  against  Henry  IV.  It 
was  agreed  that  the  kingdom  should  no  longer  be  hereditary, 
not  conferred  on  the  son  of  a  reigning  monarch,  unless  his 
merit  should  challenge  the  popular  approbation.^  The  pope 
strongly  encouraged  this  plan  of  rendering  the  empire  elective, 
by  which  he  hoped  either  eventually  to  secure  the  nomination 
of  its  chief  for  the  Holy  See,  or  at  least,  by  owing  the  seed  of 
civil  dissensions  in  Germany,  to  render  Italy  more  inde- 
pendent. Henry  IV.,  however,  displayed  greater  abilities  in 
his  adversity  than  his  early  conduct  had  promised.  In  the  last 
of  several  decisive  battles,  Rodolph,  though  victorious,  was 

k  Struvius.    Schmidt.  furious  mvective,   manifests   great  dis- 

JA  party  had  been  already  formed,  satisfaction  with   the   court  of   Rome, 

who  were  meditating  to  depose  Henry.  which  he  reproaches  with  dissimulation 

His  excommunication  came  just  in  time  and  venality 

to  confirm  their  resolutions.   It  appears  m  Hoc  etiam  ibi  consensu  communi 

clearly,  upon  a  little  consideration  of  comprobatum,    Romam   pontificis   auc- 

Henry  Iv.'s  reign,  that  the  eccleciasti-  tontate  est  corroboratum,  ut  regia  po- 

cal  quarrel  was  only  secondary  in  the  testas  nulli  per  haereditatem.  sicut  antea 

eyes  of  Germany.    The  contest  against  fuit  consuetude,  cederet,  sed  films  regis, 

him  was  a  struggle  of  the  aristocracy,  etiamsi  valde  dignus  esset,  per  electio- 

jealous    of    the    imperial    prerogatives  nem  spontaneam,  non  per  successions 

which  Conrad  II.  and  Henry  III.  had  Kneam,  rex  provemret:  si  yero  non  es- 

stramed  to      the  utmost    Those  who  set  dignus  regis  films,  vel  si  nollet  eum 

were  in  rebellion  against  Henry  were  populus,  quern  regem  facere  veuet,  ha- 

not  pleased  with  Gregory  VII.    Bruno,  beret  in  potestate  populus.    Bruno  de 

Author  of  a  history  of  the  Saxon  war,  a  Bello  Saxonico,  apud  Strtwum,  p.  327- 


8  HALLAM 

mortally  wounded ;  and  no  one  cared  to  take  tip  a  gauntlet 
which  was  to  be  won  with  so  much  trouble  and  uncertainty, 
[A.D.  1080.]  The  Germans  were  sufficiently  disposed  to  sub- 
mit ;  but  Rome  persevered  in  her  unrelenting  hatred.  At  the 
close  of  Henry's  long  reign  she  excited  against  him  his  eldest 
son,  and,  after  more  than  thirty  years  of  hostility,  had  the  sat- 
isfaction of  wearing  him  down  with  misfortune,  and  casting 
out  his  body,  as  excommunicated,  from  its  sepulchre. 

In  the  reign  of  his  son  Henry  V.  there  is  no  event  worthy 
of  much  attention,  except  the  termination  of  the  great  contest 
about  investitures.  At  his  death  in  1 125  the  male  line  of  the 
Franconian  emperors  was  at  an  end.  Frederic  Duke  of  Suabia, 
grandson  by  his  mother  of  Henry  IV.,  had  inherited  their 
patrimonial  estates,  and  seemed  to  represent  their  dynasty. 
[A.D,  1125.]  But  both  the  last  emperors  had  so  many  enemies, 
and  a  disposition  to  render  the  crown  elective  prevailed  so 
strongly  among  the  leading  princes,  that  Lothaire  Duke  of 
Saxony  was  elevated  to  the  throne,  though  rather  in  a  tumultu- 
ous and  irregular  manner .n  Lothaire,  who  had  been  engaged 
in  a  revolt  against  Henry  V.,  and  the  chief  of  a  nation  that  bore 
an  inveterate  hatred  to  the  house  of  Franconia,  was  the  natural 
enemy  of  the  new  family  that  derived  its  importance  and  pre- 
tensions from  that  stock.  It  was  the  object  of  his  reign,  ac- 
cordingly, to  oppress  the  two  brothers,  Frederic  and  Conrad, 
of  the  Hohenstauffen  or  Suabian  family.  By  this  means  he 
expected  to  secure  the  succession  of  the  empire  for  his  son-in- 
law.  Henry,  stirnamed  the  Proud,  who  married  Lothaire's 
only  child,  was  fourth  in  descent  from  Welf,  son  of  Azon  Mar- 
quis of  Este,  by  Cunegonda,  heiress  of  a  distinguished  family, 
the  Welfs  of  Altorf  in  Suabia.  Her  son  was  invested  with  the 
duchy  of  Bavaria  in  1071.  His  descendant,  Henry  the  Proud, 
represented  also,  through  his  mother,  the  ancient  dukes  of  Sax- 
ony, surnamed  Billung,  from  whom  he  derived  the  duchy  of 
Luneburg.  The  wife  of  Lothaire  transmitted  to  her  daughter 
the  patrimony  of  Henry  the  Fowler,  consisting  of  Hanover 
and  Brunswick,  Besides  this  great  dowry,  Lothaire  bestowed 

n  See  an  account  of  Lothaire's  elec-  may  date  that  fundamental  principle  of 

tion  by  a  contemporary  writer  in  Stru-  the  Germanic  constitution  from  the  ac- 

vms,  p.  357.    See  also  proofs  of  the  dis-  cession  of  Lothaire.    Previously  to  that 

satisfaction  of   the  aristocracy  at   the  era,  birth  seems  to  have  been  given  not 

Franconian   government.     Schmidt,    t.  only  a  fair  title  to  preference,  but  a  sort 

ni.  p.  328     It  was  evidently  their  deter-  of  inchoate  right,  as  m  France,  Spain, 

ruination   to   render   the  empire   truly  and  England,    Lothaire  signed  a  capita 

elective  (Id.  p.  335) ;  and  perhaps  we  lation  at  his  accession*   - 


THE  MIDDLE  AGES  9 

upon  his  son-in-law  the  Duchy  of  Saxony  in  addition  to  that 
of  Bavarian 

This  amazing  preponderance,  however,  tended  to  alienate  the 
princes  of  Germany  from  Lothaire's  views  in  favor  of  Henry ; 
and  the  latter  does  not  seem  to  have  possessed  abilities  ade- 
quate to  his  eminent  station.  On  the  death  of  Lothaire  in  1138 
the  partisans  of  the  house  of  Suabia  made  a  hasty  and  irregular 
election  of  Conrad,  in  which  the  Saxon  faction  found  itself 
obliged  to  acquiesced  The  new  emperor  availed  himself  of 
the  jealousy  which  Henry  the  Proud's  aggrandizement  had 
excited.  Under  pretence  that  two  duchies  could  not  legally 
be  held  by  the  same  person,  Henry  was  summoned  to  resign 
one  of  them ;  and  on  his  refusal,  the  diet  pronounced  that  he 
had  incurred  a  forfeiture  of  both.  [A.D.  1138.]  Henry  made 
but  little  resistance,  and  before  his  death,  which  happened 
soon  afterwards,  saw  himself  stripped  of  all  his  hereditary  as 
well  as  acquired  possessions.  Upon  this  occasion  the  famous 
names  of  Gtielf  and  Ghibelin  were  first  heard,  which  were  des- 
tined to  keep  alive  the  flame  of  civil  dissension  in  far  distant 
countries,  and  after  their  meaning  had  been  forgotten.  The 
Guclfs,  or  Welfs,  were,  as  I  have  said,  the  ancestors  of  Henry, 
and  the  name  has  become  a  sort  of  patronymic  in  his  family. 
The  word  Ghibelin  is  derived  from  Wibelung,  a  town  in  Fran- 
conia,  whence  the  emperors  of  that  line  are  said  to  have  sprung. 
The  house  of  Suabia  were  considered  in  Germany  as  represent- 
ing that  of  Franconia ;  as  the  Guelfs  may,  without  much  im- 
propriety, be  deemed  to  represent  the  Saxon  line.g 

Though  Conrad  III.  left  a  son,  the  choice  of  the  electors 
fell,  at  his  own  request,  upon  his  nephew  Frederic  Barbarossa/ 
The  most  conspicuous  events  of  this  great  emperor's  life  be- 
long to  the  history  of  Italy.  At  home  he  was  feared  and  re- 
spected ;  the  imperial  prerogatives  stood  as  high  during  his 
reign  as,  after  their  previous  decline,  it  was  possible  for  a  single 
man  to  carry  them.-?  But  the  only  circumstance  which  appears 
memorable  enough  for  the  present  sketch  is  the  second  fall  of 
the  Guelfs.  Henry  the  Lion,  son  of  Henry  the  Proud,  had  been 
restored  by  Conrad  III.  to  his  father's  duchy  of  Saxony,  re- 
signing his  claim  to  that  of  Bavaria,  which  had  been  conferred 

t>  Pteffel   AbrtoS   Chronologique    de  P  Schmidt 

I'HUlofre  d'Alltt&gne,  t  L  p  369    (Pa-  «Struvms,  p.  37<>  and  378, 

ris,  1777.)   Gibbon's  Antiquities  of  the  r  Ibid. 

Howe  if  Bruiwwicfct  *  Pfeffe1' 


io  HALLAM 

on  the  margrave  of  Austria.  [A.D.  1178.]  This  renunciation, 
which  indeed  was  only  made  in  his  name  during  childhood,  did 
not  prevent  him  from  urging  the  Emperor  Frederic  to  restore 
the  whole  of  his  birthright;  and  Frederic,  his  first-cousin, 
whose  life  he  had  saved  in  a  sedition  at  Rome,  was  induced  to 
comply  with  this  request  in  1156.  Far  from  evincing  that  po- 
litical jealousy  which  some  writers  impute  to  him,  the  emperor 
seems  to  have  carried  his  generosity  beyond  the  limits  of  pru- 
dence. For  many  years  their  union  was  apparently  cordial 
But,  whether  it  was  that  Henry  took  umbrage  at  part  of  Fred- 
eric's conduct,*  or  that  mere  ambition  rendered  him  ungrateful, 
he  certainly  abandoned  his  sovereign  in  a  moment  of  distress, 
refusing  to  give  any  assistance  in  that  expedition  into  Lom- 
bardy  which  ended  in  the  unsuccessful  battle  of  Legnano. 
Frederic  could  not  forgive  this  injury,  and,  taking  advantage 
of  complaints,  which  Henry's  power  and  haughtiness  had  pro- 
duced, summoned  him  to  answer  charges  in  a  general  diet. 
The  duke  refused  to  appear,  and,  being  adjudged  contuma- 
cious, a  sentence  of  confiscation,  similar  to  that  which  ruined 
his  father,  fell  upon  his  head ;  and  the  vast  imperial  fiefs  that 
he  possessed  were  shared  among  some  potent  enemies.**  He 
made  an  ineffectual  resistance ;  like  his  father,  he  appears  to 
have  owed  more  to  fortune  than  to  nature;  and,  after  three 
years'  exile,  was  obliged  to  remain  content  with  the  restora- 
tion of  his  allodial  estates  in  Saxony.  These,  fifty  years  after- 
wards, were  converted  into  imperial  fiefs,  and  became  the  two 
duchies  of  the  house  of  Brunswick,  the  lineal  representatives 
of  Henry  the  Lion,  and  inheritors  of  the  name  of  Guelf,^ 

Notwithstanding  the  prevailing  spirit  of  the  German  oli- 
garchy, Frederick  Barbarossa  had  found  no  difficulty  in  pro- 
curing the  election  of  his  son  Henry,  even  during  infancy,  as 
his  successors  The  fall  of  Henry  the  Lion  had  greatly 
weakened  the  ducal  authority  in  Saxony  and  Bavaria;  the 
princes  who  acquired  that  title,  especially  in  the  former  coun- 

m  t  Frederic  had  obtained  the  sttcces-  cations  be  had  given  Frederic  are  un- 

sion  of  Wolf  Marquis  of  Tuscany,  uncle  deniable;    and,   without  pretending  to 

of  Henry  the  Lion,  who  probably  con-  decide  on  a  question  of  German  history 

sidered  himself  as  entitled  to  expect  it  I  do  not  see  that  there  was  any  precipl' 

Schmidt,  p.  $27  tancy  or  manifest  breach  of  justice  xn 

u  Putter,   in  his  Historical  Develop-  the  course  of  proceedings  against  him 

ment  of  the  Constitution  of  the  German  Schmidt,  Pfeffel,  and  Struvms  do  not 

Empire,  is  inclined  to  consider  Henry  represent  the  condemnation  of  Henry 

the  Lion  as  sacrificed  to  the  emperor's  as  unjust, 

jealousy  of  the  Guelfs,  and  as  illegally  v  Putter,  p.  220. 

proscribed  by  the  diet.    But  the  provo-  w  Struvms,  p.  418, 


THE  MIDDLE  AGES  n 

try,  finding  that  the  secular  and  spiritual  nobility  of  the  first 
class  had  taken  the  opportunity  to  raise  themselves  into  an 
immediate  dependence  upon  the  empire.  Henry  VI.  came, 
therefore,  to  the  crown  with  considerable  advantages  in  respect 
of  prerogative;  and  these  inspired  him  with  the  bold  scheme  of 
declaring  the  empire  hereditary.  [A.D.  1190.]  One  is  more  sur- 
prised to  find  that  he  had  no  contemptible  prospect  of  success 
in  this  attempt:  fifty-two  princes,  and  even  what  appears 
hardly  credible,  the  See  of  Rome,  under  Clement  III,  having 
been  induced  to  concur  in  it.  But  the  Saxons  made  so  vigor- 
ous an  opposition,  that  Henry  did  not  think  it  advisable  to 
persevere.*  He  procured,  however,  the  election  of  his  son 
Frederic,  an  infant  only  two  years  old.  But,  the  emperor  dy- 
ing almost  immediately,  a  powerful  body  of  princes,  supported 
by  Pope  Innocent  III.,  were  desirous  to  withdraw  their  con- 
sent. Philip  Duke  of  Suabia,  the  late  king's  brother,  unable 
to  secure  his  nephew's  succession,  brought  about  his  own  elec- 
tion by  one  party,  while  another  chose  Otho  of  Brunswick, 
younger  son  of  Henry  the  Lion.  [A.D.  1197.]  This  double 
election  renewed  the  rivalry  between  the  Guelfs  and  Ghibe- 
lins,  and  threw  Germany  into  confusion  for  several  years. 
Philip,  whose  pretensions  appear  to  be  the  more  legitimate 
of  the  two,  gained  ground  upon  his  adversary,  notwithstand- 
ing the  opposition  of  the  pope,  till  he  was  assassinated  in  con- 
sequence of  a  private  resentment.  Otho  IV.  reaped  the  benefit 
of  a  crime  in  which  he  did  not  participate,  and  became  for 
some  years  undisputed  sovereign.  But,  having  offended  the 
pope  by  not  entirely  abandoning  his  imperial  rights  over  Italy, 
he  had,  in  the  latter  part  of  his  reign,  to  contend  against  Fred- 
eric, son  of  Henry  VI.,  who,  having  grown  up  to  manhood, 
came  into  Germany  as  heir  of  the  house  of  Suabia,  and,  what 
was  not  very  usual  in  his  own  history,  or  [A.D.  1208]  that  of 
his  family,  the  favored  candidate  of  the  Holy  See.  Otho  IV. 
had  been  almost  entirely  deserted  except  by  his  natural  sub- 
jects, when  his  death,  in  1218,  removed  every  difficulty,  and 
left  Frederic  II.  in  the  peaceable  possession  of  Germany. 

The  eventful  life  of  Frederic  II.  was  chiefly  passed  in  Italy. 
To  preserve  his  hereditary  dominions,  and  chastise  the  Lorn- 


s,  p,  424.    Imgetravit  a  sub-  transiret,  ct  sic  in  ipso  terminus  esset 

ditis,  ut  cessante  pnstma  Palatmorum  electionis,     ormcipmnique     successive 

electione,  smpenum  m  ipsms  posterita-  digmtatis.    Gervas.  Tilbunens.  ibidem. 
tern,  distmcta  proximorum  successiojie, 


12  HALLAM 

bard  cities,  were  the  leading  objects  of  his  political  and  military 
career.  He  paid  therefore  but  little  attention  to  Germany,  from 
which  it  was  in  vain  for  any  emperor  to  expect  effectual  assist- 
ance towards  objects  of  his  own.  Careless  of  prerogatives 
which  it  seemed  hardly  worth  an  effort  to  preserve,  he  sanc- 
tioned the  independence  of  the  princes,  which  may  be  properly 
dated  from  his  reign.  In  return,  they  readily  elected  his  son 
Henry  King  of  the  Romans ;  and  on  his  being  implicated  in  a 
rebellion,  deposed  him  with  equal  readiness,  and  substituted 
his  brother  Conrad  at  the  emperor's  requests  But  in  the  latter 
part  of  Frederic's  reign  the  deadly  hatred  of  Rome  penetrated 
beyond  the  Alps.  After  his  solemn  deposition  in  the  council 
of  Lyons,  he  was  incapable,  in  ecclesiastical  eyes,  of  holding 
the  imperial  sceptre.  Innocent  IV.  found,  however,  some  diffi- 
culty in  setting  up  a  rival  emperor.  Henry  Landgrave  of  Thu- 
ringia  made  an  indifferent  figure  in  this  character.  [A.D.  1245.] 
Upon  his  death,  William  Count  of  Holland  was  chosen  by  the 
party  adverse  to  Frederic  and  his  son  Conrad  [A.D.  1248]  ;  and 
after  the  emperor's  death  he  had  some  success  against  the  lat- 
ter. It  is  hard  indeed  to  say  that  any  one  was  actually  sover- 
eign for  twenty-two  years  that  followed  the  death  of  Frederic 
II.  [A.D.  1250  to  1272] — a  period  of  contested  title  and  uni- 
versal anarchy,  which  is  usually  denominated  the  grand  inter- 
regnum. On  the  decease  of  William  of  Holland,  in  1256,  a 
schism  among  the  electors  produced  the  double  choice  of  Rich- 
ard Earl  of  Cornwall,  and  Alfonso  X.  King  of  Castile.  It 
seems  not  easy  to  determine  which  of  these  candidates  had  a 
legal  majority  of  votes ;  2  but  the  subsequent  recognition  of 
almost  all  Germany,  and  a  sort  of  possession  evidenced  by  pub- 
lic acts,  which  have  been  held  valid,  as  well  as  the  general  con- 
sent of  contemporaries,  may  justify  us  in  adding  Richard  to 
the  imperial  list.  The  choice  indeed  was  ridiculous,  as  he  pos- 
sessed no  talents  which  could  compensate  for  his  want  of 

y  Struvius,  p.  457.  it  is  certain  that  he  was  on  the  side  of 

xr  The  election  ought  legally  to  have  Richard.    Perhaps  we  may  collect  from 

been  made  at  Frankfort.    But  the_  elec-  the  opposite  statements  in  Struvius,  p. 

tor  of  Treves,  having  got  possession  of  504,   that  the  proxies   of   Ottocar  had 

the  town,  shut  out  the  archbishops  of  voted  for  Alfonso,  and  that  he  did  not 

Mentz  and  Cologne  and  the  count  pala-  think  fit  to  recognize  their  act, 

tine,  on  *pretence  of  apprehending  vio-  There  can  be  no  doubt  that  Richard 

lence.    They  met  under  the  walls,  and  Was   de   facto   sovereign   of   Germany; 

there  elected  Richard    Afterwards  Al-  and  it  is  singular  that  Strttvms  should 

fonso    was    chosen    by    the    votes    of  assert  the  contrary,  on  the  authority  of 

Treves,  Saxony,  and  Brandenburg.  His-  an  instrument  of  Rodolph,  which   ex« 

torians  differ  about  the  vote  of  Ottocar  pressly  designates  him  king,  per  quon- 

King  of   Bohemia,   which  would  turn  dam      Richardum      regem      jllustrem. 

$ie  scale.    Some  time  after  the  election  £>truv.  p.  503. 


THE   MIDDLE  AGES  13 

power;  but  the  electors  attained  their  objects:  to  perpetuate 
a  state  of  confusion  by  which  their  own  independence  was  con- 
solidated, and  to  plunder  without  scruple  a  man,  like  Didius 
at  Rome,  rich  and  foolish  enough  to  purchase  the  first  place 
upon  earth. 

That  place  indeed  was  now  become  a  mockery  of  greatness. 
For  more  than  two  centuries,  notwithstanding  the  temporary 
influence  of  Frederic  Barbarossa  and  his  son,  the  imperial  au- 
thority had  been  in  a  state  of  gradual  decay.  From  the  time  of 
Frederic  II.  it  had  bordered  upon  absolute  insignificance ;  and 
the  more  prudent  German  princes  were  slow  to  canvass  for  a 
dignity  so  little  accompanied  by  respect.  The  changes  wrought 
in  the  Germanic  constitution  during  the  period  of  the  Suabian 
emperors  chiefly  consist  in  the  establishment  of  an  oligarchy 
of  electors,  and  of  the  territorial  sovereignty  of  the  princes. 

I.  At  the  extinction  of  the  Franconian  line  by  the  death  of 
Henry  V.  it  was  determined  by  the  German  nobility  to  make 
their  empire  practically  elective,  admitting  no  right,  or  even 
natural  pretension,  in  the  eldest  son  of  a  reigning  sovereign. 
Their  choice  upon  former  occasions  had  been  made  by  free 
and  general  suffrage.  But  it  may  be  presumed  that  each  na- 
tion voted  unanimously,  and  according  to  the  disposition  of 
its  duke.  It  is  probable,  too,  that  the  leaders,  after  discussing 
in  previous  deliberations  the  merits  of  the  several  candidates, 
submitted  their  own  resolutions  to  the  assembly,  which  would 
generally  concur  in  them  without  hesitation.  At  the  election 
of  Lothaife,  in  1124,  we  find  an  evident  instance  of  this  previ- 
ous choice,  or,  as  it  was  called,  prataxation,  from  which  the 
electoral  college  of  Germany  has  been  derived.  The  princes, 
it  is  said,  trusted  the  choice  of  an  emperor  to  ten  persons,  in 
whose  judgment  they  promised  to  acquiesces  This  precedent 
was,  in  all  likelihood,  followed  at  all  subsequent  elections. 
The  proofs  indeed  are  not  perfectly  clear.  But  in  the  famous 
privilege  of  Austria,  granted  by  Frederic  I.  in  1156,  he  bestows 
a  rank  upon  the  newly  created  duke  of  that  country,  immedi- 
ately after  the  electing  princes  (post  principes  electores) ;  &  a 
strong  presumption  that  the  right  of  pretaxation  was  not  only 
established,  but  limited  to  a  few  definite  persons.  In  a  letter 
of  Innocent  III.,  concerning  the  double  election  of  Philip  and 
Otho  in  1198,  he  asserts  the  latter  to  have  had  a  majority  in 

a  Struvius,  p.  357.    Schmidt,  t.  in.  p.         b  Schmidt,  t.  iii.  p.  390. 
331* 


14  HALLAM 

his  favor  of  those  to  whom  the  right  of  election  chiefly  be- 
longs (ad  quos  principaliter  spectat  electio)^  And  a  law  of 
Otho  in  1208,  if  it  be  genuine,  appears  to  fix  the  exclusive  priv- 
ilege of  the  seven  electors.^  Nevertheless,  so  obscure  is  this 
important  part  of  the  Germanic  system,  that  we  find  four  ec- 
clesiastical and  two  secular  princes  concurring  with  the  regular 
electors  in  the  act,  as  reported  by  a  contemporary  writer,  that 
creates  Conrad,  son  of  Frederic  II,  King  of  the  Romans.* 
This,  however,  may  have  been  an  irregular  deviation  from  the 
principle  already  established.  But  it  is  admitted  that  all  the 
princes  retained,  at  least  during  the  twelfth  century,  their  con- 
senting suffrage ;  like  the  laity  in  an  episcopal  election,  whose 
approbation  continued  to  be  necessary  long  after  the  real 
power  of  choice  had  been  withdrawn  from  them/ 

It  is  not  easy  to  account  for  all  the  circumstances  that  gave 
to  seven  spiritual  and  temporal  princes  this  distinguished  pre- 
eminence. The  three  archbishops,  Mentz,  Treves,  and 
Cologne,  were  always  indeed  at  the  head  of  the  German  church. 
But  the  secular  electors  should  naturally  have  been  the  dukes 
of  four  nations:  Saxony,  Franconia,  Suabia,  and  Bavaria. 
We  find,  however,  only  the  first  of  these  in  the  undisputed 
exercise  of  a  vote.  It  seems  probable  that,  when  the  electoral 
princes  came  to  be  distinguished  from  the  rest,  their  privilege 
was  considered  as  peculiarly  connected  with  the  discharge  of 
one  of  the  great  offices  in  the  imperial  court.  These  were  at- 
tached, as  early  as  the  diet  of  Mentz  in  1184,  to  the  four  elec- 
tors, who  ever  afterwards  possessed  them :  the  Duke  of  Sax- 
ony having  then  officiated  as  archmarshal,  the  Count  Palatine 
of  the  Rhine  as  arch-steward,  the  King  of  Bohemia  as  arch- 
cupbearer,  and  the  Margrave  of  Brandenburg  as  arch-cham- 
berlain of  the  empires  But  it  still  continues  a  problem  why 
the  three  latter  offices,  with  the  electoral  capacity  as  their  in- 
cident, should  not  rather  have  been  granted  to  the  Dukes  of 
Franconia,  Suabia,  and  Bavaria.  I  have  seen  no  adequate  ex- 
planation of  this  circumstance ;  which  may  perhaps  lead  us  to 
presume  that  the  right  of  pre-election  was  not  quite  so  soon 

c  Pfeffel,  p.  360.  f  This  is  manifest  by  the  various  pas- 

d  Schmidt,  t  iv  p  80  sages  relatig  to  the  elections  of  Philip 

«  This  is  not  mentioned  in  Struvius,  and  Otho,  quoted  by  Struvius.  pp.  428, 

or  the  other  German  writers.    But  De-  430.    See,     too,     Pfeffel,     ubi     supra. 

nina   (Rivoluziom  d'ltaha,  L  ix,   c    9)  Schmidt,  t.  iv.  p,  79. 

Quotes  the  style  of  the  act  of  election  g  Ibid.,  t.  iv.  p  78. 

"torn  the  Chronicle  of  Francis  Pippin. 


THE  MIDDLE  AGES  !5 

confined  to  the  precise  number  of  seven  princes.  The  final 
extinction  of  two  great  original  duchies,  Franconia  and  Sua- 
bia,  in  the  thirteenth  century,  left  the  electoral  rights  of  the 
Count  Palatine  and  the  Margrave  of  Brandenburg  beyond  dis- 
pute. But  the  dukes  of  Bavaria  continued  to  claim  a  vote  in 
opposition  to  the  kings  of  Bohemia.  At  the  election  of 
Rodolph  in  1272  the  two  brothers  of  the  house  of  Wittelsbach 
voted  separately,  as  Count  Palatine  and  Duke  of  Lower  Ba- 
varia. Ottocar  was  excluded  upon  this  occasion ;  and  it  was 
not  till  1290  that  the  suffrage  of  Bohemia  was  fully  recognized. 
The  Palatine  and  Bavarian  branches,  however,  continued  to 
enjoy  their  family  vote  conjointly,  by  a  determination  of 
Rodolph ;  upon  which  Louis  of  Bavaria  slightly  innovated,  by 
rendering  the  suffrage  alternate.  But  the  Golden  Bull  of 
Charles  IV.  put  an  end  to  all  doubts  on  the  rights  of  electoral 
houses,  and  absolutely  excluded  Bavaria  from  voting.  The 
limitation  to  seven  electors,  first  perhaps  fixed  by  accident, 
came  to  be  invested  with  a  sort  of  mysterious  importance,  and 
certainly  was  considered,  until  times  comparatively  recent,  as 
a  fundamental  law  of  the  empire.* 

2.  It  might  appear  natural  to  expect  that  an  oligarchy  of 
seven  persons,  who  had  thus  excluded  their  equals  from  all 
share  in  the  election  of  a  sovereign,  would  assume  still  greater 
authority,  and  trespass  further  upon  the  less  powerful  vassals 
of  the  empire.  But  while  the  electors  were  establishing  their 
peculiar  privilege,  the  class  immediately  inferior  raised  itself 
by  important  acquisitions  of  power.  The  German  dukes,  even 
after  they  became  hereditary,  did  not  succeed  in  compelling 
the  chief  nobility  within  their  limits  to  hold  their  lands  in  fief 
so  completely  as  the  peers  of  France  had  done.  The  nobles  of 
Suabia  refused  to  follow  their  duke  into  the  field  against  the 
Emperor  Conrad  Il.i  Of  this  aristocracy  the  superior  class 
were  denominated  princes;  an  appellation  which,  after  the 
eleventh  century,  distinguished  them  from  the  untitled  nobil- 
ity, most  of  whom  were  their  vassals.  They  were  constituent 
parts  of  all  diets;  and  though  gradually  deprived  of  their 
original  participation  in  electing  an  emperor,  possessed,  in  all 
other  respects,  the  same  rights  as  the  dukes  or  electors.  Some 
of  them  were  fully  equal  to  the  electors  in  birth  as  well  as  ex- 

A  Schmidt,  pp,  78,  568;  Putter,  p   274;         iPfeffel,  p.  209, 
Pfeffel,  TJ«J.  435,  S6S;  Struvius,  p.  511, 


16  HALLAM 

tent  of  dominions;  such  as  the  princely  houses  of  Austria, 
Hesse,  Brunswick,  and  Misnia.  By  the  division  of  Henry  the 
Lion's  vast  territories,;  and  by  the  absolute  extinction  of  the 
Suabian  family  in  the  following  century,  a  great  many  princes 
acquired  additional  weight.  Of  the  ancient  duchies,  only 
Saxony  and  Bavaria  remained ;  the  former  of  which  especially 
was  so  dismembered,  that  it  was  vain  to  attempt  any  renewal  of 
the  ducal  jurisdiction.  That  of  the  emperor,  formerly  exer- 
cised by  the  counts  palatine,  went  almost  equally  into  disuse 
during  the  contest  between  Philip  and  Otho  IV.  The  princes 
accordingly  had  acted  with  sovereign  independence  within 
their  own  fiefs  before  the  reign  of  Frederic  II. ;  but  the  legal 
recognition  of  their  immunities  was  reserved  for  two  edicts  of 
that  emperor;  one,  in  1220,  relating  to  ecclesiastical,  and  the 
other,  in  1232,  to  secular  princes.  By  these  he  engaged  neither 
to  levy  the  customary  imperial  dues,  nor  to  permit  the  juris- 
diction of  the  palatine  judges,  within  the  limits  of  a  state  of 
the  empire ;  &  concessions  that  amounted  to  little  less  than  an 
abdication  of  his  own  sovereignty.  From  this  epoch  the  ter- 
ritorial independence  of  the  states  may  be  dated. 

A  class  of  titled  nobility,  inferior  to  the  princes,  were  the 
counts  of  the  empire,  who  seem  to  have  been  separated  from 
the  former  in  the  twelfth  century,  and  to  have  lost  at  the  same 
time  their  right  of  voting  in  the  diets.*  In  some  parts  of  Ger- 
many, chiefly  in  Franconia  and  upon  the  Rhine,  there  always 
existed  a  very  numerous  body  of  lower  nobility;  untitled  at 
least  till  modern  times,  but  subject  to  no  superior  except  the 
emperor.  These  are  supposed  to  have  become  immediate, 
after  the  destruction  of  the  house  of  Suabia,  within  whose 
duchies  they  had  been  comprehended.^ 

A  short  interval  elapsed  after  the  death  of  Richard  of  Corn- 
wall before  the  electors  could  be  induced,  by  the  deplorable 
state  of  confusion  into  which  Germany  had  fallen,  to  fill  the 
imperial  throne.  Their  choice  was  however  the  best  that  could 
have  been  made.  It  fell  upon  Rodolph  Count  of  Hapsburg,  a 
prince  of  very  ancient  family,  and  of  considerable  possessions 

;  See  the  arrangements  made  in  con-  their  names,  Ego  N«  elegl  et  subscnpsi. 

sequence  of  Henry's  forfeiture,   which  But  the  counts  only  as  follows:    Ego 

crave  quite  a  new  face  to  Germany,  m  N.   consensi   et  subscript.    Pfeffel,  p. 

Pfeffel,  p.  234;   also  p.  437.  360. 

ArPfeffel,  p  384:   Putter,  p.  233.  w  Pf effel,  p.  455 ;  Putter,  p,  254;   Stru- 

l  In  the  instruments  relating  to  the  vius,  p.  511. 
election  <?f  Otho  IV.  the  princes  sign 


THE  MIDDLE  AGES  17 

as  well  in  Switzerland  as  upon  each  bank  of  the  Upper  Rhine, 
but  not  sufficiently  powerful  to  alarm  the  electoral  oligarchy. 
[A.D.  1272.]  Rodolph  was  brave,  active,  and  just;  but  his 
characteristic  quality  appears  to  have  been  good  sense,  and 
judgment  of  the  circumstances  in  which  he  was  placed.  Of 
this  he  gave  a  signal  proof  in  relinquishing  the  favorite  proj- 
ect of  so  many  preceding  emperors,  and  leaving  Italy  alto- 
gether to  itself.  At  home  he  manifested  a  vigilant  spirit  in  ad- 
ministering justice,  and  is  said  to  have  destroyed  seventy 
strongholds  of  noble  robbers  in  Thuringia  and  other  parts, 
bringing  many  of  the  criminals  to  capital  punishments  But 
he  wisely  avoided  giving  offence  to  the  more  powerful  princes ; 
and  during  his  reign  there  were  hardly  any  rebellions  in  Ger- 
many. 

It  was  a  very  reasonable  object  of  every  emperor  to  ag- 
grandize his  family  by  investing  his  near  kindred  with  vacant 
fiefs ;  but  no  one  was  so  fortunate  in  his  opportunities  as  Ro- 
dolph. At  his  accession,  Austria,  Styria,  and  Carniola  were  in 
the  hands  of  Ottocar  King  of  Bohemia,  These  extensive  and 
fertile  countries  had  been  formed  into  a  march  or  margraviate, 
after  the  victories  of  Otho  the  Great  over  the  Hungarians, 
Frederic  Barbarossa  erected  them  into  a  duchy,  with  many 
distinguished  privileges,  especially  that  of  female  succession, 
hitherto  unknown  in  the  feudal  principalities  of  Germany .0 
Upon  the  extinction  of  the  house  of  Bamberg,  which  had  en- 
joyed this  duchy,  it  was  granted  by  Frederic  II.  to  a  cousin  of 
his  own  name ;  after  whose  death  a  disputed  succession  gave 
rise  to  several  changes,  and  ultimately  enabled  Ottocar  to  gain 
possession  of  the  country.  [A.D.  1283.]  Against  this  King  of 
Bohemia  Rodolph  waged  two  successful  wars,  and  recovered 


n  Struvius,  p  330.  Coxe's  Hist,  of  king— a  very  curious  fact  though, 
House  of  Austria,  p.  57.  This  valuable  neither  he  nor  his  successors  ever  as- 
work  contains  a  full  and  interesting  ac-  sumed  the  title.  Struvius,  p  463.  The 
count  of  Rodolph's  reign.  instrument  runs  as  follows:  Ducatus 

o  The    privileges    of    Austria    were  Austria*  et  Stynaa,  cum  pertinentus  et 

granted  to  the  margrave  Henry  in  1156,  termmis  suis  quot  hactenus  habuit,  ad 

by  way  of  indemnity  for  his  restitution  nomen  et  honorem  regium  transleren- 

01  Bavaria  to  Henry  the  Lion.   The  ter-  tes,  te  hactenus  ducatuum  pradictojum 

ntory  between  the  Inn  and  the  Ems  was  ducem,  de  potestatis  nostrze  plenitwine 

separated  from  the  latter  province,  and  et  magnificentia  speciah  promovenim  in 

annexed  to  Austria  at  this  time.    The  regem,  per  hbertates  et  jura  prse<?-jmt— 

Dukes  of  Austria  are  declared  equal  in  regnuni  tuum  prsesentis   epigran 

rank  to  the  palatine  archdukes  (archi-  auctontate  donantes,   quae  regiai 

ducibus    palatinis).     This    expression  ceant  dignitatem;   ut  tamen  ex  hq 

gave  a  hinUto  the  Duke  Kodolph  IV.  to  quern  t  tibi     hbenter     addimus,     i 

assume  the  title  of  Archduke  of  Aus-  honoris  et  juris  nostri  diadematis ' 

tttau    Schmidt,  t,  KS.  r>.  390.    Frederic  imperii  subtrahatur. 
11.  even  created  the  Duke  of  Austria 

VOL.  IL— 9 


zg  HALLAM 

the  Austrian  provinces,  which,  as  vacant  fiefs,  he  conferred, 
with  the  consent  of  the  diet,  upon  his  son  Albert* 

Notwithstanding  the  merit  and  popularity  of  Rodolph,  the 
electors  refused  to  choose  his  son  king  of  the  Romans  in  his 
lifetime ;  and,  after  his  death,  determined  to  avoid  the  appear- 
ance of  hereditary  succession,  put  Adolphus  of  Nassau  upon 
the  throne.  There  is  very  little  to  attract  notice  in  the  domestic 
history  of  the  empire  during  the  next  two  centuries.  From 
Adolphus  to  Sigismund  every  emperor  had  either  to  struggle 
against  a  competitor  claiming  the  majority  of  votes  at  his  elec- 
tion, or  against  a  combination  of  the  electors  to  dethrone  him. 
The  imperial  authority  became  more  and  more  ineffective; 
yet  it  was  frequently  made  a  subject  of  reproach  against  the 
emperors  that  they  did  not  maintain  a  sovereignty  to  which 
no  one  was  disposed  to  submit.  [Adolphus  A.D.  1292 ;  Albert 
I.,  1298;  Henry  VII.,  1398;  Louis  IV.,  1314;  Charles  IV., 
1347;  Wenceslaus,  1378;  Robert,  1400;  Sigismund,  1414-] 

It  may  appear  surprising  that  the  Germanic  confederacy 
under  the  nominal  supremacy  of  an  emperor  should  have  been 
preserved  in  circumstances  apparently  so  calculated  to  dis- 
solve it.  But,  besides  the  natural  effect  of  prejudice  and  a 
famous  name,  there  were  sufficient  reasons  to  induce  the  elec- 
tors to  preserve  a  form  of  government  in  which  they  bore  so 
decided  a  sway.  Accident  had  in  a  considerable  degree  re- 
stricted the  electoral  suffrages  to  seven  princes.  Without  the 
college  there  were  houses  more  substantially  powerful  than 
any  within  it.  The  Duchy  of  Saxony  had  been  subdivided  by 
repeated  partitions  among  children,  till  the  electoral  right  was 
vested  in  a  prince  who  possessed  only  the  small  territory  of 
Wittenberg.  The  great  families  of  Austria,  Bavaria,  and  Lux- 
emburg, though  not  electoral,  were  the  real  heads  of  the  Ger- 
man body ;  and  though  the  two  former  lost  much  of  their  in- 
fluence for  a  time  through  the  pernicious  custom  of  partition, 
the  empire  seldom  looked  for  its  head  to  any  other  house  than 
one  of  these  three. 

While  the  duchies  and  counties  of  Germany  retained  their 
original  character  of  offices  or  governments,  they  were  of 
course,  even  though  considered  as  hereditary,  not  subject  to 
partition  among  children.  When  they  acquired  the  nature  of 
fiefs,  it  was  still  consonant  to  the  principles  of  a  feudal  tenure 

*  p  Struvius,  p  525;  Schmidt;  Coxe. 


THE   MIDDLE  AGES  Ig 

that  the  eldest  son  should  inherit  according  to  the  law  of  primo- 
geniture; an  inferior  provision  or  appanage,  at  most,  being 
reserved  for  the  younger  children.  The  law  of  England  fa- 
vored the  eldest  exclusively ;  that  of  France  gave  him  great  ad- 
vantages. But  in  Germany  a  different  rule  began  to  prevail 
about  the  thirteenth  century.g  An  equal  partition  of  the  in- 
heritance, without  the  least  regard  to  priority  of  birth,  was  the 
general  law  of  its  principalities.  Sometimes  this  was  effected 
by  undivided  possession,  or  tenancy  in  common,  the  brothers 
residing  together,  and  reigning  jointly.  This  tended  to  pre- 
serve the  integrity  of  dominion ;  but  as  it  was  frequently  in- 
commodious, a  more  usual  practice  was  to  divide  the  territory. 
From  such  partitions  are  derived  those  numerous  independent 
principalities  of  the  same  house,  many  of  which  still  subsist  in 
Germany.  In  1589  there  were  eight  reigning  princes  of  the 
Palatine  family;  and  fourteen,  in  1675,  of  that  of  Saxony.r 
Originally  these  partitions  were  in  general  absolute  and  with- 
out reversion ;  but,  as  their  effect  in  weakening  families  be- 
came evident,  a  practice  was  introduced  of  making  compacts1 
of  reciprocal  succession,  by  which  a  fief  was  prevented  from 
escheating  to  the  empire,  until  all  the  male  posterity  of  the  first 
feudatory  should  be  extinct.  Thus,  while  the  German  empire 
survived,  all  the  princes  of  Hesse  or  of  Saxony  had  reciprocal 
contingencies  of  succession,  or  what  our  lawyers  call  cross- 
remainders,  to  each  other's  dominions.  A  different  system  was 
gradually  adopted.  By  the  Golden  Bull  of  Charles  IV.  the 
electoral  territory,  that  is,  the  particular  district  to  which  the 
electoral  suffrage  was  inseparably  attached,  became  incapable 
of  partition,  and  was  to  descend  to  the  eldest  son.  In  the  fif- 
teenth century  the  present  house  of  Brandenburg  set  the  first 
example  of  establishing  primogeniture  by  law ;  the  principal- 
ities of  Anspach  and  Bayreuth  were  dismembered  from  it  for 
the  benefit  of  younger  branches ;  but  it  was  declared  that  all 
the  other  dominions  of  the  family  should  for  the  future  belong 
exclusively  to  the  reigning  elector.  This  politic  measure  was 
adopted  in  several  other  families ;  but,  even  in  the  sixteenth 
century  the  prejudice  was  not  removed,  and  some  German 

q  Schmidt,  t  iv.  p  66.    Pfeffel,  p.  289,  Baden    divided    into     two    branches, 

maintains  that  partitions  were  not  in-  Baden   and    Hochherg,    in    1190,    with 

troduced  till  the  latter  end  of  the  thir-  rights  of  mutual  reversion, 

teenth  century.    This  may  be  true  as  a  r  Pfeffel,  p.  289;    Putter,  p,  189. 
general  rule;   but  I  find  the  house  of 


20  HALLAM 

princes  denounced  curses  on  their  posterity,  if  they  should  in- 
troduce the  impious  custom  of  primogeniture.*  Notwith- 
standing these  subdivisions,  and  the  most  remarkable  of  those 
which  I  have  mentioned  are  of  a  date  rather  subsequent  to  the 
middle  ages,  the  antagonist  principle  of  consolidation  by  vari- 
ous means  of  acquisition  was  so  actively  at  work  that  several 
princely  houses,  especially  those  of  Hohenzollern  or  Branden- 
burg, of  Hesse,  Wurtemburg,  and  the  Palatinate,  derive  their 
importance  from  the  same  era,  the  fourteenth  and  fifteenth 
centuries,  in  which  the  prejudice  against  primogeniture  was 
the  strongest.  And  thus  it  will  often  be  found  in  private  pat- 
rimonies; the  tendency  to  consolidation  of  property  works 
more  rapidly  than  that  to  its  disintegration  by  a  law  of  gavel- 
kind. 

Weakened  by  these  subdivisions,  the  principalities  of  Ger- 
many in  the  fourteenth  and  fifteenth  centuries  shrink  to  a 
more  and  more  diminutive  size  in  the  scale  of  nations.  But 
one  family,  the  most  illustrious  of  the  former  age,  was  less  ex- 
posed to  this  enfeebling  system.  Henry  VII.  Count  of  Lux- 
emburg, a  man  of  much  more  personal  merit  than  hereditary 
importance,  was  elevated  to  the  empire  in  1308.  Most  part  of 
his  short  reign  he  passed  in  Italy ;  but  he  had  a  fortunate  op- 
portunity of  obtaining  the  crown  of  Bohemia  for  his  son. 
John  King  of  Bohemia  did  not  himself  wear  the  imperial 
crown ;  but  three  of  his  descendants  possessed  it,  with  less  in- 
terruption than  could  have  been  expected.  His  son  Charles 
IV.  succeeded  Louis  of  Bavaria  in  1347 ;  not  indeed  without 
opposition,  for  a  double  election  and  a  civil  war  were  matters  of 
course  in  Germany.  Charles  IV.  has  been  treated  with  more 
derision  by  his  contemporaries,  and  consequently  by  later 
writers,  than  almost  any  prince  in  history ;  yet  he  was  remark- 
ably successful  in  the  only  objects  that  he  seriously  pursued. 
Deficient  in  personal  courage,  insensible  of  humiliation,  bend- 
ing without  shame  to  the  pope,  to  the  Italians,  to  the  electors, 
so  poor  and  so  little  reverenced  as  to  be  arrested  by  a  butcher 
at  Worms  for  want  of  paying  his  demand,  Charles  IV.  affords 
a  proof  that  a  certain  dexterity  and  cold-blooded  perseverance 
may  occasionally  supply,  in  a  sovereign,  the  want  of  more  re- 
spectable qualities.  He  has  been  reproached  with  neglecting 
the  empire.  But  he  never  designed  to  trouble  himself  about 

$  Pfeffel,  p.  280. 


THE  MIDDLE  AGES  21 

the  empire,  except  for  his  private  ends.  He  did  not  neglect  the 
kingdom  of  Bohemia,  to  which  he  almost  seemed  to  render 
Germany  a  province.  Bohemia  had  been  long  considered  as  a 
fief  of  the  empire,  and  indeed  could  pretend  to  an  electoral  vote 
by  no  other  title.  Charles,  however,  gave  the  states  by  law  the 
right  of  choosing  a  king,  on  the  extinction  of  the  royal  family, 
which  seems  derogatory  to  the  imperial  prerogative.*  It  was 
much  more  material  that,  upon  acquiring  Brandenburg,  partly 
by  conquest,  and  partly  by  a  compact  of  succession  in  1373, 
he  not  only  invested  his  sons  with  it,  which  was  conformable 
to  usage,  but  tried  to  annex  that  electorate  forever  to  the  king- 
dom of  Bohemia.^  He  constantly  resided  at  Prague,  where  he 
founded  a  celebrated  university,  and  embellished  the  city  with 
buildings.  This  kingdom,  augmented  also  during  his  reign 
by  the  acquisition  of  Silesia,  he  bequeathed  to  his  son  Wen- 
ceslaus,  for  whom,  by  pliancy  towards  the  electors  and  the 
court  of  Rome,  he  had  procured,  against  all  recent  example, 
the  imperial  successions 

The  reign  of  Charles  IV,  is  distinguished  in  the  constitu- 
tional history  of  the  empire  by  his  Golden  Bull  [A.D.  1355] ; 
an  instrument  which  finally  ascertained  the  prerogatives  of  the 
electoral  college.  The  Golden  Bull  terminated  the  disputes 
which  had  arisen  between  different  members  of  the  same 
house  as  to  their  right  of  suffrage,  which  was  declared  in- 
herent in  certain  definite  territories.  The  number  was  abso- 
lutely restrained  to  seven.  The  place  of  legal  imperial  elections 
was  fixed  at  Frankfort;  of  coronations,  at  Aix-la-Chapelle ; 
and  the  latter  ceremony  was  to  be  performed  by  the  arch- 
bishop of  Cologne.  These  regulations,  though  consonant  to 
ancient  usage,  had  not  always  been  observed,  and  their 
neglect  had  sometimes  excited  questions  as  to  the  validity  of 
elections.  The  dignity  of  elector  was  enhanced  by  the  Golden 
Bull  as  highly  as  an  imperial  edict  could  carry  it ;  they  were 
declared  equal  to  kings,  and  conspiracy  against  their  persons 
incurred  the  penalty  of  high  treason.^  Many  other  privileges 
are  granted  to  render  them  more  completely  sovereign  within 
their  dominions.  It  seems  extraordinary  that  Charles  should 

JStruvius,  p.  641.  solute  exclusion  of  Bavaria,  but  settled 

«  Pfeff el,  p.  575 ;  Schmidt,  t.  iv.  p.  595.  a  controversy  of  long  standing  between 

v  Struvius,  p.  637.  the  two  branches  of  the  house  of  Sax- 

w  Pfeffel,  p.  565 ;  Putter,  p.  271 ;  ony,  Wittenberg  and  Lauenburg,  in 

Schmidt,  t  iv.  p  566    The  Golden  Bull  favor  of  the  former. 

not  only  fixed  the  Palatine  vote,  in  ab- 


22  HALLAM 

have  voluntarily  elevated  an  oligarchy,  from  whose  pretensions 
his  predecessors  had  frequently  suffered  injury.  But  he  had 
more  to  apprehend  from  the  two  great  families  of  Bavaria  and 
Austria,  whom  he  relatively  depressed  by  giving  such  a  pre- 
ponderance to  the  seven  electors,  than  from  any  members  of 
the  college.  By  his  compact  with  Brandenburg  he  had  a  fair 
prospect  of  adding  a  second  vote  to  his  own  ;  and  there  was 
more  room  for  intrigue  and  management,  which  Charles  al- 
ways preferred  to  arms,  with  a  small  number,  than  with  the 
whole  body  of  princes. 

The  next  reign,  nevertheless,  evinced  the  danger  of  invest- 
ing the  electors  with  such  preponderating  authority.  Wen- 
ceslaus, a  supine  and  voluptuous  man,  less  respected,  and  more 
negligent  of  Germany,  if  possible,  than  his  father,  was  regu- 
larly deposed  by  a  majority  of  the  electoral  college  in  1400. 
This  right,  if  it  is  to  be  considered  as  a  right,  they  had  already 
used  against  Adolphus  of  Nassau  in  1298,  and  against  Louis 
of  Bavaria  in  1346.  They  chose  Robert  count  palatine  instead 
of  Wenceslaus  ;  and  though  the  latter  did  not  cease  to  have 
some  adherents,  Robert  has  generally  been  counted  among 
the  lawful  emperors.*  Upon  his  death  the  empire  returned 
to  the  house  of  Luxemburg  ;  Wenceslaus  himself  waiving  his 
rights  in  favor  of  his  brother  Sigismund  of  Hungary  .y 

The  house  of  Austria  had  hitherto  given  but  two  emperors 
to  Germany,  Rodolph  its  founder,  and  his  son  Albert,  whom 
a  successful  rebellion  elevated  in  the  place  of  Adolphus.  Upon 
the  death  of  Henry  of  Luxemburg,  in  1313,  Frederic,  son  of 
Albert,  disputed  the  election  of  Louis  Duke  of  Bavaria,  alleg- 
ing a  majority  of  genuine  votes.  This  produced  a  civil  war, 
in  which  the  Austrian  party  were  entirely  worsted.  Though 
they  advanced  no  pretensions  to  the  imperial  dignity  during 
the  rest  of  the  fourteenth  century,  the  princes  of  that  line  added 
to  their  possessions  Carinthia,  Istria,  and  the  Tyrol  As  a 
counterbalance  to  these  acquisitions,  they  lost  a  great  part  of 
their  ancient  inheritance  by  unsuccessful  wars  with  the  Swiss. 


T,rmcff  th5  *cities  besid<*  some  sraj*  of  Moravia,  having  been  chosen, 

EES  4f  ™n^a^tt0T  ^FtJ2^  Wences-  as  far  as  appears,  by  a  legal  majority 

laus  throughout  the  life  of  Robert;  and  However,  his  death  within  three  months 

T^^V*1/  S°  mucK  co*s^red  as  an  Amoved  the  difficulty,   and  Josse,  who 

usurper  by  foreign  states,  that  his  am-  was  not  crowned  at  Frankfort,  has  never 

feS^MWTVrefus?ladmittancAat  been   Beckoned    among    the   empS-or? 

^Th^SLSt^t  oStruvmsi  P-  *58.  though  modern  critic!  agree  that  his 

y  This  election  of  Sigismund  was  not  title  was  legitimate     Struvms    o    «£• 

uncontested,  Josse,   or  Jodocus,   mar-  Pfeffel,  p.  6i£  wwwis,  p.  684, 


THE  MIDDLE  AGES  23 

According  to  the  custom  of  partition,  so  injurious  to  princely 
houses,  their  dominions  were  divided  among  three  branches: 
one  reigning  in  Austria,  a  second  in  Styna  and  the  adjacent 
provinces,  a  third  in  the  Tyrol  and  Alsace.  This  had  in  a  con- 
siderable degree  eclipsed  the  glory  of  the  house  of  Hapsburg. 
But  it  was  now  its  destiny  to  revive,  and  to  enter  upon  a  career 
of  prosperity  which  has  never  since  been  permanently  inter- 
rupted. Albert  Duke  of  Austria,  who  had  married  Sigis- 
mund's  only  daughter,  the  Queen  of  Hungary  and  Bohemia, 
was  raised  to  the  imperial  throne  upon  the  death  of  his  father- 
in-law  in  1437.  He  died  in  two  years,  leaving  his  wife  preg- 
nant with  a  son,  Ladislaus  Posthumus,  who  afterwards  reigned 
in  the  two  kingdoms  just  mentioned;  and  the  choice  of  the 
electors  fell  upon  Frederic  Duke  of  Styria,  second  cousin  of 
the  last  emperor,  from  whose  posterity  it  never  departed,  ex- 
cept in  a  single  instance,  upon  the  extinction  of  his  male  line 
in  1740. 

Frederic  III.  reigned  fifty-three  years  [A.D.  1440-1493],  a 
longer  period  than  any  of  his  predecessors ;  and  his  personal 
character  was  more  insignificant.  With  better  fortune  than 
could  be  expected,  considering  both  these  circumstances,  he 
escaped  any  overt  attempt  to  depose  him,  though  such  a  proj- 
ect was  sometimes  in  agitation.  He  reigned  during  an  inter- 
esting age,  full  of  remarkable  events,  and  big  with  others  of 
more  leading  importance.  The  destruction  of  the  Greek  em- 
pire, and  appearance  of  the  victorious  crescent  upon  the  Dan- 
ube, gave  an  unhappy  distinction  to  the  earlier  years  of  his 
reign,  and  displayed  his  mean  and  pusillanimous  character  in 
circumstances  which  demanded  a  hero.  At  a  later  season  he 
was  drawn  into  contentions  with  France  and  Burgundy,  which 
ultimately  produced  a  new  and  more  general  combination  of 
European  politics.  Frederic,  always  poor,  and  scarcely  able 
to  protect  himself  in  Austria  from  the  seditions  of  his  sub- 
jects, or  the  inroads  of  the  King  of  Hungary,  was  yet  another 
founder  of  his  family,  and  left  their  fortunes  incomparably 
more  prosperous  than  at  his  accessions  The  marriage  of  his 

s  Ranke  has  drawn  the  character  of  yield,  he  never  gave  up  a  point,  and  al- 

Frederic  III.   more  favorably,  on  the  ways  gained  the  mastery  m  the  end. 

whole,  than  preceding  historians,  and  The   maintenance   of   his   prerogatives 

with  a  discrimination  which  enables  us  was  the  governing  principle  of  all  his 

to  account  better  for  his  success  in  the  actions,  the  more  because  they  acquired 

objects  which  he  had  at  heart.    **  From  an  ideal  value  from  their  connection 

his  youth  het  had  been  inured  to  trouble  with  the  imperial  dignity.    It  cost  him 

and    adversity.      When    compelled    to  a  lon$  and  severe  struggle  to  allow  his 


24  HALLAM 

son  Maximilian  with  the  heiress  of  Burgundy  began  that  ag- 
grandizement of  the  house  of  Austria  which  Frederic  seems 
to  have  anticipated.^  The  electors,  who  had  lost  a  good  deal 
of  their  former  spirit,  and  were  grown  sensible  of  the  necessity 
of  choosing  a  powerful  sovereign,  made  no  opposition  to  Max- 
imilian's becoming  King  of  the  Romans  in  his  father's  lifetime. 
The  Austrian  provinces  were  reunited  either  under  Frederic, 
or  in  the  first  years  of  Maximilian ;  so  that,  at  the  close  of  that 
period  which  we  denominate  the  middle  ages,  the  German 
empire,  sustained  by  the  patrimonial  dominions  of  its  chief, 
became  again  considerable  in  the  scale  of  nations,  and  cap- 
able of  preserving  a  balance  between  the  ambitious  monarchies 
of  France  and  Spain. 

The  period  between  Rodolph  and  Frederic  III.  is  distin- 
guished by  no  circumstance  so  interesting  as  the  prosperous 
state  of  the  free  imperial  cities,  which  had  attained  their  ma- 
turity about  the  commencement  of  that  interval.  We  find  the 
cities  of  Germany,  in  the  tenth  century,  divided  into  such  as  de- 
pended immediately  upon  the  empire,  which  were  usually  gov- 
erned by  their  bishop  as  imperial  vicar,  and  such  as  were  in- 
cluded in  the  territories  of  the  dukes  and  counts.^  Some  of  the 
former,  lying  principally  upon  the  Rhine  and  in  Franconia, 

son  to  be  crowned  King  of  the  Romans;  the  maintenance  of  a  confederacy  so  ill 
he  -wished  to  take  the  supreme  authority  held  together  by  any  other  tie.  Hence 
undivided  with  him  to  the  grave:  in  no  he  succeeded  in  what  seemed  so  diffi- 
case  would  he  grant  Maximilian  any  in-  cult— in  procuring  the  election  of  Max- 
dependent  share  in  the  administration  imilian  as  King  of  the  Romans;  and 
of  government,  but  kept  him,  even  af-  interested  the  German  diet  m  mam- 
ter  he  was  king,  still  as  *  son  of  the  taming  the  Burgundian  inheritance, 
house*  ;  nor  would  he  ever  give  him  the  western  provinces  of  the  Nether- 
anything  but  the  countship  of  Cilh;  *  f or  lands,  which  the  latter's  marriage 
the  rest  he  would  have  time  enough.'  brought  into  the  house  of  Austria. 
His  frugality  bordered  on  avarice,  his  a  The  famous  device  of  Austria,  A.  £. 
slowness  on  inertness,  his  stubborn-  I.  O.  U.,  was  first  used  by  Frederic  III., 
ness  on  the  most  determined  selfish-  who  adopted  it  on  his  plate,  books,  and 
nessj  yet  all  these  faults  are  removed  buildings.  These  initials  stand  for, 

1  from  vulgarity  by  high  qualities.    He  Austria  Est  Imperare  Orbi  Universo' 

had  at  bottom  a  sober  depth  of  judg-  or?  in  German,  Alles  Erdreich  1st  Oster- 

ment,   a   sedate  and  inflexible  honor;  reich  Unterthan     a  bold  assumption  for 

the  aged  prince,  even  when  a  fugitive  a  man  who  was  not  safe  in  an  inch  of 

imploring  succor,  had  a  personal  bear-  his  dominions.    Struvms.  p    722     He 

mg  which  never  allowed  the  majesty  of  confirmed    the    archducal    title    of    his 

the  empire  to  sink."    Hist.  Reforma-  family,  which  might  seem  implied  in  the 

hop  (Translation),  vol.  11.  p.  103.  original  grant  of  Frederic  L ;    and  be- 

A  character  of  such  obstinate  passive  stowed  other  high  privileges  above  all 

resistance  was  well  fitted  for  his  station  princes  of  the  empire.    These  are  enu- 

m  that  age;  in  spite  of  his  poverty  and  merated  in  Coxe's  House  of  Austria, 

weakness,  he  was  hereditary  sovereign  vol.  i.  p.  263. 

of  extensive  and  fertile  territories;    he  b  Pfeffcl,  p.  187.    The  Othos  adopted 

was  not  loved,  feared,  or  respected,  but  the  same  policy  in  Germany  which  they 

he  was  necessary;    he  was  a  German,  had  introduced  in  Italy,  conferring  the 

and  therefore  not  to  be  exchanged  for  temporal  government  of  cities  upon  the 

a  king  of  Hungary  or  Bohemia;    he  bishops;    probably  as  a  counterbalance 

was,  not  as  Frederic  of  Austria,  but  as  to  the  lay  aristocracy.    Putter,  p.  136; 

elected   emperor,  the  sole  hope  for  a  Struvius,  p.  252. 

more  settled  rule,  for  public  peace,  for 


THE  MIDDLE  AGES  25 

acquired  a  certain  degree  of  importance  before  the  expiration 
of  the  eleventh  century.  Worms  and  Cologne  manifested  a 
zealous  attachment  to  Henry  IV.,  whom  they  supported  in  de- 
spite of  their  bishops.^  His  son  Henry  V.  granted  privileges  of 
enfranchisement  to  the  inferior  townsmen  or  artisans,  who  had 
hitherto  been  distinguished  from  the  upper  class  of  freemen, 
and  particularly  relieved  them  from  oppressive  usages,  which 
either  gave  the  whole  of  their  movable  goods  to  the  lord  upon 
their  decease,  or  at  least  enabled  him  to  seize  the  best  chattel 
as  his  heriot.d  He  took  away  the  temporal  authority  of  the 
bishop,  at  least  in  several  instances,  and  restored  the  cities  to  a 
more  immediate  dependence  upon  the  empire.  The  citizens 
were  classed  in  companies,  according  to  their  several  occupa- 
tions ;  an  institution  which  was  speedily  adopted  in  other  com- 
mercial countries.  It  does  not  appear  that  any  German  city  had 
obtained,  under  this  emperor,  those  privileges  of  choosing  its 
own  magistrates,  which  were  conceded  about  the  same  time,  in 
a  few  instances,  to  those  of  France.  Gradually,  however,  they 
began  to  elect  councils  of  citizens,  as  a  sort  of  senate  and  mag- 
istracy.*? This  innovation  might  perhaps  take  place  as  early  as 
the  reign  of  Frederic  I. ;  f  at  least  it  was  fully  established  in 
that  of  his  grandson.  They  were  at  first  only  assistants  to  the 
imperial  or  episcopal  bailiff,  who  probably  continued  to  ad- 
minister criminal  justice.  But  in  the  thirteenth  century  the 
citizens,  grown  richer  and  stronger,  either  purchased  the  juris- 
diction, or  usurped  it  through  the  lord's  neglect,  or  drove  out 
the  bailiff  by  forced  The  great  revolution  in  Franconia  and 
Suabia  occasioned  by  the  fall  of  the  Hohenstauff en  family  com- 
pleted the  victory  of  the  cities.  Those  which  had  depended 
upon  mediate  lords  became  immediately  connected  with  the 
empire ;  and  with  the  empire  in  its  state  of  feebleness,  when  an 
occasional  present  of  money  would  easily  induce  its  chief  to 
acquiesce  in  any  claims  of  immunity  which  the  citizens  might 
prefer. 

It  was  a  natural  consequence  of  the  importance  which  the 
free  citizens  had  reached,  and  of  their  immediacy,  that  they 

c  Schmidt,  t.  iii.  o.  239  mention  is  made  of  any  municipal  juris« 

rflbid,  p.  242;  Pfeffel,  p.  293;  Du-  diction,  yet  it  seems  implied  m  the  fol- 

mont,  Corps  Diplomatique,  t.  i.  p.  64.  lowing  words:  Causam  in  civitate  jam 

e  Schmidt,  p.  245.  lite  contestatam  non  episcopus  aut  aha 

/  In  the  charter  granted  by  Frederic  I  potestas  extra  civitatem  determinari 

to  Spire  in  1182,  confirming  and  enlarg-  compelled    Dumont,  p   108. 

ing  that  of  Henry  V.,  though  no  express  g  Schmidt,  t.  iv.  p.  96,  Pfeffel,  p.  441. 


26  HALLAM 

were  admitted  to  a  place  in  the  diets,  or  general  meetings  of  the 
confederacy.  They  were  tacitly  acknowledged  to  be  equally 
sovereign  with  the  electors  and  princes.  No  proof  exists  of  any 
law  by  which  they  were  adopted  into  the  diet.  We  find  it  said 
that  Rodolph  of  Hapsburg,  in  1291,  renewed  his  oath  with  the 
princes,  lords,  and  cities.  Under  the  emperor  Henry  VII.  there 
is  unequivocal  mention  of  the  three  orders  composing  the  diet ; 
electors,  princes,  and  deputies  from  cities.'*  And  in  1344  they 
appear  as  a  third  distinct  college  in  the  diet  of  Frankfort.* 

The  inhabitants  of  these  free  cities  always  preserved  their  re- 
spect for  the  emperor,  and  gave  him  much  less  vexation  than 
his  other  subjects.  He  was  indeed  their  natural  friend.  But 
the  nobility  and  prelates  were  their  natural  enemies ;  and  the 
western  parts  of  Germany  were  the  scenes  of  irreconcilable 
warfare  between  the  possessors  of  fortified  castles  and  the  in- 
habitants of  fortified  cities.  Each  party  was  frequently  the  ag- 
gressor. The  nobles  were  too  often  mere  robbers,  who  lived 
upon  the  plunder  of  travellers.  But  the  citizens  were  almost 
equally  inattentive  to  the  rights  of  others.  It  was  their  policy 
to  offer  the  privileges  of  burghership  to  all  strangers.  The 
peasantry  of  feudal  lords,  flying  to  a  neighboring  town,  found 
an  asylum  constantly  open.  A  multitude  of  aliens,  thus  seeking 
as  it  were  sanctuary,  dwelt  in  the  suburbs  or  liberties,  between 
the  city  walls  and  the  palisades  which  bounded  the  territory. 
Hence  they  were  called  Pfahlbiirger,  or  burgesses  of  the  pal- 
isades ;  and  this  encroachment  on  the  rights  of  the  nobility  was 
positively,  but  vainly,  prohibited  by  several  imperial  edicts, 
especially  the  Golden  Bull.  Another  class  were  the  Ausburger, 
or  outburghers,  who  had  been  admitted  to  privileges  of  citizen- 
ship, though  resident  at  a  distance,  and  pretended  in  conse- 
quence to  be  exempted  from  all  dues  to  their  original  feudal 
superiors.  If  a  lord  resisted  so  unreasonable  a  claim,  he  in- 
curred the  danger  of  bringing  down  upon  himself  the  vengeance 
of  the  citizens.  These  outburghers  are  in  general  classed  under 
the  general  name  of  Pfahlburger  by  contemporary  writers.; 

As  the  towns  were  conscious  of  the  hatred  which  the  nobility 
bore  towards  them,  it  was  their  interest  to  make  a  common 

k  Mansit  ibi  rex  sex  hebdom  adibtts          i  Pfeffeh  p,  552. 

M?±a«6?sse  vp- 

VL  p.  31. 


THE   MIDDLE  AGES  27 

cause,  and  render  mutual  assistance.  From  this  necessity  of 
maintaining,  by  united  exertions,  their  general  liberty,  the 
German  cities  never  suffered  the  petty  jealousies,  which  might 
no  doubt  exist  among  them,  to  ripen  into  such  deadly  feuds  as 
sullied  the  glory,  and  ultimately  destroyed  the  freedom,  of 
Lombardy.  They  withstood  the  bishops  and  barons  by  confed- 
eracies of  their  own,  framed  expressly  to  secure  their  com- 
merce against  rapine,  or  unjust  exactions  of  toll.  More  than 
sixty  cities,  with  three  ecclesiastical  electors  at  their  head, 
formed  the  league  of  the  Rhine,  in  1255,  to  repel  the  inferior 
nobility,  who,  having  now  become  immediate,  abused  that  in- 
dependence by  perpetual  robberies.*  The  Hanseatic  Union 
owes  its  origin  to  no  other  cause,  and  may  be  traced  perhaps  to 
rather  a  higher  date.  About  the  year  1 370  a  league  was  formed, 
which,  though  it  did  not  continue  so  long,  seems  to  have  pro- 
duced more  striking  effects  in  Germany.  The  cities  of  Suabia 
and  the  Rhine  united  themselves  in  a  strict  confederacy  against 
the  princes,  and  especially  the  families  of  Wurtemburg  and 
Bavaria.  It  is  said  that  the  Emperor  Wenceslaus  secretly 
abetted  their  projects.  The  recent  successes  of  the  Swiss,  who 
had  now  almost  established  their  republic,  inspired  their  neigh- 
bors in  the  empire  with  expectations  which  the  event  did  not 
realize ;  for  they  were  defeated  in  this  war,  and  ultimately  com- 
pelled to  relinquish  their  league.  Counter-associations  were 
formed  by  the  nobles,  styled  Society  of  St.  George,  St.  Will- 
iam, the  Lion,  or  the  Panther,^ 

The  spirit  of  political  liberty  was  not  confined  to  the  free  im- 
mediate cities.  In  all  the  German  principalities  a  form  of  lim- 
ited monarchy  prevailed,  reflecting,  on  a  reduced  scale,  the 
general  constitution  of  the  empire.  As  the  emperors  shared 
their  legislative  sovereignty  with  the  diet,  so  all  the  princes  who 
belonged  to  that  assembly  had  their  own  provincial  states,  com- 
posed of  their  feudal  vassals  and  of  their  mediate  towns  within' 
their  territory.  No  tax  could  be  imposed  without  consent  of  the 
states ;  and,  in  some  countries,  the  prince  was  obliged  to  oc- 
count  for  the  proper  disposition  of  the  money  granted.  In  all 
matters  of  importance  affecting  the  principality,  and  especially 
in  cases  of  partition,  it  was  necessary  to  consult  them ;  and 
they  sometimes  decided  between  competitors  in  a  disputed  suc- 

k  Struvius,  p.  498;   Schmidt,  t.  iv.  p.          I  Struvius,    p.    649;     Pfeffel,    p.    586; 
101;  Pfeffel,  p.  416.  Schmidt,  t*  v.  p.  10;   t.  vi.  p.  78.    Put- 

ter, p.  293. 


28  HALLAM 

cession,  though  this  indeed  more  strictly  belonged  to  the  em- 
peror. The  provincial  states  concurred  with  the  prince  in  mak- 
ing laws,  except  such  as  were  enacted  by  the  general  diet.  The 
city  of  Wurtzburg,  in  the  fourteenth  century,  tells  its  bishop 
that,  if  a  lord  would  make  any  new  ordinance,  the  custom  is 
that  he  must  consult  the  citizens,  who  have  always  opposed  his 
innovating  upon  the  ancient  laws  without  their  consent.^ 

The  ancient  imperial  domain,  or  possessions  which  belonged 
to  the  chief  of  the  empire  as  such,  had  originally  been  very  ex- 
tensive. Besides  large  estates  in  every  province,  the  territory 
upon  each  bank  of  the  Rhine,  afterwards  occupied  by  the  counts 
palatine  and  ecclesiastical  electors,  was,  until  the  thirteenth 
century,  an  exclusive  property  of  the  emperor.  This  imperial 
domain  was  deemed  so  adequate  to  the  support  of  his  dignity 
that  it  was  usual,  if  not  obligatory,  for  him  to  grant  away  his 
patrimonial  domains  upon  his  election.  But  the  necessities  of 
Frederic  II.,  and  the  long  confusion  that  ensued  upon  his  death, 
caused  the  domain  to  be  almost  entirely  dissipated.  Rodolph 
made  some  efforts  to  retrieve  it,  but  too  late ;  and  the  poor  re- 
mains of  what  had  belonged  to  Charlemagne  and  Otho  were 
alienated  by  Charles  IV>  This  produced  a  necessary  change 
in  that  part  of  the  constitution  which  deprived  an  emperor  of 
hereditary  possessions.  It  was,  however,  some  time  before  it 
took  place.  Even  Albert  I.  conferred  the  duchy  of  Austria 
upon  his  son,  when  he  was  chosen  emperor.o  Louis  of  Bavaria 
was  the  first  who  retained  his  hereditary  dominions,  and  made 
them  his  residence./*  Charles  IV.  and  Wenceslaus  lived  almost 
wholly  in  Bohemia,  Sigismund  chiefly  in  Hungary,  Frederic 
III.  in  Austria.  This  residence  in  their  hereditary  countries, 
while  it  seemed  rather  to  lower  the  imperial  dignity,  and  to 
lessen  their  connection  with  the  general  confederacy,  gave  them 
intrinsic  power  and  influence.  If  the  emperors  of  the  houses 
of  Luxemburg  and  Austria  were  not  like  the  Conrads  and  Fred- 
erics, they  were  at  least  very  superior  in  importance  to  the  Will- 
iams and  Adolphuses  of  the  thirteenth  century. 

The  accession  of  Maximilian  nearly  coincides  with  the  expe- 
dition of  Charles  VIII.  against  Naples ;  and  I  should  here  close 
the  German  history  of  the  middle  age,  were  it  not  for  the  great 

m  Schmidt,  t.  vi*  p.  8.    Putter,  p.  236.  he  should  retain  any  escheated  fief  for 

*  rJ       '  p  5  e*      •  *  the  domam»  instead  of  granting  it  away, 

old.  p   494.    Struvraa,  p.  546  so  completely  was  the  public  policy  of 

*Inid,   p.   6rr      In  the  capitulation  the  empire  reversed.    Schmidt,  t.  v.  p 

of  Robert  it  was  expressly  provided  that  44.  '  p 


THE  MIDDLE  AGES  29 

epoch  which  is  made  by  the  diet  of  Worms  in  1495.  This  as- 
sembly is  celebrated  for  the  establishment  of  a  perpetual  public 
peace,  and  of  a  paramount  court  of  justice,  the  Imperial  Cham- 
ber. 

The  same  causes  which  produced  continual  hostilities  among 
the  French  nobility  were  not  likely  to  operate  less  powerfully 
on  the  Germans,  equally  warlike  with  their  neighbors,  and 
rather  less  civilized.  But  while  the  imperial  government  was 
still  vigorous,  they  were  kept  under  some  restraint.  We  find 
Henry  III.,  the  most  powerful  of  the  Franconian  emperors,  for- 
bidding all  private  defiances,  and  establishing  solemnly  a  gen- 
eral peace.g  After  his  time  the  natural  tendency  of  manners 
overpowered  all  attempts  to  coerce  it,  and  private  war  raged 
without  limits  in  the  empire.  Frederic  I%  endeavored  to  repress 
it  by  a  regulation  Which  admitted  its  legality.  This  was  the  law 
of  defiance  (jus  diffidationis),  which  required  a  solemn  declara- 
tion of  war,  and  three  days'  notice,  before  the  commencement 
of  hostile  measu,  es.  All  persons  contravening  this  provision 
were  deemed  robbers  and  not  legitimate  enemies.?"  Frederic 
II.  carried  the  restraint  further,  and  limited  the  right  of  self- 
redress  to  cases  where  justice  could  not  be  obtained.  Un- 
fortunately there  was,  in  later  times,  no  sufficient  provision  for 
rendering  justice.  The  German  empire  indeed  had  now  as- 
sumed so  peculiar  a  character,  and  the  mass  of  states  which 
composed  it  were  in  so  many  respects  sovereign  within  their 
own  territories,  that  wars,  unless  in  themselves  unjust,  could 
not  be  made  a  subject  of  reproach  against  them,  nor  considered, 
strictly  speaking,  as  private.  It  was  certainly  most  desirable 
to  put  an  end  to  them  by  common  agreement,  and  by  the  only 
means  that  could  render  war  unnecessary,  the  establishment  of 
a  supreme  jurisdiction.  War  indeed,  legally  undertaken,  was 
not  the  only  nor  the  severest  grievance.  A  very  large  propor- 
tion of  the  rural  nobility  lived  by  robbery .-?  Their  castles,  as  the 
ruins  still  bear  witness,  were  erected  upon  inaccessible  hills, 
and  in  defiles  that  command  the  public  road.  An  archbishop 
of  Cologne  having  built  a  fortress  of  this  kind,  the  governor  in- 
quired how  he  was  to  maintain  himself,  no  revenue  having  been 
assigned  for  that  purpose :  the  prelate  only  desired  him  to  re- 

q  Pfeffel,  p.  212.  hos  qui  procul  urbibus,  ant  qui  castellis 

r  Schmidt,  t.  iv.  p.  108,  et  infra;  Hef-  et  oppidulis  dommantur,  quorum  wag- 

fel,  p.  340;  Futter,  p  205.  na  pars  latrocinto  detitur,  nobiles  cen- 

s  German!  atqtie  Alemanni,  quibus  sent.  Pet.  de  Andlo,  apud  Schmidt,  t. 

census  patrimonn  ad  victum  suppetit,  et  v.  p.  490. 


30  HALLAM 

mark  that  the  castle  was  situated  near  the  junction  of  four 
roads.*  As  commerce  increased,  and  the  example  of  French 
and  Italian  civilization  rendered  the  Germans  more  sensible  to 
their  own  rudeness,  the  preservation  of  public  peace  was  loudly 
demanded.  Every  diet  under  Frederic  III.  professed  to  occupy 
itself  with  the  two  great  objects  of  domestic  reformation,  peace 
and  law.  Temporary  cessations,  during  which  all  private  hos- 
tility was  illegal,  were  sometimes  enacted  ;  and,  if  observed, 
which  may  well  be  doubted,  might  contribute  to  accustom  men 
to  habits  of  greater  tranquillity.  The  leagues  of  the  cities  were 
probably  more  efficacious  checks  upon  the  disturbers  of  order. 
In  1486  a  ten  years'  peace  was  proclaimed,  and  before  the  ex- 
piration of  this  period  the  perpetual  abolition  of  the  right  of  de- 
fiance was  happily  accomplished  in  the  diet  of  Worms.w 

These  wars,  incessantly  waged  by  the  states  of  Germany,  sel- 
dom ended  in  conquest.  Very  few  princely  houses  of  the  mid- 
dle ages  were  aggrandized  by  such  means.  That  small  and  in- 
dependent nobility,  the  counts  and  knights  of  the  empire  whom 
the  revolutions  of  our  own  age  have  annihilated,  stood  through 
the  storms  of  centuries  with  little  diminution  of  their  numbers. 
An  incursion  into  the  enemy's  territory,  a  pitched  battle,  a 
siege,  a  treaty,  are  the  general  circumstances  of  the  minor  wars 
of  the  middle  ages,  as  far  as  they  appear  in  history.  Before  the 
invention  of  artillery,  a  strongly  fortified  castle  or  walled  city, 
was  hardly  reduced  except  by  famine,  which  a  besieging  army, 
wasting  improvidently  its  means  of  subsistence,  was  full  as 
likely  to  feel  That  invention  altered  the  condition  of  society, 
and  introduced  an  inequality  of  forces,  that  rendered  war  more 
inevitably  ruinous  to  the  inferior  party.  Its  first  and  most  bene- 
ficial effect  was  to  bring  the  plundering  class  of  the  nobility  into 
control;  their  castles  were  more  easily  taken,  and  it  became 
their  interest  to  deserve  the  protection  of  law.  A  few  of  these 
continued  to  follow  their  old  profession  after  the  diet  of  Worms  ; 
but  they  were  soon  overpowered  by  the  more  efficient  police 
established  under  Maximilian. 

The  next  object  of  the  diet  was  to  provide  an  effectual  remedy 
for  private  wrongs  which  might  supersede  all  pretence  for  tak- 
ing up  arms.  The  administration  of  justice  had  always  been  a 


a  , 

orer*et  redltibus»   <*icit^          «  Schmidt,  t.  iv.  p    u6,  t.  v  pp   338 
Quatuor  via  sunt  trans       371;  t.  vi.  p.  34;  Putter,  pp.  ^,348. 


THE   MIDDLE  AGES  31 

high  prerogative  as  well  as  bounden  duty  of  the  emperors.  It 
was  exercised  originally  by  themselves  in  person,  or  by  the 
count  palatine,  the  judge  who  always  attended  their  court.  In 
the  provinces  of  Germany  the  dukes  were  intrusted  with  this 
duty ;  but,  in  order  to  control  their  influence,  Otho  the  Great 
appointed  provincial  counts  palatine,  whose  jurisdiction  was 
in  some  respects  exclusive  of  that  still  possessed  by  the  dukes. 
As  the  latter  became  more  independent  of  the  empire,  the  pro- 
vincial counts  palatine  lost  the  importance  of  their  office,  though 
their  name  may  be  traced  to  the  twelfth  and  thirteenth  centu- 
ries.^ The  ordinary  administration  of  justice  by  the  emperors 
went  into  disuse ;  in  cases  where  states  of  the  empire  were  con- 
cerned, it  appertained  to  the  diet,  or  to  a  special  court  of  princes. 
The  first  attempt  to  re-establish  an  imperial  tribunal  was  made 
by  Frederic  II.  in  a  diet  held  at  Mentz  in  1235.  A  judge  of  the 
court  was  appointed  to  sit  daily,  with  certain  assessors,  half 
nobles,  half  lawyers,  and  with  jurisdiction  over  all  causes  where 
princes  of  the  empire  were  not  concerned.^  Rodolph  of  Haps- 
burg  endeavored  to  give  efficacy  to  this  judicature ;  but  after 
his  reign  it  underwent  the  fate  of  all  those  parts  of  the  Germanic 
constitution  which  maintained  the  prerogatives  of  the  emperors. 
Sigismund  endeavored  to  revive  this  tribunal ;  but  as  he  did  not 
render  it  permanent,  nor  fix  the  place  of  its  sittings,  it  produced 
little  other  good  than  as  it  excited  an  earnest  anxiety  for  a 
regular  system.  This  system,  delayed  throughout  the  reign  of 
Frederic  III.,  was  reserved  for  the  first  diet  of  his  son.* 

The  Imperial  Chamber,  such  was  the  name  of  the  new  trib- 
unal, consisted,  at  its  original  institution,  of  a  chief  judge,  who 
was  to  be  chosen  among  the  princes  or  counts,  and  of  sixteen 
assessors,  partly  of  noble  or  equestrian  rank,  partly  professors 
of  law.  They  were  named  by  the  emperor  with  the  approbation 
of  the  diet.  The  functions  of  the  Imperial  Chamber  were  chiefly 
the  two  following.  They  exercised  an  appellant  jurisdiction 
over  causes  that  had  been  decided  by  the  tribunals  established 
in  states  of  the  empire.  But  their  jurisdiction  in  private  causes 
was  merely  appellant.  According  to  the  original  law  of  Ger- 
many, no  man  could  be  sued  except  in  the  nation  or  province 
to  which  he  belonged.  The  early  emperors  travelled  from  one 
part  of  their  dominions  to  another,  in  order  to  render  justice 

v  Pf eff el,  p.  180  s  Pf effel,  t  ii,  p.  66. 

w  Idem,  p.  386;  Schmidt,  t  iv,  p,  56. 


32  HALLAM 

consistently  with  this  fundamental  privilege.  When  the  Lux- 
emburg emperors  fixed  their  residence  in  Bohemia,  the  juris- 
diction of  the  imperial  court  in  the  first  instance  would  have 
ceased  of  itself  by  the  operation  of  this  ancient  rule.  It  was  not, 
however,  strictly  complied  with;  and  it  is  said  that  the  em- 
perors had  a  concurrent  jurisdiction  with  the  provincial  tribu- 
nals even  in  private  causes.  They  divested  themselves,  never- 
theless, of  this  right  by  granting  privileges  de  non  cvocando; 
so  that  no  subject  of  a  state  which  enjoyed  such  a  privilege 
could  be  summoned  into  the  imperial  court.  All  the  electors 
possessed  this  exemption  by  the  terms  of  the  Golden  Bull ;  and 
it  was  especially  granted  to  the  burgraves  of  Nuremberg,  and 
some  other  princes.  This  matter  was  finally  settled  at  the  diet 
of  Worms ;  and  the  Imperial  Chamber  was  positively  restricted 
from  taking  cognizance  of  any  causes  in  the  first  instance,  even 
where  a  state  of  the  empire  was  one  of  the  parties.  It  was  en- 
acted, to  obviate  the  denial  of  justice  that  appeared  likely  to 
result  from  the  regulation  in  the  latter  case,  that  every  elector 
and  prince  should  establish  a  tribunal  in  his  own  dominions, 
where  suits  against  himself  might  be  entertained  y 

The  second  part  of  the  chamber's  jurisdiction  related  to' dis- 
putes between  two  states  of  the  empire.  But  these  two  could 
only  come  before  it  by  way  of  appeal.  During  the  period  of 
anarchy  which  preceded  the  establishment  of  its  jurisdiction, 
a  custom  was  introduced,  in  order  to  prevent  the  constant  re- 
currence of  hostilities,  of  referring  the  quarrels  of  states  to  cer- 
tain arbitrators,  called  Austregues,  chosen  among  states  of  the 
same  rank.  This  conventional  reference  became  so  popular 
that  the  princes  would  not  consent  to  abandon  it  on  the  insti- 
tution of  the  Imperial  Chamber;  but,  on  the  contrary,  it  was 
changed  into  an  invariable  and  universal  law,  that  all  disputes 
between  different  states  must,  in  the  first  instance,  be  submitted 
to  the  arbitration  of  Austregues.^ 

The  sentences  of  the  chamber  would  have  been  very  idly 
pronounced,  if  means  had  not  been  devised  to  carry  them  into 
execution.  In  earlier  times  the  want  of  coercive  process  had 
been  more  felt  than  that  of  actual  jurisdiction.  For  a  few  years 
after  the  establishment  of  the  chamber  this  deficiency  was  not 
supplied.  But  in  1501  an  institution,  originally  planned  under 
Wenceslaus,  and  attempted  by  Albert  II.,  was  carried  into  ef- 

9  Schmidt,  t.  v.  p.  373j  Putter,  p.  373.          ,IbML|  p.  ^.  pfeffd}  p>  ^ 


THE  MIDDLE  AGES  33 

feet.  The  empire,  with  the  exception  of  the  electorates  and  the 
Austrian  dominions,  was  divided  into  six  circles ;  each  of  which 
had  its  council  of  states,  its  director  whose  province  it  was  to 
convoke  them,  and  its  military  force  to  compel  obedience.  In 
1512  four  more  circles  were  added,  comprehending  those  states 
which  had  been  excluded  in  the  first  division.  It  was  the  busi- 
ness of  the  police  of  the  circles  to  enforce  the  execution  of 
sentences  pronounced  by  the  Imperial  Chamber  against  refrac- 
tory states  of  the  empire.^ 

As  the  judges  of  the  Imperial  Chamber  were  appointed  with 
the  consent  of  the  diet,  and  held  their  sittings  in  a  free  imperial 
city,  its  establishment  seemed  rather  to  encroach  on  the  ancient 
prerogatives  of  the  emperors.  Maximilian  expressly  reserved 
these  in  consenting  to  the  new  tribunal.  And,  in  order  to  revive 
them,  he  soon  afterwards  instituted  an  Aulic  Council  at  Vienna, 
composed  of  judges  appointed  by  himself,  and  under  the  polit- 
ical control  of  the  Austrian  government.  Though  some  Ger- 
man patriots  regarded  this  tribunal  with  jealousy,  it  continued 
until  the  dissolution  of  the  empire.  The  Aulic  Council  had, 
in  all  cases,  a  concurrent  jurisdiction  with  the  Imperial  Cham- 
ber ;  an  exclusive  one  in  feudal  and  some  other  causes.  But 
it  was  equally  confined  to  cases  of  appeal ;  and  these,  by  mul- 
tiplied privileges  de  non  appellando,  granted  to  the  electoral  and 
superior  princely  houses,  were  gradually  reduced  into  moderate 
compass.fr 

The  Germanic  constitution  may  be  reckoned  complete,  as 
to  all  its  essential  characteristics,  in  the  reign  of  Maximilian. 
In  later  times,  and  especially  by  the  treaty  of  Westphalia,  it 
underwent  several  modifications.  Whatever  might  be  its  de- 
fects, and  many  of  them  seem  to  have  been  susceptible  of  refor- 
mation without  destroying  the  system  of  government,  it  had 
one  invaluable  excellence :  it  protected  the  rights  of  the  weaker 
against  the  stronger  powers.  The  law  of  nations  was  first 
taught  in  Germany,  and  grew  out  of  the  public  law  of  the  em- 
pire. To  narrow,  as  far  as  possible,  the  rights  of  war  and  of 
conquest,  was  a  natural  principle  of  those  who  belonged  to  petty 
states,  and  had  nothing  to  tempt  them  in  ambition.  No  revolu- 
tion of  our  own  eventful  age,  except  the  fall  of  the  ancient 
French  system  of  government,  has  been  so  extensive,  or  so 
likely  to  produce  important  consequences,  as  the  spontaneous 

a  Putter,  p.  355,  t.  ii.  p.  100.  b  Ibid,,  p.  357;  Pfeffel,  p>  wa 

VOL.  IL— 3 


34 


HALLAM 


dissolution  of  the  German  empire  Whether  the  new  con- 
federacy that  has  been  substituted  for  that  venerable  constitu- 
tion will  be  equally  favorable  to  peace,  justice,  and  liberty,  is 
among  the  most  interesting  and  difficult  problems  that  can 
occupy  a  philosophical  observer/. 

At  the  accession  of  Conrad  I.  Germany  had  by  no  means 
reached  its  present  extent  on  the  eastern  frontier.  Henry  the 
Fowler  and  the  Othos  made  great  acquisitions  upon  that  side. 
But  tribes  of  Sclavonian  origin,  generally  called  Venedic,  or 
less  properly,  Vandal,  occupied  the  northern  coast  from  the 
Elbe  to  the  Vistula.  These  were  independent,  and  formidable 
both  to  the  kings  of  Denmark  and  princes  of  Germany,  till, 
in  the  reign  of  Frederic  Barbarossa,  two  of  the  latter,  Henry 
the  Lion,  Duke  of  Saxony,  and  Albert  the  Bear,  Margrave  of 
Brandenburg,  subdued  Mecklenburg  and  Pomerania,  which 
afterwards  became  duchies  of  the  empire.  Bohemia  was  un- 
doubtedly subject,  in  a  feudal  sense,  to  Frederic  I.  and  his  suc- 
cessors; though  its  connection  with  Germany  was  always 
slight  The  emperors  sometimes  assumed  a  sovereignty  over 
Denmark,  Hungary,  and  Poland.  But  what  they  gained  upon 
this  quarter  was  compensated  by  the  gradual  separation  of  the 
Netherlands  from  their  dominion,  and  by  the  still  more  com- 
plete loss  of  the  kingdom  of  Aries.  The  house  of  Burgundy 
possessed  most  part  of  the  former,  and  paid  as  little  regard  as 
possible  to  the  imperial  supremacy ;  though  the  German  diets 
in  the  reign  of  Maximilian  still  continued  to  treat  the  Nether- 
lands as  equally  subject  to  their  lawful  control  with  the  states 
on  the  right  bank  of  the  Rhine.  But  the  provinces  between 
the  Rhone  and  the  Alps  were  absolutely  separated ;  Switzerland 
had  completely  succeeded  in  establishing  her  own  indepen- 
dence ;  and  the  Kings  of  France  no  longer  sought  even  the 
ceremony  of  an  imperial  investiture  for  Dauphine  and  Pro- 
vence 

Bohemia,  which  received  the  Christian  faith  in  the  tenth 
century,  was  elevated  to  the  rank  of  a  kingdom  near  the  end 
of  the  twelfth.  The  dukes  and  kings  of  Bohemia  were  feudally 
dependent  upon  the  emperors,  from  whom  they  received  inves- 
titure. They  possessed,  in  return,  a  suffrage  among  the  seven 
electors,  and  held  one  of  the  great  offices  in  the  imperial  court. 
But  separated  by  a  rampart  of  mountains,  by  a  difference  of 

cTIie  first  edition  of  this  work  was  published  early  in  1818. 


THE   MIDDLE  AGES  35 

origin  and  language,  and  perhaps  by  national  prejudices  from 
Germany,  the  Bohemians  withdrew  as  far  as  possible  from  the 
general  politics  of  the  confederacy.  The  kings  obtained  dis- 
pensations from  attending  the  diets  of  the  empire,  nor  were  they 
able  to  reinstate  themselves  in  the  privilege  thus  abandoned  till 
the  beginning  of  the  last  century  .d  The  government  of  this 
kingdom,  in  a  very  slight  degree  partaking  of  the  feudal  char- 
acter, bore  rather  a  resemblance  to  that  of  Poland ;  but  the  no- 
bility were  divided  into  two  classes,  the  baronial  and  the  eques- 
trian, and  the  burghers  formed  a  third  state  in  the  national  diet.*? 
For  the  peasantry,  they  were  in  a  condition  of  servitude,  or 
predial  villeinage.  The  royal  authority  was  restrained  by  a 
coronation  oath,  by  a  permanent  senate,  and  by  frequent  as- 
semblies of  the  diet,  where  a  numerous  and  armed  nobility  ap- 
peared to  secure  their  liberties  by  law  or  force/  The  sceptre 
passed,  in  ordinary  times,  to  the  nearest  heir  of  the  royal  blood ; 
but  the  right  of  election  was  only  suspended,  and  no  King  of 
Bohemia  ventured  to  boast  of  it  as  his  inheritance  s  This  mix- 
ture of  elective  and  hereditary  monarchy  was  common,  as  we 
have  seen,  to  most  European  kingdoms  in  their  original  con- 
stitution, though  few  continued  so  long  to  admit  the  participa- 
tion of  popular  suffrages. 

The  reigning  dynasty  having  become  extinct  in  1306,  by  the 
death  of  Wenceslaus,  son  of  that  Ottocar  who,  after  extending 
his  conquests  to  the  Baltic  Sea,  and  almost  to  the  Adriatic,  had 
lost  his  life  in  an  unsuccessful  contention  with  the  Emperor 
Rodolph,  the  Bohemians  chose  John  of  Luxemburg,  son  of 
Henry  VII.  Under  the  kings  of  this  family  in  the  fourteenth 
century,  and  especially  Charles  IV.,  whose  character  appeared 
in  a  far  more  advantageous  light  in  his  native  domains  than  in 
the  empire,  Bohemia  imbibed  some  portion  of  refinement  and 
science.^  A  university  erected  by  Charles  at  Prague  became 
one  of  the  most  celebrated  in  Europe.  John  Huss,  rector  of  the 

d  Pfeffel,  t.  n.  p.  497.  sent  for  an  Italian  lawyer  to  compile  a 

e  Bona  ipsorum  tota  Bohemia  plera-  code.    But  the  nobility  refused  to  con- 

que  ornma  hsereditana  sunt  seu  alodi-  sent  to  this:    aware,   probably,  of  the 

alia,  perpauca  feudaha    Stransky,  Resp,  consequences  of  letting  in  the  preroga- 

Bohemica,  p.  392.    Stransky  was  a  Bo-  tive  doctrines  of  the  civilians.    They 

hemian  Protestant,  who  fled  to  Holland  opposed,  at  the  same  time,  the  institu- 

after  the  subversion  of  the  civil  and  re-  tion  of  a  university  at  Prague?    which, 

hgious  liberties  of  his  country  by  the  however,   took  place  afterwards  under 

fatal  battle  of  Prague  in  1621.  Charles  IV. 

/  Dubravius,  the  Bohemian  historian,  g  Stransky,    Resp.    Bohem.     Coxe's 

relates   (lib.  xviii )   that,   the  kingdom  House  of  Austria,  p.  487. 

having   no   written   laws,    Wenceslaus,  k  Schmidt;   Coxe. 
one  ol  the  kings,  about  the  year  1300 


36  HALLAM 

university,  who  had  distinguished  himself  by  opposition  to 
many  abuses  then  prevailing  in  the  church,  repaired  to  the 
council  of  Constance,  under  a  safe-conduct  from  the  Emperor 
Sigismund.  [A.D.  1414,]  In  violation  of  this  pledge,  to  the  in- 
delible infamy  of  that  prince  and  of  the  council,  he  was  con- 
demned to  be  burned ;  and  his  disciple,  Jerome  of  Prague, 
underwent  afterwards  the  same  fate.  His  countrymen,  aroused 
by  this  atrocity,  flew  to  arms.  They  found  at  their  head  one  of 
those  extraordinary  men  whose  genius,  created  by  nature  and 
called  into  action  by  fortuitous  events,  appears  to  borrow  no  re- 
flected light  from  that  of  others.  John  Zisca  had  not  been 
trained  in  any  school  which  could  have  initiated  him  in  the 
science  of  war;  that  indeed,  except  in  Italy,  was  still  rude,  and 
nowhere  more  so  than  in  Bohemia.  But,  self-taught,  he  be- 
came one  of  the  greatest  captains  who  had  appeared  hitherto 
in  Europe.  It  renders  his  exploits  more  marvellous  that  he  was 
totally  deprived  of  sight.  Zisca  has  been  called  the  inventor 
of  the  modern  art  of  fortification ;  the  famous  mountain  near 
Prague,  fanatically  called  Tabor,  became,  by  his  skill,  an  im- 
pregnable entrenchment.  For  his  stratagems  he  has  been 
compared  to  Hannibal.  In  battle,  being  destitute  of  cavalry,  he 
disposed  at  intervals  ramparts  of  carriages  filled  with  soldiers, 
to  defend  his  troops  from  the  enemy's  horse.  His  own  station 
was  by  the  chief  standard ;  where,  after  hearing  the  circum- 
stances of  the  situation  explained,  he  gave  his  orders  for  the 
disposition  of  the  army.  Zisca  was  never  defeated ;  and  his 
genius  inspired  the  Hussites  with  such  enthusiastic  affection, 
that  some  of  those  who  had  served  tinder  him  refused  to  obey 
any  other  general,  and  denominated  themselves  Orphans  in 
commemoration  of  his  loss.  He  was  indeed  a  ferocious  enemy, 
though  some  of  his  cruelties  might,  perhaps,  be  extenuated  by 
the  law  of  retaliation;  but  to  his  soldiers  affable  and  generous, 
dividing  among  them  all  the  spoil* 

Even  during  the  lifetime  of  Zisca  the  Hussite  sect  was  dis- 
united; the  citizens  of  Prague  and  many  of  the  nobility  con- 
tenting themselves  with  moderate  demands,  while  the  Tabor- 
ites,  his  peculiar  followers,  were  actuated  by  a  most  fanatical 
frenzy.  The  former  took  the  name  of  Calixtins  [A.D.  1424], 
from  their  retention  of  the  sacramental  cup,  of  which  the  priests 
had  latterly  thought  fit  to  debar  laymen,  an  abuse  so  totally 

fLenfant,  Hist,  de  la  Guerre  des  Hussites;   Schmidt;   Coxe. 


THE  MIDDLE  AGES  37 

without  pretence  or  apology,  that  nothing  less  than  the  de- 
termined obstinacy  of  the  Romish  church  could  have  main- 
tained it  to  this  time.  The  Taborites,  though  no  longer  led  by 
Zisca,  gained  some  remarkable  victories,  but  were  at  last  wholly 
defeated ;  while  the  Catholic  and  Calixtin  parties  came  to  an 
accommodation,  by  which  Sigismund  was  acknowledged  as 
King  of  Bohemia,  which  he  had  claimed  by  the  title  of  heir  to 
his  brother  Wenceslaus,  and  a  few  indulgences,  especially  the 
use  of  the  sacramental  cup,  conceded  to  the  moderate  Hussites. 
[A.D.  1433  ]  But  this  compact,  though  concluded  by  the  coun- 
cil of  Basle,  being  ill  observed,  through  the  perfidious  bigotry 
of  the  see  of  Rome,  the  reformers  armed  again  to  defend  their 
religious  liberties,  and  ultimately  elected  a  nobleman  of  their 
own  party,  by  name  George  Podiebrad  [A.D.  1458],  to  the 
throne  of  Bohemia,  which  he  maintained  during  his  life  with 
great  vigor  and  prudence.;  Upon  his  death  they  chose  Uladis- 
laus  [A,D.  1471],  son  of  Casimir  King  of  Poland,  who  after- 
wards obtained  also  the  kingdom  of  Hungary.  Both  these 
crowns  were  conferred  on  his  son  Louis  [A.D.  1527] ,  after  whose 
death,  in  the  unfortunate  battle  of  Mohacz,  Ferdinand  of  Aus- 
tria became  sovereign  of  the  two  kingdoms. 

The  Hungarians,  that  terrible  people  who  laid  waste  the 
Italian  and  German  provinces  of  the  empire  in  the  tenth  cen- 
tury, became  proselytes  soon  afterwards  to  the  religion  of 
Europe,  and  their  sovereign,  St.  Stephen,  was  admitted  by  the 
pope  into  the  list  of  Christian  kings.  Though  the  Hungarians 
were  of  a  race  perfectly  distinct  from  either  the  Gothic  or  the 
Sclavonian  tribes,  their  system  of  government  was  in  a  great 
measure  analogous.  None  indeed  could  be  more  natural  to 
rude  nations  who  had  but  recently  accustomed  themselves  to 
settled  possessions,  than  a  territorial  aristocracy,  jealous  of 
unlimited  or  even  hereditary  power  in  their  chieftain,  and  sub- 
jugating the  inferior  people  to  that  servitude  which,  in  such  a 
state  of  society,  is  the  unavoidable  consequence  of  poverty. 

The  marriage  of  an  Hungarian  princess  with  Charles  II.  King 
of  Naples,  eventually  connected  her  country  far  more  than  it 
had  been  with  the  affairs  of  Italy.  I  have  mentioned  in  a  dif- 
ferent place  the  circumstances  which  led  to  the  invasion  of 
Naples  by  Louis  King  of  Hungary,  and  the  wars  of  that  power- 
ful monarch  with  Venice.  But  marrying  the  eldest  daughter 

j'Lenfant;   Schmidt;  Co???. 


38  HALLAM 

of  Louis,  Sigismund,  afterwards  emperor,  acquired  the  crown 
of  Hungary  [A.D.  1392],  which  upon  her  death  without  issue  he 
retained  in  his  own  right,  and  was  even  able  to  transmit  to  the 
child  of  a  second  marriage,  and  to  her  husband  Albert  Duke 
of  Austria.  From  this  commencement  is  deduced  the  connec- 
tion between  Hungary  and  Austria.  [A.D.  1437.]  In  two  years, 
however,  Albert  dying  left  his  widow  pregnant  ;  but  the  states 
of  Hungary,  jealous  of  Austrian  influence,  and  of  the  intrigues 
of  a  minority,  without  waiting  for  her  delivery,  bestowed  the 
crown  upon  Uladislaus  King  of  Poland.  [A.D.  1440.]  The  birth 
of  Albert's  posthumous  son,  Ladislaus,  produced  an  opposition 
in  behalf  of  the  infant's  right  ;  but  the  Austrian  party  turned 
out  the  weaker,  and  Uladislaus,  after  a  civil  war  of  some  dura- 
tion, became  undisputed  king.  Meanwhile  a  more  formidable 
enemy  drew  near.  The  Turkish  arms  had  subdued  all  Servia, 
and  excited  a  just  alarm  throughout  Christendom.  Uladislaus 
led  a  considerable  force,  to  which  the  presence  of  the  Cardinal 
Julian  gave  the  appearance  of  a  crusade,  into  Bulgaria,  and, 
after  several  successes,  concluded  an  honorable  treaty  with 
Amurath  II.  But  this  he  was  unhappily  persuaded  to  violate, 
at  the  instigation  of  the  cardinal,  who  abhorred  the  impiety  of 
keeping  faith  with  infidels.^  Heaven  judged  of  this  otherwise, 
if  the  judgment  of  Heaven  was  pronounced  upon  the  field  of 
Warna.  [A.D.  1444.]  I*1  that  fatal  battle  Uladislaus  was  killed, 
and  the  Hungarians  utterly  routed.  The  crown  was  now  per- 
mitted to  rest  on  the  head  of  young  Ladislaus  ;  but  the  regency 
was  allotted  by  the  states  of  Hungary  to  a  native  warrior,  John 
Hunniades.J  This  hero  stood  in  the  breach  for  twelve  years 
against  the  Turkish  power,  frequently  defeated  but  uncon- 
quered  in  defeat.  If  the  renown  of  Hunniades  may  seem  exag- 


Sylvius  lays  this  perfidy  on  desultory  warfare.    This  is  the  apology 

Pcpe  Eugemus  IV.    Scnpsit  cardinal!,  made  for  him  by  ^Eneas  Sylvius     for- 

nullum  valere  fcedus,  <juod  se  wconsulto  tasse  rei  militans  pento  nulla  m  pugna 

cum  hostibus  rehgioms  percussum  es-  salus  visa,  et  salvare  ahquos  quam  om- 

set,   p    397.     Ihe  words  in  italics  are  nes  penre  maluit.    Poloni  acceptam  eo 

slipped  m   to  give  a  slight  pretext  for  prseho  cladem  Hunmadis  vecordiai  atque 

ipSXiSu.      **     w  if    t,-          *  ignavise  tradiderunt;    ipse  sua  concilia 

'5  g   *ir     *»  a  Wallachian,  of  a  spreta  conquestus  est     I  observe  that 

2Sb  rJ!S  Iv*    ?  \ri  ?         c£s?ged  £im  I11  the  wnters  uP°n  Hungarian  affairs 

with  cowardice  at  Warna.    (JBneas  Syl-  have  a  party  bias  one  way  or  other. 

22  «£o2?*'l  And  ??  Gfefks  imput?  S16  bes5  and  most  authentic  account  of 

*T»  j  ~          f  !?'  or  at  le?st  d?sertl°n  of  Hunniades  seems  to  be,  still  allowing 

fitS    PS>  at  f  °S%Va'  ^here  he  ?as  de'  tor  tMs  Partiality,  in  trie  chromcle  of 

feated   in   1448.     (Spondanus,   ad  ann.  John  Thwrocz,  who  lived  under  Mat- 

1448.)     Probably  he  was  one  of  those  thias.    Bonfinms,  an  Italian  compiler  of 

K  n%   f  7fT?rave  men  Wh°*  wh?  ^OT7  the  same  *&>  ^  amplified  this  orimnal 

£  wS'JSffirar;  11  three  decades  of 

acter   of  all    partisans   accustomed    to 


THE  MIDDLE  AGES  39 

gerated  by  the  partiality  of  writers  who  lived  under  the  reign 
of  his  son,  it  is  confirmed  by  more  unequivocal  evidence,  by  the 
dread  and  hatred  of  the  Turks,  whose  children  were  taught 
obedience  by  threatening  them  with  his  name,  and  by  the  def- 
erence of  a  jealous  aristocracy  to  a  man  of  no  distinguished 
birth.    He  surrendered  to  young  Ladislaus  a  trust  that  he  had 
exercised  with  perfect  fidelity ;  but  his  merit  was  too  great  to 
be  forgiven,  and  the  court  never  treated  him  with  cordiality. 
The  last  and  the  most  splendid  service  of  Hunniades  was  the 
relief  of  Belgrade   [A,D.  1456.]   That  strong  city  was  besieged 
by  Mahomet  II.  three  years  after  the  fall  of  Constantinople ;  its 
capture  would  have  laid  open  all  Hungary.     A  tumultuary 
army,  chiefly  collected  by  the  preaching  of  a  friar,  was  intrusted 
to  Hunniades :  he  penetrated  into  the  city,  and,  having  repulsed 
the  Turks  in  a  fortunate  sally  wherein  Mahomet  was  wounded, 
had  the  honor  of  compelling  him  to  raise  the  siege  in  confusion. 
The  relief  of  Belgrade  was  more  important  in  its  effect  than  in 
its  immediate  circumstances.    It  revived  the  spirits  of  Europe, 
which  had  been  appalled  by  the  unceasing  victories  of  the  in- 
fidels.   Mahomet  himself  seemed  to  acknowledge  the  impor- 
tance of  the  blow,  and  seldom  afterwards  attacked  the  Hunga- 
rians.  Hunniades  died  soon  after  this  achievement,  and  was 
followed  by  the  King  Ladislaus^    The  states  of  Hungary,  al- 
though the  Emperor  Frederic  III.  had  secured  to  himself,  as  he 
thought,  the  reversion,  were  justly  averse  to  his  character,  and 
to  Austrian  connections.    They  conferred  their  crown  on  Mat- 
thias Corvinus,  son  of  their  great  Hunniades.  [A.D.  1458.]  This 
prince  reigned  above  thirty  years  with  considerable  reputation, 
to  which  his  patronage  of  learned  men,  who  repaid  his  munifi- 
cence with  very  profuse  eulogies,  did  not  a  little  contributes 
Hungary,  at  least  in  his  time,  was  undoubtedly  formidable  to 
her  neighbors,  and  held  a  respectable  rank  as  an  independent 
power  in  the  republic  of  Europe. 

m  Ladislaus  died  at  Prague,  at  the  age  n  Spondanus    frequently    blames   the 

of  twenty-two,  with  great  suspicion  of  Italians,   who  received  pensions   from 

poison,    which  fell   chiefly   on   George  Matthias,  or  wrote  at  his  court,  for  ex- 

Podiebrad  and  the  Bohemians     ^Eneas  aggeratmg  his  virtues,  or  dissembling 

Sylvius  was  with  him  at  the  time,  and  his  misfortunes.    And  this  was  probably 

in   a   letter  written    immediately   after  the    case.      However,    Spondanus    has 

plainly  hints  this;  and  his  manner  car-  rather  contracted  a  prejudice  agamst  the 

ries  with  it  more  persuasion  than  if  he  Corvini.   A  treatise  of  Galeotus  Martius, 

had  spoken  out.    Epist.  324.    Mr.  Coxe,  an  Italian  litterateur,  De  dictis  et  factis 

however,  informs  us  that  the  Bohemian  Mathise,  though  it  often  notices  an  ordi- 

historians    have    fully    disproved    the  nary  saying  as  jocosfc  or  facete  dictum, 

charge,  gives  a  favorable  impression  of  Mat- 
thias's ability,  and  also  of  his  integrity. 


40  HALLAM 

The  kingdom  of  Burgundy  or  Aries  comprehended  the  whole 
mountainous  region  which  we  now  call  Switzerland.  It  was  ac- 
cordingly reunited  to  the  Germanic  empire  by  the  bequest  of 
Rodolph  along  with  the  rest  of  his  dominions.  A  numerous 
and  ancient  nobility,  vassals  one  to  another,  or  to  the  empire, 
divided  the  possession  with  ecclesiastical  lords  hardly  less 
powerful  than  themselves.  [A.D.  1032.]  Of  the  former  we  find 
the  Counts  of  Zahringen,  Kyburg,  Hapsburg,  and  Tokenburg 
most  conspicuous ;  of  the  latter,  the  bishop  of  Coire,  the  abbot 
of  St.  Gall,  and  abbess  of  Seckingen.  Every  variety  of  feudal 
rights  was  early  found  and  long  preserved  in  Helvetia ;  nor 
is  there  any  country  whose  history  better  illustrates  that  am- 
biguous relation,  half  property  and  half  dominion,  in  which  the 
territorial  aristocracy,  under  the  feudal  system,  stood  with  re- 
spect to  their  dependents.  In  the  twelfth  century  the  Swiss 
towns  rise  into  some  degree  of  importance.  Zurich  was  emi- 
nent for  commercial  activity,  and  seems  to  have  had  no  lord  but 
the  emperor.  Basle,  though  subject  to  its  bishop,  possessed  the 
usual  privileges  of  municipal  government.  Berne  and  Friburg, 
founded  only  in  that  century,  made  a  rapid  progress ;  and  the 
latter  was  raised,  along  with  Zurich,  by  Frederic  II.  in  1218,  to 
the  rank  of  a  free  imperial  city.  Several  changes  in  the  prin- 
cipal Helvetian  families  took  place  in  the  thirteenth  century, 
before  the  end  of  which  the  house  of  Hapsburg,  under  the 
politic  and  enterprising  Rodolph  and  his  son  Albert,  became 
possessed,  through  various  titles,  of  a  great  ascendency  in 
Switzerland.^ 

Of  these  titles  none  was  more  tempting  to  an  ambitious  chief 
than  that  of  advocate  to  a  convent.  That  specious  name  con- 
veyed with  it  a  kind  of  indefinite  guardianship,  and  right  of  in- 
terference, which  frequently  ended  in  reversing  the  conditions 
of  the  ecclesiastical  sovereign  and  its  vassal.  But  during  times 
of  feudal  anarchy  there  was  perhaps  no  other  means  to  secure 
the  rich  abbeys  from  absolute  spoliation ;  and  the  free  cities  in 
their  early  stage  sometimes  adopted  the  same  policy.  Among 
other  advocacies,  Albert  obtained  that  of  some  convents  which 
had  estates  in  the  valleys  of  Schweitz  and  Underwald.  These 
sequestered  regions  in  the  heart  of  the  Alps  had  been  for  ages 
the  habitation  of  a  pastoral  race,  so  happily  forgotten,  or  so 
inaccessible  in  their  fastnesses,  as  to  have  acquired  a  virtual 

o  Planta's  History  of  the  Helvetic  Confederacy,  vol,  i.  chaps,  2-5, 


THE   MIDDLE  AGES  4I 

independence,  regulating  their  own  affairs  in  their  general  as- 
sembly with  a  perfect  equality,  though  they  acknowledged  the 
sovereignty  of  the  empire./'  The  people  of  Schweitz  had  made 
Rodolph  their  advocate.  They  distrusted  Albert,  whose  suc- 
cession to  his  father's  inheritance  spread  alarm  through  Hel- 
vetia. It  soon  appeared  that  their  suspicions  were  well  founded. 
Besides  the  local  rights  which  his  ecclesiastical  advocacies  gave 
him  over  part  of  the  forest  cantons,  he  pretended,  after  his  elec- 
tion to  the  empire,  to  send  imperial  bailiffs  into  th'eir  valleys,  as 
administrators  of  criminal  justice.  Their  oppression  of  a  people 
unused  to  control,  whom  it  was  plainly  the  design  of  Albert  to 
reduce  into  servitude,  excited  those  generous  emotions  of  re- 
sentment which  a  brave  and  simple  race  have  seldom  the  discre- 
tion to  repress.  Three  men,  Stauffacher  of  Schweitz,  Furst  of 
Uri,  Melchthal  of  Underwald,  each  with  ten  chosen  associates, 
met  by  night  in  a  sequestered  field,  and  swore  to  assert  the  com- 
mon cause  of  their  liberties,  without  bloodshed  or  injury  to  the 
rights  of  others.  Their  success  was  answerable  to  the  justice  of 
their  undertaking;  the  three  cantons  unanimously  took  up 
arms,  and  expelled  their  oppressors  without  a  contest.  Albert's 
assassination  by  his  nephew,  which  followed  soon  afterwards, 
fortunately  gave  them  leisure  to  consolidate  their  unions  [A.D. 
1308.]  He  was  succeeded  in  the  empire  by  Henry  VII.,  jealous 
of  the  Austrian  family,  and  not  at  all  displeased  at  proceedings 
which  had  been  accompanied  with  so  little  violence  or  disre- 
spect for  the  empire.  But  Leopold  Duke  of  Austria,  resolved 
to  humble  the  peasants  who  had  rebelled  against  his  father,  led 
a  considerable  force  into  their  country.  The  Swiss,  commend- 
ing themselves  to  Heaven,  and  determined  rather  to  perish 
than  undergo  that  yoke  a  second  time,  though  ignorant  of 
regular  discipline,  and  unprovided  with  defensive  armor,  utterly 
discomfited  the  assailants  at  Morgartenr  [A.D.  1315.] 

The  great  victory,  the  Marathon  of  Switzerland,  confirmed 
the  independence  of  the  three  original  cantons.  After  some 
years,  Lucerne,  continguous  in  situation  and  alike  in  interests, 
was  incorporated  into  their  confederacy.  It  was  far  more  ma- 
terially enlarged  about  the  middle  of  the  fourteenth  century, 
by  the  accession  of  Zurich,  Claris,  Zug,  and  Berne,  all  which 
took  place  within  two  years.  The  first  and  last  of  these  cities 

p  Planta's    History   of    the    Helvetic          q  Ibid.,  c.  6. 
Confederacy,  vol.  i*  c.  4.  r  Ibid.?  c.  7, 


42  HALLAM 

had  already  been  engaged  in  frequent  wars  with  the  Helvetian 
nobility,  and  their  internal  polity  was  altogether  republican  s 
They  acquired,  not  independence,  which  they  already  enjoyed, 
but  additional  security,  by  this  union  with  the  Swiss,  properly 
so  called,  who  in  deference  to  their  power  and  reputation  ceded 
to  them  the  first  rank  in  the  league.  The  eight  already  enumer- 
ated are  called  the  ancient  cantons,  and  continued,  till  the  late 
reformation  of  the  Helvetic  system,  to  possess  several  distinc- 
tive privileges  and  even  rights  of  sovereignty  over  subject  ter- 
ritories, in  which  the  five  cantons  of  Friburg,  Soleure,  Basle, 
Schaffhausen,  and  Appenzell  did  not  participate.  From  this 
time  the  united  cantons,  but  especially  those  of  Berne  and 
Zurich,  began  to  extend  their  territories  at  the  expense  of  the 
rural  nobility.  The  same  contest  between  these  parties,  with 
the  same  termination,  which  we  know  generally  to  have  taken 
place  in  Lombardy  during  the  eleventh  and  twelfth  centuries, 
may  be  traced  with  more  minuteness  in  the  annals  of  Switzer- 
land.* Like  the  Lombards,  too,  the  Helvetic  cities  acted  with 
policy  and  moderation  towards  the  nobles  whom  they  over- 
came, admitting  them  to  the  franchises  of  their  community  as 
co-burghers  (a  privilege  which  virtually  implied  a  defensive 
alliance  against  any  assailant),  and  uniformly  respecting  the 
legal  rights  of  property.  Many  feudal  superiorities  they  ob- 
tained from  the  owners  in  a  more  peaceable  manner,  through 
purchase  or  mortgage.  Thus  the  house  of  Austria,  to  which  the 
extensive  domains  of  the  counts  of  Kyburg  had  developed, 
abandoning,  after  repeated  defeats,  its  hopes  of  subduing  the 
forest  cantons,  alienated  a  great  part  of  its  possessions  to  Zurich 
and  Berne."  And  the  last  remnant  of  their  ancient  Helvetic 
territories  in  Argovia  was  wrested  in  1417  from  Frederic  Count 
of  Tyrol,  who,  imprudently  supporting  Pope  John  XXIII. 
against  the  council  of  Constance,  had  been  put  to  the  ban  of  the 
empire.  These  conquests  Berne  could  not  be  induced  to  re- 
store, and  thus  completed  the  independence  of  the  confederate 
republics.?  The  other  free  cities,  though  not  yet  incorporated, 
and  the  few  remaining  nobles,  whether  lay  or  spiritual,  of  whom 
the  abbot  of  St.  Gall  was  the  principal,  entered  into  separate 
leagues  with  different  cantons.  Switzerland  became,  therefore, 
in  the  first  part  of  the  fifteenth  century,  a  free  country,  acknowl- 

sPIanta,  cc.  8,  9.  «Id.,  c  n. 

t  Id.,  c.   10.  v  1(J.,  vol,  11.  c,  it 


THE   MIDDLE  AGES  43 

edged  as  such  by  neighboring  states,  and  subject  to  no  external 
control,  though  still  comprehended  within  the  nominal  sover- 
eignty of  the  empire. 

The  affairs  of  Switzerland  occupy  a  very  small  space  in  the 
great  chart  of  European  history.  But  in  some  respects  they  are 
more  interesting  than  the  revolutions  of  mighty  kingdoms. 
Nowhere  besides  do  we  find  so  many  titles  to  our  sympathy,  or 
the  union  of  so  much  virtue  with  so  complete  success.  In  the 
Italian  republics  a  more  splendid  temple  may  seem  to  have 
been  erected  to  liberty ;  but,  as  we  approach,  the  serpents  of 
faction  hiss  around  her  altar,  and  the  form  of  tyranny  flits 
among  the  distant  shadows  behind  the  shrine.  Switzerland, 
not  absolutely  blameless  (for  what  republic  has  been  so  ?),  but 
comparatively  exempt  from  turbulence,  usurpation,  and  injus- 
tice, has  well  deserved  to  employ  the  native  pen  of  a  historian 
accounted  the  most  eloquent  of  the  last  age.w  Other  nations 
displayed  an  insuperable  resolution  in  the  defence  of  walled 
towns ;  but  the  steadiness  of  the  Swiss  in  the  field  of  battle  was 
without  a  parallel,  unless  we  recall  the  memory  of  Lacedasmon. 
It  was  even  established  as  a  law,  that  whoever  returned  from 
battle  after  a  defeat  should  forfeit  his  life  by  the  hands  of  the 
executioner.  Sixteen  hundred  men,  who  had  been  sent  to  op- 
pose a  predatory  invasion  of  the  French  in  1444,  though  they 
might  have  retreated  without  loss,  determined  rather  to  perish 
on  the  spot,  and  fell  amidst  a  far  greater  heap  of  the  hostile 
slain.*  At  the  famous  battle  of  Sempach  in  1385,  the  last  which 
Austria  presumed  to  try  against  the  forest  cantons,  the  enemy's 
knights,  dismounted  from  their  horses,  presented  an  impreg- 
nable barrier  of  lances,  which  disconcerted  the  Swiss;  till 
Winkelriecl,  a  gentleman  of  Underwald,  commending  his  wife 
and  children  to  his  countrymen,  threw  himself  upon  the  op- 
posite ranks,  and  collecting  as  many  lances  as  he  could  grasp, 
forced  a  passage  for  his  followers  by  burying  them  in  his 
bosom.y 

wl  am  unacquainted  with  Mullet's  narration  with  so  much  circumstantial 

history  in  the  original  language;    but,  detail,  he  has  been  remarkably  fortunate 

presuming  the  first  volume  of  Mr.  Plan-  in  his  authorities.    No  man  could  write 

ta's  History  of  the  Helvetic  Confederacy  the  annals  of  England  or  France  in  the 

to  be  a  free  translation  or  abridgment  of  fourteenth   century  with   such   particu- 

it,  I  can  well  conceive  that  it  deserves  lanty,  if  he  was  scrupulous  not  to  fill  up 

the  encomiums  of  Madame  de  Stael  and  the  meagre  sketch  of  chroniclers  from 

other  foreign  critics.    It  is  very  rare  to  the  stores  of  his  invention.    The  strik- 

meet  with  such  picturesque  and  lively  ing  scenery  of  Switzerland,  and  Mul- 

delineation  in  a  modern  historian  of  dis-  ler's  exact  acquaintance  with  it,  have 

tant  times.    But  I  must  observe  that,  if  given  him  another  advantage  as  a  ptiinter 

the  authentic  chronicles  of  Switzerland  of  history. 
have  enabled  MuUer  to  embellish  his  x  Planta,  vol.  ii.  c.  2. 

y  Id-,  vol.  if  c.  *Q, 


44  HALLAM 

The  burghers  and  peasants  of  Switzerland,  ill  provided  with 
cavalry,  and  better  able  to  dispense  with  it  than  the  natives  of 
champaign  countries,  may  be  deemed  the  principal  restorers  of 
the  Greek  and  Roman  tactics,  which  place  the  strength  of 
armies  in  a  steady  mass  of  infantry.  Besides  their  splendid 
victories  over  the  dukes  of  Austria  and  their  own  neighboring 
nobility,  they  had  repulsed,  in  the  year  1375,  one  of  those  pred- 
atory bodies  of  troops,  the  scourge  of  Europe  in  that  age,  and 
to  whose  licentiousness  kingdoms  and  free  states  yielded  alike 
a  passive  submission.  They  gave  the  dauphin,  afterwards  Louis 
XL,  who  entered  their  country  in  1444  with  a  similar  body  of 
ruffians,  called  Armagnacs,  the  disbanded  mercenaries  of  the 
English  war,  sufficient  reason  to  desist  from  his  invasion  and 
to  respect  their  valor.  That  able  prince  formed  indeed  so  high 
a  notion  of  the  Swiss,  that  he  sedulously  cultivated  their  alli- 
ance during  the  rest  of  his  life.  He  was  made  abundantly  sen- 
sible of  the  wisdom  of  this  policy  when  he  saw  his  greatest  en- 
emy, the  Duke  of  Burgundy,  routed  at  Granson  and  Morat, 
and  his  affairs  irrecoverably  ruined,  by  these  hardy  repub- 
licans. The  ensuing  age  is  the  most  conspicuous,  though  not 
the  most  essentially  glorious,  in  the  history  of  Switzerland. 
Courted  for  the  excellence  of  their  troops  by  the  rival  sover- 
eigns of  Europe,  and  themselves  too  sensible  both  to  ambitious 
schemes  of  dominion  and  to  the  thirst  of  money,  the  united  can- 
tons came  to  play  a  very  prominent  part  in  the  wars  of  Lom- 
bardy,  with  great  military  renown,  but  not  without  some  im- 
peachment of  that  sterling  probity  which  had  distinguished 
their  earlier  efforts  for  independence.  These  events,  however, 
do  not  fall  within  my  limits ;  but  the  last  year  of  the  fifteenth 
century  is  a  leading  epoch,  with  which  I  shall  close  this  sketch. 
Though  the  house  of  Austria  had  ceased  to  menace  the  liber- 
ties of  Helvetia,  and  had  even  been  for  many  years  its  ally,  the 
Emperor  Maximilian,  aware  of  the  important  service  he  might 
derive  from  the  cantons  in  his  projects  upon  Italy,  as  well  as  of 
the  disadvantage  he  sustained  by  their  partiality  to  French  in- 
terest, endeavored  to  revive  the  unextinguished  supremacy  of 
the  empire.  That  supremacy  had  just  been  restored  in  Ger- 
many by  the  establishment  of  the  Imperial  Chamber,  and  of  a 
regular  pecuniary  contribution  for  its  support,  as  well  as  for 
other  purposes,  in  the  diet  of  Worms.  The  Helvetic  cantons 
summoned  to  yield  obedience  tp  these  imperial  laws ;  an 


THE   MIDDLE  AGES  45 

innovation,  for  such  the  revival  of  obsolete  prerogatives  must 
be  considered,  exceedingly  hostile  to  their  republican  inde- 
pendence, and  involving  consequences  not  less  material  in  their 
eyes,  the  abandonment  of  a  line  of  policy  which  tended  to  en- 
rich, if  not  to  aggrandize  them.  Their  refusal  to  comply 
brought  on  a  war,  wherein  the  Tyrolese  subjects  of  Maximilian, 
and  the  Suabian  league,  a  confederacy  of  cities  in  that  province 
lately  formed  under  the  emperor's  auspices,  were  principally 
engaged  against  the  Swiss.  But  the  success  of  the  latter  was" 
decisive;  and  after  a  terrible  devastation  of  the  frontiers  of 
Germany,  peace  was  concluded  upon  terms  very  honorable  for 
Switzerland.  The  cantons  were  declared  free  from  the  juris- 
diction of  the  Imperial  Chamber,  and  from  all  contributions 
imposed  by  the  diet.  [A.D.  1500.]  Their  right  to  enter  into 
foreign  alliance,  even  hostile  to  the  empire,  if  it  was  not  ex- 
pressly recognized,  continued  unimpaired  in  practice ;  nor  am 
I  aware  that  they  were  at  any  time  afterwards  supposed  to  in- 
cur the  crime  of  rebellion  by  such  proceedings.  Though,  per- 
haps, in  the  strictest  letter  of  public  law,  the  Swiss  cantons  were 
not  absolutely  released  from  their  subjection  to  the  empire  un- 
til the  treaty  of  Westphalia,  their  real  sovereignty  must  be 
dated  by  an  historian  from  the  year  when  every  prerogative 
which  a  government  can  exercise  was  finally  abandoned^ 

a  Planta,  vol.  ii.  c.  4. 


BOOK  VI. 
HISTORY  OF  THE   GREEKS  AND  SARACENS. 


BOOK  VI. 

HISTORY   OF  THE   GREEKS  AND   SARACENS 

Rise  of  Mohammedism — Causes  of  its  Success — Progress  of  Saracen 
Arms — Greek  Empire — Decline  of  the  Khalifs — The  Greeks  recover 
Part  of  their  Losses — The  Turks — The  Crusades — Capture  of  Con- 
stantinople by  the  Latins — Its  Recovery  by  the  Greeks — The  Moguls 
— The  Ottomans — Danger  at  Constantinople — Timur — Capture  of 
Constantinople  by  Mahomet  II. — Alarm  of  Europe. 

The  difficulty  which  occurs  to  us  in  endeavoring  to  fix  a 
natural  commencement  of  modern  history  even  in  the  Western 
countries  of  Europe  is  much  enhanced  when  we  direct  our 
attention  to  the  Eastern  empire.  In  tracing  the  long  series  of 
the  Byzantine  annals  we  never  lose  sight  of  antiquity;  the 
Greek  language,  the  Roman  name,  the  titles,  the  laws,  all  the 
shadowy  circumstances  of  ancient  greatness,  attend  us  through- 
out the  progress  from  the  first  to  the  last  of  the  Constantines ; 
and  it  is  only  when  we  observe  the  external  condition  and  rela- 
tions of  their  empire,  that  we  perceive  ourselves  to  be  embarked 
in  a  new  sea,  and  are  compelled  to  deduce,  from  points  of  bear- 
ing to  the  history  of  other  nations,  a  line  of  separation  which 
the  domestic  revolutions  of  Constantinople  would  not  satisfac- 
torily afford.  The  appearance  of  Mohammed,  and  the  con- 
quests of  his  disciples,  present  an  epoch  in  the  history  of  Asia 
still  more  important  and  more  definite  than  the  subversion  of 
the  Roman  empire  in  Europe;  and  hence  the  boundary-line 
between  the  ancient  and  modern  divisions  of  Byzantine  history 
will  intersect  the  reign  of  Heraclius.  That  prince  may  be  said 
to  have  stood  on  the  verge  of  both  hemispheres  of  time,  whose 
youth  was  crowned  with  the  last  victories  over  the  successors 
of  Artaxerxes,  and  whose  age  was  clouded  by  the  first  calami- 
ties of  Mohammedan  invasion. 

Of  all  the  revolutions  which  have  had  a  permanent  influ- 
ence upon  the  civil  history  of  mankind,  none  could  so  little  be 
VOL.  II.— 4  49 


So  HALLAM 

anticipated  by  human  prudence  as  that  effected  by  the  religion 
of  Arabia.  As  the  seeds  of  invisible  disease  grow  up  sometimes 
in  silence  to  maturity,  till  they  manifest  themselves  hopeless  and 
irresistible,  the  gradual  propagation  of  a  new  faith  in  a  bar- 
barous country  beyond  the  limits  of  the  empire  was  hardly 
known  perhaps,  and  certainly  disregarded,  in  the  court  of  Con- 
stantinople. Arabia,  in  the  age  of  Mohammed,  was  divided  into 
many  small  states,  most  of  which,  however,  seem  to  have  looked 
up  to  Mecca  as  the  capital  of  their  nation  and  the  chief  seat  of 
their  religious  worship.  The  capture  of  that  city  accordingly, 
and  subjugation  of  its  powerful  and  numerous  aristocracy, 
readily  drew  after  it  the  submission  of  the  minor  tribes,  who 
transferred  to  the  conqueror  the  reverence  they  were  used  to 
show  to  those  he  had  subdued.  If  we  consider  Mohammed 
only  as  a  military  usurper,  there  is  nothing  more  explicable 
or  more  analogous,  especially  to  the  course  of  oriental  history, 
than  his  success.  But  as  the  author  of  a  religious  imposture, 
upon  which,  though  avowedly  unattested  by  miraculous  pow- 
ers, and  though  originally  discountenanced  by  the  civil  magis- 
trate, he  had  the  boldness  to  found  a  scheme  of  universal  do- 
minion, which  his  followers  were  half  enabled  to  realize,  it  is 
a  curious  speculation  by  what  means  he  could  inspire  so  sincere, 
so  ardent,  so  energetic,  and  so  permanent  a  belief. 

A  full  explanation  of  the  causes  which  contributed  to  the 
progress  of  Mohammedism  is  not  perhaps,  at  present,  attain- 
able by  those  most  conversant  with  this  department  of  litera- 
ture a  But  we  may  point  out  several  of  leading  importance :  in 
the  first  place,  those  just  and  elevated  notions  of  the  divine 
mature  and  of  moral  duties,  the  gold-ore  that  pervades  the  dross 
Df  the  Koran,  which  were  calculated  to  strike  a  serious  and  re- 
flecting people,  already  perhaps  disinclined,  by  intermixture 
with  their  Jewish  and  Christian  fellow-citizens,  to  the  supersti- 
tions of  their  ancient  idolatry ;  &  next,  the  artful  incorporation 


a  We  are  very  destitute  of  satisfactory  character  of  the  prophet,  except  as  it  is 

materials  for  the  history  of  Mohammed  deducible  from  the  Koran, 

himself.    Abulfeda,  the  most  judicious  b  The  very  curious  romance  of  Antar, 

of  his  biographers,  lived  in  the  four-  written,  perhaps,  before  the  appearance 

teenth  century,  when  it  must  have  been  of  Mohammed,  seems  to  render  it  prob- 

morally  impossible  to  discriminate  the  able  that,  however  idolatry,  as  we  are 

truth  amidst  the  torrent  of  fabulous  tra-  told   by   Sale,   might  prevail   in    some 

dition       Al    Jannabi,    whom    Gagnier  'parts  of  Arabia,  yet  the  genuine  religion 

translated,  is  a  mere  legend  writer;    it  of  the  descendants  of  Ishmael  was  a  be- 

would   be   as   rational   to   rely   on   the  lief  in  the  unity  of  God  as  strict  as  is 

Acta  Sanctorum  as  his  romance.    It  is  laid  down  in  the  Koran  itself,  and  ao 

therefore  difficult  to  ascertain  the  real  compamed  by  the  same  antipathy,  partly 


THE   MIDDLE  AGES  Si 

of  tenets,  usages,  and  traditions  from  the  various  religions  that 
existed  in  Arabia  ;c  and  thirdly,  the  extensive  application  of 
the  precepts  in  the  Koran,  a  book  confessedly  written  with 
much  elegance  and  purity,  to  all  legal  transactions  and  all  the 
business  of  life.  It  may  be  expected  that  I  should  add  to  these 
what  is  commonly  considered  as  a  distinguishing  mark  of  Mo- 
hammedism,  its  indulgence  to  voluptuousness.  But  this  ap- 
pears to  be  greatly  exaggerated.  Although  the  character  of 
its  founder  may  have  been  tainted  by  sensuality  as  well  as 
ferociousness,  I  do  not  think  that  he  relied  upon  inducements 
of  the  former  kind  for  the  diffusion  of  his  system.  We  are  not 
to  judge  of  this  by  rules  of  Christian  purity,  or  of  European 
practice.  If  polygamy  was  a  prevailing  usage  in  Arabia,  as  is 
not  questioned,  its  permission  gave  no  additional  license  to  the 
proselytes  of  Mohammed,  who  will  be  found  rather  to  have 
narrowed  the  unbounded  liberty  of  oriental  manners  in  this  re- 
spect ;  while  his  decided  condemnation  of  adultery,  and  of  in- 
cestuous connections,  so  frequent  among  barbarous  nations, 
does  not  argue  a  very  lax  and  accommodating  morality.  A 
devout  Mussulman  exhibits  much  more  of  the  Stoical  than  the 
Epicurean  character.  Nor  can  any  one  read  the  Koran  without 
being  sensible  that  it  breathes  an  austere  and  scrupulous  spirit. 
And,  in  fact,  the  founder  of  a  new  religion  or  sect  is  little  likely 
to  obtain  permanent  success  by  indulging  the  vices  and  luxu- 
ries of  mankind.  I  should  rather  be  disposed  to  reckon  the 
severity  of  Mohammed's  discipline  among  the  causes  of  its 
influence.  Precepts  of  ritual  observance,  being  always  defi- 
nite and  unequivocal,  are  less  likely  to  be  neglected,  after 
their  obligation  has  been  acknowledged,  than  those  of  moral 
virtue. 

religious,    partly   natural,    towards    the  stance  from  memory)  are  to  be  found 

Fire-worshippers  which  Mohammed  in-  in  the   Koran,   but   especially   that  of 

culcated.    This  corroborates  what  I  had  Anamsm      No   one   who  knows  what 

said  in  the  text  before  the  publication  Ananism  is,  and  what  Mohammedism 

of  that  work.  is,  could  possibly  fall  into  so  strange  an 

c  I   am   very   much   disposed  to   be-  error.     The  misfortune  has  been,  that 

heve,  notwithstanding  what  seems  to  be  the  learned  writer,  while  accumulating 

the  general  opinion,  that   Mohammed  a  mass  of  reading  upon  this  part  of  his 

had  never  read  any  part  of  the  New  subject,    neglected    what    should   have 

Testament      His   knowledge   of   Chris-  been  the  nucleus  of  the  whole,  a  perusal 

tianity   appears   to   be  wholly   derived  of  the  single  book  which  contains  the 

from  the  apocryphal  gospels  and  sim-  doctrines  of  the  Arabian  impostor.  f  In 

ilar  works.    He  admitted  the  miraculous  this  strange  chimera  about  the  Anan- 

conception  and  prophetic  character  of  ism   of   Mohammed,  he  has  been  led 

Jesus,  but  not  his  divinity  or  pre-exist-  away  by  a  misplaced  .trust  m  Whitaker; 

ence.    Hence  it  is  rather  surprising  to  a  writer  almost  invariably  in  the  wrong, 

read,  in  a  popular  book  of  sermons  by  a  and  whose  bad  reasoning  upon  all  the 

living  prelate,  that  all  the  heresies  of  points  of  historical  criticism  which  he 

the  Christian  church  (I  quote  the  sub-  attempted  to  discuss  is  quite  notorious. 


52  H  ALLAH 

Thus  the  long  fasting,  the  pilgrimages,  the  regular  prayers  and 
ablutions,  the  constant  almsgiving,  the  abstinence  from  stimu- 
lating liquors,  enjoined  by  the  Koran,  created  a  visible  standard 
of  practice  among  its  followers,  and  preserved  a  continual  recol- 
lection of  their  law. 

But  the  prevalence  of  Islam  in  the  lifetime  of  its  prophet, 
and  during  the  first  ages  of  its  existence,  was  chiefly  owing 
to  the  spirit  of  martial  energy  that  he  infused  into  it.  The 
religion  of  Mohammed  is  as  essentially  a  military  system  as 
the  institution  of  chivalry  in  the  west  of  Europe.  The  peo- 
ple of  Arabia,  a  race  of  strong  passions  and  sanguinary  temper, 
inured  to  habits  of  pillage  and  murder,  found  in  the  law  of 
their  native  prophet,  not  a  license,  but  a  command,  to  desolate 
the  world,  and  the  promise  of  all  that  their  glowing  imagina- 
tions could  anticipate  of  Paradise  annexed  to  all  in  which  they 
most  delighted  upon  earth.  It  is  difficult  for  us  in  the  calm- 
ness of  our  closets  to  conceive  that  feverish  intensity  of  excite- 
ment to  which  man  may  be  wrought,  when  the  animal  and  in- 
tellectual energies  of  his  nature  converge  to  a  point,  and  the 
buoyancy  of  strength  and  courage  reciprocates  the  influence  of 
moral  sentiment  or  religious  hope.  The  effect  of  this  union  I 
have  formerly  remarked  in  the  Crusades ;  a  phenomenon  per- 
fectly analogous  to  the  early  history  of  the  Saracens.  In  each, 
one  hardly  knows  whether  most  to  admire  the  prodigious  ex- 
ertions of  heroism,  or  to  revolt  from  the  ferocious  bigotry  that 
attended  them.  But  the  Crusades  were  a  temporary  effort,  not 
thoroughly  congenial  to  the  spirit  of  Christendom,  which,  even 
in  the  darkest  and  most  superstitious  ages,  was  not  susceptible 
of  the  solitary  and  overruling  fanaticism  of  the  Moslem.  They 
needed  no  excitement  from  pontiffs  and  preachers  to  achieve 
the  work  to  which  they  were  called ;  the  precept  was  in  their 
law,  the  principle  was  in  their  hearts,  the  assurance  of  success 
was  in  their  swords.  "  0  prophet,"  exclaimed  All,  when  Mo- 
hammed, in  the  first  years  of  his  mission,  sought  among  the 
scanty  and  hesitating  assembly  of  his  friends  a  vizir  and  lieu- 
tenant in  command,  "  I  am  the  man ;  whoever  rises  against 
thee,  I  will  dash  out  his  teeth,  tear  out  his  eyes,  break  his  legs, 
rip  up  his  belly.  0  prophet,  I  will  be  thy  vizir  over  them."  d 
These  words  of  Mohammed's  early  and  illustrious  disciple  arq, 
as  it  were,  a  text,  upon  which  the  commentary  expands  into  the 

d  Gibbon,  vol.  ix.  p.  284. 


THE   MIDDLE  AGES 


S3 


whole  Saracenic  history.  They  contain  the  vital  essence  of  his 
religion,  implicit  faith  and  ferocious  energy.  Death,  slavery, 
tribute  to  unbelievers,  were  the  glad  tidings  of  the  Arabian 
prophet.  To  the  idolaters,  indeed,  or  those  who  acknowledged 
no  special  revelation,  one  alternative  only  was  proposed,  con- 
version or  the  sword.  The  people  of  the  Book,  as  they  are 
termed  in  the  Koran,  or  four  sects  of  Christians,  Jews,  Mag- 
ians,  and  Sabians,  were  permitted  to  redeem  their  adherence  to 
their  ancient  law  by  the  payment  of  tribute,  and  other  marks  of 
humiliation  and  servitude.  But  the  limits  which  Mohammedan 
intolerance  had  prescribed  to  itself  were  seldom  transgressed ; 
the  word  pledged  to  unbelievers  was  seldom  forfeited ;  and  with 
all  their  insolence  and  oppression,  the  Moslem  conquerors  were 
mild  and  liberal  in  comparison  with  those  who  obeyed  the 
pontiffs  of  Rome  or  Constantinople. 

At  the  death  of  Mohammed  in  632  his  temporal  and  religious 
sovereignty  embraced,  and  was  limited  by,  the  Arabian  penin- 
sula. The  Roman  and  Persian  empires,  engaged  in  tedious  and 
indecisive  hostility  upon  the  rivers  of  Mesopotamia  and  the 
Armenian  mountains,  were  viewed  by  the  ambitious  fanatics 
of  his  creed  as  their  quarry.  In  the  very  first  year  of  Moham- 
med's immediate  successor,  Abubeker,  each  of  these  mighty 
empires  was  invaded.  The  latter  opposed  but  a  short  resistance. 
The  crumbling  fabric  of  eastern  despotism  is  never  secure 
against  rapid  and  total  subversion ;  a  few  victories,  a  few  sieges, 
carried  the  Arabian  arms  from  the  Tigris  to  the  Oxus,  and 
overthrew,  with  the  Sassanian  dynasty,  the  ancient  and  famous 
religion  they  had  professed.  Seven  years  of  active  and  unceas- 
ing warfare  sufficed  to  subjugate  the  rich  province  of  Syria, 
though  defended  by  numerous  armies  and  fortified  cities  [A.D. 
632-639]  ;  and  the  Khalif  Omar  had  scarcely  returned  thanks 
for  the  accomplishment  of  this  conquest,  when  Amrou,  his 
lieutenant,  announced  to  him  the  entire  reduction  of  Egypt. 
After  some  interval  the  Saracens  won  their  way  along  the  coast 
of  Africa  as  far  as  the  Pillars  of  Hercules,  and  a  third  province 
was  irretrievably  torn  from  the  Greek  empire.  [A.D.  647-698.] 
These  western  conquests  introduced  them  to  fresh  enemies, 
and  ushered  in  more  splendid  successes ;  encouraged  by  the 
disunion  of  the  Visigoths,  and  perhaps  invited  by  treachery, 
Musa,  the  general  of  a  master  who  sat  beyond  the  opposite  ex- 
tremity of  the  Mediterranean  Sea,  passed  over  into  Spain,  and 


54  HALLAM 

within  about  two  years  the  name  of  Mohammed  was  invoked 
tinder  the  Pyrenees.*  [A.D.  710.] 

These  conquests,  which  astonish  the  careless  and  superficial, 
are  less  perplexing  to  a  calm  inquirer  than  their  cessation  ;  the 
loss  of  half  the  Roman  empire,  than  the  preservation  of  the  rest. 
A  glance  from  Medina  to  Constantinople  in  the  middle  of  the 
seventh  century  would  probably  have  induced  an  indifferent 
spectator,  if  such  a  being  may  be  imagined,  to  anticipate  by 
eight  hundred  years  the  establishment  of  a  Mohammedan  do- 
minion upon  the  shores  of  the  Hellespont.  The  fame  of 
Heraclius  had  withered  in  the  Syrian  war;  and  his  successors 
appeared  as  incapable  to  resist,  as  they  were  unworthy  to  gov- 
ern. Their  despotism,  unchecked  by  law,  was  often  punished 
by  successful  rebellion  ;  but  not  a  whisper  of  civil  liberty  was 
ever  heard,  and  the  vicissitudes  of  servitude  and  anarchy  con- 
summated the  moral  degeneracy  of  the  nation.  Less  ignorant 
than  the  western  barbarians,  the  Greeks  abused  their  ingenuity 
in  theological  controversies,  those  especially  which  related  to 
the  nature  and  incarnation  of  our  Saviour;  wherein  the  dis- 
putants, as  is  usual,  became  more  positive  and  rancorous  as 
their  creed  receded  from  the  possibility  of  human  apprehension. 
Nor  were  these  confined  to  the  clergy,  who  had  not,  in  the  East, 
obtained  the  prerogative  of  guiding  the  national  faith  ;  the  sov- 
ereigns sided  alternately  with  opposing  factions;  Heraclius 
was  not  too  brave,  nor  Theodora  too  infamous,  for  discussions 
of  theology  ;  and  the  dissenters  from  an  imperial  decision  were 
involved  in  the  double  proscription  of  treason  and  heresy.  But 
the  persecutors  of  their  opponents  at  home  pretended  to  cow- 
ardly scrupulousness  in  the  field  ;  nor  was  the  Greek  church 
ashamed  to  require  the  lustration  of  a  canonical  penance  from 
the  soldier  who  shed  the  blood  of  his  enemies  in  a  national  war. 

But  this  depraved  people  were  preserved  from  destruction 
by  the  vices  of  their  enemies,  still  more  than  by  some  intrinsic 
resources  which  they  yet  possessed.  A  rapid  degeneracy  en- 
feebled the  victorious  Moslems  in  their  career.  That  irresistible 
enthusiasm,  that  earnest  and  disinterested  zeal  of  the  compan- 

e  Ockley's  History  of  tlie  Saracens;  On  the  contrary,  it  may  be  laid  down  as 

Cardonne,  Revolutions  de  1'Afnqne  et  a  pretty  general  rule,  that  c^rclms^nt^ai 

woriL    P  ^l    The   ^^i  of  ,  thes?  '&»  whlcS  enhances  the  credibility  of  a 

works  is  well  known  and  justly  admired  witness,  diminishes  that  of  an  historian 

lor  its  simplicity  and  picturesque  de-  remote  in  time  or  situation.    And  I  ob- 

tails     Scarcely  any  narrative  has  ever  serve  that   Reisie,   in   his   preface   to 


eise,   in     is   preace   to 

Ho±n  "ftTft  thVf  thf  deat,h  °f  AW*  speaks  °f  Wakldl  ^om  whom 
±lossein.  But  these  do  not  tend  to  Ockley's  book  is  but  a  translation,  as  a 
render  it  more  deserving  of  confidence.  mere  fabulist. 


THE   MIDDLE  AGES  55 

ions  of  Mohammed,  was  in  a  great  measure  lost,  even  before 
the  first  generation  had  passed  away.  In  the  fruitful  valleys  of 
Damascus  and  Bassora  the  Arabs  of  the  desert  forgot  their 
abstemious  habits.  Rich  from  the  tributes  of  an  enslaved  peo- 
ple, the  Mohammedan  sovereigns  knew  no  employment  of 
riches  but  in  sensual  luxury,  and  paid  the  price  of  voluptuous 
indulgence  in  the  relaxation  of  their  strength  and  energy.  Un- 
der the  reign  of  Moawiah,  the  fifth  khalif,  an  hereditary  succes- 
sion was  substituted  for  the  free  choice  of  the  faithful,  by  which 
the  first  representatives  of  the  prophet  had  been  elevated  to 
power ;  and  this  regulation,  necessary  as  it  plainly  was  to  avert 
in  some  degree  the  dangers  of  schism  and  civil  war,  exposed 
the  kingdom  to  the  certainty  of  being  often  governed  by  feeble 
tyrants.  But  no  regulation  could  be  more  than  a  temporary 
preservative  against  civil  war.  The  dissensions  which  still 
separate  and  render  hostile  the  followers  of  Mohammed  may 
be  traced  to  the  first  events  that  ensued  upon  his  death,  to  the 
rejection  of  his  son-in-law  Ali  by  the  electors  of  Medina.  Two 
reigns,  those  of  Abubeker  and  Omar,  passed  in  external  glory 
and  domestic  reverence ;  but  the  old  age  of  Othman  was  weak 
and  imprudent,  and  the  conspirators  against  him  established 
the  first  among  a  hundred  precedents  of  rebellion  and  regicide. 
Ali  was  now  chosen,  but  a  strong  faction  disputed  his  right  ; 
and  the  Saracen  empire  was,  for  many  years,  distracted  with 
civil  war,  among  competitors  who  appealed,  in  reality,  to  no 
other  decision  than  that  of  the  sword.  The  family  of  Ommiyah 
succeeded  at  last  in  establishing  an  unresisted,  if  not  an  un- 
doubted, title.  But  rebellions  were  perpetually  afterwards 
breaking  out  in  that  vast  extent  of  dominion,  till  one  of  these 
revolters  acquired  by  success  a  better  name  than  rebel,  and 
founded  the  dynasty  of  the  Abbassides.  [A.D.  750.] 

Damascus  had  been  the  seat  of  empire  under  the  Ommi- 
ades ;  it  was  removed  by  the  succeeding  family  to  their  new 
city  of  Bagdad.  There  are  not  any  names  in  the  long  line  of 
khalifs,  after  the  companions  of  Mohammed,  more  renowned  in 
history  than  some  of  the  earlier  sovereigns  who  reigned  in  this 
capital — Almansor,  Haroun  Alraschid,  and  Almamun.  Their 
splendid  palaces,  their  numerous  guards,  their  treasures  of 
gold  and  silver,  the  populousness  and  wealth  of  their  cities, 
formed  a  striking  contrast  to  the  rudeness  and  poverty  of  the 
western  nations  in  the  same  age.  In  their  court  learning,  which 


56  HALLAM 

the  first  Moslems  had  despised  as  unwarlike  or  rejected  as  pro- 
fane, was  held  in  honor/  The  Khalif  Almamun  especially  was 
distinguished  for  his  patronage  of  letters;  the  philosophical 
writings  of  Greece  were  eagerly  sought  and  translated;  the 
stars  were  numbered,  the  course  of  the  planets  was  measured. 
The  Arabians  improved  upon  the  science  they  borrowed,  and 
returned  it  with  abundant  interest  to  Europe  in  the  communi- 
cation of  numeral  figures  and  the  intellectual  language  of  al- 
gebras Yet  the  merit  of  the  Abbassides  has  been  exaggerated 
by  adulation  or  gratitude.  After  all  the  vague  praises  of  hire- 
ling poets,  which  have  sometimes  been  repeated  in  Europe, 
it  is  very  rare  to  read  the  history  of  an  eastern  sovereign  un- 
stained by  atrocious  crimes.  No  Christian  government,  ex- 
cept perhaps  that  of  Constantinople,  exhibits  such  a  series  of 
tyrants  as  the  khalifs  of  Bagdad ;  if  deeds  of  blood,  wrought 
through  unbridled  passion  or  jealous  policy,  may  challenge 
the  name  of  tyranny.  These  are  ill  redeemed  by  ceremonious 
devotion  and  acts  of  trifling,  perhaps  ostentatious,  humility,  or 
even  by  the  best  attribute  of  Mohammedan  princes — a  rigorous 
justice  in  chastising  the  offences  of  others.  Anecdotes  of  this 
description  give  as  imperfect  a  sketch  of  an  oriental  sovereign 
as  monkish  chroniclers  sometimes  draw  of  one  in  Europe  who 
founded  monasteries  and  obeyed  the  clergy;  though  it  must 
be  owned  that  the  former  are  in  much  better  taste. 

Though  the  Abbassides  have  acquired  more  celebrity,  they 
never  attained  the  real  strength  of  their  predecessors.  Under 
the  last  of  the  house  of  Ommiyah,  one  command  was  obeyed 
almost  along  the  whole  diameter  of  the  known  world,  from 
the  banks  of  the  Sihon  to  the  utmost  promontory  of  Portugal. 
But  the  revolution  which  changed  the  succession  of  khalifs 
produced  another  not  less  important.  A  fugitive  of  the  van- 
quished family,  by  name  Abdalrahman,  arrived  in  Spain,  and  the 
Moslems  of  that  country,  not  sharing  in  the  prejudices  which 
had  stirred  up  the  Persians  in  favor  of  the  line  of  Abbas,  and 

/The  Arabian  writers  date  the  origin  logical  Arrangement  is  perhaps  a  book 

their  literature  (except  those  works  better  known;  and,  though  it  has  since 

of  fiction  which  had  always  been  popu-  been*  much  excelled,  was  one  of  the  first 

lar)  from  the  reign  of  Almansor,  A.X>,  contributions  in  our  own  language  to 

758.    Abulpharagius,  p.  160;    Gibbon,  c.  this  department,  in  which  a  great  deal 

52*  „  yet  remains  for  the  oriential  scholars  of 

£  Several  very  recent  publications  con-  Europe.     Casiri's  admirable  catalogue 

tain  interesting  details  on  Saracen  htera-  of  Arabic  MSS.  in  the  Escunal  ought 

ture;  ^Berington's  Literary  History  of  before  this  to  have  been  followed  up  by 

the  Middle  Ages,  Mill's  History  of  Mo-  a  more  accurate  examination  of  their 

hammedanism,  chap   vi ,  Turner's  His-  contents  than  it  was  possible  for  him 

tory  of  England,  vol.  i.    Harris's  Philo-  to  give. 


THE   MIDDLE  AGES  57 

conscious  that  their  remote  situation  entitled  them  to  independ- 
ence, proclaimed  him  Khalif  of  Cordova.  There  could  be  little 
hope  of  reducing  so  distant  a  dependency ;  and  the  example 
was  not  unlikely  to  be  imitated.  In  the  reign  of  Haroun  Alras- 
chid  two  principalities  were  formed  in  Africa — of  the  Aglabites, 
who  reigned  over  Tunis  and  Tripoli ;  and  of  the  Edrisites  in 
the  western  parts  of  Barbary.  These  yielded  in  about  a  century 
to  the  Fatimites,  a  more  powerful  dynasty,  who  afterwards  es- 
tablished an  empire  in  Egypt  h 

The  loss,  however,  of  Spain  and  Africa  was  the  inevitable 
effect  of  that  immensely  extended  dominion,  which  their  sepa- 
ration alone  would  not  have  enfeebled.  But  other  revolutions 
awaited  it  at  home.  In  the  history  of  the  Abassides  of  Bag- 
dad we  read  over  again  the  decline  of  European  monarchies, 
through  their  various  symptoms  of  ruin ;  and  find  successive 
analogies  to  the  insults  of  the  barbarians  towards  imperial 
Rome  in  the  fifth  century,  to  the  personal  insignificance  of 
the  Merovingian  kings,  and  to  the  feudal  usurpations  that 
dismembered  the  inheritance  of  Charlemagne.  I.  Beyond 
the  northeastern  frontier  of  the  Saracen  empire  dwelt  a  war- 
like and  powerful  nation  of  the  Tartar  family,  who  defended 
the  independence  of  Turkestan  from  the  sea  of  Aral  to  the 
great  central  chain  of  mountains.  In  the  wars  which  the  kha- 
lifs  or  their  lieutenants  waged  against  them  many  of  these 
Turks  were  led  into  captivity,  and  dispersed  over  the  empire. 
Their  strength  and  courage  distinguished  them  among  a  peo- 
ple grown  effeminate  by  luxury ;  and  that  jealousy  of  disaffec- 
tion among  his  subjects  so  natural  to  an  eastern  monarch 
might  be  an  additional  motive  with  the  Khalif  Motassem  to 
form  bodies  of  guards  out  of  these  prisoners.  But  his  policy 
was  fatally  erroneous.  More  rude  and  even  more  ferocious 
than  the  Arabs,  they  contemned  the  feebleness  of  the  khalifate, 
while  they  grasped  at  its  riches.  The  son  of  Motassem,  Mota- 
wakkel,  was  murdered  in  his  palace  by  the  barbarians  of  the 
north ;  and  his  fate  revealed  the  secret  of  the  empire,  that  the 
choice  of  its  sovereign  had  passed  to  their  slaves.  Degradation 
and  death  were  frequently  the  lot  of  succeeding  khalifs ;  but 
in  the  East  the  son  leaps  boldly  on  the  throne  which  the  blood 
of  his  father  has  stained,  and  the  praetorian  guards  of  Bagdad 

ft  For  these  revolutions,  -which  it  is  suit  Cardonne,  who  has  made  as  much 
not  very  easy  to  fix  in  the  memory,  con-  of  them  as  the  subject  would  bear. 


58  HALLAM 

rarely  failed  to  render  a  fallacious  obedience  to  the  nearest 
heir  of  the  house  of  Abbas.    2.  In  about  one  hundred  years 
after  the  introduction  of  the  Turkish  soldiers  the  sovereigns 
of  Bagdad  sank  almost  into  oblivion.    Al  Radi,  who  died  in 
940,  was  the  last  of  these  that  officiated  in  the  mosque,  that 
commanded  the  forces  in  person,  that  addressed  the  people 
from  the  pulpit,  that  enjoyed  the  pomp  and  splendor  of  royalty.* 
But  he  was  the  first  who  appointed,  instead  of  a  vizir,  a  new 
officer — a  mayor,  as  it  were,  of  the  palace — with  the  title  of 
Emir  al  Omra,  commander  of  commanders,  to  whom  he  dele- 
gated by  compulsion  the  functions  of  his  office.     This  title 
was  usually  seized  by  active  and  martial  spirits ;  it  was  some- 
times hereditary,  and  in  effect  irrevocable  by  the  khalifs, 
whose  names  hardly  appear  after  this  time  in  Oriental  annals. 
3.  During  these  revolutions  of  the  palace  every  province  suc- 
cessively shook  off  its  allegiance;  new  principalities  were 
formed  in  Syria  and  Mesopotamia,  as  well  as  in  Khorasan  and 
Persia,  till  the  dominion  of  the  Commander  of  the  Faithful 
was  literally  confined  to  the  city  of  Bagdad  and  its  adjacent 
territory.    For  a  time  some  of  these  princes,  who  had  been 
appointed  as  governors  by  the  khalifs,  professed  to  respect 
his  supremacy  by  naming  him  in  the  public  prayers  and  upon 
the  coin;  but  these  tokens  of  dependence  were  gradually 
obliterated./ 

Such  is  the  outline  of  Saracenic  history  for  three  centuries 
after  Mohammed :  one  age  of  glorious  conquest ;  a  second  of 
stationary  but  rather  precarious  greatness;  a  third  of  rapid 
decline.  The  Greek  empire  meanwhile  survived,  and  almost 
recovered  from  the  shock  it  had  sustained.  Besides  the  decline 
of  its  enemies,  several  circumstances  may  be  enumerated  tend- 
ing to  its  preservation.  The  maritime  province  of  Cilicia  had 
been  overrun  by  the  Mohammedans;  but  between  this  and 
the  Lesser  Asia  Mount  Taurus  raises  its  massy  buckler,  spread- 
ing as  a  natural  bulwark  from  the  sea-coast  of  the  ancient 
Pamphylia  to  the  hilly  district  of  Isauria,  whence  it  extends 
in  an  easterly  direction,  separating  the  Cappadocian  and  Cili- 
cian  plains,  and,  after  throwing  off  considerable  ridges  to  the 
north  and  south,  connects  itself  with  other  chains  of  mountains 

i  Abulfedaj  p.  261;  Gibbon,  c.  52;  jThe  decline  of  the  Saracens  is  fully 
Modem  Umv.  Hist.  vol.  ii.  Al  Radi's  discussed  in  the  S2nd  chapter  of  Gibbon, 
command  of  the  army  is  only  mentioned  which  is,  in  itself,  a  complete  philo- 
by  the  last.  sophical  dissertation  upon  this  part  of 

history. 


THE   MIDDLE  AGES  39 

that  penetrate  far  into  the  Asiatic  continent.    Beyond  this  bar- 
rier the  Saracens  formed  no  durable  settlement,  though  the 
armies  of  Alraschid  wasted  the  country  as  far  as  the  Helles- 
pont, and  the  city  of  Amorium,  in  Phrygia,  was  razed  to  the 
ground  by  Al  Motassem.     The  position  of  Constantinople, 
chosen  with  a  sagacity  to  which  the  course  of  events  almost 
gave  the  appearance  of  prescience,  secured  her  from  any  im- 
mediate danger  on  the  side  of  Asia,  and  rendered  her  as  little 
accessible  to  an  enemy  as  any  city  which  valor  and  patriotism 
did  not  protect.    Yet  in  the  days  of  Arabian  energy  she  was 
twice  attacked  by  great  naval  armaments.  [A  D.  668  and  716.] 
The  first  siege,  or  rather  blockade,  continued  for  seven  years ; 
the  second,  though  shorter,  was  more  terrible,  and  her  walls, 
as  well  as  her  port,  were  actually  invested  by  the  combined 
forces  of  the  Khalif  Waled,  under  his  brother  Moslema.fc    The 
final  discomfiture  of  these  assailants  showed  the  resisting  force 
of  the  empire,  or  rather  of  its  capital ;  but  perhaps  the  aban- 
donment of  such  maritime  enterprises  by  the  Saracens  may 
be  in  some  measure  ascribed  to  the  removal  of  their  metrop- 
olis from  Damascus  to  Bagdad.    But  the  Greeks  in  their  turn 
determined  to  dispute  the  command  of  the  sea.    By  possess- 
ing the  secret  of  an  inextinguishable  fire,  they  fought  on  su- 
perior terms ;  their  wealth,  perhaps  their  skill,  enabled  them 
to  employ  larger  and  better  appointed  vessels ;  and  they  ulti- 
mately expelled  their  enemies  from  the  islands  of  Crete  and 
Cyprus.    By  land  they  were  less  desirous  of  encountering  the 
Moslem.    The  science  of  tactics  is  studied  by  the  pusillani- 
mous, like  that  of  medicine  by  the  sick;  and  the  Byzantine 
emperors,  Leo  and  Constantine,  have  left  written  treatises  on 
the  art  of  avoiding  defeat,  of  protracting  contest,  of  resisting 
attack:*    But  this  timid  policy,  and  even  the  purchase  of  ar- 
mistices from  the  Saracens,  were  not  ill  calculated  for  the  state 
of  both  nations.    While  Constantinople  temporized,  Bagdad 
shook  to  her  foundations ;  and  the  heirs  of  the  Roman  name 
might  boast  the  immortality  of  their  own  empire  when  they 
contemplated  the  dissolution  of  that  which  had  so  rapidly 
sprung  up  and  perished.    Amidst  all  the  crimes  and  revolu- 
tions of  the  Byzantine  government — and  its  history  is  but  a 

k  Gibbon,  c.  52.  trays  a  mind  not  ashamed  to  confess 

/Ibid.,    c.    S3-      Constantine    Porphy-  weakness  and  cowardice,  and  pleasing 

rogenitus,  in  his  advice  to  his  son  as  itself  m  petty  arts  to  elude  the  rapacity 

to  the  administration  of  the  empire,  be-  or  divide  the  power  of  its  enemies. 


60  HALLAM 

series  of  crimes  and  revolutions  —  it  was  never  dismembered 
by  intestine  war.  A  sedition  in  the  army,  a  tumult  in  the 
theatre,  a  conspiracy  in  the  palace,  precipitated  a  monarch 
from  the  throne;  but  the  allegiance  of  Constantinople  was 
instantly  transferred  to  his  successor,  and  the  provinces  im- 
plicitly obeyed  the  voice  of  the  capital.  The  custom  too  of 
partition,  so  baneful  to  the  Latin  kingdoms,  and  which  was  not 
altogether  unknown  to  the  Saracens,  never  prevailed  in  the 
Greek  empire.  It  stood  in  the  middle  of  the  tenth  century, 
as  vicious  indeed  and  cowardly,  but  more  wealthy,  more  en- 
lightened, and  far  more  secure  from  its  enemies  than  under 
the  first  successors  of  Heraclius.  For  about  one  hundred 
years  preceding  there  had  been  only  partial  wars  with  the 
Mohammedan  potentates;  and  in  these  the  emperors  seem 
gradually  to  have  gained  the  advantage,  and  to  have  become 
more  frequently  the  aggressors.  But  the  increasing  distrac- 
tions of  the  East  encouraged  two  brave  usurpers,  Nicephorus 
Phocas  and  John  Zimisces,  to  attempt  the  actual  recovery  of 
the  lost  provinces.  [A.D.  963-975.]  They  carried  the  Roman 
arms  (one  may  use  the  term  with  less  reluctance  than  usual) 
over  Syria  ;  Antioch  and  Aleppo  were  taken  by  storm  ;  Da- 
mascus submitted;  even  the  cities  of  Mesopotamia,  beyond 
the  ancient  boundary  of  the  Euphrates,  were  added  to  the 
trophies  of  Zirnisces,  who  unwillingly  spared  the  capital  of 
the  thalifate.  From  such  distant  conquests  it  was  expedient, 
and  indeed  necessary,  to  withdraw;  but  Cilicia  and  Antioch 
were  permanently  restored  to  the  empire.  At  the  close  of 
the  tenth  century  the  emperors  of  Constantinople  possessed 
the  best  and  greatest  portion  of  the  modern  kingdom  of  Naples, 
a  part  of  Sicily,  the  whole  European  dominions  of  the  Otto- 
mans, the  province  of  Anatolia  or  Asia  Minor,  with  some  part 
of  Syria  and  Armenia.^ 

These  successes  of  the  Greek  empire  were  certainly  much 
rather  due  to  the  weakness  of  its  enemies  than  to  any  revival 
of  national  courage  and  vigor  ;  yet  they  would  probably  have 
been  more  durable  if  the  contest  had  been  only  with  the  khalif- 
ate,  or  the  kingdoms  derived  from  it.  But  a  new  actor  was  to 
appear  on  the  stage  of  Asiatic  tragedy.  The  same  Turkish 


THE   MIDDLE  AGES  61 

nation,  the  slaves  and  captives  from  which  had  become  arbiters 
of  the  sceptre  of  Bagdad,  passed  their  original  limits  of  the 
laxartes  or  Sihon.  The  sultans  of  Ghazna,  a  dynasty  whose 
splendid  conquests  were  of  very  short  duration,  had  deemed 
it  politic  to  divide  the  strength  of  these  formidable  allies  by 
inviting  a  part  of  them  into  Khorasan.  They  covered  that 
fertile  province  with  their  pastoral  tents,  and  beckoned  their 
compatriots  to  share  the  riches  of  the  south.  The  Ghaznevides 
fell  the  earliest  victims ;  but  Persia,  violated  in  turn  by  every 
conqueror,  was  a  tempting  and  unresisting  prey.  [A.D.  1038.] 
Togrol  Bek,  the  founder  of  the  Seljukian  dynasty  of  Turks, 
overthrew  the  family  of  Bowides,  who  had  long  reigned  at 
Ispahan,  respected  the  pageant  of  Mohammedan  sovereignty 
in  the  Khalif  of  Bagdad,  embraced  with  all  his  tribes  the  re- 
ligion of  the  vanquished,  and  commenced  the  attack  upon 
Christendom  by  an  irruption  into  Armenia.  His  nephew  and 
successor  Alp  Arslan  defeated  and  took  prisoner  the  emperor 
Romanus  Diogenes  [A.D.  1071] ;  and  the  conquest  of  Asia 
Minor  was  almost  completed  by  princes  of  the  same  family, 
the  Seljukians  of  Rum,w  who  were  permitted  by  Malek  Shah', 
the  third  sultan  of  the  Turks,  to  form  an  independent  king- 
dom. Through  their  own  exertions,  and  the  selfish  impolicy 
of  rival  competitors  for  the  throne  of  Constantinople,  who 
bartered  the  strength  of  the  empire  for  assistance,  the  Turks 
became  masters  of  the  Asiatic  cities  and  fortified  passes ;  nor 
did  there  seem  any  obstacle  to  the  invasion  of  Europe.*? 

In  this  state  of  jeopardy  the  Greek  empire  looked  for  aid 
to  the  nations  of  the  West,  and  received  it  in  fuller  measure 
than  was  expected,  or  perhaps  desired.  The  deliverance  of 
Constantinople  was  indeed  a  very  secondary  object  with  the 
crusaders.  But  it  was  necessarily  included  in  their  scheme 
of  operations,  which,  though  they  all  tended  to  the  recovery 
of  Jerusalem,  must  commence  with  the  first  enemies  that  lay 
on  their  line  of  march.  The  Turks  were  entirely  defeated,  their 
capital  of  Nice  restored  to  the  empire.  As  the  Franks  passed 
onwards,  the  Emperor  Alexius  Comnenus  trod  on  their  foot- 
steps, and  secured  to  himself  the  fruits  for  which  their  en- 
thusiasm disdained  to  wait.  He  regained  possession  of  the 
strong  places  on  the  JEgean  shores,  of  the  defiles  of  Bithynia, 

n  Rum,  i,  e.  country  of  the  Romans,  o  Gibbon,  c.  57;    De  Guignes,  Hist 

des  Huns,  t.  n.  1.  2. 


62  HALLAM 

and  of  the  entire  coast  of  Asia  Minor,  both  on  the  Euxine  and 
Mediterranean  seas,  which  the  Turkish  armies,  composed  of 
cavalry  and  unused  to  regular  warfare,  could  not  recover.^ 
So  much  must  undoubtedly  be  ascribed  to  the  first  crusade. 
But  I  think  that  the  general  effect  of  these  expeditions  has 
been  overrated  by  those  who  consider  them  as  having  per- 
manently retarded  the  progress  of  the  Turkish  power.  The 
Christians  in  Palestine  and  Syria  were  hardly  m  contact  with 
the  Seljukian  kingdom  of  Rum,  the  only  enemies  of  the  em- 
pire ;  and  it  is  not  easy  to  perceive  that  their  small  and  feeble 
principalities,  engaged  commonly  in  defending  themselves 
against  the  Mohammedan  princes  of  Mesopotamia,  or  the 
Patimite  khalifs  of  Egypt,  could  obstruct  the  arms  of  a  sove- 
reign of  Iconium  upon  the  Mssander  or  the  Halys.  Other 
causes  are  adequate  to  explain  the  equipoise  in  which  the  bal- 
ance of  dominion  in  Anatolia  was  kept  during  the  twelfth 
century  :  the  valor  and  activity  of  the  two  Comneni,  John  and 
Manuel,  especially  the  former  ;  and  the  frequent  partitions  and 
internal  feuds,  through  which  the  Seljukians  of  Iconium,  like 
all  other  Oriental  governments,  became  incapable  of  foreign 
aggression. 

But  whatever  obligation  might  be  due  to  the  first  crusaders 
from  the  Eastern  empire  was  cancelled  by  their  descendants 
one  hundred  years  afterwards,  when  the  fourth  in  number  of 
those  expeditions  was  turned  to  the  subjugation  of  Constan- 
tinople itself.  One  of  those  domestic  revolutions  which  occur 
perpetually  in  Byzantine  history  had  placed  a  usurper  on 
the  imperial  throne.  The  lawful  monarch  was  condemned  to 
blindness  and  a  prison  ;  but  the  heir  escaped  to  recount  his 
misfortunes  to  the  fleet  and  army  of  crusaders  assembled  in 
the  Dalmatian  port  of  Zara.  [A.D.  1202.]  This  armament  had 
been  collected  for  the  usual  purposes,  and  through  the  usual 
motives,  temporal  and  spiritual,  of  a  crusade;  the  military 
force  chiefly  consisted  of  French  nobles  ;  the  naval  was  sup- 
plied by  the  republic  of  Venice,  whose  doge  commanded  per- 
sonally in  the  expedition.  It  was  not  apparently  consistent 
with  the  primary  object  of  retrieving  the  Christian  affairs  in 
Palestine  to  interfere  in  the  government  of  a  Christian  empire  ; 
but  the  temptation  of  punishing  a  faithless  people,  and  the 


J?J3;.d?!;8  B0t  Se?a  ^tcill  cle£r  FJF  of  Alex'«s;  or  of  tos  gallant  son 
whether  the  sea-coast,  north  and  south,  John  Comnenus.  But  the  doubt  is 
was  reannexed  to  the  empire  during  the  hardly  worth  noticing 


THE  MIDDLE  AGES  63 

hope  of  assistance  in  their  subsequent  operations,  prevailed. 
They  turned  their  prows  up  the  Archipelago;  and,  notwith- 
standing the  vast  population  and  defensible  strength  of  Con- 
stantinople, compelled  the  usurper  to  fly,  and  the  citizens  to 
surrender.  But  animosities  springing  from  religious  schism 
and  national  jealousy  were  not  likely  to  be  allayed  by  such 
remedies;  the  Greeks,  wounded  in  their  pride  and  bigotry, 
regarded  the  legitimate  emperor  as  a  creature  of  their  enemies, 
ready  to  sacrifice  thek  church,  a  stipulated  condition  of  his 
restoration,  to  that  of  Rome.  In  a  few  months  a  new  sedition 
and  conspiracy  raised  another  usurper  in  defiance  of  the  cru- 
saders' army  encamped  without  the  walls.  The  siege  in- 
stantly recommenced ;  and  after  three  months  the  city  of  Con- 
stantinople was  taken  by  storm.  [A.D.  1204.]  The  tale  of  pil- 
lage and  murder  is  always  uniform;  but  the  calamities  of 
ancient  capitals,  like  those  of  the  great,  impress  us  more  for- 
cibly. Even  now  we  sympathize  with  the  virgin  majesty  of 
Constantinople,  decked  with  the  accumulated  wealth  of  ages, 
and  resplendent  with  the  monuments  of  Roman  empire  and 
of  Grecian  art.  Her  populousness  is  estimated  beyond  credi- 
bility :  ten,  twenty,  thirty-fold  that  of  London  or  Paris ;  cer- 
tainly far  beyond  the  united  capitals  of  all  European  kingdoms 
in  that  age.g  In  magnificence  she  excelled  them  more  than 
in  numbers ;  instead  of  the  thatched  roofs,  the  mud  walls,  the 
narrow  streets,  the  pitiful  buildings  of  those  cities,  she  had 
marble  and  gilded  palaces,  churches  and  monasteries,  the  works 
of  skilful  architects,  through  nine  centuries,  gradually  sliding 
from  the  severity  of  ancient  taste  into  the  more  various  and 
brilliant  combinations  of  eastern  fancy .r  In  the  libraries  of 
Constantinople  were  collected  the  remains  of  Grecian  learn- 
ing; her  forum  and  hippodrome  were  decorated  with  those 
of  Grecian  sculpture ;  but  neither  would  be  spared  by  undis- 
tinguishing  rapine ;  nor  were  the  chiefs  of  the  crusaders  more 

q  Ville  Hardouin  reckons  the  inhabit-  r  0  quanta  civitas,  exclaims  Fulk  of 
ants  of  Constantinople  at  quatre  cens  Chartres  a  hundred  years  before,  nobihs 
mil  nommes  ou  plus,  by  which  Gibbon  et  decora!  quot  monasteria  quotque  pa- 
understands  him  to  mean  men  of  a  mili-  latia  sunt  m  ea,  opere  mero  fabrefacta! 
tary  age.  Le  Beau  allows  a  million  for  quo  etiam  in  plateis  vel  in  vicis  opera 
the  whole  population  Gibbon,  vol  xi.  ad  spectandum  mirabilia!  Taedium  est 

5.  213.  We  should  probably  rate  Lon-  quidam  magnum  recitare,  quanta  sit  ibi 
on,  in  1204,  too  high  at  60,000  souls  opulentia  bonorum  omnium,  auri  et 
Pans  had  been  enlarged  by  Philip  Au-  argenti  palhoruni  multiformium,  sacra- 
gustus,  and  stood  on  more  ground  than  rumque  rehquiarum.  Omni  etiam  tern- 
London.  Delamare  sur  la  Police,  t.  i.  pore,  navigio  frequent!  cuncta  hominum 
p  76  necessaria  illuc  afferuntur.  Du  Chesne, 

Scrip.  Rerum  Gallicarum,  t.  iv.  p.  822. 


64  HALLAM 

able  to  appreciate  the  loss  than  their  soldiery.  Four  horses, 
that  breathe  in  the  brass  of  Lysippus,  were  removed  from 
Constantinople  to  the  square  of  St.  Mark  at  Venice ;  destined 
again  to  become  the  trophies  of  war,  and  to  follow  the  alternate 
revolutions  of  conquest.  But  we  learn  from  a  contemporary 
Greek  to  deplore  the  fate  of  many  other  pieces  of  sculpture, 
which  were  destroyed  in  wantonness,  or  even  coined  into  brass 
moneys 

The  lawful  emperor  and  his  son  had  perished  in  the  re- 
bellion that  gave  occasion  to  this  catastrophe;  and  there  re- 
mained no  right  to  interfere  with  that  of  conquest.  But  the 
Latins  were  a  promiscuous  multitude,  and  what  their  inde- 
pendent valor  had  earned  was  not  to  be  transferred  to  a  single 
master.  Though  the  name  of  emperor  seemed  necessary  for 
the  government  of  Constantinople,  the  unity  of  despotic  power 
was  very  foreign  to  the  principles  and  the  interests  of  the  cru- 
saders. In  their  selfish  schemes  of  aggrandizement  they  tore 
in  pieces  the  Greek  empire.  One-fourth  only  was  allotted  to 
the  emperor,  three-eighths  were  the  share  of  the  republic  of 
Venice,  and  the  remainder  was  divided  among  the  chiefs, 
Baldwin  Count  of  Flanders  obtained  the  imperial  title,  with 
the  feudal  sovereignty  over  the  minor  principalities.  A  mon- 
archy thus  dismembered  had  little  prospect  of  honor  or  dura- 
bility. The  Latin  emperors  of  Constantinople  were  more 
contemptible  and  unfortunate,  not  so  much  from  personal 
character  as  political  weakness,  than  their  predecessors ;  their 
vassals  rebelled  against  sovereigns  not  more  powerful  than 
themselves;  the  Bulgarians,  a  nation  who,  after  being  long 
formidable,  had  been  subdued  by  the  imperial  arms,  and  only 
recovered  independence  on  the  eve  of  the  Latin  conquest,  in- 
sulted their  capital ;  the  Greeks  viewed  them  with  silent  hatred, 
and  hailed  the  dawning  deliverance  from  the  Asiatic  coast. 
On  that  side  of  the  Bosphorus  the  Latin  usurpation  was 
scarcely  for  a  moment  acknowledged;  Nice  became  the  seat 
of  a  Greek  dynasty,  who  reigned  with  honor  as  far  as  the 
Maeander ;  and  crossing  into  Europe,  after  having  established 
their  dominion  throughout  Romania  and  other  provinces,  ex- 
pelled the  last  Latin  emperors  from  Constantinople  in  less 
than  sixty  years  from  its  capture.  [A.D.  1261.] 

During  the  reign  of  these  Greeks  at  Nice  they  had  fortu- 

s  Gibbon,  c.  60. 


THE   MIDDLE  AGES  65 

nately  little  to  dread  on  the  side  of  their  former  enemies,  and 
were  generally  on  terms  of  friendship  with  the  Seljukians  of 
Icomum.  That  monarchy  indeed  had  sufficient  objects  of  ap- 
prehension for  itself.  Their  own  example  in  changing  the 
upland  plains  of  Tartary  for  the  cultivated  valleys  of  the  south 
was  imitated  in  the  thirteenth  century  by  two  successive  hordes 
of  northern  barbarians.  The  Karismians,  whose  tents  had 
been  pitched  on  the  lower  Oxus  and  Caspian  Sea,  availed 
themselves  of  the  decline  of  the  Turkish  power  to  establish 
their  dominion  in  Persia,  and  menaced,  though  they  did  not 
overthrow,  the  kingdom  of  Iconium.  A  more  tremendous 
storm  ensued  in  the  eruption  of  Moguls  under  the  sons  of 
Zingis  Khan.  From  the  farthest  regions  of  Chinese  Tartary 
issued  a  race  more  fierce  and  destitute  of  civilization  than  those 
who  had  preceded,  whose  numbers  were  told  by  hundreds  of 
thousands,  and  whose  only  test  of  victory  was  devastation. 
All  Asia,  from  the  sea  of  China  to  the  Euxme,  wasted  beneath 
the  locusts  of  the  north.  They  annihilated  the  phantom  of 
authority  which  still  lingered  in  the  name  of  khalif  at  Bagdad. 
They  reduced  into  dependence  and  finally  subverted  the  Selju- 
kian  dynasties  of  Persia,  Syria,  and  Iconium.  [A.D.  1218-1272.] 
The  Turks  of  the  latter  kingdom  betook  themselves  to  the 
mountainous  country,  where  they  formed  several  petty  prin- 
cipalities, which  subsisted  by  incursions  into  the  territory  of 
the  Moguls  or  the  Greeks  The  chief  one  of  these,  named 
Othman,  at  the  end  of  the  thirteenth  century,  penetrated  into 
the  province  of  Bithynia,  from  which  his  posterity  were  never 
withdrawn.* 

The  empire  of  Constantinople  had  never  recovered  the  blow 
it  received  at  the  hands  of  Latins.  Most  of  the  islands  in  the 
Archipelago,  and  the  provinces  of  proper  Greece  from  Thes- 
saly  southward,  were  still  possessed  by  those  invaders.  The 
wealth  and  naval  power  of  the  empire  had  passed  into  the 
hands  of  the  maritime  republics;  Venice,  Genoa,  Pisa,  and 
Barcelona  were  enriched  by  a  commerce  which  they  carried 
on  as  independent  states  within  the  precincts  of  Constantinople, 
scarcely  deigning  to  solicit  the  permission  or  recognize  the 
supremacy  of  its  master.  In  a  great  battle  fought  under  the 
walls  of  the  city  between  the  Venetian  and  Genoese  fleets,  the 
weight  of  the  Roman  empire,  in  Gibbon's  expression,  was 

t  De  Guignes,  Hist,  des  Huns,  t  lii.  I.  15;  Gibbon,  c.  64. 
VOL.  II,— 5 


66  HALLAM 

scarcely  felt  in  the  balance  of  these  opulent  and  powerful  re- 
publics. [A.D.  1352.]     Eight  galleys  were  the  contribution  of 
the  Emperor  Cantacuzene  to  his  Venetian  allies;   and  upon 
their  defeat  he  submitted  to  the  ignominy  of  excluding  them 
forever  from  trading  in  his  dominions.    Meantime  the  remains 
of  the  empire  in  Asia  were  seized  by  the  independent  Turkish 
dynasties,  of  which  the  most  illustrious,  that  of  the  Ottomans, 
occupied  the  province  of  Bithynia.  [A.D.  1331  ]     Invited  by  a 
Byzantine  faction  into  Europe,  about  the  middle  of  the  four- 
teenth century,  they  fixed  themselves  in  the  neighborhood  of 
the  capital,  and  in  the  thirty  years'  reign  of  Amurath  I  sub- 
dued, with  little  resistance,  the  province  of  Romania  and  the 
small  Christian  kingdoms  that  had  been  formed  on  the  lower 
Danube.    Bajazet,  the  successor  of  Amurath,  reduced  the  in- 
dependent emirs  of  Anatolia  to  subjection,  and,  after  long 
threatening  Constantinople,  invested  it  by  sea  and  land.    The 
Greeks  called  loudly  upon  their  brethren  of  the  West  for  aid 
against  the  common  enemy  of  Christendom ;  but  the  flower 
of  French  chivalry  had  been  slain  or  taken  in  the  battle  of 
Nicopolis  in  Bulgaria,**  where  the  king  of  Hungary,  notwith- 
standing the  heroism  of  these  volunteers,  was  entirely  defeated 
by  Bajazet.  [A.D.  1396.]    The  Emperor  Manuel  left  his  capital 
with  a  faint  hope  of  exciting  the  courts  of  Europe  to  some 
decided  efforts  by  personal  representations  of  the  danger ;  and, 
during  his  absence,  Constantinople  was  saved,  not  by  a  friend, 
indeed,  but  by  a  power  more  formidable  to  her  enemies  than 
to  herself. 

The  loose  masses  of  mankind,  that,  without  laws,  agricult- 
ure, or  fixed  dwellings,  overspread  the  vast  central  regions  of 
Asia,  have,  at  various  times,  been  impelled  by  necessity  of 
subsistence,  or  through  the  casual  appearance  of  a  command- 
ing genius,  upon  the  domain  of  culture  and  civilization.  Two 
principal  roads  connect  the  nations  of  Tartary  with  those  of 
the  west  and  south ;  the  one  into  Europe  along  the  sea  of  Azoph 
and  northern  coast  of  the  Euxine ;  the  other  across  the  inter- 

«  The  Hungarians  fled  «m  this  battle  others  of  the  royal  blood,  and  ransomed 

and  deserted  their  allies,  according  to  at  a  very  high  price     Many  of  eminent 

the  Memoires  de  Boucicaut,  c  25.    But  birth  and  ment  were  put  to  death :    a 

Froissart,  who  seems  a  fairer  authority,  fate  from  which  Boucicaut  was  saved  by 

imputes  the  defeat  to  the  rashness  of  the  the  interference  of  the  Count  de  Nevers, 

French.    Part  iv.  ch.  79    The  Count  de  who  might  better  himself  have  perished 

Nevers     (Jean     Sanspeur,     afterwards  with  honor  on  that  occasion  than  sur- 

Duke  or  Burgundy),  who  commanded  vived  to  plunge  his  country  into  civil 

the  French,   was  made   pnsoner   with  war  and  his  name  into  infamy. 


THE   MIDDLE  AGES 


67 


val  between  the  Bukharian  mountains  and  the  Caspian  into 
Persia.  Four  times  at  least  within  the  period  of  authentic 
history  the  Scythian  tribes  have  taken  the  former  course  and 
poured  themselves  into  Europe,  but  each  wave  was  less  ef- 
fectual than  the  preceding.  The  first  of  these  was  in  the  fourth 
and  fifth  centuries,  for  we  may  range  those  rapidly  successive 
migrations  of  the  Goths  and  Huns  together,  when  the  Roman 
empire  fell  to  the  ground,  and  the  only  boundary  of  barbarian 
conquest  was  the  Atlantic  ocean  upon  the  shores  of  Portugal. 
The  second  wave  came  on  with  the  Hungarians  in  the  tenth 
century,  whose  ravages  extended  as  far  as  the  southern  prov- 
inces of  France.  A  third  attack  was  sustained  from  the 
Moguls  under  the  children  of  Zingis  at  the  same  period  as 
that  which  overwhelmed  Persia.  The  Russian  monarchy  was 
destroyed  in  this  invasion,  and  for  two  hundred  years  that 
great  country  lay  prostrate  under  the  yoke  of  the  Tartars. 
As  they  advanced,  Poland  and  Hungary  gave  little  opposi- 
tion ;  and  the  farthest  nations  of  Europe  were  appalled  by  the 
tempest.  But  Germany  was  no  longer  as  she  had  been  in 
the  anarchy  of  the  tenth  century ;  the  Moguls  were  unused 
to  resistance,  and  still  less  inclined  to  regular  warfare;  they 
retired  before  the  Emperor  Frederic  II ,  and  the  utmost  points 
of  their  western  invasion  were  the  cities  of  Lignitz  in  Silesia 
and  Neustadt  in  Austria.  [A.D.  1245.]  In  the  fourth  and  last 
aggression  of  the  Tartars  their  progress  in  Europe  is  hardly 
perceptible ;  the  Moguls  of  Timur's  army  could  only  boast  the 
destruction  of  Azoph  and  the  pillage  of  some  Russian  prov- 
inces. Timur,  the  sovereign  of  these  Moguls  and  founder  of 
their  second  dynasty,  which  has  been  more  permanent  and 
celebrated  than  that  of  Zingis,  had  been  the  prince  of  a  small 
tribe  in  Transoxiana,  between  the  Gihon  and  Sirr,  the  doubt- 
ful frontier  of  settled  and  pastoral  nations.  His  own  energy 
and  the  weakness  of  his  neighbors  are  sufficient  to  explain 
the  revolution  he  effected.  Like  former  conquerors,  Togrol 
Bek  and  Zingis,  he  chose  the  road  through  Persia ;  and,  meet- 
ing little  resistance  from  the  disordered  governments  of  Asia, 
extended  his  empire  on  one  side  to  the  Syrian  coast,  while  by 
successes  still  more  renowned,  though  not  belonging  to  this 
place,  it  reached  on  the  other  to  the  heart  of  Hindostan.  In 
his  old  age  the  restlessness  of  ambition  impelled  him  against 
the  Turks  of  Anatolia.  Bajazet  hastened  from  the  siege  of 


<58  HALLAM 

Constantinople  to  a  more  perilous  contest;  his  defeat  [A.D. 
1402]  and  captivity  in  the  plains  of  Angora  clouded  for  a  time 
the  Ottoman  crescent,  and  preserved  the  wreck  of  the  Greek 
empire  for  fifty  years  longer. 

The  Moguls  did  not  improve  their  victory ;  in  the  western 
parts  of  Asia,  as  in  Hindostan,  Timur  was  but  a  barbarian 
destroyer,  though  at  Samarcand  a  sovereign  and  a  legislator. 
He  gave  up  Anatolia  to  the  sons  of  Bajazet ;  but  the  unity  of 
their  power  was  broken ;  and  the  Ottoman  kingdom,  like  those 
which  had  preceded,  experienced  the  evils  of  partition  and 
mutual  animosity.  For«about  twenty  years  an  opportunity 
was  given  to  the  Greeks  of  recovering  part  of  their  losses ;  but 
they  were  incapable  of  making  the  best  use  of  this  advantage, 
and,  though  they  regained  possession  of  part  of  Romania,  did 
not  extirpate  a  strong  Turkish  colony  that  held  the  city  of 
Gallipoli  in  the  Chersonesus.  When  Amurath  II ,  therefore, 
reunited  under  his  vigorous  sceptre  the  Ottoman  monarchy, 
Constantinople  was  exposed  to  another  siege  and  to  fresh 
losses  [A.D.  1421.]  Her  walls,  however,  repelled  the  enemy; 
and  during  the  reign  of  Amurath  she  had  leisure  to  repeat 
those  signals  of  distress  which  the  princes  of  Christendom 
refused  to  observe.  The  situation  of  Europe  was,  indeed,  suf- 
ficiently inauspicious;  France,  the  original  country  of  the 
crusades  and  of  chivalry,  was  involved  in  foreign  and  domestic 
war ;  while  a  schism,  apparently  interminable,  rent  the  bosom 
of  the  Latin  church  and  impaired  the  efficiency  of  the  only 
power  that  could  unite  and  animate  its  disciples  in  a  religious 
war.  Even  when  the  Roman  pontiffs  were  best  disposed  to 
rescue  Constantinople  from  destruction,  it  was  rather  as  mas- 
ters than  as  allies  that  they  would  interfere ;  their  ungenerous 
bigotry,  or  rather  pride,  dictated  the  submission  of  her  church 
and  the  renunciation  of  her  favorite  article  of  distinctive  faith. 
The  Greeks  yielded  with  reluctance  and  insincerity  in  the  coun- 
cil of  Florence;  but  soon  rescinded  their  treaty  of  union. 
Eugenius  IV.  procured  a  short  diversion  on  the  side  of  Hun- 
gary ;  but  after  the  unfortunate  battle  of  Warna  the  Hungarians 
were  abundantly  employed  in  self-defence.  [A.D.  1444.] 

The  two  monarchies  which  have  successively  held  their  seat 
in  the  city  of  Constantine  may  be  contrasted  in  the  circum- 
stances of  their  decline.  In  the  present  day  we  anticipate, 
with  an  assurance  that  none  can  deem  extravagant,  the  ap- 


THE  MIDDLE  AGES  69 

preaching  subversion  of  the  Ottoman  power;  but  the  signs 
of  internal  weakness  have  not  yet  been  confirmed  by  the  dis- 
memberment of  provinces;  and  the  arch  of  dominion,  that 
long  since  has  seemed  nodding  to  its  fall  and  totters  at  every 
blast  of  the  north,  still  rests  upon  the  landmarks  of  ancient 
conquest,  and  spans  the  ample  regions  from  Bagdad  to  Bel- 
grade. Far  different  were  the  events  that  preceded  the  dis- 
solution of  the  Greek  empire.  Every  province  was  in  turn 
subdued — every  city  opened  her  gates  to  the  conqueror;  the 
limbs  were  lopped  off  one  by  one ;  but  the  pulse  still  beat  at 
the  heart,  and  the  majesty  of  the  Roman  name  was  ultimately 
confined  to  the  walls  of  Constantinople.  Before  Mahomet  II. 
planted  his  cannon  against  them,  he  had  completed  every 
smaller  conquest  and  deprived  the  expiring  empire  of  every 
hope  of  succor  or  delay.  It  was  necessary  that  Constantinople 
should  fall ;  but  the  magnanimous  resignation  of  her  emperor 
bestows  an  honor  upon  her  fall  which  her  prosperity  seldom 
earned.  [A.D.  1453.]  The  long  deferred  but  inevitable  moment 
arrived;  and  the  last  of  the  Csesars  (I  will  not  say  of  the 
Palseologi)  folded  round  him  the  imperial  mantle,  and  remem- 
bered the  name  which  he  represented  in  the  dignity  of  heroic 
death.  It  is  thus  that  the  intellectual  principle,  when  enfeebled 
by  disease  or  age,  is  found  to  rally  its  energies  in  the  presence 
of  death,  and  pour  the  radiance  of  unclouded  reason  around 
the  last  struggles  of  dissolution. 

Though  the  fate  of  Constantinople  had  been  protracted 
beyond  all  reasonable  expectation,  the  actual  intelligence  op- 
erated like  that  of  sudden  calamity.  A  sentiment  of  consterna- 
tion, perhaps  of  self-reproach,  thrilled  through  the  heart  of 
Christendom.  There  seemed  no  longer  anything  to  divert 
the  Ottoman  armies  from  Hungary;  and  if  Hungary  should 
be  subdued,  it  was  evident  that  both  Italy  and  the  German 
empire  were  exposed  to  invasion.^  A  general  union  of  Chris- 
tian powers  was  required  to  withstand  this  common  enemy. 
But  the  popes,  who  had  so  often  armed  them  against  each 
other,  wasted  their  spiritual  and  political  counsels  in  attempt- 

v  Sive  vincittir  Hungaria,  siye  coacta  declamatory,  like  most  of  his  writings, 

jungitur    Turcis,    neque    Italia    neque  is  an  interesting  illustration  of  the  state 

Germama  tuta  ent,  neque  satis  Rhenus  of  Europe  and  of  the  impression  pro- 

Gallos    securos   reddet     JEn     Sylv.    p.  duced    by    that    calamity.    Spondanus, 

678    This  is  part  of  a  discourse  pro-  ad  ann.  1454,  has  given  large  extracts 

nounced  by  JEneas  Sylvius  before  the  from  this  oration. 
4iet  of  Frankfort;    which,  though  too 


70  HALLAM 

ing  to  restore  unanimity.  War  was  proclaimed  against  the 
Turks  at  the  diet  of  Frankfort,  in  1454;  but  no  efforts  were 
made  to  carry  the  menace  into  execution.  No  prince  could 
have  sat  on  the  imperial  throne  more  unfitted  for  the  emer- 
gency than  Frederic  III. ;  his  mean  spirit  and  narrow  capacity 
exposed  him  to  the  contempt  of  mankind — his  avarice  and 
duplicity  ensured  the  hatred  of  Austria  and  Hungary.  Dur- 
ing the  papacy  of  Pius  II.,  whose  heart  was  thoroughly  en- 
gaged in  this  legitimate  crusade,  a  more  specious  attempt  was 
made  by  convening  a  European  congress  at  Mantua.  [A.D. 
1459.]  Almost  all  the  sovereigns  attended  by  their  envoys ; 
it  was  concluded  that  50,000  men-at-arms  should  be  raised, 
and  a  tax  levied  for  three  years  of  one-tenth  from  the  revenues 
of  the  clergy,  one-thirtieth  from  those  of  the  laity,  and  one- 
twentieth  from  the  capital  of  the  Jews.^  Pius  engaged  to 
head  this  armament  in  person;  but  when  he  appeared  next 
year  at  Ancona,  the  appointed  place  of  embarkation,  the  princes 
had  failed  in  all  their  promises  of  men  and  money,  and  he 
found  only  a  headlong  crowd  of  adventurers,  destitute  of  every 
necessary,  and  expecting  to  be  fed  and  paid  at  the  pope's  ex- 
pense. It  was  not  by  such  a  body  that  Mahomet  could  be 
expelled  from  Constantinople.  If  the  Christian  sovereigns  had 
given  a  steady  and  sincere  co-operation,  the  contest  would 
still  have  been  arduous  and  uncertain.  In  the  early  crusades 
the  superiority  of  arms,  of  skill,  and  even  of  discipline,  had 
been  uniformly  on  the  side  of  Europe.  But  the  present  cir- 
cumstances were  far  from  similar.  An  institution,  begun  by 
the  first  and  perfected  by  the  second  Amurath,  had  given  to 
the  Turkish  armies  what  their  enemies  still  wanted,  military 
subordination  and  veteran  experience.  Aware,  as  it  seems, 
of  the  real  superiority  of  Europeans  in  war,  these  sultans  se- 
lected the  stoutest  youths  from  their  Bulgarian,  Servian,  or 
Albanian  captives,  who  were  educated  in  habits  of  martial  dis- 
cipline, and  formed  into  a  regular  force  with  the  name  of 
Janizaries.  After  conquest  had  put  an  end  to  personal  cap- 
tivity, a  tax  of  every  fifth  male  child  was  raised  upon  the 
Christian  population  for  the  same  purpose.  The  arm  of  Eu- 

w  Spondanus    Neither  Charles  VII.  The  former  pretended  apprehensions  of 

nor  even  Philip  of  Burgundy,  who  had  invasion  from  England,  as  an   excuse 

made    the    loudest    professions,     and  for  sending  no  troops,  which,  consider- 

pledged  himself  in  a  fantastic  pageant  ing  the  situation  of  England  m  zJw 

at  his  court,  soon  after  the  capture  of  was  a  hold  attempt  upon  the  creduhtv 

Constantinople,  to  undertake  this  cm-  of  mankind,  w*u*ii.jr 

sade,   were  sincere  in  their  promises. 


THE   MIDDLE  AGES  7I 

rope  was  thus  turned  upon  herself;  and  the  western  nations 
must  have  contended  with  troops  of  hereditary  robustness  and 
intrepidity,  whose  emulous  enthusiasm  for  the  country  that 
had  adopted  them  was  controlled  by  habitual  obedience  to 
their  commanders.* 

Yet  forty  years  after  the  fall  of  Constantinople,  at  the  epoch 
of  Charles  VIII.'s  expedition  into  Italy,  the  just  apprehensions 
of  European  statesmen  might  have  gradually  subsided.  Ex- 
cept the  Morea,  Negropont,  and  a  few  other  unimportant  con- 
quests, no  real  progress  had  been  made  by  the  Ottomans. 
Mahomet  II.  had  been  kept  at  bay  by  the  Hungarians ;  he  had 
been  repulsed  with  some  ignominy  by  the  knights  of  St.  John 
from  the  island  of  Rhodes.  A  petty  chieftain  defied  this  mighty 
conqueror  for  twenty  years  in  the  mountains  of  Epirus ;  and 
the  persevering  courage  of  his  desultory  warfare  with  such 
trifling  resources,  and  so  little  prospect  of  ultimate  success, 
may  justify  the  exaggerated  admiration  with  which  his  con- 
temporaries honored  the  name  of  Scanderbeg.  Once  only 
the  crescent  was  displayed  on  the  Calabrian  coast ;  but  the  city 
of  Otranto  remained  but  a  year  in  the  possession  of  Mahomet. 
On  his  death  a  disputed  succession  involved  his  children  in 
civil  war.  [A,D.  1480.]  Bajazet,  the  eldest,  obtained  the  vie- 
tory ;  but  his  rival  brother  Zizim  fled  to  Rhodes,  from  whence 
he  was  removed  to  France,  and  afterwards  to  Rome.  Appre- 
hensions of  this  exiled  prince  seem  to  have  dictated  a  pacific 
policy  to  the  reigning  sultan,  whose  character  did  not  possess 
the  usual  energy  of  Ottoman  sovereigns. 

x  In  the  long  declamation  of  .(Eneas  into  European  politics;    and  his  views 

Sylvius  before  the  diet  of  Frankfort  in  are  usually  clear  and  sensible.    Though 

1454,  he  has  the  following  contrast  be-  not  so  learned  as  some  popes,  he  knew 

tween  the  European  and  Turkish  mill-  much  better  what  was  going  forward  in 

tia,  a  good  specimen  of  the  artifice  with  his  own  time.    But  the  vanity  of  dis- 

which  an  ingenious  orator  can  disguise  playing  his  eloquence  betrayed  him  into 

the  truth,  while  he  seems  to  be  stating  a  strange  folly,  when  he  addressed  a 

it    most    precisely.    Conferamus    nunc  very  long  letter  to  Mahomet  II ,  ex- 

Turcos  et  vos  invicem;   et  quid  speran-  plaining  the  Catholic  faith,  and  urging 

dum  sit  si  cum  illis  pugnetis,  examine-  him  to  be  baptized,   in  which  case,  so 

mus     Vos  nati  ad  arma,  illi  tracti.    Vos  far  from  preaching  a  crusade  against 

armati,  illi  mermes;   vos  gladios  versa-  the  Turks,  he  would  gladly  make  use  of 

tis,    illi   cultns  utuntur,    vos   bahstas  their  power  to  recover  the  rights  of  the 

tenditis,  illi  arcus  trahunt;    vos  loricge  church.    Some  of  his  inducements  are 

thoracesque    protegunt,    illos    culcitra  curious,  and  must,  if  made  public,  have 

tegit;    vos  equos  regitis,  illi  ab  equis  been   highly   gratifying   to   his   friend 

reguntur;  vos  nobiles  in  bellum  ducitis,  Frederic  III.    Quippe  ut  arbitramur,  si 

illi  servos  aut  artifices  cogunt,  &c ,  &c.  Chnstianus    fuisses,    mortuo    Ladislao 

p.  685.    This,  however,  had  little  effect  Unganae  et  Bohemias  rege,  nemo  pra> 

upon    the    hearers,    wjio    were    better  ter  te  sua  regna  fwsset  adeptus.    Sper- 

judges  of  military  affairs  than  the  sec-  assent  TJngari  post  diuturna  bellorum 

retary   of   Frederic   III     Pius   II.,    or  mala  sub  tuo  regimme  pacem,  et  illos 

^Eneas  Sylvms;  was  a  lively  writer  and  Bohemi  secuti  fuissent,   sed  cum  esses 

a    skilful    intriguer.    Long    experience  nostrae  reliwoms  hostis*  elegerunt  Un- 

had  given  him  a  considerable  insight  gan,  &c.    £pist.  396. 


BOOK   VII. 
HISTORY   OF   ECCLESIASTICAL  POWER. 


BOOK   VII. 

HISTORY    OF   ECCLESIASTICAL   POWER    DURING   THE 
MIDDLE   AGES 

PART   I. 

Wealth  of  the  Clergy — its  Sources — Encroachments  on  Ecclesiastical 
Property — their  Jurisdiction — arbitrative — coercive — their  political 
Power — Supremacy  of  the  Crown — Charlemagne — Change  after  his 
Death,  and  Encroachments  of  the  Church  m  the  ninth  Century- 
Primacy  of  the  See  of  Rome — its  early  Stage — Gregory  I  — Council 
of  Frankfort — false  Decretals — Progress  of  Papal  Authority — Effects 
of  Excommunication — Lothaire — State  of  the  Church  in  the  tenth 
Century — Marriage  of  Priests — Simony — Episcopal  Elections — Im- 
perial Authority  over  the  Popes — Disputes  concerning  Investitures — 
Gregory  VII  and  Henry  IV. — Concordat  of  Calixtus — Election  by 
Chapters — general  System  of  Gregory  VII  — Progress  of  Papal  Usur- 
pations in  the  twelfth  Century — Innocent  III. — his  Character  and 
Schemes. 

At  the  irruption  of  the  northern  invaders  into  the  Roman 
empire  they  found  the  clergy  already  endowed  with  extensive 
possessions.  Besides  the  spontaneous  oblations  upon  which 
the  ministers  of  the  Christian  church  had  originally  subsisted, 
they  had  obtained,  even  under  the  pagan  emperors,  by  conceal- 
ment or  connivance — for  the  Roman  law  did  not  permit  a 
tenure  of  lands  in  mortmain — certain  immovable  estates,  the 
revenues  of  which  were  applicable  to  their  own  maintenance 
and  that  of  the  poor.a  These  indeed  were  precarious  and 
liable  to  confiscation  in  times  of  persecution.  But  it  was  among 
the  first  effects  of  the  conversion  of  Constantine  to  give  not 
only  a  security,  but  a  legal  sanction,  to  the  territorial  acquisi- 
tions of  the  church.  The  edict  of  Milan,  in  313,  recognizes  the 
actual  estates  of  ecclesiastical  corporations.^  Another,  pub- 
lished in  321,  grants  to  all  the  subjects  of  the  empire  the  power 

a  Giannone,  Istoria  di  Napoli,  1.  ii.  c.  tion;    but  a  comparison  of  the  three 

8,    Gibbon,  c    15  and  c.  so;    F.  Paul's  seems  to  justify  my  text.   t 

Treatise  on  Benefices,  c.  4.    The  last  b  Giannone;   Gibbon,   ttbi    supra;  F. 

writer  does  not  wholly  confirm  this  posi-  Paul,  c.  5. 

75 


76  HALLAM 

of  bequeathing  their  property  to  the  church.^  His  own  liber- 
ality and  that  of  his  successors  set  an  example  which  did  not 
want  imitators.  Passing  rapidly  from  a  condition  of  distress 
and  persecution  to  the  summit  of  prosperity,  the  church  de- 
generated as  rapidly  from  her  ancient  purity,  and  forfeited  the 
respect  of  future  ages  in  the  same  proportion  as  she  acquired 
the  blind  veneration  of  her  own.  Covetousness,  especially, 
became  almost  a  characteristic  vice.  Valentiman  L,  in  370, 
prohibited  the  clergy  from  receiving  the  bequests  of  women — 
a  modification  more  discreditable  than  any  general  law  could 
have  been.  And  several  of  the  fathers  severely  reprobate  the 
prevailing  avidity  of  their  contemporaries.^ 

The  devotion  of  the  conquering  nations,  as  it  was  still  less 
enlightened  than  that  of  the  subjects  of  the  empire,  so  was  it 
still  more  munificent.  They  left  indeed  the  worship  of  Hesus 
and  Taranis  in  their  forests ;  but  they  retained  the  elementary 
principles  of  that  and  of  all  barbarous  idolatry,  a  superstitious 
reverence  for  the  priesthood,  a  credulity  that  seemed  to  invite 
imposture,  and  a  confidence  in  the  efficacy  of  gifts  to  expatiate 
offences.  Of  this  temper  it  is  undeniable  that  the  ministers  of 
religion,  influenced  probably  not  >so  much  by  personal  covet* 
ousness  as  by  zeal  for  the  interests  of  their  order,  took  advan- 
tage. Many  of  the  peculiar  and  prominent  characteristics  in 
the  faith  and  discipline  of  those  ages  appear  to  have  been  either 
introduced  or  sedulously  promoted  for  the  purposes  of  sordid 
fraud.  To  those  purposes  conspired  the  veneration  for  relics, 
the  worship  of  images,  the  idolatry  of  saints  and  martyrs,  the 
religious  inviolability  of  sanctuaries,  the  consecration  of  ceme- 
teries, but,  above  all,  the  doctrine  of  purgatory  and  masses  for 
the  relief  of  the  dead.  A  creed  thus  contrived,  operating  upon 
the  minds  of  barbarians,  lavish  though  rapacious,  and  devout 
though  dissolute,  naturally  caused  a  torrent  of  opulence  to 
pour  in  upon  the  church.  Donations  of  land  were  continually 
made  to  the  bishops,  and,  in  still  more  ample  proportion,  to 
the  monastic  foundations.  These  had  not  been  very  numerous 
in  the  West  till  the  beginning  of  the  sixth  century,  when  Bene- 
dict established  his  celebrated  rule.*  A  more  remarkable 
show  of  piety,  a  more  absolute  seclusion  from  the  world,  forms 
more  impressive  and  edifying,  prayers  and  masses  more  con- 

cGiannone.  Treatise   on   Benefices,    c    8;     Fleury, 

d  Ibid.,  ubi  supra;  F.  Paul,  c.  6,  Huitieme  Discours  sttr  1'Hist.  Eccl£si- 

e  Giannone,  1.  iii.  c.  6j   1   iv.  c.  121       astique,  Muraton,   Dissert,  65. 


THE  MIDDLE  AGES  77 

stantly  repeated,  gave  to  the  professed  in  these  institutions  an 
advantage,  m  public  esteem,  over  the  secular  clergy. 

The  ecclesiastical  hierarchy  never  received  any  territorial 
endowment  by  law,  either  under  the  Roman  empire  or  the 
kingdoms  erected  upon  its  ruins.  But  the  voluntary  munifi- 
cence of  princes,  as  well  as  their  subjects,  amply  supplied  the 
place  of  a  more  universal  provision.  Large  private  estates, 
or,  as  they  were  termed,  patrimonies,  not  only  within  their 
own  dioceses,  but  sometimes  in  distant  countries,  sustained 
the  dignity  of  the  principal  sees,  and  especially  that  of  Rome  f 
The  French  monarchs  of  the  first  dynasty,  the  Carlovingian 
family  and  their  great  chief,  the  Saxon  line  of  emperors,  the 
kings  of  England  and  Leon,  set  hardly  any  bounds  to  their 
liberality,  as  numerous  charters  still  extant  in  diplomatic  col- 
lections attest.  Many  churches  possessed  seven  or  eight  thou- 
sand mansi ;  one  with  but  two  thousand  passed  for  only  in- 
differently rich.g  But  it  must  be  remarked  that  many  of  these 
donations  are  of  lands  uncultivated  and  unappropriated.  The 
monasteries  acquired  legitimate  riches  by  the  culture  of  these 
deserted  tracts  and  by  the  prudent  management  of  their  rev- 
enues, which  were  less  exposed  to  the  ordinary  means  of  dissi- 
pation than  those  of  the  laity.fr  Their  wealth,  continually 
accumulated,  enabled  them  to  become  the  regular  purchasers 
of  landed  estates,  especially  in  the  time  of  the  crusades,  when 
the  fiefs  of  the  nobility  were  constantly  in  the  market  for  sale 
or  mortgage.*" 

If  the  possessions  of  ecclesiastical  communities  had  all  been 
as  fairly  earned,  we  could  find  nothing  in  them  to  reprehend. 
But  other  sources  of  wealth  were  less  pure,  and  they  derived 
their  wealth  from  many  sources.  Those  who  entered  into  a 
monastery  threw  frequently  their  whole  estates  into  the  com- 
mon stock;  and  even  the  children  of  rich  parents  were  ex- 
pected to  make  a  donation  of  land  on  assuming  the  cowl. 
Some  gave  their  property  to  the  church  before  entering  on 
military  expeditions ;  gifts  were  made  by  some  to  take  effect 
after  their  lives,  and  bequests  by  many  in  the  terrors  of  disso- 
lution. Even  those  legacies  to  charitable  purposes,  which  the 
clergy  could  with  more  decency  and  speciousness  recommend, 

f  St.  Marc,  t.  i.  p.  281 ;    Giannone,  1  h  Muratori,  Dissert.  65 ;  Du  Gauge,  v. 

v.  c   12  EreTTHH 

g  Scbmidt,  t.  ii.  p.  205.  *  Heeren,  Essai  sui:  les  Croisades,  p. 

166;  Schmidt,  t.  in   p.  293, 


7  8  HALL AM 

and  of  which  the  administration  was  generally  confined  to 
them,  were  frequently  applied  to  their  own  benefit.;  They 
failed  not,  above  all,  to  inculcate  upon  the  wealthy  sinner  that 
no  atonement  could  be  so  acceptable  to  Heaven  as  liberal  pres- 
ents to  its  earthly  delegates.*?  To  die  without  allotting  a  por- 
tion of  worldly  wealth  to  pious  uses  was  accounted  almost  like 
suicide,  or  a  refusal  of  the  last  sacraments ;  and  hence  int,es- 
tacy  passed  for  a  sort  of  fraud  upon  the  church,  which  she 
punished  by  taking  the  administration  of  the  deceased's  effects 
into  her  own  hands.  This,  however,  was  peculiar  to  England, 
and  seems  to  have  been  the  case  there  only  from  the  reign  of 
Henry  III.  to  that  of  Edward  III.,  when  the  bishop  took  a 
portion  of  the  intestate's  personal  estate  for  the  advantage  of 
the  church  and  poor,  instead  of  distributing  it  among  his  next 
of  kin./  The  canonical  penances  imposed  upon  repentant  of- 
fenders, extravagantly  severe  in  themselves,  were  commuted 
for  money  or  for  immovable  possessions — a  fertile  though 
scandalous  source  of  monastic  wealth,  which  the  popes  after- 
wards diverted  into  their  own  coffers  by  the  usage  of  dispen- 
sations and  indulgences.^  The  church  lands  enjoyed  an  im- 
munity from  taxes,  though  not  in  general  from  military  service, 
when  of  a  feudal  tenure.^  But  their  tenure  was  frequently  in 
what  was  called  frankalmoign,  without  any  obligation  of*  ser- 
vice. Hence  it  became  a  customary  fraud  of  lay  proprietors 
to  grant  estates  to  the  church,  which  they  received  again  by 
way  of  fief  or  lease,  exempted  from  public  burdens.  And,  as 
if  all  these  means  of  accumulating  what  they  could  not  legiti- 

j  Primo  sacris  pastonbus  data  est  fa-  /  Selden,  vol  ni  p  1676,  Prynne's 
cultas,  ut  haereditatis  portio  m  pauperes  Constitutions,  vol,  m  p  18,  Black- 
et  egenos  dispergeretur;  sed  sensim  stone,  vol,  11  chap  32  In  France  the 
ecclesiae  quoque  in  pauperum  censum  lord  of  the  fief  seems  to  have  taken  the 
venerunt,  atque  mtestatse  gentis  mens  whole  spoil.  Du  Cange,  v  Intet>tatus 
credita  est  proclivior  in  eas  futttra  fuis-  m  Muraton,  Dissert  68. 
se-  qua  ex  re  pmguius  illarum  patnmo-  n  Palgrave  has  shown  that  the  Anglo- 
mum  evasit  Immo  episcopi  ipsi  in  Saxon  clergy  were  not  exempt,  origin* 
rem  suam  ejusmodi  consuetudinem  in-  ally  at  least,  from  the  tunoda  neccssttas 
terdum  convertebant.  ac  tnbutum  eva-  imposed  on  all  allodial  proprietors  They 
sit,  quod  antea  pu  mons  fuit  Mura-  were  better  treated  on  the  Continent; 
tori,  Antiquitates  Italiae,  t.  v.  Dissert  67.  and  Boniface  exclaims  that  m  no  part 

k  Muratori,     Dissert.     67     (Antiquit  of  the  world  was  such  servitude  imposed 

Italiae,  t    v.  p    1055),  has  preserved  a  on  the  church  as  among  the  English, 

curious  charter  of  an  Italian  count,  who  English    Commonwealth,    i.    158     But 

declares    that,    struck   with    reflections  when  we  look  at  the  charters  collected 

upon  his  sinful  state,  he  had  taken  coun-  in  Kemble's  Codex  Diplomaticus  (most 

sel  with  certain  religious  how  he  could  or  nearly  all  of  them  in  favor  of  the 

atone  for  his  offences.    Accepto  consiho  church)  we  shall  hardly  think  they  were 

ab  us,  excepto  si  renunciare  sseculo  pos-  ill   off,  though  they  might  be  forced 

sem,  nullum  esse  melms  inter  eleemo-  sometimes  to  repair  a  bridge  or  send 

sinarum  virtutes,  quam  si  de  propnis  their  tenants  against  the  Danes, 
meis  substantns  in  monasterium  conce- 
derem      Hie  consihum  ab  lis  libenter, 
et  ardentissimo  ammo  ego  accepi. 


THE  MIDDLE  AGES  79 

mately  enjoy  were  insufficient,  the  monks  prostituted  their 
knowledge  of  writing  to  the  purpose  of  forging  charters  in  their 
own  favor,  which  might  easily  impose  upon  an  ignorant  age, 
since  it  has  required  a  peculiar  science  to  detect  them  in  mod- 
ern times.  Such  rapacity  might  seem  incredible  in  men  cut 
off  from  the  pursuits  of  life  and  the  hope  of  posterity,  if  we 
did  not  behold  every  day  the  unreasonableness  of  avarice  and 
the  fervor  of  professional  attachments.^ 

As  an  additional  source  of  revenue,  and  in  imitation  of  the 
Jewish  law,  the  payment  of  tithes  was  recommended  or  en- 
joined. These,  however,  were  not  applicable  at  first  to  the 
maintenance  of  a  resident  clergy.  Parochial  divisions,  as  they 
now  exist,  did  not  take  place,  at  least  in  some  countries,  till 
several  centuries  after  the  establishment  of  Christianity  .£  The 
rural  churches,  erected  successively  as  the  necessities  of  a  con- 
gregation required,  or  the  piety  of  a  landlord  suggested,  were 
in  fact  a  sort  of  chapels  dependent  on  the  cathedral,  and  served 
by  itinerant  ministers  at  the  bishop's  discretion.?  The  bishop 
himself  received  the  tithes,  and  apportioned  them  as  he  thought 
fit.  A  capitulary  of  Charlemagne,  however,  regulates  their 
division  into  three  parts ;  one  for  the  bishop  and  his  clergy, 
a  second  for  the  poor,  and  a  third  for  the  support  of  the  fabric 
of  the  church.r  Some  of  the  rural  churches  obtained  by  epis- 
copal concessions  the  privileges  of  baptism  and  burial,  which 

o  Muraton's  6$tla.,  6;th,  and  68th  Bis-  quahbet  occasione  ab  episcopo  sine  ra- 

sertations  on  the  Antiquities   of  Italy  tione  certa  repellatur,  et  si  rejiciendus 

have  furnished  the  principal  materials  of  est,propterscandalum  vitandum  evidenti 

my  text,  with  Father  Paul's  Treatise  on  ratione  mamfestetur,"    Another  capitu- 

Benefices,  especially  chaps    19  and  29  lary  of  Charles  the  Bald,  in  864,  forbids 

Giannone,  loc.  cit  and  1  iv  c.  12,   1.  v.  the    establishment    of    priests    in    the 

c  6;  1.  x.  c  12.    Schmidt,  Hist,  des  Alle-  churches  of  patrons,  or  their  ejection 

raands,  t   i   p   370,  t  n  pp    203,  462;  t  without  the  bishop's  consent  — "  De  his 

iv.  p.  202.    Fleury,  III     Discours  sur  qui  sine  consensu  episcopi  presbyteros 

1'Hist.    EccHs     Du    Cange,   voc     Pre-  in  eccleshs  suis  constituunt,  vel  de  ec- 

cana.  clesiis   dejiciunt "    Thus   the   churches 

p  Muraton,   Dissert.   74,  and   Fleury,  are  recognized  as  the  property  of  the 

Institutions  au  Droit  ecclesiastique,  t  lord,  and  the  parish  may  be  considered 

i    p,  162,  refer  the  origin  of  parishes  to  as  an  established  division,  at  least  very 

the  fourth  century;    but  this  must  be  commonly,  so  early  as  the  Carlovingian 

limited  to  the  most  populous  part  of  the  empire     1  do  not  by  any  means  deny 

empire.  that  it  was  partially  known  m  France 

q  These   were   not   always    itinerant;  before  that  time 

commonly,  perhaps,  they  were  depend-  Guizot    reckons    the    patronage    of 

ants  of  the  lord,  appointed  by  the  bish-  churches  by  the  laity  among  the  cir- 

op  on  his  nomination.— Lehuerou,  In-  cumstances   which    diminished    or   re- 

stitut     Carolingiennes,     p      526,     who  tarded  ecclesiastical  power.    (Legon  13 ) 

quotes  a  capitulary  of  the  Emperor  Lo-  It  may  have  been  so;   but  without  this 

thaire  in  825.    "  De  clericis  vero  laicq-  patronage  there  would  have  been  very 

rum,  unde  non  nulli  eoruni  conquen  vi-  few  parish  churches.    It  separated   in 

deantur,  eo  quod  quidam   episcopi   ad  some  degree  the  interests  of  the  secular 

eoruni  preces  nolint  in  ecclesus  sws  eos,  clergy  from  those  of  the  bishops  and  the 

cum  utiles  smt,  ordmare,  visum  nobis  regulars. 

furt,  ut  .  .  .     et  cum  cantate  et  ratione  r  Schmidt,  t.  u.  p.  206*   This  seems  to 

utiles  et  idonei  eligantur;  et  si  laicus  ido-  have  been  founded  on  an  ancient  can* 

neurn  utilemque  clencum  obtulent  nulla  on,  F,  Paul,  c,  7. 


;8o  HALLAM 

were  accompanied  with  a  fixed  share  of  tithes,  and  seem  to 
imply  the  residence  of  a  minister.  The  same  privileges  were 
gradually  extended  to  the  rest ;  and  thus  a  complete  parochial 
division  was  finally  established.  But  this  was  hardly  the  case 
in  England  till  near  the  time  of  the  conquests 

The  slow  and  gradual  manner  in  which  parochial  churches 
became  independent  appears  to  be  of  itself  a  sufficient  answer 
to  those  who  ascribe  a  great  antiquity  to  the  universal  payment 
of  tithes.  These  are,  however,  more  direct  proofs  that  this 
species  of  ecclesiastical  property  was  acquired  not  only  by  de- 
grees but  with  considerable  opposition.  We  find  the  payment 
of  tithes  first  enjoined  by  the  canons  of  a  provincial  council 
in  France  near  the  end  of  the  sixth  century.  From  the  ninth 
to  the  end  of  the  twelfth,  or  even  later,  it  is  continually  enforced 
by  similar  authority.*  Father  Paul  remarks  that  most  of  the 
sermons  preached  about  the  eighth  century  inculcate  this  as 
a  duty,  and  even  seem  to  place  the  summit  of  Christian  per- 
fection in  its  performance.^  This  reluctant  submission  of  the 
people  to  a  general  and  permanent  tribute  is  perfectly  con- 
sistent with  the  eagerness  displayed  by  them  in  accumulating 
voluntary  donations  upon  the  church.  Charlemagne  was  the 
first  who  gave  the  confirmation  of  a  civil  statute  to  these 
ecclesiastical  injunctions ;  no  one  at  least  has,  so  far  as  I  know, 
adduced  any  earlier  law  for  the  payment  of  tithes  than  one  of 
his  capitularies.^  But  it  would  be  precipitate  to  infer  either 
that  the  practice  had  not  already  gained  ground  to  a  consid- 
erable extent,  through  the  influence  of  ecclesiastical  authority, 
or,  on  the  other  hand,  that  it  became  universal  in  consequence 
of  the  commands  of  Charlemagne.^  In  the  subsequent  ages 
it  was  very  common  to  appropriate  tithes,  which  had  originally 
been  payable  to  the  bishop,  either  towards  the  support  of  par- 
ticular churches,  or,  according  to  the  prevalent  superstition, 

s  Collier's   Ecclesiastical  History,   p.  which  he  quotes  have  indeed  a  different 

229-e  _ .     ,    __             ,  _  ,  meaning;   but  he  has  overlooked  an  ex- 

t  Selden  s  History  of  Tithes,  vol.  iii.  press  enactment  m  789  (Baluzu  Canitu- 

p.  1108,  edit.  Wilkins     Tithes  are  said  lana,  t.  i.  p.  253)  which  admits  of  no 

by  Giannone  to  have  been  enforced  by  question;    and  I  believe  that  there  are 

some  papal  decrees  in  the  sixth  cen-  others  m  confirmation 

tury     1.  ni  c.  6  w  The  grant  of  Ethelwolf  in  855  has 

W™rei?i    e,r?£  Benefices»  c-  i             .  appeared  to  some  antiquaries  the  most 

v  Mably  (Observations  sur  1'Hist.  de  probable  origin  of  the  general  right  to 

France,  t.  i  pp.  238  et  438)  has,  with  re-  tithes  in  England  [NOTE  I.I    It  is  said 

markable.  rashness,    attacked  the   cur-  by  Manna  that  tithes  were  not  legally 

rent  opinion   that   Charlemagne  estab-  established  m  Castile  till  the  reign  of 

hshed   the   legal   obligation   of  tithes,  Alfonso    X.     Ensayo    sobre    les    Siete 

and  denied  that  any  of  his  capitularies  Partidas,  c  350 
bear    such    an    interpretation.    Those 


THE   MIDDLE  AGES  81 

to  monastic  foundations.*  These  arbitrary  consecrations, 
though  the  subject  of  complaint,  lasted,  by  a  sort  of  prescrip- 
tive right  of  the  landholder,  till  about  the  year  1200.  It  was 
nearly  at  the  same  time  that  the  obligation  of  paying  tithes, 
which  had  been  originally  confined  to  those  called  predial, 
or  the  fruits  of  the  earth,  was  extended,  at  least  in  theory,  to 
every  species  of  profit,  and  to  the  wages  of  every  kind  of  labors 
Yet  there  were  many  hindrances  that  thwarted  the  clergy 
in  their  acquisition  of  opulence,  and  a  sort  of  reflux  that  set 
sometimes  very  strongly  against  them.  In  times  of  barbarous 
violence  nothing  can  thoroughly  compensate  for  the  inferiority 
of  physical  strength  and  prowess.  The  ecclesiastical  history 
of  the  middle  ages  presents  one  long  contention  of  fraud  against 
robbery;  of  acquisitions  made  by  the  church  through  such 
means  as  I  have  described,  and  torn  from  her  by  lawless  power. 
Those  very  men  who  in  the  hour  of  sickness  and  impending 
death  showered  the  gifts  of  expiatory  devotion  upon  her  altars, 
had  passed  the  sunshine  of  their  lives  in  sacrilegious  plunder. 
Notwithstanding  the  frequent  instances  of  extreme  reverence 
for  religious  institutions  among  the  nobility,  we  should  be 
deceived  in  supposing  this  to  be  their  general  character. 
Rapacity,  not  less  insatiable  than  that  of  the  abbots,  was  com- 
monly united  with  a  daring  fierceness  that  the  abbots  could 
not  resists  In  every  country  we  find  continual  lamentation 
over  the  plunder  of  ecclesiastical  possessions.  Charles  Martel 
is  reproached  with  having  given  the  first  notorious  example 
of  such  spoliation.  It  was  not,  however,  commonly  practised 
by  sovereigns.  But  the  evil  was  not  the  less  universally  felt. 
The  parochial  tithes  especially,  as  the  hand  of  robbery  falls 
heaviest  upon  the  weak,  were  exposed  to  unlawful  seizure. 
In  the  tenth  and  eleventh  centuries  nothing  was  more  common 
than  to  see  the  revenues  of  benefices  in  the  hands  of  lay  im~ 
propriators,  who  employed  curates  at  the  cheapest  rate;  an 

x  Selden,  p  1114  et  seq  ,   Coke,  2  Inst.  lands  let  to  a  tenant  at  rack-rent,  which 

p.  641.  of  course  formed  a  considerable  branch 

y  Selden's  History  of  Tithes;  Treatise  of  revenue     The  grant  was  called  pre- 

on  Benefices,  c.  28;    Giannone,  1.  x    c.  cana  from  being  obtained  at  the  prayer 

12.  of  a  grantee ;  and  the  uncertainty  of  its 

s  The  church  was  often  compelled  to  renewal  seems  to  have  given  rise  to  the 
grant  leases  of  her  lands,  under  the  adjective  precarious. 
name  of  precatus,  to  laymen,  who  prob-  In  the  ninth  century,  though  the  pre- 
ably  rendered  little  or  no  service  in  re-  tensions  of  the  bishops  were  never  high- 
turn,  though  a  rent  or  census  was  ex-  er,  the  church  itself  was  more  pillaged 
pressed  in  the  instrument  These  pre>  under  pretext  of  these  precaria,  and  in 
canes  seem  to  have  been  for  life,  but  other  ways,  than  at  any  former  time. — 
were  frequently  renewed.  They  are  not  See  Du  Cange  for  a  long  article  on  Pre- 
to  be  confounded  with  terra  censuales,  or  carise. 

VOL.  II.— 6 


82  H  ALLAH 

abuse  that  has  never  ceased  in  the  church.^  Several  attempts 
were  made  to  restore  these  tithes ;  but  even  Gregory  VII.  did 
not  venture  to  proceed  in  it ;  &  and  indeed  it  is  highly  prob- 
able that  they  might  be  held  in  some  instances  by  a  lawful 
titles  Sometimes  the  property  of  monasteries  was  dilapidated 
by  corrupt  abbots,  whose  acts,  however  clandestine  and  un- 
lawful, it  was  not  easy  to  revoke.  And  both  the  bishops  and 
convents  were  obliged  to  invest  powerful  lay  protectors,  under 
the  name  of  advocates,  with  considerable  fiefs,  as  the  price  of 
their  assistance  against  depredators.  But  these  advocates 
became  too  often  themselves  the  spoilers,  and  oppressed  the 
helpless  ecclesiastics  for  whose  defence  they  had  been  en- 
gaged.** 

If  it  had  not  been  for  these  drawbacks,  the  clergy  must,  one 
would  imagine,  have  almost  acquired  the  exclusive  property 
of  the  soil.  They  did  enjoy,  according  to  some  authorities, 
nearly  one-half  of  England,  and,  I  believe,  a  greater  proportion 
in  some  countries  of  Europe.*  They  had  reached,  perhaps, 
their  zenith  in  respect  of  territorial  property  about  the  con- 
clusion of  the  twelfth  century/  After  that  time  the  disposition 
to  enrich  the  clergy  by  pious  donations  grew  more  languid, 
and  was  put  under  certain  legal  restraints,  to  which  I  shall 
hereafter  advert;  but  they  became  rather  more  secure  from 
forcible  usurpations. 

The  acquisitions  of  wealth  by  the  church  were  hardly  so  re- 
markable, and  scarcely  contributed  so  much  to  her  greatness, 
as  those  innovations  upon  the  ordinary  course  of  justice  which 

a  Du  Cange,  voc.  Abbas.  e  Turner's  Hist,  of  England,  vol    11 

b  Schmidt,  t,  iv.  p.  204.  At  an  assem-  p.  413,  from  Avesbury  According  to  a 

bly  held  at  St.  Dems  m  997  the  bishops  calculation  founded  on  a  passage  in 

proposed  to  restore  the  tithes  to  the  Knyghton,  the  revenue  of  the  English 

secular  clergy;  but  such  a  tumult  was  church  in  1337  amounted  to  730,000 

excited  by  this  attempt,  that  the  meet-  marks  per  annum  Macpherson's  Art- 

ing  was  broken  up.  Recueil  des  His-  nals  of  Commerce,  vol  i  p.  519,  His- 

toriens,  t.  xi.  prsefat.  p  212.  toire  du  Droit  public  Eccles.  Francois, 

c  Selden's  Hist,  of  Tithes,  p  1136.  t.  i,  p.  214  Anthony  Harmer  (Henry 

The  third  council  of  Lateran  restrains  Wharton)  says  that  the  monasteries  did 

laymen  from  transferring  their  impro-  not  possess  one-fifth  of  the  land ,  and  I 

pnated  titles  to  other  laymen.  Velly,  incline  to  think  that  he  is  nearer  the 

Hist,  de  France,  t.  iii,  p.  235  This  truth  than  Mr.  Turner,  who  puts  the 

seems  tacitly  to  admit  that  their  posses-  wealth  of  the  church  at  above  28,000 

sion  was  lawful,  at  least  by  prescription.  knights'  fees  out  of  53,215.  The  bishops' 

d  For  the  injuries  sustained  by  eccle-  lands  could  not  by  any  means  account 

siastical  proprietors,  see  Muraton,  Dis-  for  the  difference;  so  that  Mr.  Turner 

sert  72  Bu  Cange,  v.  Advocatus.  was  probably  deceived  by  his  authority. 

Schmidt,  t.  ii.  pp.  220,  470;  t.  ni.p.  290;  /The  great  age  of  monasteries  in 

t.  iv.  pp.  188,  202.  Recueil  des  Histon-  England  was  the  reigns  of  Henry  I., 

ens,  t  xi.  praefat.  p  184  Martenne,  Stephen,  and  Henry  II.  Lyttelton's 

Thesaurus  Anecdotorum,  t.  i.  p.  595  Henry  II.  vol.  n  p  329  David  I  of 

Vaissette,  Hist,  de  Languedoc,  t.  n.  p.  Scotland,  contemporary  with  Henry  II  , 

109,  and  Appendix,  passim  was  also  a  noted  founder  of  monasteries 

Dalrymple's  Annals 


THE   MIDDLE  AGES  83 

fall  under  the  head  of  ecclesiastical  jurisdiction  and  immunity. 
It  is  hardly,  perhaps,  necessary  to  caution  the  reader  that  rights 
of  territorial  justice,  possessed  by  ecclesiastics  in  virtue  of  their 
fiefs,  are  by  no  means  included  in  this  description.  Episcopal 
jurisdiction,  properly  so  called,  may  be  considered  as  depend- 
ing upon  the  choice  of  litigant  parties,  upon  their  condition, 
and  upon  the  subject-matter  of  their  differences. 

i.  The  arbitrative  authority  of  ecclesiastical  pastors,  if  not 
coeval  with  Christianity,  grew  up  very  early  in  the  church,  and 
was  natural,  or  even  necessary,  to  an  insulated  and  persecuted 
society .£  Accustomed  to  feel  a  strong  aversion  to  the  imperial 
tribunals,  and  even  to  consider  a  recurrence  to  them  as  hardly 
consistent  with  their  profession,  the  early  Christians  retained 
somewhat  of  a  similar  prejudice  even  after  the  establishment 
of  their  religion.  The  arbitration  of  their  bishops  still  seemed 
a  less  objectionable  mode  of  settling  differences.  And  this 
arbitrative  jurisdiction  was  powerfully  supported  by  a  law  of 
Constantine,  which  directed  the  civil  magistrate  to  enforce 
the  execution  of  episcopal  awards.  Another  edict,  ascribed 
to  the  same  emperor,  and  annexed  to  the  Theodosian  code, 
extended  the  jurisdiction  of  the  bishops  to  all  causes  which 
either  party  chose  to  refer  to  it,  even  where  they  had  already 
commenced  in  a  secular  court,  and  declared  the  bishop's  sen- 
tence not  subject  to  appeal.  This  edict  has  clearly  been  proved 
to  be  a  forgery.  It  is  evident,  by  a  novel  of  Valentinian  III., 
about  450,  that  the  church  had  still  no  jurisdiction  in  questions 
of  a  temporal  nature,  except  by  means  of  the  joint  reference 
of  contending  parties.  Some  expressions,  indeed,  used  by  the 
emperor,  seem  intended  to  repress  the  spirit  of  encroachment 
upon  the  civil  magistrates,  which  had  probably  begun  to  mani- 
fest itself.  Charlemagne,  indeed,  in  one  of  his  capitularies,  is 
said  by  some  modern  writers  to  have  repeated  all  the  absurd 
and  enormous  provisions  of  the  spurious  constitution  in  the 
Theodosian  code./*  But  this  capitulary  is  erroneously  ascribed 
to  Charlemagne.  It  is  only  found  in  one  of  the  three  books 
subjoined  by  Benedict  Levita  to  the  four  books  of  capitularies 
collected  by  Ansegisus ;  these  latter  relating  only  to  Charle- 
magne and  Louis,  but  the  others  comprehending  many  of  later 

g  1.  Corinth  v  4.    The  word      «£ovfle-  coercive  authority,  referees.    The  pas- 

njiueVovy,       rendered  m  our  version  "  of  sage  at  least  tends  to  discourage  suits 

no   reputation,"   has   been    interpreted  before  a  secular  judge. 

by  some  to  mean  persons  destitute  of  h  Baluzn    Capitulana,    t    i     p.    9018. 


84  HALLAM 

emperors  and  kings.  And,  what  is  of  more  importance,  it 
seems  exceedingly  doubtful  whether  this  is  any  genuine  capit- 
ulary at  all.  It  is  not  referred  to  any  prince  by  name,  nor  is 
it  found  in  any  other  collection.  Certain  it  is  that  we  do  not 
find  the  church,  in  her  most  arrogant  temper,  asserting  the 
full  privileges  contained  in  this  capitulary.* 

2.  If  it  was  considered  almost  as  a  general  obligation  upon 
the  primitive  Christians  to  decide  their  civil  disputes  by  internal 
arbitration,  much  more  would  this  be  incumbent  upon  the 
clergy.  The  canons  of  several  councils,  in  the  fourth  and  fifth 
centuries,  sentence  a  bishop  or  priest  to  deposition,  who  should 
bring  any  suit,  civil  or  even  criminal,  before  a  secular  magis- 
trate. This  must,  it  should  appear,  be  confined  to  causes  where 
the  defendant  was  a  clerk;  since  the  ecclesiastical  court  had 
hitherto  no  coercive  jurisdiction  over  the  laity.  It  was  not  so 
easy  to  induce  laymen,  in  their  suits  against  clerks,  to  prefer 
the  episcopal  tribunal.  The  emperors  were  not  at  all  dis- 
posed to  favor  this  species  of  encroachment  till  the  reign  of 
Justinian,  who  ordered  civil  suits  against  ecclesiastics  to  be 
carried  only  before  the  bishops.  Yet  this  was  accompanied 
by  a  provision  that  a  party  dissatisfied  with  the  sentence  might 
apply  to  the  secular  magistrate,  not  as  an  appellant,  but  a 
co-ordinate  jurisdiction ;  for  if  different  judgments  were  given 
in  the  two  courts,  the  process  was  ultimately  referred  to  the 
emperor./  But  the  early  Merovingian  kings  adopted  the  ex- 
clusive jurisdiction  of  the  bishop  over  causes  wherein  clerks 
were  interested,  without  any  of  the  checks  which  Justinian 
had  provided.  Many  laws  enacted  during  their  reigns,  and 
under  Charlemagne,  strictly  prohibit  the  temporal  magistrates 
from  entertaining  complaints  against  the  children  of  the  church 

This  jurisdiction  over  the  civil  causes  of  clerks  was  not  im- 
mediately attended  with  an  equally  exclusive  cognizance  of 
criminal  offences  imputed  to  them,  wherein  the  state  is  so 
deeply  interested,  and  the  church  could  inflict  so  inadequate 
a  punishment  Justinian  appears  to  have  reserved  such  of- 
fences for  trial  before  the  imperial  magistrate,  though  with 
a  material  provision  that  the  sentence  against  a  clerk  should 

»  Gibbon,  c.  xx.    Giannone,  1  ii  c  8;          j  This  was  also  established  about  the 

1.  in.  c    6:    1    vi    c.  7     Schmidt,  t    ii.  same  time   by  Athalanc    Kin*   of  the 

p.  208     Fleury,  yme  Discours,  and  In-  Ostrogoths,  and  of  course  affected  the 

stitutions  au  Droit  Ecclesiastique,  t   n.  popes  who  were  his  subjects     St.  Marc 

p.  i     Memoires  de  1* Academic  des  In-  t.  i.  p.  60;  Fleury,  Hist.  Eccles.,  t   vii 

scnptions,  t.  xxxix.  p.  566.  p.  292. 


THE  MIDDLE  AGES  85 

not  be  executed  without  the  consent  of  the  bishop  or  the  final 
decision  of  the  emperor.  The  bishop  is  not  expressly  invested 
with  this  controlling  power  by  the  laws  of  the  Merovingians ; 
but  they  enact  that  he  must  be  present  at  the  trial  of  one  of  his 
clerks ;  which  probably  was  intended  to  declare  the  necessity 
of  his  concurrence  in  the  judgment.  The  episcopal  order  was 
indeed  absolutely  exempted  from  secular  jurisdiction  by  Jus- 
tinian ;  a  privilege  which  it  had  vainly  endeavored  to  establish 
under  the  earlier  emperors.  France  permitted  the  same  im- 
munity; Chilpenc,  one  of  the  most  arbitrary  of  her  kings, 
did  not  venture  to  charge  some  of  his  bishops  with  treason, 
except  before  a  council  of  their  brethren.  Finally,  Charle- 
magne seems  to  have  extended  to  the  whole  body  of  the  clergy 
an  absolute  exemption  from  the  judicial  authority  of  the  magis- 
trate.^ 

3.  The  character  of  a  cause,  as  well  as  of  the  parties  engaged, 
might  bring  it  within  the  limits  of  ecclesiastical  jurisdiction. 
In  all  questions  simply  religious  the  church  had  an  original 
right  of  decision;  in  those  of  a  temporal  nature  the  civil 
magistrate  had,  by  the  imperial  constitution,  as  exclusive  an 
authority  J  Later  ages  witnessed  strange  innovations  in  this 
respect,  when  the  spiritual  courts  usurped,  under  sophistical 
pretences,  almost  the  whole  administration  of  justice.  But 
these  encroachments  were  not,  I  apprehend,  very  striking  till 
the  twelfth  century;  and  as  about  the  same  time  measures, 
more  or  less  vigorous  and  successful,  began  to  be  adopted  in 
order  to  restrain  them,  I  shall  defer  this  part  of  the  subject 
for  the  present. 

In  this  sketch  of  the  riches  and  jurisdiction  of  the  hierarchy 
I  may  seem  to  have  implied  their  political  influence,  which  is 
naturally  connected  with  the  two  former.  They  possessed, 
however,  more  direct  means  of  acquiring  temporal  power 
Even  under  the  Roman  emperors  they  had  found  their  road 
into  palaces ;  they  were  sometimes  ministers,  more  often  secret 

k  Memoires  de  I* Academic,  ubi  supra;  lished  by  Ansegisus  under  Louis  the 

Giannone,  1.  in   c.  6;   Schmidt,  t.  n.  p.  Debonair.     (Id.  p    904  and  1115)    See 

236;   Fleury,  ubi  supra  other  proofs  in  Fleury,  Hist   Eccles ,  t. 

Some  of  these  writers  do  not  state  ix  p  607 

the    law    of    Charlemagne  so  strongly.  /  Quoties  de  rehgione  agitur,  episco- 

Nevertheless  the  words  of  a  capitulary  pos  oportet  judicare;    alteras  vero  cau- 

in  789.    Ut  clenci  ecclesiastici  ordinis  sas  quse  ad  ordinaries  cognitores  vel  ad 

si   culpam  incurrermt  apud  ecclesiasti-  usum   publici   juris   pertinent,    legibus 

cos  judicentur  non  apud  saeculares,  are  oporte,  audiri     Lex  Arcadii  et  Honorn 

sufficiently  general   (Baluz,   Capitul    t  apud  Mem.   de  1' Academic,  t.  xxxix. 

i    p.   227);  and  the  same   is  expressed  p.  571. 
still  more  forcibly  in  the  collection  pub- 


86  HALLAM 

counsellors,  always  necessary  but  formidable  allies,  whose  sup- 
port was  to  be  conciliated,  and  interference  to  be  respected. 
But  they  assumed  a  far  more  decided  influence  over  the  new 
kingdoms  of  the  West.  They  were  entitled,  in  the  first  place, 
by  the  nature  of  those  free  governments,  to  a  privilege  un- 
known under  the  imperial  despotism,  that  of  assisting  in  the 
deliberative  assemblies  of  the  nation.  Councils  of  bishops,  such 
as  had  been  convoked  by  Constantine  and  his  successors,  were 
limited  in  their  functions  to  decisions  of  faith  or  canons  of 
ecclesiastical  discipline.  But  the  northern  nations  did  not  so 
well  preserve  the  distinction  between  secular  and  spiritual  legis- 
lation. The  laity  seldom,  perhaps,  gave  their  suffrage  to  the 
canons  of  the  church ;  but  the  church  was  not  so  scrupulous 
as  to  trespassing  upon  the  province  of  the  laity.  Many  pro- 
visions are  found  in  the  canons  of  national  and  even  provincial 
councils  which  relate  to  the  temporal  constitution  of  the  state. 
Thus  one  held  at  Calcluith  (an  unknown  place  in  England), 
in  787,  enacted  that  none  but  legitimate  princes  should  be 
raised  to  the  throne,  and  not  such  as  were  engendered  in  adul- 
tery or  incest.  But  it  is  to  be  observed  that,  although  this 
synod  was  strictly  ecclesiastical,  being  summoned  by  the  pope's 
legate,  yet  the  kings  of  Mercia  and  Northumberland,  with 
many  of  their  nobles,  confirmed  the  canons  by  their  signature. 
As  for  the  councils  held  under  the  Visigoth  kings  of  Spain 
during  the  seventh  century,  it  is  not  easy  to  determine  whether 
they  are  to  be  considered  as  ecclesiastical  or  temporal  assem- 
blies.w  No  kingdom  was  so  thoroughly  under  the  bondage 
of  the  hierarchy  of  Spain.»  The  first  dynasty  of  France  seem 
to  have  kept  their  national  convention,  called  the  Field  of 
March,  more  distinct  from  merely  ecclesiastical  councils. 

The  bishops  acquired  and  retained  a  great  part  of  their  as- 
cendency by  a  very  respectable  instrument  of  power,  intellect- 
ual superiority.  As  they  alone  were  acquainted  with  the  art 
of  writing,  they  were  naturally  entrusted  with  political  cor- 
respondence, and  with  the  framing  of  the  laws.  As  they  alone 
knew  the  elements  of  a  few  sciences,  the  education  of  royal 
families  devolved  upon  them  as  a  necessary  duty.  In  the  fall 
of  Rome  their  influence  upon  the  barbarians  wore  down  the 
asperities  of  conquest,  and  saved  the  provincials  half  the  shock 

m  Marina,  Teoria  de  las  Cortes,  t.  i.       of  the  Spanish  bishops  in  Fleury,  Hist 


p*  9o  f  ,  Eccles ,  t  vni.  pp   368,  397:  t.  uc.  P.  68, 

nSee  instances  of  the  temporal  power       &c. 


THE   MIDDLE  AGES  87 

of  that  tremendous  revolution.  As  captive  Greece  is  said  to 
have  subdued  her  Roman  conqueror,  so  Rome,  in  her  own 
turn  of  servitude,  cast  the  fetters  of  a  moral  captivity  upon  the 
fierce  invaders  of  the  north.  Chiefly  through  the  exertions 
of  the  bishops,  whose  ambition  may  be  forgiven  for  its  effects, 
her  religion,  her  language,  in  part  even  her  laws,  were  trans- 
planted into  the  courts  of  Paris  and  Toledo,  which  became  a 
degree  less  barbarous  by  imitations 

Notwithstanding,  however,  the  great  authority  and  privi- 
leges of  the  church,  it  was  decidedly  subject  to  the  supremacy 
of  the  crown,  both  during  the  continuance  of  the  Western 
empire  and  after  its  subversion.  The  emperors  convoked,  reg- 
ulated, and  dissolved  universal  councils ;  the  kings  of  France 
and  Spain  exercised  the  same  right  over  the  synods  of  their 
national  churches.^  The  Ostrogoth  kings  of  Italy  fixed  by 
their  edicts  the  limits  within  which  matrimony  was  prohibited 
on  account  of  consanguinity,  and  granted  dispensations  from 
them.g  Though  the  Roman  emperors  left  episcopal  elections 
to  the  clergy  and  people  of  the  diocese,  in  which  they  were 
followed  by  the  Ostrogoths  and  Lombards,  yet  they  often  in- 
terfered so  far  as  to  confirm  a  decision  or  to  determine  a  con- 
test. The  kings  of  France  went  further,  and  seem  to  have 
invariably  either  nominated  the  bishops,  or,  what  was  nearly 
tantamount,  recommended  their  own  candidate  to  the  electors. 

But  the  sovereign  who  maintained  with  the  greatest  vigor 
his  ecclesiastical  supremacy  was  Charlemagne.  Most  of  the 
capitularies  of  his  reign  relate  to  the  discipline  of  the  church ; 
principally  indeed  taken  from  the  ancient  canons,  but  not  the 
less  receiving  an  additional  sanction  from  his  authority.?'  Some 
of  his  regulations,  which  appear  to  have  been  original,  are  such 
as  men  of  high  church  principles  would,  even  in  modern  times, 
deem  infringements  of  spiritual  independence ;  that  no  legend 
of  doubtful  authority  should  be  read  in  the  churches,  but  only 
the  canonical  books,  and  that  no  saint  should  be  honored  whom 
the  whole  church  did  not  acknowledge.  These  were  not  passed 

o  Schmidt,  t.  i.  p  365.  For  the  ecclesiastical  independence  of 

p  Encyclopedic,  art  Concile   Schmidt,  Spain,   down  to  the  eleventh  century* 

t.  i.  p.  384.    De  Marca,  De  Concordan-  see  Manna,  Ensayo  sobre  las  Siete  Par- 

tia  Sacerdotn  et  Imperil,  1.  ii    c.  9,  11;  tidas,  c.  322,  &c.j   and  De  Marca,  I   vi. 

et  1.  iv.  passim  c.  28 

The  last  of  these  sometimes  endeavors  q  Giannone,  I   in.  <c.  6. 

to  extenuate  the  royal  supremacy,  but  r  Baluzii  Capitularia,  passim:  Schmidt, 

his  own  work  furnishes  abundant  evi-  t.  11.  p.  233;    Gaillard,  Vie  de  Charle- 

dence  of  it;   especially  1.  vi,  c.  19,  &c.  magne,  t.  iii. 


88  HALLAM 

in  a  synod  of  bishops,  but  enjoined  by  the  sole  authority  of 
the  emperor,  who  seems  to  have  arrogated  a  legislative  power 
over  .the  church  which  he  did  not  possess  in  temporal  affairs. 
Many  of  his  other  laws  relating  to  the  ecclesiastical  constitution 
are  enacted  in  a  general  council  of  the  lay  nobility  as  well  as 
of  prelates,  and  are  so  blended  with  those  of  a  secular  nature 
that  the  two  orders  may  appear  to  have  equally  consented 
to  the  whole.  His  father  Pepin,  indeed,  left  a  remarkable  prece- 
dent in  a  council  held  in  744,  where  the  Nicene  faith  is  declared 
to  be  established,  and  even  a  particular  heresy  condemned, 
with  the  consent  of  the  bishops  and  nobles.  But  whatever  share 
we  may  imagine  the  laity  in  general  to  have  had  in  such  mat- 
ters, Charlemagne  himself  did  not  consider  even  theological 
decisions  as  beyond  his  province  ;  and,  in  more  than  one  in- 
stance, manifested  a  determination  not  to  surrender  his  own 
judgment,  even  in  questions  of  that  nature,  to  any  ecclesiastical 
authority^ 

This  part  of  Charlemagne's  conduct  is  duly  to  be  taken  into 
the  account  before  we  censure  his  vast  extension  of  ecclesias- 
tical privileges.  Nothing  was  more  remote  from  his  character 
than  the  bigotry  of  those  weak  princes  who  have  suffered  the 
clergy  to  reign  under  their  names.  He  acted  upon  a  systematic 
plan  of  government,  conceived  by  his  own  comprehensive 
genius,  but  requiring  too  continual  an  application  of  similar 
talents  for  durable  execution.  It  was  the  error  of  a  superior 
mind,  zealous  for  religion  and  learning,  to  believe  that  men 
dedicated  to  the  functions  of  the  one,  and  possessing  what  re- 
mained of  the  other,  might,  through  strict  rules  of  discipline, 
enforced  by  the  constant  vigilance  of  the  sovereign,  become 
fit  instruments  to  reform  and  civilize  a  barbarous  empire.  It 


s   i          *ifi   2?  VUS*££ft?3SS& 

« 


THE  MIDDLE  AGES  89 

was  the  error  of  a  magnanimous  spirit  to  judge  too  favorably 
of  human  nature,  and  to  presume  that  great  trusts  would  be 
fulfilled,  and  great  benefits  remembered. 

It  is  highly  probable,  indeed,  that  an  ambitious  hierarchy 
did  not  endure  without  reluctance  this  imperial  supremacy 
of  Charlemagne,  though  it  was  not  expedient  for  them  to  resist 
a  prince  so  formidable,  and  from  whom  they  had  so  much  to 
expect.  But  their  dissatisfaction  at  a  scheme  of  government 
incompatible  with  their  own  objects  of  perfect  independence 
produced  a  violent  recoil  under  Louis  the  Debonair,  who  at- 
tempted to  act  the  censor  of  ecclesiastical  abuses  with  as  much 
earnestness  as  his  father,  though  with  very  inferior  qualifica- 
tions for  so  delicate  an  undertaking.  The  bishops  accordingly 
were  among  the  chief  instigators  of  those  numerous  revolts 
of  his  children  which  harassed  this  emperor.  They  set,  upon 
one  occasion,  the  first  example  of  a  usurpation  which  was  to 
become  very  dangerous  to  society — the  deposition  of  sover- 
eigns by  ecclesiastical  authority.  Louis,  a  prisoner  in  the 
hands  of  his  enemies,  had  been  intimidated  enough  to  under- 
go a  public  penance ;  and  the  bishops  pretended  that,  accord- 
ing to  a  canon  of  the  church,  he  was  incapable  of  returning 
afterwards  to  a  secular  life  or  preserving  the  character  of 
sovereignty.*  Circumstances  enabled  him  to  retain  the  em- 
pire in  defiance  of  this  sentence;  but  the  church  had  tasted 
the  pleasure  of  trampling  upon  crowned  heads,  and  was  eager 
to  repeat  the  experiment.  Under  the  disjointed  and  feeble 

fllabitu  saeculi  se  exuens  habitum  when  he  tells  us  that  the  bishops  de- 
poemtentis  per  impoaitionexn  manuum  posed  Wamba;  it  may  have  been  a  vol- 
episcoporum  suscepit;  ut  post  tantam  untary  abdication,  influenced  by  super- 
talemque  poemtentiam  nemo  ultra  ad  stition,  or,  perhaps,  by  disease.  A  late 
militiara  ssecularem  redeat.  Acta  ex-  writer  has  taken  a  different  view  of  tjiis 
auctorationis  Ludovici,  apud  Schmidt,  event,  the  deposition  of  Louis  at  Com- 
t.  ii.  p  68.  There  was  a  sort  of  prece-  pi&gne.  It  was  not,  he  thinks,  une 
dent,  though  not,  I  think,  very  apposite,  hardiesse  sacerdotale,  une  temente  ec- 
for  this  doctrine  of  implied  abdication,  clistiastique,  mais  bien  une  lachetS  polJ- 
in  the  case  of  Wamba  King  of  the  Visi-  tique.  Ce  n'6tait  point  une  tentative 
goths  in  Spain,  who,  having  been  pour  e"lcver  Tautonte"  rehgieuse  au-des- 
elothed  with  a  monastic  dress,  accord-  sus  de  rautonte"  royale  dans  les  affaires 
ing  to  a  common  superstition,  during  a  temporelles;  c'etait,  au  contraire,  un 
dangerous  illness,  was  afterwards  ad-  abaissement  servile  de  la  premiere  de- 
judged  by  a  council  incapable  of  re-  vant  le  monde.  Faunel,  Hist,  de  la 
Burning  his  crown:  to  which  he  volun-  Gaule  MeVidionale,  iv.  150.  In  other 
tarily  submitted,  The  story,  as  told  by  wordst  the  bishops  lent  themselves  to 
an  original  writer,  quoted  in  Baronius  the  aristocratic  faction  which  was  in  re- 
ad A.0.  681,  is  too  obscure  to  warrant  bellion  against  Louis.  Ranke,  as  has 
any  positive  inference;  though  I  think  been  seen  in  an  early  note,  thinks  that 
we  may  justly  suspect  a  fraudulent  con-  they  acted  out  of  revenge  for  hj$  devia- 
trtvance  between  the  bishops  and  tion  from  the  law  of  817,  wntcn  es- 
Ervigius,  the  successor  of  Wamba.  tabhshed  the  unity  of  the  empire,  The 
Thft  latter,  besides  his  monastic  attire*  bishops,  in  fact,  had  so  many  secular 
had  received  the  last  sacraments;  after  and  personal  interests  and  sympathies 
which  he  might  be  deemed  civilly  dead.  that  we  cannot  always  judgre  of  their 
Fleury,  sme  Dlscouw  sur  1'Hist,  EC-  behavior  upon  general  p$jmpte& 
cUsiast,  puts  this  case  too  strongly 


9o 


HALLAM 


administration  of  his  posterity  in  their  several  kingdoms,  the 
bishops  availed  themselves  of  more  than  one  opportunity  to 
exalt  their  temporal  power.  Those  weak  Carlovingian  princes, 
in  their  mutual  animosities,  encouraged  the  pretensions  of  a 
common  enemy.  Thus  Charles  the  Bald  and  Lotus  of  Bavaria, 
having  driven  their  brother  Lothaire  from  his  dominions,  held 
an  assembly  of  some  bishops,  who  adjudged  him  unworthy  to 
reign,  and,  after  exacting  a  promise  from  the  two  allied  brothers 
to  govern  better  than  he  had  done,  permitted  and  commanded 
them  to  divide  his  territories.^  After  concurring  in  this  un- 
precedented encroachment,  Charles  the  Bald  had  little  right 
to  complain  when,  some  years  afterwards,  an  assembly  of 
bishops  declared  himself  to  have  forfeited  his  crown,  released 
his  subjects  from  their  allegiance,  and  transferred  his  kingdom 
to  Louis  of  Bavaria.  But,  in  truth,  he  did  not  pretend  to  deny 
the  principle  which  he  had  contributed  to  maintain.  Even 
in  his  own  behalf  he  did  not  appeal  to  the  rights  of  sovereigns, 
and  of  the  nation  whom  they  represent.  "  No  one,"  says  this 
degenerate  grandson  of  Charlemagne,  "ought  to  have  de- 
graded me  from  the  throne  to  which  I  was  consecrated,  until 
at  least  I  had  been  heard  and  judged  by  the  bishops,  through 
whose  ministry  I  was  consecrated,  who  are  called  the  thrones 
of  God,  in  which  God  sitteth,  and  by  whom  he  dispenses  his 
judgments;  to  whose  paternal  chastisement  I  was  willing  to 
submit,  and  do  still  submit  myself."  # 

These  passages  are  very  remarkable,  and  afford  a  decisive 
proof  that  the  power  obtained  by  national  churches,  through 
the  superstitious  prejudices  then  received,  and  a  train  of  favor- 
able circumstances,  was  as  dangerous  to  civil  government  as 
the  subsequent  usurpations  of  the  Roman  pontiff,  against  which 
Protestant  writers  are  apt  too  exclusively  to  direct  their  ani- 
madversions. Voltaire,  I  think,  has  remarked  that  the  ninth 
century  was  the  age  of  the  bishops,  as  the  eleventh  and  twelfth 
were  of  the  popes.  It  seemed  as  if  Europe  was  about  to  pass  un- 
der as  absolute  a  domination  of  the  hierarchy  as  had  been  exer- 
cised by  the  priesthood  of  ancient  Egypt  or  the  Druids  of  Gaul. 
There  is  extant  a  remarkable  instrument  recording  the  election 
of  Boson  King  of  Aries,  by  which  the  bishops  alone  appear 
to  have  elevated  him  to  the  throne,  without  any  concurrence 

«  Schmidt,  t.  11.  p.  77.    Velly,  t.  ii  p.  v  Schmidt,  t  11  p.  217. 

61;   see,  too,  p   74. 


THE  MIDDLE  AGES  9I 

of  the  nobility .W  But  it  is  inconceivable  that  such  could  have 
really  been  the  case ;  and  if  the  instrument  is  genuine,  we  must 
suppose  it  to  have  been  framed  in  order  to  countenance  future 
pretensions.  For  the  clergy,  by  their  exclusive  knowledge  of 
Latin,  had  it  in  their  power  to  mould  the  language  of  public 
documents  for  their  own  purposes;  a  circumstance  which 
should  be  cautiously  kept  in  mind  when  we  peruse  instru- 
ments drawn  up  during  the  dark  ages. 

It  was  with  an  equal  defiance  of  notorious  truth  that  the 
Bishop  of  Winchester,  presiding  as  papal  legate  at  an  assembly 
of  the  clergy  in  1141,  during  the  civil  war  of  Stephen  and 
Matilda,  asserted  the  right  of  electing  a  king  of  England  to 
appertain  principally  to  that  order ;  and,  by  virtue  of  this  un- 
precedented claim,  raised  Matilda  to  the  throne.-*"  England, 
indeed,  has  been  obsequious,  beyond  most  other  countries,  to 
the  arrogance  of  her  hierarchy ;  especially  during  the  Anglo- 
Saxon  period,  when  the  nation  was  sunk  in  ignorance  and 
effeminate  superstition.  Everyone  knows  the  story  of  King 
Edwy  in  some  form  or  other,  though  I  believe  it  impossible 
to  ascertain  the  real  circumstances  of  that  controverted  anec- 
dotes But,  upon  the  supposition  least  favorable  to  the  king, 
the  behavior  of  Archbishops  Odo  and  Dunstan  was  an  intoler- 
able outrage  of  spiritual  tyranny. 

But  while  the  prelates  of  these  nations,  each  within  his  re- 
spective sphere,  were  prosecuting  their  system  of  encroach- 
ment upon  the  laity,  a  new  scheme  was  secretly  forming  within 
the  bosom  of  the  church,  to  enthrall  both  that  and  the  temporal 
governments  of  the  world  under  an  ecclesiastical  monarch. 
Long  before  the  earliest  epoch  that  can  be  fixed  for  modern 
history,  and,  indeed,  to  speak  fairly,  almost  as  far  back  as 
ecclesiastical  testimonies  can  carry  us,  the  bishops  of  Rome 
had  been  venerated  as  first  in  rank  among  the  rulers  of  the 
church.  The  nature  of  this  primacy  is  doubtless  a  very  con- 
troverted subject.  It  is,  however,  reduced  by  some  moderate 
Catholics  to  little  more  than  a  precedency  attached  to  the  see 
of  Rome  in  consequence  of  its  foundation  by  the  chief  of  the 
apostles,  as  well  as  the  dignity  of  the  imperial  city.*?  A  sort 

w  Recueil  des  Historians,  t.  ix.  p  304.  que  dommam  eligimus,  et  ei  fidera  et 

x  Ventilate,  est  causa,  says  the  Legate,  manutenementum    promittimus.      GUI 

coram    majori   parte   clen    Anghae,   ad  Malmsb.  p    188, 

cujus  jus  potissimum  spectat  principem  y  [NOTE  II.] 

eligere,  simulque  ordmare     Invocata  ita  z  These    foundations   of   the   Roman 

que  primd  in  auxilium  Divimtate,  filiaro  primacy  are  indicated  by  Valentiman 

pacinci  regis,  &c.,  in  Anglia  Normamae-  III.,  a  great  favorer  of  that  see,  in  a 


92  HALLAM 

of  general  superintendence  was  admitted  as  an  attribute  of 
this  primacy,  so  that  the  bishops  of  Rome  were  entitled,  and 
indeed  bound,  to  remonstrate,  when  any  error  or  irregularity 
came  to  their  knowledge,  especially  in  the  western  churches, 
a  greater  part  of  which  had  been  planted  by  them,  and  were 
connected,  as  it  were  by  filiation,  with  the  common  capital  of 
the  Roman  empire  and  of  Christendom/*  Various  causes  had 
a  tendency  to  prevent  the  bishops  of  Rome  from  augmenting 
their  authority  in  the  East,  and  even  to  diminish  that  which 
they  had  occasionally  exercised ;  the  institution  of  patriarchs 
at  Antioch,  Alexandria,  and  afterwards  at  Constantinople,  with 
extensive  rights  of  jurisdiction ;  the  difference  of  rituals  and 
discipline;  but,  above  all,  the  many  disgusts  taken  by  the 
Greeks,  which  ultimately  produced  an  irreparable  schism  be- 
tween the  two  churches  in  the  ninth  century.  But  within  the 
pale  of  the  Latin  church  every  succeeding  age  enhanced  the 
power  and  dignity  of  the  Roman  see.  By  the  constitution  of 
the  church,  such  at  least  as  it  became  in  the  fourth  century, 
its  divisions  being  arranged  in  conformity  to  those  of  the  em- 
pire, every  province  ought  to  have  its  metropolitan,  and  every 
vicariate  its  ecclesiastical  exarch  or  primate.  The  Bishop  of 
Rome  presided,  in  the  latter  capacity,  over  the  Roman  vicariate, 
comprehending  southern  Italy,  and  the  three  chief  Mediterra- 
nean islands.  But  as  it  happened,  none  of  the  ten  provinces 
forming  this  division  had  any  metropolitan ;  so  that  the  popes 
exercised  all  metropolitical  functions  within  them,  such  as  the 
consecration  of  bishops,  the  convocation  of  synods,  the  ulti- 
mate decision  of  appeals,  and  many  other  sorts  of  authority. 
These  provinces  are  sometimes  called  the  Roman  patriarchate ; 
the  bishops  of  Rome  having  always  been  reckoned  one,  gener- 
ally indeed  the  first,  of  the  patriarchs ;  each  of  whom  was  at  the 

novel  of  the  year  455 :    Cum  igitur  sedis  resisted  every  attempt  of  that  church  to 

apostohcae  pnmatum  B.  Petri  mentum,  arrogate  a  controlling  power — See  his 

qui  est  pnnceps  sacerdotalis  corona  et  treatise    De    Umtate   Ecclesi<e.    [1818  J 

Romanae  digmtas  civitatis,  sacrse  etiam  [NOTE  III.] 

synodi  firmavit  atictoritas.  The  last  a  Dupm,  De  Antiqua  Ecclesiae  Disci- 
words  allude  to  the  sixth  canon  of  the  phna,  p.  306  et  seqq  ;  Histoire  du  Droit 
Nicene  council,  which  establishes  or  public  ecclesiastique  Francois,  p.  140 
recognizes  the  patriarchal  supremacy,  The  opinion  of  the  Roman  see's  suprem- 
in  their  respective  districts,  of  the  acy,  though  apparently  rather  a  vague 
churches  of  Rome,  Antioch,  and  Alex-  and  general  notion,  as  it  still  continues 
andna.  De  Marca,  de  Concordantia  in  those  Catholics  who  deny  its  mfalli- 
Sacerdotn  et  Imperil,  L  i.  c.  8.  At  a  bihty,  seems  to  have  prevailed  very 
much  earlier  period,  Irenaeus  rather  much  in  the  fourth  century,  Fleury 
vaguely,  and  Cyprian  more  positively,  brings  remarkable  proofs  of  this  from 
admit,  or  rather  assert,  the  primacy  of  the  writings  of  Socrates,  Sozomen,  Am- 
the  church  of  Rome,  which  the  latter  mianus  Marcellmus,  and  Optatus. 
seems  even  to  have  considered  as  a  kind  Hist.  Eccl^s  ,  t  111  pp.  282,  320,  440-  t  Iv 
of  centre  of  Catholic  unity,  though  he  p.  227. 


THE  MIDDLE  AGES  93 

head  of  all  the  metropolitans  within  his  limits,  but  without 
exercising  those  privileges  which  by  the  ecclesiastical  consti- 
tution appertained  to  the  latter.  Though  the  Roman  patri- 
archate, properly  so  called,  was  comparatively  very  small  in 
extent,  it  gave  its  chief,  for  the  reason  mentioned,  advantages 
in  point  of  authority  which  the  others  did  not  possess.^ 

I  may  perhaps  appear  to  have  noticed  circumstances  inter- 
esting only  to  ecclesiastical  scholars.  But  it  is  important  to 
apprehend  this  distinction  of  the  patriarchate  from  the  primacy 
of  Rome,  because  it  was  by  extending  the  boundaries  of  the 
former,  and  by  applying  the  maxims  of  her  administration  in 
the  south  of  Italy  to  all  the  western  churches,  that  she  accom- 
plished the  first  object  of  her  scheme  of  usurpation,  in  subvert- 
ing the  provincial  system  of  government  under  the  metropoli- 
tans. Their  first  encroachment  of  this  kind  was  in  the  province 
of  Illyricum,  which  they  annexed  in  a  manner  to  their  own 
patriarchate,  by  not  permitting  any  bishops  to  be  consecrated 
without  their  consents  This  was  before  the  end  of  the  fourth 
century.  Their  subsequent  advances  were,  however,  very  grad- 
ual. About  the  middle  of  the  sixth  century  we  find  them  con- 
firming the  elections  of  archbishops  of  Milan.d  They  came  by 
degrees  to  exercise,  though  not  always  successfully,  and  sel- 
dom without  opposition,  an  appellant  jurisdiction  over  the 
causes  of  bishops  deposed  or  censured  in  provincial  synods. 
This,  indeed,  had  been  granted,  if  we  believe  the  fact,  by  the 
canons  of  a  very  early  council,  that  of  Sardica,  in  347,  so  far 
as  to  permit  the  pope  to  order  a  revision  of  the  process,  but 
not  to  annul  the  sentence  e  Valentinian  III.,  influenced  by 

b  Dupm,   De  Antiqua  Eccles.   Disci-  ceive  that  either  he,  or  Fleury  (Hist, 

phna,  p.  39,  &c  ,   Giannone,  1st  di  Na-  Eccles.,  t.  111  p  372),  doubts  their  getm- 

poh,  1  11  c  8 ,  1   111  c  6. ,  De  Marca,  1   i.  meness.    Sardica  was  a  city  of  Illyri- 

c.  7  et  alibi     There  is  some  disagree-  cum,  which  the  translator  of  Mosheim 

merit  among  these  writers  as  to  the  ex-  has  confounded  with  Sardes 

tent  of  the  Roman  patriarchate,  which  Consultations    or    references    to    the 

some  suppose  to  have  even  at  first  com-  bishop  of   Rome,  in  difficult   cases  of 

prehended    all    the    western    churches,  faith  or  discipline,  had  been  common  in 

though  they  admit  that,  in  a  more  par-  early  ages,  and  were  even  made  by  pro- 

ticular   sense,    it   was   confined   to   the  vmcial  and  national  councils.  But  these 

vicanate  of  Rome  were  also  made  to  other  bishops  emi- 

c  Dupm,  p   66,  Fleury,  Hist.  Eccles,  nent  for  personal  merit,  or  the  dignity 

t.  v   p   373.    The  ecclesiastical  province  of  their  sees     The  popes  endeavored  to 

of  Illyricum  included  Macedonia.    Sin-  claim  this  as  a  matter  of  right.    Inno- 

cms,  the  author  of  this  encroachment,  cent  I   asserts  (A  D  402)  that  he  was  to 

seems  to   have  been  one  of  the  first  be  consulted,  quoties  fidei  ratio  ventila- 

usurpers.    In  a  letter  to  the  Spanish  tur;  and  Gelasius  (A  D  492)  quantum  ad 

bishops  (A.D.  375)  he  exalts  his  own  au-  rehgionem  pertmet,  non  nisi  apostohcae 

thority  very  highly.   De  Marca,  1.  i.  c.  8.  sedi,  juxtS.  canones,  debetur  summa  ju- 

d  St.  Marc,  t.  i.  p.  139,  153  dicii  totius     As  the  oak  is  in  the  acorn, 

e  Dupm,  p  109;  De  Marca,  1  vi  c   14.  so  did  these  maxims  contain  the  system 

These  canons  have  been  questioned,  and  of  Bellarmm     De  Marca,  1.  i.  c.   10; 

Dupm  does  not  seem  to  lay  much  stress  and  1.  vii.  c  12.    Dupm. 
on  their  authority,  though  I  do  not  per- 


94 


HALLAM 


Leo  the  Great,  one  of  the  most  ambitious  of  pontiffs,  had  gone 
a  great  deal  further,  and  established  almost  an  absolute  judicial 
supremacy  in  the  Holy  See/  But  the  metropolitans  were  not 
inclined  to  surrender  their  prerogatives ;  and,  upon  the  whole, 
the  papal  authority  had  made  no  decisive  progress  in  France, 
or  perhaps  anywhere  beyond  Italy,  till  the  pontificate  of  Greg- 
ory I.  [A.D.  590-604.] 

This  celebrated  person  was  not  distinguished  by  learning, 
which  he  affected  to  depreciate,  nor  by  his  literary  perform- 
ances, which  the  best  critics  consider  as  below  mediocrity,  but 
by  qualities  more  necessary  for  his  purpose,  intrepid  ambition 
and  unceasing  activity.  He  maintained  a  perpetual  correspon- 
dence with  the  emperors  and  their  ministers,  with  the  sover- 
eigns of  the  western  kingdoms,  with  all  the  hierarchy  of  the 
Catholic  church;  employing,  as  occasion  dictated,  the  lan- 
guage of  devotion,  arrogance,  or  adulation  s  Claims  hitherto 
disputed,  or  half  preferred,  assumed  under  his  hands  a  more 
definite  form ;  and  nations  too  ignorant  to  compare  precedents 
or  discriminate  principles  yielded  to  assertions  confidently 
made  by  the  authority  which  they  most  respected.  Gregory 
dwelt  more  than  his  predecessors  upon  the  power  of  the  keys, 
exclusively,  or  at  least,  principally,  committed  to  St.  Peter, 
which  had  been  supposed  in  earlier  times,  as  it  is  now  by  the 
Gallican  Catholics,  to  be  inherent  in  the  general  body  of  bish- 
ops, joint  sharers  of  one  indivisible  episcopacy.  And  thus  the 
patriarchal  rights,  being  manifestly  of  mere  ecclesiastical  in- 
stitution, were  artfully  confounded,  or  as  it  were  merged,  in 
the  more  paramount  supremacy  of  the  papal  chair.  From  the 
time  of  Gregory  the  popes  appear  in  a  great  measure  to  have 

/Some  bishops  belonging  to  the  pro-  ernor  of  his  province,   ut  quisquis  epis- 

vmce  of  Hilary,  metropolitan  of  Aries,  coporum  ad  judicium  Romam  episcopi 

appealed  from  his  sentence  to  Leo,  who  evocatus  venire  neglexent,  per  modera- 

not  only  entertained  their  appeal,  but  torem  ejusdem  province  adess?  co#a- 

presumed  to  depose   Hilary.    This  as-  tur.    Id    I.  vn    c    13,    Dupm,  De  Ant 

sumption  of  power  would  have  had  little  Discipl    pp.  29  et  171. 

effect,  if  it  had  not  been  seconded  by  g  The  flattering  style  In  which   this 

the   emperor   in   very  unguarded   Ian-  pontiff  addressed  Brunehaut  and  Pho- 

eruage;  hoc  perenni  sanctione  decerni-  cas,  the  most  flagitious  monsters  of  his 

mus,  ne  quid  tarn  episcopis  Galhcams,  time,  is  mentioned  in  all  civil  and  ec- 

quam  aliarum  provincianim,  contra  con-  clesiastical  histories     Fleury  quotes   a 

suetudinem  veterem  liceat  sine  auctori-  remarkable  letter  to  the  patriarchs  of 

tate  vin  venerabilis  papa  urbis  aeter-  Antioch  and  Alexandria  wherein  he  says 

nae  tentare;   sed  illis  ommbusque  pro  that  $t  Peter  has  one  see,  divided  into 

lege   sit,   quidquid  sanxit  vel  sanxerit  three,  Rome,  Antioch,  and  Alexandria- 

apostohc<g  sedis^auctontas.    De  Marca,  stooping  to  this  absurdity,  and  mcon- 

De^  Concordantia  Sacerdotii  et  Imperil,  sistence  with  his  real  system,  in  order  to 

\*    c    8t.  1?e  sa,me  *mPer°r  enacted  conciliate  their  alliance  ag-ainst  his  more 

that  any  bishop  who  refused  to  attend  immediate  nval,  the  Patriarch  of  Con- 

tfce  tnbtma i    of   the   pope  when   sum-  stantitiople.     Hist.   Eccles.,   t    vm    p. 

moned  should  be  compelled  by  the  gov-  124. 


THE   MIDDLE  AGES 


95 


thrown  away  that  scaffolding,  and  relied  in  preference  on  the 
pious  veneration  of  the  people,  and  on  the  opportunities  which 
might  occur  for  enforcing  their  dominion  with  the  pretence 
of  divine  authority.^ 

It  cannot,  I  think,  be  said  that  any  material  acquisitions  of 
ecclesiastical  power  were  obtained  by  the  successors  of  Greo-- 
ory  for  nearly  one  hundred  and  fifty  years. *  As  none  of  them 


h  Gregory  seems  to  have  established 
the  appellant  jurisdiction  of  the  see  of 
Rome,  which  had  been  long  in  suspense. 
Stephen,  a  Spanish  bishop,  having  been 
deposed,  appealed  to  Rome.  Gregory 
sent  a  legate  to  Spam,  with  full  powers 
to  confirm  or  rescind  the  sentence  He 
says  in  his  letter  on  this  occasion,  a 
sede  apostolica,  quse  omnium  ecclesi- 
arum  caput  est,  causa  hsec  audienda  ac 
dirimenda  fuerat  De  Marca,  1  vn  c.  18. 
In  writing  to  the  bishops  of  France  he 
enjoins  them  to  obey  Virgilus  Bishop  of 
Aries,  whom  he  has  appointed  his  legate 
in  France,  secundum  antiquam  consue- 
tudmem;  so  that,  if  any  contention 
should  arise  in  the  church,  he  may  ap- 
pease it  by  his  authority  as  vicegerent 
of  the  apostolic  see;  auctoritatis  suae 
vigore,  vicibus  nempe  apostohcse  sedis 
functus,  discreta  moderatione  compes- 
cat  Gregoni  Opera,  t.  11  p  783  (edit. 
Benedict);  Dupm,  p.  34;  Pasquier, 
Recherches  de  la  France,  1  in.  c.  9. 

1 1  observe  that  some  modern  publi- 
cations annex  considerable  importance 
to  a  supposed  concession  of  the  title  of 
Universal  Bishop,  made  by  the  Emperor 
Phocas  in  606  to  Boniface  III,,  and  even 
appear  to  date  the  papal  supremacy  from 
this  epoch.  Those  who  have  imbibed 
this  notion  may  probably  have  been 
misled  by  a  loose  expression  in  Mos- 
heim's  Ecclesiastical  History,  vol  11.  p 
169;  though  the  general  tenor  of  that 
passage  by  no  means  gives  countenance 
to  their  opinion  But  there  are  several 
strong  objections  to  our  considering  this 
as  a  leading  fact,  much  less  as  marking 
an  era  in  the  history  of  the  papacy  i 
Its  truth,  as  commonly  stated,  appears 
more  than  questionable  The  Roman 
pontiffs,  Gregory  I.  and  Boniface  III , 
had  been  vehemently  opposing  the  as- 
sumption of  this  title  by  the  patriarch  of 
Constantinople,  not  as  due  to  them- 
selves, but  as  one  to  which  no  bishop 
could  legitimately  pretend.  There  would 
be  something  almost  ridiculous  in  the 
emperors  immediately  conferring  an 
appellation  on  themselves  which  they 
had  just  disclaimed,  and  though  this 
objection  would  not  stand  against  evi- 
dence, yet  when  we  find  no  better  au- 
thority quoted  for  the  fact  than  Baro- 
nius,  who  is  no  authority  at  all,  it  retains 
considerable  weight  And  indeed  the 
want  of  early  testimony  is  so  decisive 
an  objection  to  any  alleged  historical 
fact,  that,  but  for  the  strange  prepos- 
sessions of  some  men,  one  might  rest 
the  case  here.  Fleury  takes  no  notice 
of  this  part  of  the  story,  though  he  tells 
us  that  Phocas  compelled  the  patriarch 


of  Constantinople  to  re&ign  his  title  2. 
But  if  the  strongest  proof  could  be  ad- 
vanced for  the  authenticity  of  this  cir- 
cumstance, we  might  well  deny  its  im- 
portance The  concession  of  Phocas 
could  have  been  of  no  validity  in  Lom- 
bardy,  France,  and  other  western  coun- 
tries, where  nevertheless  the  papal 
supremacy  was  incomparably  more  es- 
tablished than  m  the  East  3  Even 
within  the  empire  it  could  have  had  no 
efficacy  after  the  violent  death  of  that 
usurper,  which  followed  soon  after- 
wards. 4  The  title  of  Universal  Bishop 
is  not  very  intelligible,  but,  whatever 
it  meant,  the  patriarchs  of  Constanti- 
nople had  borne  it  before,  and  continued 
to  bear  it  ever  afterwards.  (Dupm,  De 
Antiqua  Disciphna,  p.  329  )  5.  The  pre- 
ceding popes,  Pelagius  II.  and  Gregory 
I ,  ^had  constantly  disclaimed  the  appel- 
lation, though  it  had  been  adopted  by 
some  towards  Leo  the  Great  in  the  coun- 
cil of  Chalcedon  (Fleury,  t.  vm  p,  95); 
nor  does  it  appear  to  have  been  retained 
by  the  successors  of  Boniface  It  is 
even  laid  down  in  the  decretum  of  Gra- 
tian  that  the  pope  is  not  styled  univer- 
sal: nee  etiam  Komanus  pontifex  uni- 
versahs  appellatur  (p  303,  edit.  1591), 
though  some  refer  its  assumption  to  the 
ninth  century  Nouveau  Traite  de 
Diplomatique,  t  v  p.  93.  In  fact  it  has 
never  been  a  usual  title  6.  The  popes 
had  unquestionably  exercised  a  species 
of  supremacy  for  more  than  two  centu- 
ries before  this  time,  which  had  lately 
reached  a  high  point  of  authority  under 
Gregory  I.  The  rescript  of  Valentiman 
III.  in  455,  quoted  in  a  former  note, 
would  certainly  be  more  to  the  purpose 
than  the  letter  of  Phocas  7.  Lastly, 
there  are  no  sensible  marks  of  this 
supremacy  making  a  more  rapid  prog- 
ress for  a  century  and  a  half  after  the 
pretended  grant  of  that  emperor.  [1818  ] 
The  earliest  mention  of  this  transaction 
that  I  have  found,  and  one  which  puts 
an  end  to  the  pretended  concession  of 
such  a  title  as  Universal  Bishop,  is  in  a 
brief  general  chronology,  by^  Bede,  en- 
titled "  De  Temporum  Ratione  "  He 
only  says  of  Phocas,— Hie,  rogante  papa 
Bonifacio,  statuit  sedem  Romany  et 
apostolicae  ecclesise  caput  esse  omnium 
ecclesiarum,  quia  ecclesia  Constanti- 
nopohtana  pnmam  se  omnium  ecclesi- 
arum scribebat.  Bedae  Opera,  cura 
Giles,  vol  vi.  p  323.  This  was  probably 
the  exact  truth ,  and  the  subsequent  ad- 
ditions were  made  by  some  zealous  par- 
tisans of  Rome,  to  be  seized  hold  of  in 
a  later  age,  and  turned  against  her  by 
some  of  her  equally  zealous  enemies. 


96  HALLAM 

possessed  vigor  and  reputation  equal  to  Ms  own,  it  might  even 
appear  that  the  papal  influence  was  retrogade.  But  in  effect 
the  principles  which  supported  it  were  taking  deeper  root,  and 
acquiring  strength  by  occasional  though  not  very  frequent 
exercise.  Appeals  to  the  pope  were  sometimes  made  by  prel- 
ates dissatisfied  with  a  local  sentence;  but  his  judgment  of 
reversal  was  not  always  executed,  as  we  perceive  by  the  in- 
stance of  Bishop  Wilfrid./  National  councils  were  still  con- 
voked by  princes,  and  canons  enacted  under  their  authority 
by  the  bishops  who  attended.  Though  the  church  of  Lom- 
bardy  was  under  great  subjection  during  this  period,  yet  those 
of  France,  and  even  of  England,  planted  as  the  latter  had  been 
by  Gregory,  continued  to  preserve  a  tolerable  measure  of  m- 
dependence>  The  first  striking  infringement  of  this  was  made 
through  the  influence  of  an  Englishman,  Winfnd,  better  known 
as  St.  Boniface,  the  apostle  of  Germany.  Having  undertaken 
the  conversion  of  Thuringia,  and  other  still  heathen  countries, 
he  applied  to  the  pope  for  a  commission,  and  was  consecrated 
bishop  without  any  determinate  see.  Upon  this  occasion  he 
took  an  oath  of  obedience,  and  became  ever  afterwards  a  zeal- 
ous upholder  of  the  apostolical  chair.  His  success  in  the  con- 
version of  Germany  was  great,  his  reputation  eminent,  which 
enabled  him  to  effect  a  material  revolution  in  ecclesiastical  gov- 
ernment, Pelagius  II.  had,  about  580,  sent  a  pallium,  or  vest 
peculiar  to  metropolitans,  to  the  Bishop  of  Aries,  perpetual 
vicar  of  the  Roman  see  in  GauU  Gregory  I.  had  made  a  simi- 

The  distinction  generally  made  is,  that  the  badge  of  all  the  tribe  Bede  is  more 
the  pooe  is  "  universalis  ecclesise  epis-  respectable,  but  in  this  case  we  do  not 
copus,  but  not  **  episcopus  umversa-  learn  much  from  him.  It  seems  impos- 
hs  "  ;  that  is,  he  has  no  Immediate  sible  to  deny  that,  if  Eddms  is  a  trust- 
jurisdiction  in  the  dioceses  of  other  worthy  historian,  Dr  Lingard  has  made 
bishops,  though  he  can  correct  them  for  out  his  case,  and  that  we  must  own  an- 
the  undue  exercise  of  their  own.  The  peals  to  Rome  to  have  been  recognized 
Ultramontanes  of  course  go  further,  m  the  Anglo-Saxon  church.  Nor  do  I 
;  I  refer  to  the  English  historians  for  perceive  any  improbability  in  this,  con- 
the  history  of  Wilfrid,  which  neither  al-  sidering  that  the  church  had  been 
together  supports,  nor  much  impeaches,  founded  by  Augtistm,  and  restored  by 
the  independency  of  our  Anglo-Saxon  Theodore,  both  under  the  authority  of 
church  m  700;  a  matter  hardly  worth  so  the  Roman  see.  This  intrinsic  presump- 
rnuch  contention  as  Usher  and  Stilling-  tion  is  worth  more  than  the  testimonv 
fleet  seem  to  have  thought.  The  con-  of  Eddms  But  we  see  by  the  rest  of 
secration  of  Theodore  by  Pope  Vitalian  Wilfrid's  history  that  it  was  not  easy  to 
m  66S  is  a  stronger  fact,  and  cannot  be  put  the  sentence  of  Rome  in  execution 
got  over  by  those  injudicious  Protes-  The  plain  facts  are,  that,  having  gone  to 
tents  who  take  the  bull  by  the  horns.  Rome  claiming  the  see  of  York,  and 
The  .history  of  Wilfrid  has  been  lately  having  had  his  claim  recognized  by  the 
put  in  a  light  as  favorable.as  possible  pope,  he  ended  bis  days  as  bishop  of 
to  himself  and  to  the  authority  of  Rome  Hexham.  ««««!»  01 
by  Dr.  Lmsrard.  We  have  for  this  to  k  Schmidt,  t.  i  DO  &6  IQ& 
rely,  on  Eddms  (published  in  Gale's  /Ut  ad  fnstar  suum.  Iff  Galliarum 
Scnptores),  a  panegyrist  m  the  usual  partibus  primi  sacerdotis  locum  ob- 
St?et,0i?  Ieeendkry  Wraphy,-a  style  tineat.  et  quidquid  ad  guberaationem 
which  has,  on  me  at  least  the  efferct  of  vel  dispenitionem  ecclesiastic!  status 
producing  utter  distrust.  Mendacity  is  gerendum  est,  servatis  patrum  regSfs 


THE   MIDDLE  AGES 


97 


lar  present  to  other  metropolitans.  But  it  was  never  supposed 
that  they  were  obliged  to  wait  for  this  favor  before  they  re- 
ceived consecration,  until  a  synod  of  the  French  and  German 
bishops,  held  at  Frankfort  in  742,  by  Boniface,  as  legate  of 
Pope  Zachary.  It  was  here  enacted  that,  as  a  token  of  their 
willing  subjection  to  the  see  of  Rome,  all  metropolitans  should 
request  the  pallium  at  the  hands  of  the  pope,  and  obey  his 
lawful  commands.^  This  was  construed  by  the  popes  to  mean 
a  promise  of  obedience  before  receiving  the  pall,  which  was 
changed  in  after  times  by  Gregory  VII.  into  an  oath  of  fealty .n 

This  council  of  Frankfort  claims  a  leading  place  as  an  epoch 
in  the  history  of  the  papacy.  Several  events  ensued,  chiefly  of 
a  political  nature,  which  rapidly  elevated  that  usurpation  al- 
most to  its  greatest  height.  Subjects  of  the  throne  of  Con- 
stantinople, the  popes  had  not  as  yet  interfered,  unless  by  mere 
admonition,  with  the  temporal  magistrate.  The  first  instance 
wherein  the  civil  duties  of  a  nation  and  the  rights  of  a  crown 
appear  to  have  been  submitted  to  his  decision  was  in  that  fa- 
mous reference  as  to  the  deposition  of  Childeric.  It  is  impos- 
sible to  consider  this  in  any  other  light  than  as  a  point  of 
casuistry  laid  before  the  first  religious  judge  in  the  church. 
Certainly,  the  Franks  who  raised  the  king  of  their  choice  upon 
their  shields  never  dreamed  that  a  foreign  priest  had  conferred 
upon  him  the  right  of  governing.  Yet  it  was  easy  for  succeed- 
ing advocates  of  Rome  to  construe  this  transaction  very  favor- 
ably for  its  usurpation  over  the  thrones  of  the  earth.o 

I  shall  but  just  glance  at  the  subsequent  political  revolutions 
of  that  period ;  the  invasion  of  Italy  by  Pepin,  his  donation 

et   sedis   apostolicas  constitutes,   faciat.  premacy   in   Rome.     Collier's    Eccles. 

Prseterea,    pallium    ilh    concedit,    &c.  History,  p.  128. 

Dupin,  p.  34     Gregory  I.  confirmed  this  In  the  eighth  general  council,  that  of 

vicanate  to  Virgihus  Bishop  of  Aries,  Constantinople  in  872,  this  prerogative 

and  gave  him  the  power  of  convoking  of  sending  the  pallium  to  metropolitans 

synods.    De  Marca,  1.  vi.  c.  7.  was  not  only  confirmed  to  the  pope,  but 

m  Decrevimus,     says     Boniface,      in  extended  to  the  other  patriarchs,  who 

nostro   synodah   conventu,    et   confess!  had  every  disposition  to  become  as  great 

sumus  fidem  catholicam,  et  umtatem  et  usurpers  as  their  more  fortunate  elder 

subjectionem     Romans    ecclesiae     fine  brother 

tenus  servare,  S.  Petro  et  vicario  ejus  n  De  Marca,  ubi  supra.    Schmidt,  t  ii. 

velle  subjici,   metropolitans  pallia  ab  p.   262.     According  to  the  latter,  this 

ilia,  sede  quaerere,  et,  per  omnia,  pra-  oath  of  fidelity  was  exacted  in  the  ninth 

cepta    S.    Petri    canomce    sequi.      De  century;  which  is  very  probable,  since 

Marca,  1.  vi.  c.  7;  Schmidt,  t.  i.  pp.  424,  Gregory  VII  himself  did  but  fill  up  the 

438,  446     This  writer  justly  remarks  the  sketch    which    Nicholas    I*    and   John 

obligation  which  Rome  had  to  St.  Bon-  VIII,   had    delineated,     I  have  since 

if  ace,  who  anticipated  the  system  of  I  si-  found  this  confirmed  by  Gratian,  p.  305. 

dore.t  We  have  a  letter  from  him  to  the  c  Eginhard  says  that  Pepin  was  made 

English  clergy,  with  a  copy  of  canons  king  per  auciorttatem  Romani  pontificis; 

passed  in  one  of  his  synods,  for  the  ex-  an  ambiguous  word,  which  may  rise  to 

altation  of  the  apostolic  see,  but  the  "  command,"  or  sink  to  '*  advice,"  ao 

church  of  England  was  not  then  in-  cording  to  the  disposition  of  the  inter- 

clmed  to  acknowledge  so  great  a  su-  preter. 

VOL.  II.— 7 


98  HALLAM 

of  the  exarchate  to  the  Holy  See,  the  conquest  of  Lombardy 
by  Charlemagne,  the  patriarchate  of  Rome  conferred  upon 
both  these  princes,  and  the  revival  of  the  Western  empire  in 
the  person  of  the  latter.  These  events  had  a  natural  tendency 
to  exalt  the  papal  supremacy,  which  it  is  needless  to  indicate. 
But  a  circumstance  of  a  very  different  nature  contributed  to 
this  in  a  still  greater  degree.  About  the  conclusion  of  the 
eighth  century  there  appeared,  under  the  name  of  one  Isidore, 
an  unknown  person,  a  collection  of  ecclesiastical  canons,  now 
commonly  denominated  the  False  Decretals.^  These  pur- 
ported to  be  rescripts  or  decrees  of  the  early  bishops  of  Rome ; 
and  their  effect  was  to  diminish  the  authority  of  metropolitans 
over  their  suffragans,  by  establishing  an  appellant  jurisdiction 
of  the  Roman  See  in  all  causes,  and  by  forbidding  national 
councils  to  be  holden  without  its  consent.  Every  bishop,  ac- 
cording to  the  decretals  of  Isidore,  was  amenable  only  to  the 
immediate  tribunal  of  the  pope;  by  which  one  of  the  most 
ancient  rights  of  the  provincial  synod  was  abrogated.  Every 
accused  person  might  not  only  appeal  from  an  inferior  sen- 
tence, but  remove  an  unfinished  process  before  the  supreme 
pontiff.  And  the  latter,  instead  of  directing  a  revision  of  the 
proceedings  by  the  original  judges,  might  annul  them  by  his 
own  authority ;  a  strain  of  jurisdiction  beyond  the  canons  of 
Sardica,  but  certainly  warranted  by  the  more  recent  practice 
of  Rome.  New  sees  were  not  to  be  erected,  nor  bishops 
translated  from  one  see  to  another,  nor  their  resignations  ac- 
cepted, without  the  sanction  of  the  pope.  They  were  still 
indeed  to  be  consecrated  by  the  metropolitan,  but  in  the  pope's 
name.  It  has  been  plausibly  suspected  that  these  decretals 
were  forged  by  some  bishop,  in  jealousy  or  resentment ;  and 
their  general  reception  may  at  least  be  partly  ascribed  to  such 
sentiments.  The  archbishops  were  exceedingly  powerful,  and 
might  often  abuse  their  superiority  over  inferior  prelates ;  but 

p  The  era  of  the  False  Decretals  has  this  collection  of  Adrian;    but  I  have 

not  been  precisely  fixed;  they  have  sel-  not  observed  the  same  opinion  in  any 

dom  been  supposed,  however,  to  have  other  writer.    The  right  of  appeal  from 

appeared  much  before  800.     But  there  a  sentence  of  the  metropolitan  deposing 

is  a  genuine  collection  of  canons  pub-  a  bishop  to  the  Holy  See  is  positively 

hashed  by  Adrian  I.  in  785,  which  contain  recognized  in  the  Capitularies  of  Louis 

nearly  the  same  principles,  and  many  of  the  Debonair   (Baluze,    p.    1000) ;     the 

which  are  copied  by  Isidore,  as  well  as  three  last  books  of  which,  according  to 

Charlemagne  m  his   Capitularies.     De  the  collection  of  Ansegisus,   are   said 

Marca,  1.  vn.  c.  so^Giannone,  1.  v  c.  6;  to  be  apostolica  auctontate  roborata, 

Dupm,   De  Antiqua  Disciplina,  p.   133.  quia  his  cudendis  maxime  apostolica  in- 

Fleury,  HisL  Eccles ,  t.  ix.  p.  500,  seems  terfuit  legatio.  P.  1132. 
to  consider  the  decretals  as  older  than 


THE   MIDDLE  AGES 


99 


the  whole  episcopal  aristocracy  had  abundant  reason  to  lament 
their  acquiescence  in  a  system  of  which  the  metropolitans  were 
but  the  earliest  victims.  Upon  these  spurious  decretals  was 
built  the  great  fabric  of  papal  supremacy  over  the  different 
national  churches ;  a  fabric  which  has  stood  after  its  founda- 
tion crumbled  beneath  it ;  for  no  one  has  pretended  to  deny, 
for  the  last  two  centuries,  that  the  imposture  is  too  palpable 
for  any  but  the  most  ignorant  ages  to  credits 

The  Galhcan  church  made  for  some  time  a  spirited  though 
unavailing  struggle  against  this  rising  despotism.  Gregory 
IV.,  having  come  into  France  to  abet  the  children  of  Louis  the 
Debonair  in  their  rebellion,  and  threatened  to  excommunicate 
the  bishops  who  adhered  to  the  emperor,  was  repelled  with  in- 
dignation by  those  prelates.  "  If  he  comes  here  to  excommuni- 
cate," said  they,  "  he  shall  depart  hence  excommunicated."  r  In 
the  subsequent  reign  of  Charles  the  Bald  a  bold  defender 
of  ecclesiastical  independence  was  found  in  Hincmar  Arch- 
bishop of  Rheims,  the  most  distinguished  statesman  of  his  age. 
Appeals  to  the  pope  even  by  ordinary  clerks  had  become  com- 
mon, and  the  provincial  councils,  hitherto  the  supreme  spiritual 
tribunal,  as  well  as  legislature,  were  falling  rapidly  into  decay. 
The  frame  of  church  government,  which  had  lasted  from  the 
third  or  fourth  century,  was  nearly  dissolved;  a  refractory 
bishop  was  sure  to  invoke  the  supreme  court  of  appeal,  and' 
generally  met  there  with  a  more  favorable  judicature.  Hinc- 
mar, a  man  equal  in  ambition,  and  almost  in  public  estimation, 
to  any  pontiff,  sometimes  came  off  successfully  in  his  conten- 
tions with  Rome.s  But  time  is  fatal  to  the  unanimity  of  coali- 
tions; the  French  bishops  were  accessible  to  superstitious 
prejudice,  to  corrupt  influence,  to  mutual  jealousy.  Above  all, 
they  were  conscious  that  a  persuasion  of  the  pope's  omnipo- 
tence had  taken  hold  of  the  laity.  Though  they  complained 

q  I  have  not  seen  any  account  of  the  the  papal  court,  without  sacrificing  al- 

decretals  so  clear  and  judicious  as  in  together  the  Galhcan  church  and  the 

Schmidt's  History  of  Germany,  t.  ii   p.  crown. 

249.    Indeed  all  the  ecclesiastical  part  of  r  De  Marca,  1.  iv.  c.  n;   Velly,  &c. 

that  work  is  executed  in  a  very  superior  s  De  Marca,  1  iv.  c.  68,  &c. ;    1  vi.  c. 

manner     See  also  De  Marca,  1  iii.  c  5;  14,  28;   1.  vn.  c  21.    Dupin,  p.  133,  &c. 

1    vii.  c.  20.     The  latter  writer,   from  Hist,  du  Droit  Eccles.  Francois,  pp.  188, 

whom  I  have  derived  much  information,  224.    Velly,  &c     Hincmar,  however,  was 

is  by  no  means  a  strenuous  adversary  not  consistent ;  for,  having  obtained  the 

of  ultramontane  pretensions.     In  facpt,  see  of  Rheims  in  an  equivocal  manner, 

it   was   his   object  to  please  both   in  he    had    applied    for    confirmation    at 

France  and  at  Rome,  to  become  both4  an  Rome,  and:  in  other  respects  impaired 

archbishop  and  a  cardinal      He  failed  the  Gallican  rights.    Pasquier,  Recher- 

nevertheless  of  the  latter  hope;  it  being  ches  de  la  France,  1.  iii.  c.  12. 
impossible  at  that  time  (1650)  to  satisfy 


ioo  HALLAM 

loudly,  and  invoked,  like  patriots  of  a  dying  state,  names  and 
principles  of  a  freedom  that  was  no  more,  they  submitted 
almost  in  every  instance  to  the  continual  usurpations  of  the 
Holy  See.  One  of  those  which  most  annoyed  their  aristocracy 
was  the  concession  to  monasteries  of  exemption  from  episcopal 
authority.  These  had  been  very  uncommon  till  about  the 
eighth  century,  after  which  they  were  studiously  multiplied.* 
It  was  naturally  a  favorite  object  with  the  abbots ;  and  sover- 
eigns, in  those  ages  of  blind  veneration  for  monastic  establish- 
ments, were  pleased  to  see  their  own  foundations  rendered,  as 
it  would  seem,  more  respectable  by  privileges  of  independence. 
The  popes  had  a  closer  interest  in  granting  exemptions,  which 
attached  to  them  the  regular  clergy,  and  lowered  the  dignity 
of  the  bishops.  In  the  eleventh  and  twelfth  centuries  whole 
orders  of  monks  were  declared  exempt  at  a  single  stroke ;  and 
the  abuse  began  to  awaken  loud  complaints,  though  it  did  not 
fail  to  be  aggravated  afterwards. 

The  principles  of  ecclesiastical  supremacy  were  readily  ap- 
plied by  the  popes  to  support  still  more  insolent  usurpations. 
Chiefs  by  divine  commission  of  the  whole  church,  every  earthly 
sovereign  must  be  subject  to  their  interference.  The  bishops 

/The  earliest  instance  of  a  papal  ex-  and  sometimes  a  tyrannical  power  over 
emption  is  in  455,  which  indeed  is  a  the  secular  clergy ,  and  after  the  monks 
respectable  antiquity.  Others  scarcely  became  part  of  the  church,  which  was 
occur  till  the  pontihcate  of  Zachary  in  before  the  close  of  the  sixth  century, 
the  middle  of  the  eighth  century,  who  they  also  fell  under  a  control  not  always 
granted  an  exemption  to  Monte  Casino,  fairly  exerted  Both  complained  great- 
ita  ut  nullius  jun  subjaceat,  nisi  solms  ly,  as  the  acts  of  councils  bear  wit- 
Romani  pontificis.  See  this  discussed  ness  — Un  fait  important  et  trop  peu 
in  Giannone,  1  v  c.  6  Precedents  for  remarque  se  revefe  c.a  et  la  dans  le 
the  exemption  of  monasteries  from  epis-  cours  de  cette  epoque;  c'est  la  lutte  des 
copal  jurisdiction  occur  in  Marculfus's  pretres  de  paroisse  contre  les  eveques 
forms  compiled  towards  the  end  of  the  Guizot,  Hist  de  la  Civihs.  en  France* 
seventh  century,  but  these  were  by  royal  Lec.on  13.  In  this  contention  the 
authority.  The  kings  of  France  were  weaker  must  have  given  way:  but  the 
suDreme  heads  of  their  national  church.  regulars,  sustained  by  public  respect, 
Schmidt,  t  i  p.  sS^.De  Marca,  1.  lii.  and  having  the  countenance  of  the  see 
°"  ;0  *I?urv'  Institutions  au  Droit  t.  i,  of  Rome,  which  began  to  encroach  upon 
p.  228  Muraton  Dissert.  70  (t.  iii.  p.  episcopal  authority,  came  out  success- 
104,  Italian),  is  of  opinion  that  exemj>-  ful  m  securing  themselves  by  exemp- 
tions of  monasteries  from  episcopal  visi-  tions  from  the  jurisdiction  ot  the  bish- 
l  Ti1??  i  no*  become  frequent  m  Italy  ops.  The  latter  furnished  a  good  pre- 
till  the  eleventh  century;  and  that  many  text  by  their  own  relaxation  of  man- 
charters  of  this  kind  are  forgeries  It  ners.  The  monasteries  in  the  eighth 
is  held  also  by  some  English  antiquaries  and  ninth  centuries  seem  not  to  have 
that  no  Anglo-baxon  monastery  was  ex-  given  occasion  to  much  reproach,  at 
S?&*Sf  AM?  ^TSt  j?sta,?ce  1S  aat  Ipat  in  comparison  with  the  prelacy. 
SL  ^hlt+  ?  under  the  Conqueror;  Au  commencement  du  hwtieme  siecle, 
*S?7  w"i  earll<*  date  ha™g  *  eghse  etait  elle  tombee  dans  un  desor: 
f  -r?°dy  OU  ,CSvo?tl<W  dre  Pr*sque  egal  a  celui  de  la  soci<§te 
a-«d  I7Q4  XVS  rSmSrkable  *¥*  this  ?!vile-  Sans  5superieurs  et  sans  in- 
*  mlde  <by  Wllliam.'  and  cotl-  fcrieurs  a  redouter,  d6gag6s  de  la  sur- 
,b/  ^ailfranc-  Collier,  p  256.  veillance  des  metropolitans  comme  des 

n         ?  5  b/cairr  very  usyal  m  En^  conciles  et  de  I'mfiuence  des  pretres; 

Tt  ^  ?^2£d?     ^^  V3L  -v*  ?"  337-  ™e   foule   d'eveques    se   livraient   aui 

a*  hi5f«ertfiellss  to  -be  adraitt«d  ^at  plus  scandaleux  exces. 
tne  bishops  had  exercised  an  arbitrary. 


THE  MIDDLE  AGES  101 

indeed  had,  with  the  common  weapons  of  their  order,  kept 
their  own  sovereigns  in  check;  and  it  could  not  seem  any 
extraordinary  stretch  in  their  supreme  head  to  assert  an  equal 
prerogative.  Gregory  IV.,  as  I  have  mentioned,  became  a 
party  in  the  revolt  against  Louis  L,  but  he  never  carried  his 
threats  of  excommunication  into  effect.  The  first  instance 
where  the  Roman  pontiffs  actually  tried  the  force  of  their  arms 
against  a  sovereign  was  the  excommunication  of  Lothaire 
King  of  Lorraine  and  grandson  of  Louis  the  Debonair.  This 
prince  had  repudiated  his  wife,  upon  unjust  pretexts,  but  with 
the  approbation  of  a  national  council,  and  had  subsequently 
married  his  concubine.  Nicolas  L,  the  actual  pope,  despatched 
two  legates  to  investigate  this  business,  and  decide  according 
to  the  canons.  They  hold  a  council  at  Metz,  and  confirm  the 
divorce  and  marriage.  Enraged  at  this  conduct  of  his  am- 
bassadors, the  pope  summons  a  council  at  Rome,  annuls  the 
sentence,  deposes  the  archbishops  of  Treves  and  Cologne,  and 
directs  the  king  to  discard  his  mistress.  After  some  shuffling 
on  the  part  of  Lothaire  he  is  excommunicated ;  and,  in  a  short 
time,  we  find  both  the  king  and  his  prelates,  who  had  begun 
with  expressions  of  passionate  contempt  towards  the  pope, 
suing  humbly  for  absolution  at  the  feet  of  Adrian  II.,  successor 
of  Nicolas,  which  was  not  granted  without  difficulty.  In  all 
its  most  impudent  pretensions  the  Holy  See  has  attended  to 
the  circumstances  of  the  time.  Lothaire  had  powerful  neigh- 
bors, the  kings  of  France  and  Germany,  eager  to  invade  his 
dominions  on  the  first  intimation  from  Rome ;  while  the  real 
scandalousness  of  his  behavior  must  have  intimidated  his  con- 
science, and  disgusted  his  subjects. 

Excommunication,  whatever  opinions  may  be  entertained 
as  to  its  religious  efficacy,  was  originally  nothing  more  in  ap- 
pearance than  the  exercise  of  a  right  which  every  society 
claims,  the  expulsion  of  refractory  members  from  its  body. 
No  direct  temporal  disadvantages  attended  this  penalty  for 
several  ages ;  but  as  it  was  the  most  severe  of  spiritual  cen- 
sures, and  tended  to  exclude  the  object  of  it  not  only  from 
a  participation  in  religious  rites,  but  in  a  considerable  degree 
from  the  intercourse  of  Christian  society,  it  was  used  sparingly 
and  upon  the  gravest  occasions.  Gradually,  as  the  church  be- 
came more  powerful  and  more  imperious,  excommunications 
were  issued  upon  every  provocation,  rather  as  a  weapon  of 


102  HALLAM 

ecclesiastical  warfare  than  with  any  regard  to  its  original  in- 
tention. There  was  certainly  some  pretext  for  many  of  these 
censures,  as  the  only  means  of  defence  within  the  reach  of  the 
clergy  when  their  possessions  were  lawlessly  violated  u  Others 
were  founded  upon  the  necessity  of  enforcing  their  contentious 
jurisdiction,  which,  while  it  was  rapidly  extending  itself  over 
almost  all  persons  and  causes,  had  not  acquired  any  proper 
coercive  process.  The  spiritual  courts  in  England,  whose  ju- 
risdiction is  so  multifarious,  and,  in  general,  so  little  of  a  relig- 
ious nature,  had  till  lately  no  means  even  of  compelling  an 
appearance,  much  less  of  enforcing  a  sentence,  but  by  excom- 
munications Princes  who  felt  the  inadequacy  of  their  6wn 
laws  to  secure  obedience  called  in  the  assistance  of  more  for- 
midable sanctions.  Several  capitularies  of  Charlemagne  de- 
nounce the  penalty  of  excommunication  against  incendiaries 
or  deserters  from  the  army.  Charles  the  Bald  procured  similar 
censures  against  his  revolted  vassals.  Thus  the  boundary  be- 
tween temporal  and  spiritual  offences  grew  every  day  less 
distinct;  and  the  clergy  were  encouraged  to  fresh  encroach- 
ments, as  they  discovered  the  secret  of  rendering  them  success- 
ful.w 

The  civil  magistrate  ought  undoubtedly  to  protect  the  just 
rights  and  lawful  jurisdiction  of  the  church.  It  is  not  so  evi- 
dent that  he  should  attach  temporal  penalties  to  her  censures. 
Excommunication  has  never  carried  such  a  presumption  of 
moral  turpitude  as  to  disable  a  man,  upon  any  solid  princi- 
ples, from  the  usual  privileges  of  society.  Superstition  and 
tyranny,  however,  decided  otherwise.  The  support  due  to 
church  censures  by  temporal  judges  is  vaguely  declared  in  the 
capitularies  of  Pepin  and  Charlemagne.  It  became  in  later 
ages  a  more  established  principle  in  France  and  England,  and, 
I  presume,  in  other  countries.  By  our  common  law  an  ex- 
communicated person  is  incapable  of  being  a  witness  or  of 
bringing  an  action  ;  and  he  may  be  detained  in  prison  until 
he  obtains  absolution.  By  the  Establishments  of  St.  Louis,  his 
estate  or  person  might  be  attached  by  the  magistrate.*  These 

ttidfn^«dhr;47V?--217;  Fleury'  Insti*  But  .an  excommunicated  person  might 

-r  Iv  a  T*>Snt  cV.Hit1;  p;  ^  TTT  su?  m  th&  l&  thouSh  »<*  w  the  apirtt- 

«,    ;/-?!          statute?  53  G  III.  c.  127,  ual  court.    No  law  seems  to  have  been 

the  writ  de  excommunicate  capiendo,  as  so  severe  in  this  respect  as  that 

!£r?aCnHS  £  fco*temP>  -w*f  abolished  in  land;   though  it  is  not  strictly 

England,  but  retained  in  Ireland  to    say,    with    Dr.    Cosen 


to    say,    wth    Dr.    Cosens    (Gibson's 
C°dex>  P    "9^>.  that  the  wnt  de  ex- 


Rois,  t.  i.  p. 


THE  MIDDLE  AGES  103 

actual  penalties  were  attended  by  marks  of  abhorrence  and 
ignominy  still  more  calculated  to  make  an  impression  on  ordi- 
nary minds.  They  were  to  be  shunned,  like  men  infected  with 
leprosy,  by  their  servants,  their  friends,  and  their  families.  Two 
attendants  only,  if  we  may  trust  a  current  history,  remained' 
with  Robert  King  of  France,  who,  on  account  of  an  irregular 
marriage,  was  put  to  this  ban  by  Gregory  V.,  and  these  threw 
all  the  meats  which  had  passed  his  table  into  the  fire.y  Indeed 
the  mere  intercourse  with  a  proscribed  person  incurred  what 
was  called  the  lesser  excommunication,  or  privation  of  the  sac- 
raments, and  required  penitence  and  absolution.  In  some 
places  a  bier  was  set  before  the  door  of  an  excommunicated 
individual,  and  stones  thrown  at  his  windows:  a  singular 
method  of  compelling  his  submissions  Everywhere  the  ex- 
communicated were  debarred  of  a  regular  sepulture,  which, 
though  obviously  a  matter  of  police,  has,  through  the  super- 
stition of  consecrating  burial-grounds,  been  treated  as  belong- 
ing to  ecclesiastical  control.  Their  carcasses  were  supposed 
to  be  incapable  of  corruption,  which  seems  to  have  been 
thought  a  privilege  unfit  for  those  who  had  died  in  so  irregular 
a  manners 

But  as  excommunication,  which  attacked  only  one  and  per- 
haps a  hardened  sinner,  was  not  always  efficacious,  the  church 
had  recourse  to  a  more  comprehensive  punishment.  For  the 
offence  of  a  nobleman  she  put  a  county,  for  that  of  a  prince  his 
entire  kingdom,  under  an  interdict  or  suspension  of  religious 
offices.  No  stretch  of  her  tyranny  was  perhaps  so  outrageous 
as  this.  During  an  interdict  the  churches  were  closed,  the  bells 
silent,  the  dead  unburied,  no  rite  but  those  of  baptism  and 
extreme  unction  performed.  The  penalty  fell  upon  those  who 
had  neither  partaken  nor  could  have  prevented  the  offence; 
and  the  offence  was  often  but  a  private  dispute,  in  which  the 
pride  of  a  pope  or  bishop  had  been  wounded.  Interdicts  were 
so  rare  before  the  time  of  Gregory  VIL,  that  some  have  referred 
them  to  him  as  their  author ;  instances  may  however  be  found 
of  an  earlier  date,  and  especially  that  which  accompanied  the 
above-mentioned  excommunication  of  Robert  King  of  France. 


y  Vclly,  t.  ii.  several  authors  are  referred  to,  for  the 

jsrVaissette,  Hist  de  Languedoc,  t.  iii.  constant  opinion  among  the  members  of 

Appendix,  p.  350;  Du  Cange,  v.  Excom-  the  Greek  church,  that  the  bodies  of  «x- 

municatio.  communicated  persons  remain  in  statu 

Cange,   v.   Imblocatus:    where  quo. 


104  HALLAM 

They  were  afterwards  issued  not  infrequently  against  king- 
doms ;  but  in  particular  districts  they  continually  occurred.^ 

This  was  the  mainspring  of  the  machinery  that  the  clergy 
set  in  motion,  the  lever  by  which  they  moved  the  world.  From 
the  moment  that  these  interdicts  and  excommunications  had 
been  tried  the  powers  of  the  earth  might  be  said  to  have  existed 
only  by  sufferance.  Nor  was  the  validity  of  such  denunciations 
supposed  to  depend  upon  their  justice.  The  imposer  indeed 
of  an  unjust  excommunication  was  guilty  of  a  sin;  but  the 
party  subjected  to  it  had  no  remedy  but  submission.  He  who 
disregards  such  a  sentence,  says  Beaumanoir,  renders  his  good 
cause  bad.c  And  indeed,  without  annexing  so  much  impor- 
tance to  the  direct  consequences  of  an  ungrounded  censure, 
it  is  evident  that  the  received  theory  of  religion  concerning  the 
indispensable  obligation  and  mysterious  efficacy  of  the  rights 
of  communion  and  confession  must  have  induced  scrupulous 
minds  to  make  any  temporal  sacrifice  rather  than  incur  their 
privation.  One  is  rather  surprised  at  the  instances  of  failure 
than  of  success  in  the  employment  of  these  spiritual  weapons 
against  sovereigns  or  the  laity  in  general.  It  was  perhaps  a 
fortunate  circumstance  for  Europe  that  they  were  not  intro- 
duced, upon  a  large  scale,  during  the  darkest  ages  of  supersti- 
tion. In  the  eighth  or  ninth  centuries  they  would  probably 
have  met  with  a  more  implicit  obedience.  But  after  Gregory 
VIL,  as  the  spirit  of  ecclesiastical  usurpation  became  more  vio- 
lent, there  grew  up  by  slow  degrees  an  opposite  feeling  in  the 
laity,  which  ripened  into  an  alienation  of  sentiment  from  the 
church,  and  a  conviction  of  that  sacred  truth  which  supersti- 
tion and  sophistry  have  endeavored  to  eradicate  from  the  heart 
of  man,  that  no  tyrannical  government  can  be  founded  on  a 
divine  commission. 

Excommunication  had  very  seldom,  if  ever,  been  levelled  at 
the  head  of  a  sovereign  before  the  instance  of  Lothaire.  His 
ignominious  submission  and  the  general  feebleness  of  the  Car- 
lovingian  line  produced  a  repetition  of  the  menace  at  least,  and 
in  cases  more  evidently  beyond  the  cognizance  of  a  spiritual 
authority.  Upon  the  death  of  this  Lothaire,  his  uncle  Charles 
the  Bald  having  possessed  himself  of  Lorraine,  to  which  the 
Emperor  Louis  II.  had  juster  pretensions,  the  Pope  Adrian 

frGiannone,  1.  vii.  c.  i;  Schmidt,  t.  iv.        plina,  p.  288;    St.  Marc,  t.  ii.  p.  535; 
p.  220;  Dupin,  De  Antiqua  EccL  Disci-       Fleury,  Institutions,  t.  n.  p.  200. 

i  p.  261. 


THE  MIDDLE  AGES  I05 

II.  warned  him  to  desist,  declaring  that  any  attempt  upon  that 
country  would  bring  down  the  penalty  of  excommunication. 
Sustained  by  the  intrepidity  of  Hincmar,  the  king  did  not  ex- 
hibit his  usual  pusillanimity,  and  the  pope  in  this  instance  failed 
of  success.^  But  John  VIIL,  the  next  occupier  of  the  chair 
of  St.  Peter,  carried  his  pretensions  to  a  height  which  none  of 
his  predecessors  had  reached.  The  Carlovingian  princes  had 
formed  an  alliance  against  Boson,  the  usurper  of  the  kingdom 
of  Aries.  The  pope  writes  to  Charles  the  Fat,  "  I  have  adopted 
the  illustrious  Prince  Boson  as  my  son ;  be  content  therefore 
with  your  own  kingdom,  for  I  shall  instantly  excommunicate 
all  who  attempt  to  injure  my  son."  *  In  another  letter  to  the 
same  king,  who  had  taken  some  property  from  a  convent,  he 
enjoins  him  to  restore  it  within  sixty  days,  and  to  certify  by 
an  envoy  that  he  had  obeyed  the  command,  else  an  excom- 
munication would  immediately  ensue,  to  be  followed  by  still 
severer  castigation,  if  the  king  should  not  repent  upon  the  first 
punishment/  These  expressions  seem  to  intimate  a  sentence 
of  deposition  from  his  throne,  and  thus  anticipate  by  two  hun- 
dred years  the  famous  era  of  Gregory  VIL,  at  which  we  shall 
soon  arrive.  In  some  respects  John  VIIL  even  advanced  pre- 
tensions beyond  those  of  Gregory.  He  asserts  very  plainly  a 
right  of  choosing  the  emperor,  and  may  seem  indirectly  to  have 
exercised  it  in  the  election  of  Charles  the  Bald,  who  had  not 
primogeniture  in  his  favor.g  This  prince,  whose  restless  am- 
bition was  united  with  meanness  as  well  as  insincerity,  con- 
sented to  sign  a  capitulation,  on  his  coronation  at  Rome,  in 
favor  of  the  pope  and  church,  a  precedent  which  was  improved 
upon  in  subsequent  ages./*  Rome  was  now  prepared  to  rivet 
her  fetters  upon  sovereigns,  and  at  no  period  have  the  condi- 
tion of  society  and  the  circumstances  of  civil  government  been 
so  favorable  for  her  ambition.  But  the  consummation  was  still 
suspended,  and  even  her  progress  arrested,  for  more  than  a 
hundred  and  fifty  years.  This  dreary  interval  is  filled  up,  in  the 
annals  of  the  papacy,  by  a  series  of  revolutions  and  crimes.  Six 
popes  were  deposed,  two  murdered,  one  mutilated.  Frequently 
two  or  even  three  competitors,  among  whom  it  is  not  always 
possible  by  any  genuine  criticism  to  distinguish  the  true  shep- 

d  De  Marca,  1.  iv.  c.  n.  g  Baluz.    Capitularia,    t.    ii.    p.    251 ; 

e  Schmidt,  t.  ri.  p  260.  Schmidt,  t.  ii.  p   197. 

f  Durioribtis  demceps   sciens  te  ver-  h  Ibid ,  t,  ii.  p.  199. 
beribus  emdiendum.    Schmidt,  p.  261. 


106  HALLAM 

herd,  drove  each  other  alternately  from  the  city.  A  few  re- 
spectable names  appear  thinly  scattered  through  this  darkness  ; 
and  sometimes,  perhaps,  a  pope  who  had  acquired  estimation 
by  his  private  virtues  may  be  distinguished  by  some  encroach- 
ment on  the  rights  of  princes  or  the  privileges  of  national 
churches.  But  in  general  the  pontiffs  of  that  age  had  neither 
leisure  nor  capacity  to  perfect  the  great  system  of  temporal 
supremacy,  and  looked  rather  to  a  vile  profit  from  the  sale  of 
episcopal  confirmations,  or  of  exemptions  to  monasteries.* 

The  corruption  of  the  head  extended  naturally  to  all  other 
members  of  the  church.  All  writers  concur  in  stigmatizing 
the  dissoluteness  and  neglect  of  decency  that  prevailed  among 
the  clergy.  Though  several  codes  of  ecclesiastical  discipline 
had  been  compiled  by  particular  prelates,  yet  neither  these  nor 
the  ancient  canons  were  much  regarded.  The  bishops,  indeed, 
who  were  to  enforce  them  had  most  occasion  to  dread  their 
severity.  They  were  obtruded  upon  their  sees,  as  the  supreme 
pontiffs  were  upon  that  of  Rome,  by  force  or  corruption.  A 
child  of  five  years  old  was  made  archbishop  of  Rheims.  The 
see  of  Narbonne  was  purchased  for  another  at  the  age  of  ten.; 
By  this  relaxation  of  morals  the  priesthood  began  to  lose  its 
hold  upon  the  prejudices  of  mankind.  These  are  nourished 
chiefly  indeed  by  shining  examples  of  piety  and  virtue,  but 
also,  in  a  superstitious  age,  by  ascetic  observances,  by  the  fast- 
ing and  watching  of  monks  and  hermits,  who  have  obviously 
so  bad  a  lot  in  this  life,  that  men  are  induced  to  conclude  that 
they  must  have  secured  a  better  reversion  in  futurity.  The 
regular  clergy,  accordingly,  or  monastic  orders,  who  practised, 
at  least  apparently,  the  specious  impostures  of  self-mortifica- 
tion, retained  at  all  times  a  far  greater  portion  of  respect  than 
ordinary  priests,  though  degenerated  themselves,  as  was  ad- 
mitted, from  their  primitive  strictness. 

Two  crimes,  of  at  least  violations  of  ecclesiastical  law,  had 
become  almost  universal  in  the  eleventh  century,  and  excited 
general  indignation—  the  marriage  or  concubinage  of  priests, 
and  the  sale  of  benefices.  By  an  effect  of  those  prejudices  in 
favor  of  austerity  to  which  I  have  just  alluded,  celibacy  had 
been,  from  very  early  times,  enjoined  as  an  obligation  upon 


THE  MIDDLE  AGES  IO7 

the  clergy.  It  was  perhaps  permitted  that  those  already  mar- 
ried for  the  first  time,  and  to  a  virgin,  might  receive  ordination ; 
and  this,  after  prevailing  for  a  length  of  time  in  the  Greek 
church,  was  sanctioned  by  the  council  of  Trullo  in  691,6  and 
has  ever  since  continued  one  of  the  distinguishing  features  of 
its  discipline.  The  Latin  church,  however,  did  not  receive 
these  canons,  and  has  uniformly  persevered  in  excluding  the 
three  orders  of  priests,  deacons,  and  subdeacons,  not  only 
from  contracting  matrimony,  but  from  cohabiting  with  wive's 
espoused  before  their  ordination.  The  prohibition,  however, 
during  some  ages  existed  only  in  the  letter  of  her  canons.  In 
every  country  the  secular  or  parochial  clergy  kept  women  in 
their  houses,  upon  more  or  less  acknowledged  terms  of  inter- 
course, by  a  connivance  of  their  ecclesiastical  superiors,  which 
almost  amounted  to  a  positive  toleration.  The  sons  of  priests 
were  capable  of  inheriting  by  the  law  of  France  and  also  of 
Castile.J  Some  vigorous  efforts  had  been  made  in  England 
by  Dunstan,  with  the  assistance  of  King  Edgar,  to  dispossess 
the  married  canons,  if  not  the  parochial  clergy,  of  their  bene- 

feThis  council  was  held  at  Constan-  of  French  and  Spanish  councils,  in 
tmople  m  the  dome  of  the  palace,  called  Dupin's  Ecclesiastical  History,  from  the 
Trullus,  by  the  Latins  The  nomma-  sixth  to  the  eleventh  century,  will  find 
tive  Trullo,  though  solcecistical,  is  used,  hardly  one  wherein  there  is  not  some 
I  believe,  by  ecclesiastical  writers  m  enactment  against  bishops  or  priests  re- 
English.  St.  Marc,  t.  i.  p  294;  Art  de  taming  wives  m  their  houses.  Such  pro- 
verifier  les  Dates,  t  i.  p.  157,  Fleury,  visions  were  not  repeated  certainly  with- 
Hist  Eccles.,  t  x.  p  no.  Bishops  are  out  reason;  so  that  the  remark  of 
not  within  this  permission,  and  cannot  Fleury,  t.  xi  p  594,  that  he  has  found 
retain  their  wives  by  the  discipline  of  no  instance  of  clerical  marriage  before 
the  Greek  church  Lingard  says  of  the  893,  cannot  weigh  for  a  great  deal.  It 
Anglo-Saxon  church,—  During  more  is  probable  that  bishops  did  not  often 
than  200  years  from  the  death  of  Augus-  marry  after  their  consecration;  but  this 
tin  the  laws  respecting  clerical  celibacy,  cannot  be  presumed  of  priests, 
so  galling  to  the  natural  propensities  of  Southey,  m  his  Vindiclae  Ecclesise  Ang- 
man,  but  so  calculated  to  enforce  an  ele-  licanse,  p.  290,  while  he  produces  some 
vated  idea  of  the  sanctity  which  be-  instances  of  clerical  matrimony,  en- 
comes  the  priesthood,  were  enforced  deavors  to  mislead  the  reader  into  the 
with  the  utmost  rigor:  but  during  part  supposition  that  it  was  even  conform- 
of  the  ninth  century  and  most  of  the  able  to  ecclesiastical  canons  * 
tenth,  when  the  repeated  and  sanguinary  I  Recueil  des  Histonens,  t.  xi  preface, 
devastations  of  the  Danes  threatened  Marina,  Ensayo  sobre  las  Siete  Partidas, 
the  destruction  of  the  hierarchy  no  less  c.  221,  223  This  was  by  virtue  of  the 
than  of  the  government,  the  ancient  general  indulgence  shown  by  the  cus- 
canons  opposed  but  a  feeble  barrier  to  toms  of  that  country  to  concubinage,  or 
the  impulse  of  the  passions  "  Ang  -  baragania,  the  children  of  such  a  union 
Sax.  Church,  p.  176.  Whatever  may  always  inheriting  in  default  of  those 
have  been  the  case  in  England,  those  born  in  solemn  wedlock.  Ibid, 
who  look  at  the  abstract  of  the  canons 

*  A  late  writer,  who  has  glossed  over  every  fact  in  ecclesiastical  history  which 
could  make  against  his  own  particular  tenets,  asserts,—"  In  the  earliest  ages  of  the 
church  no  restriction  whatever  had  been  placed  on  the  clergy  m  this  respect." 
Palmer's  Compendious  Ecclesiastical  History,  p.  115  This  may  be,  and  I  believe 
it  is,  very  true  of  the  Apostolical  period,  but  the  "  earliest  ages  "  are  generally- 
understood  to  go  further  and  certainly  the  prohibition  of  marriage  to  priests  was 
an  established  custom  of  some  antiquity  at  the  time  of  the  Nicene  council.  The 
question  agitated  there  was,  not  whether  priests  should  marry,  contrary  as  it  was 
admitted  by  their  advocate  to  apxcu'a  cKKtaja-ta?  irapa$o<n$,  but  whether  married 
men  should  be  ordained.  I  do  not  see  any  cUtfereace  in  principle;  but  the  church 
had  made  o.ne. 


io8  HALLAM 

fices ;  but  the  abuse,  if  such  it  is  to  be  considered,  made  in- 
cessant progress,  till  the  middle  of  the  eleventh  century.  There 
was  certainly  much  reason  for  the  rulers  of  the  church  to 
restore  this  part  of  their  discipline,  since  it  is  by  cutting  off 
her  members  from  the  charities  of  domestic  life  that  she  se- 
cures their  entire  affection  to  her  cause,  and  renders  them, 
like  veteran  soldiers,  independent  of  every  feeling  but  that  of 
fidelity  to  their  commander  and  regard  to  the  interests  of  their 
body.  Leo  IX.  accordingly,  one  of  the  first  pontiffs  who 
retrieved  the  honor  of  the  apostolic  chair,  after  its  long  period 
of  ignominy,  began  in  good  earnest  the  difficult  work  of  en- 
forcing celibacy  among  the  clergy .w  His  successors  never 
lost  sight  of  this  essential  point  of  discipline.  It  was  a  strug- 
gle against  the  natural  rights  and  strongest  affections  of  man- 
kind, which  lasted  for  several  ages,  and  succeeded  only  by 
the  toleration  of  greater  evils  than  those  it  was  intended  to 
remove.  The  laity,  in  general,  took  part  against  the  married 
priests,  who  were  reduced  to  infamy  and  want,  or  obliged  to 
renounce  their  dearest  connections.  In  many  parts  of  Ger- 
many no  ministers  were  left  to  perform  divine  services.**  But 
perhaps  there  was  no  country  where  the  rules  of  celibacy  met 
with  so  little  attention  as  in  England.  It  was  acknowledged  in 
the  reign  of  Henry  I.  that  the  greater  and  better  part  of  the 
clergy  were  married,  and  that  prince  is  said  to  have  permitted 
them  to  retain  their  wives.0  But  the  hierarchy  never  relaxed  in 

m  St.  Marc,  t.  iii.  pp.  152,  164,  219,  602,  turn,  tit  clerici  in  domibus  suis  fornica- 
&c.  .  nas  habeant.  Labbe,  Concilia,  t.  x.  p. 

«  Schmidt,  t.  ui.  p,  279;  Martenne,  1633.  Eugemus  IV.  sent  a  legate  to  im- 
Thesaurus  Anecdotontm,  t.  i  p.  230.  A  pose  celibacy  on  the  Irish  clergy.  Lyt- 
Damsh  writer  draws  a  still  darker  pict-  telton's  Henry  II.  vol.  ii.  p  42 
Tire  of  the  tyranny  exercised  towards  The  English  clergy  long  set  at  nought 
the  married  clergy,  which,  if  he  does  the  fulmmations  of  the  pope  against 
not  exaggerate,  was  severe  indeed:  alii  their  domestic  happiness;  and  the  com- 
membns  truncabantur,  alii  occideban-  mon  law,  or  at  least  irresistible  custom, 
tur,  alii  de  patna  expellebantur,  pauci  seems  to  have  been  their  shield  There 
sua  retinuere.  Langebek,  Script.  is  some  reason  to  believe  that  their  chil- 
Rerum  Damcarum,  t*  i.  p.  380  The  dren  were  legitimate  for  the  purposes  of 
prohibition  was  repeated  by  Waldemar  inheritance,  which,  however,  I  do  not 
II.  in  1222,  so  that  there  seems  to  have  assert.  The  sons  of  priests  are  men- 
been  much  difficulty  found.  Id.  p.  287  tioned  in  several  instruments  of  the 
^^•272.  twelfth  and  thirteenth  centuries;  but  we 

o  Wilkms,  Concilia,  p.  387;  Chromcon  cannot  be  sure  that  they  were  not  born 
Saxon;  Collier,  pp.  248,  286,  294;  Lyttel-  before  their  fathers'  ordination,  or  that 
ton,  vol.  lu.  p.  328.  The  third  Lateran  they  were  reckoned  legitimate!* 
council  fifty  years  afterwards  speaks  of  An  instance,  however,  occurs  in  the 
the  detestable  custom  of  keeping  con-  Rot.  Cur.  Regis,  AD.  1194,  where  the 
cubmes  long  used  by^the  English  clergy.  assize  find  that  there  has  been  no  pres- 
Cum  in  Anglia  prava  et  detestabili  con-  '  entation  to  the  church  of  Dunstan,  but 
suetudme  et  longo  tempore  fuent  obten-  ^uu»um,  out 

*  Among  the  witnesses  to  some  instruments  in  the  reign  of  Edward  I.  printed 
by  Mr.  Hudson  Gurney  from  the  court-rolls  of  the  manor  of  Keswick  in  Norfolk 
we  have  more  than  once  Walter  filius  presbyteri.  But  the  rest  are  described  by  the 
father's  surname,  except  one,  who  is  called  films  Beatricis  ;and  as  he  may  be  aS 
pected  of  being  illegitimate,  we  cannot  infer  the  contrary  as  to  the  priest's  son 


THE  MIDDLE  AGES 


109 


their  efforts ;  and  all  the  councils,  general  or  provincial,  of  the 
twelfth  century,  utter  denunciations  against  concubinary 
priests.p  After  that  age  we  do  not  find  them  so  frequently 
mentioned ;  and  the  abuse  by  degrees,  though  not  suppressed, 
was  reduced  within  limits  at  which  the  church  might  connive. 
Simony,  or  the  corrupt  purchase  of  spiritual  benefices,  was 
the  second  characteristic  reproach  of  the  clergy  in  the  eleventh 
century.  The  measures  taken  to  repress  it  deserve  particular 
consideration,  as  they  produced  effects  of  the  highest  impor- 
tance in  the  history  of  the  middle  ages.  According  to  the  prim- 
itive custom  of  the  church,  an  episcopal  vacancy  was  filled  up 
by  election  of  the  clergy  and  people  belonging  to  the  city  or 
diocese.  The  subject  of  their  choice  was,  after  the  establish- 


the  parsons  have  held  it  from  father  to 
son.  Sir  Francis  Palgrave,  in  his  In- 
troduction to  these  records  (p  29),  gives 
other  proofs  of  this  hereditary  succes- 
sion m  benefices.  Giraldus  Cambrensis, 
about  the  end  of  Henry  II. 's  reign 
(apud  Wright's  Political  Songs  of  Eng- 
land, p.  353),  mentions  the  marriage  of 
the  parochial  clergy  as  almost  universal. 
More  sacerdotum  parochiahum  Anghae 
fere  cunctorum  damnabih  quidem  et 
detestabili,  publicam  secum  habebat 
comitem  mdividuam  et  in  foco  foca- 
nam,  et  in  cubiculo  concubmam.  They 
were  called  focanee,  as  living  at  the  same 
hearth,  and  this  might  be  tolerated, 
perhaps,  on  pretence  of  service ;  but  the 
fellowship,  we  perceive,  was  not  con- 
fined to  the  fireside  It  was  about  this 
time  that  a  poem,  De  Concubims  Sacer- 
dotum, commonly  attributed  to  Walter 
Mapes,  but  alluding  by  name  to  Pope 
Innocent  III ,  humorously  defends  the 
uncanomcal  usage.  It  begins  thus:— 
**  Pnsciani  regula  penitus  cassatur, 

Sacerdos  per  hie  et  h&c  ohm  declina- 
batur, 

Sed  per  hie  solummodo  nunc  artictt- 
latur, 

Cum  per  nostrum  prasulem  hec  amo- 
veatur." 

The  last  lines  are  better  known,  hav- 
ing been  often  quoted: — 
"  Ecce  jam  pro  clencis  multum  alle- 
gavi, 

Necnon  pro  presbytens  multa  compro- 
bavi; 

Pater-no ster  nunc  pro  me,   quoniam 
peccavi, 

Dicat    quisque    presbyter    cum    sua 

suavi." 

Poems  ascribed  to  Mapes,  p.  171.    (Cam- 
den  Society,  1841.) 

Several  other  poems  m  this  very  cu- 
rious volume  allude  to  the  same  subject. 
In  a  dialogue  between  a  priest  and  a 
scholar,  the  latter  having  taxed  him  with 
keeping  a  presbytera  in  his  house,  the 
parson  defends  himself  by  recrimina- 
tion-— 
'*  Malq  cum  presbytera  pulcra  fornicari, 

Servituros  domino  iilios  lucran, 


Quam  vagas  satellites  per  antra  sec- 
tan; 

Est  mhonestissimum  sic  dehonestarL" 
(p.  256) 

John,  on  occasion  of  the  interdict  pro- 
nounced against  him  m  1208,  seized  the 
concubines  of  the  priests  and  compelled 
them  to  redeem  themselves  by  a  fine 
Presbyterorum  et  clencorum  focanaa 
per  totam  Angham  a  ministris  regis 
captas  sunt,  et  ad  se  redimendum  gravi- 
ter  coinpulsae.  Matt.  Pans,  p.  190. 
This  is  omitted  by  Lingard. 

It  is  said  by  Raumer  (Gesch.  der  Ho* 
henstauffen,  vi.  235)  that  there  was  a 
married  Bishop  of  Prague  during  the 
pontificate  of  Innocent  III ,  and  that 
the  custom  of  clerical  marriages  lasted 
in  Hungary  and  Sweden  to  the  end  of 
the  thirteenth  century 

The  marriages  of  English  clergy  are 
noticed  and  condemned  in  some  provin- 
cial constitutions  of  1237  Matt.  Pans, 
p.  381.  And  there  is,  even  so  late  as 
1404,  a  mandate  by  the  Bishop  of  Exe- 
ter against  married  priests.  Wilkms, 
Consilia,  t  in.  p.  277. 

p  Quidam  sacerdotes  Latini,  says  In- 
nocent III ,  m  domibus  suis  habent  con- 
cubinas,  et  nonnulh  ahquas  sibi  non  me- 
tuunt  desponsare.  Opera  Innocent  III. 
p.  558.  See  also  p  300  and  p.  407.  The 
latter  cannot  be  supposed  a  very  com- 
mon case,  after  so  many  prohibitions; 
the  more  usual  practice  was  to  keep  a 
female  m  their  houses,  under  some  pre- 
tence of  relationship  or  servitude,  as  is 
still  said  to  be  usual  in  Catholic  coun- 
tries. Du  Cange,  v.  Focaria.  A  writer 
of  respectable  authonty  asserts  that  the 
clergy  frequently  obtained  a  bishop's 
license  to  cohabit  with  a  mate.  Har- 
mer's  £Wharton*s]  Observations  on 
Burnet,  p.  IT.  I  find  a  passage  in 
Nicholas  <Je  Clemangis  about  1400, 
quoted  m  Lewis's  "  Life  of  Pecock,"  p. 
30.  Plensque  m  diocesibus,  rectores 
parochiarum  ex  certo  et  concjucto  cum 
his  praelatis  pretio,  passim  et  pnbhce 
concubmas  tenent.  This,  however,  does 
not  amount  to  a  direct  license. 


no  HALLAM 

ment  of  the  federate  or  provincial  system,  to  be  approved  or 
rejected  by  the  metropolitan  and  his  suffragans;  and,  if  ap- 
proved, he  was  consecrated  by  them  q  It  is  probable  that,  in 
almost  every  case,  the  clergy  took  a  leading  part  in  the  selec- 
tion of  their  bishops ;  but  the  consent  of  the  laity  was  abso- 
lutely necessary  to  render  it  valid.'  They  were,  however,  by 
degrees,  excluded  from  any  real  participation,  first  in  the 
Greek,  and  finally  in  the  western  church.  But  this  was  not 
effected  till  pretty  late  times ;  the  people  fully  preserved  their 
elective  rights  at  Milan  in  the  eleventh  century,  and  traces  of 
their  concurrence  may  be  found  both  in  France  and  Germany 
in  the  next  age.J 

It  does  not  appear  that  the  early  Christian  emperors  inter- 
posed with  the  freedom  of  choice  any  further  than  to  make  their 
own  confirmation  necessary  in  the  great  patriarchal  sees,  such 
as  Rome  and  Constantinople,  which  were  frequently  the  ob- 
jects of  violent  competition,  and  to  decide  in  controverted 
elections.*  The  Gothic  and  Lombard  kings  of  Italy  followed 
the  same  line  of  conducts  But  in  the  French  monarchy  a 
more  extensive  authority  was  assumed  by  the  sovereign. 
Though  the  practice  was  subject  to  some  variation,  it  may  be 
said  generally  that  the  Merovingian  kings,  the  line  of  Charle- 
magne, and  the  German  emperors  of  the  house  of  Saxony,  con- 
ferred bishoprics  either  by  direct  nomination,  or,  as  was  more 
regular,  by  recommendatory  letters  to  the  electors.^  In  Eng- 
land also,  before  the  conquest,  bishops  were  appointed  in  the 
Witenagemot ;  and  even  in  the  reign  of  William  it  is  said  that 
Lanfranc  was  raised  to  the  see  of  Canterbury  by  consent  of 

q  Marca,  de  Concordantia,  &c.,  L  vi.  own  laws,  which  only  reserved  to  them 

c.  2,  the  confirmation.     Episcopo  decedente, 

r  Father  Paul  on  Benefices,  c.  7  says  a  constitution  of  Clotaire  II.  m  615, 

5  De  Marca,  ubi  supra    Schmidt,  t.  iv.  in  loco  ipsius,  qui  a  metropohtano  ordi- 

p.  173.    The  form  of  election  of  a  bishop  nari  debet,  a  provinciahbus,  a  clero  et 

of    ruy,    in    1053,    runs    thus*   clerus,  populo  eligatur;  et  si  persona  cpndigna 

populus,  et  militia  elegimus.    Vaissette,  merit,    per   ordinationem    pnncipis    or- 

Hist,  de  Languedoc,  t.  li.  Appendix,  p.  dinetur.     Baluz.    Capitul.    t.    i.    p.    21. 

220.    Even  Gratian  seems  to  admit  in  Charlemagne  is  said  to  have  adhered  to 

one  place  that  the  laity  had  a  sort  of  this   limitation,   leaving  elections   free, 

share,  though  no  decisive  voice,  m  fill-  and    only   approving   the  person,    and 

mg^up  an  episcopal  vacancy.     Electio  conferring  investiture  on  him.    F.  Paul 

clericorum  est,  petitio  plebis      Decret.  on  Benefices,  c.  xv.    But  a  more  direct 

1.   i.   distmctio  62.     And   other  subse-  influence  was  restored  afterwards.   Ivon 

quent  passages  confirm  this.  Bishop    of    Chartres,    about    the    year 

t  Gibbon,   c.  20;    St.   Marc,   Abrege  noo,  thus  concisely  expresses  the  sev- 

Chronologique,  t  i.  p.  7.  eral  parties  concurring  in  the  creation 

«  Fra  Paolo  on  Benefices,  c.  ix,;  Gian-  of  a  bishop:  ehgibente  clero,  suffragante 

none,  L  lii.  c.  6;   1.  iv.  c.  12;   St.  Marc,  populo,  done  regis,  per  manuin  metro- 

t.  i.  p.  37.  politani,  approbante  Romano  pontifice. 

v  Schmidt,  t   i    p.  386;  t.  ii.  pp.  245,  Du  Chesne,  Script.  Rerum  Gauicarum, 

487.    This  interference  of  the  kings  was  t.  iv.  p.  174* 
perhaps  not  quite  conformable  to  their 


THE  MIDDLE  AGES  llt 

parliaments  But,  independently  of  this  prerogative,  which 
length  of  time  and  the  tacit  sanction  of  the  people  have  rendered 
unquestionably  legitimate,  the  sovereign  had  other  means  of 
controlling  the  election  of  a  bishop.  Those  estates  and  honors 
which  compose  the  temporalities  of  the  see,  and  without  which 
the  naked  spiritual  privileges  would  not  have  tempted  an  ava- 
ricious generation,  had  chiefly  been  granted  by  former  kings, 
and  were  assimilated  to  lands  held  on  a  beneficiary  tenure.  As 
they  seemed  to  partake  of  the  nature  of  fiefs,  they  required  sim- 
ilar formalities — investiture  by  the  lord,  and  an  oath  of  fealty 
by  the  tenant.  Charlemagne  is  said  to  have  introduced  this 
practice ;  and,  by  way  of  visible  symbol,  as  usual  in  feudal  inti- 
tutions,  to  have  put  the  ring  and  crosier  into  the  hands  of  the 
newly  consecrated  bishop.  And  this  continued  for  more  than 
two  centuries  afterwards  without  exciting  any  scandal  or  re- 
sistance.* 

The  church  has  undoubtedly  surrendered  part  of  her  indepen- 
dence in  return  for  ample  endowments  and  temporal  power; 
nor  could  any  claim  be  more  reasonable  than  that  of  feudal 
superiors  to  grant  the  investiture  of  dependent  fiefs.  But  the 
fairest  right  may  be  sullied  by  abuse ;  and  the  sovereigns,  the 
lay  patrons,  the  prelates  of  the  tenth  and  eleventh  centuries, 
made  their  powers  of  nomination  and  investiture  subservient 
to  the  grossest  rapacity .y  According  to  the  ancient  canons,  a 
benefice  was  avoided  by  any  simoniacal  payment  or  stipulation. 
If  these  were  to  be  enforced,  the  church  must  almost  be  cleared 
of  its  ministers.  Either  through  bribery  in  places  where  elec- 
tions still  prevailed,  or  through  corrupt  agreements  with 
princes,  or  at  least  customary  presents  to  their  wives  and  min- 
isters, a  large  proportion  of  the  bishops  had  no  valid  tenure  in 
their  sees.  The  case  was  perhaps  worse  with  inferior  clerks  ; 
in  the  church  of  Milan,  which  was  notorious  for  this  corrup- 
tion, not  a  single  ecclesiastic  could  stand  the  test,  the  arch- 
bishop exacting  a  price  for  the  collation  of  every  benefices 

The  bishops  of  Rome,  like  those  of  inferior  sees,  were  regu- 

w  Lyttelton's  Hist,  of  Henry  II.  vol.  benefices.    Muratori,  ad.  ann.  1046.  The 

iv.  p.  144.    But  the  passage,  which  he  offence  was  much  more  common  than 

quotes  from  the  Saxon  Chronicle,  is  not  the  punishment,  but  the  two  combined 

found  m  the  best  edition.  furnish  a  good  specimen  of  the  eleventh 

#De  Marca,  p.  416;   Giannone,  1.  vi.  century. 
p.  7.  s  St.  Marc,  t.  iii.  pp.  65,  188,  219,  330, 

y  Boniface  Marquis  of  Tuscany,  father  296,  568;    Muraton,  A.D.  $8,  1057,  &c.; 

of  the  Countess  Matilda,  and  by  far  the  Fleury,  Hist.  Eccles.,  t.  xiii.  p.  73.    The 

greatest  prince  in  Italy,  was  flogged  be-  sum,  however,  appears  to  have  been  very 

fore  the  altar  by  an  abbot  for  selling  small;  rather  like  a  fee  than  a  bribe. 


H2  HALLAM 

larly  elected  by  the  citizens,  laymen  as  well  as  ecclesiastics. 
But  their  consecration  was  deferred  until  the  popular  choice 
had  received  the  sovereign's  sanction.  The  Romans  regularly 
despatched  letters  to  Constantinople  or  to  the  exarchs  of  Ra- 
venna, praying  that  their  election  of  a  pope  might  be  confirmed. 
Exceptions,  if  any,  are  infrequent  while  Rome  was  subject  to 
the  eastern  empires  This,  among  other  imperial  prerogatives, 
Charlemagne  might  consider  as  his  own.  He  possessed  the 
city,  especially  after  his  coronation  as  emperor,  in  full  sover- 
eignty, and  even  before  that  event  had  investigated,  as  supreme 
chief,  some  accusations  preferred  against  the  Pope  Leo  III. 
No  vacancy  of  the  papacy  took  place  after  Charlemagne  be- 
came emperor;  and  it  must  be  confessed  that,  in  the  first  which 
happened  under  Louis  the  Debonair,  Stephen  IV.  was  conse- 
crated in  haste  without  that  prince's  approbation.^  But  Greg- 
ory IV.,  his  successor,  waited  till  his  election  had  been  con- 
firmed; and  upon  the  whole  the  Carlovingian  emperors, 
though  less  uniformly  than  their  predecessors,  retained  that 
mark  of  sovereignty.*  But  during  the  disorderly  state  of  Italy 
which  followed  the  last  reigns  of  Charlemagne's  posterity, 
while  the  sovereignty  and  even  the  name  of  an  emperor  were  in 
abeyance,  the  supreme  dignity  of  Christendom  was  conferred 
only  by  the  factious  rabble  of  its  capital.  Otho  the  Great,  in  re- 
ceiving the  imperial  crown,  took  upon  him  the  prerogatives 
of  Charlemagne.  There  is  even  extant  a  decree  of  Leo  VIII., 
which  grants  to  him  and  his  successors  the  right  of  naming 
future  popes.  But  the  authenticity  of  this  instrument  is  de- 
nied by  the  Italians.**  It  does  not  appear  that  the  Saxon  em- 
perors went  to  such  a  length  as  nomination,  except  in  one  in- 
stance (that  of  Gregory  V.  in  996);  but  they  sometimes,  not 
uniformly,  confirmed  the  election  of  a  pope,  according  to  an- 
cient custom.  An  explicit  right  of  nomination,  was,  however, 
conceded  to  the  Emperor  Henry  III.  in  1047,  as  the  only  means 
of  rescuing  the  Roman  church  from  the  disgrace  and  depravity 


.cLe  Blanc,  Dissertation  ,  sur  I'Auto-  dissertation,  t  iv.  p.  1167,  though  ad- 

rite  des  Empereurs.    This  is  subjoined  mining  some  interpolations,     Pagi    in 

to  his  Traite  des  Monnoyes;  but  not  in  Baromum,  t.  iv.  p.  8,  seemed  to  me  to 

all  copies,  which  makes  those  that  want  have  urged  some  weighty  objections: 

it  less  valuable.   St.  Marc  and  Muratori,  and  Muratori,  Annali  t'ltalia,  A.D   ofe 

parsf*n'1        -  «        «    •»,  speaks  of  it  as  a  gross  imposture    in 

b  Mnraton,  A.B.  817;   St^Marc,  which  he  probably  goes  too  far     It  ob- 

c  Le  Blanc;  Schmidt  t.  ii.  p,  186;  St.  tamed  credit  rathe?  early    and  is  ad- 

M5o?  M'  pV8r'J^'  *?*  ^         v  mitted  into  .the  Decretum  of  Gratian, 

d  St.  Marc  has  defended  the  authen-  notwithstanding  its  obvious  tendency 

ticity  of  this  instrument  in  a  separate  p.  211,  edit.  1591,  icimcncy, 


THE  MIDDLE  AGES  ji3 

into  which  it  had  fallen.  Henry  appointed  two  or  three  very 
good  popes ;  acting  in  this  against  the  warnings  of  a  selfish 
policy,  as  fatal  experience  soon  proved  to  his  family.* 

This  high  prerogative  was  perhaps  not  designed  to  extend 
beyond  Henry  himself.  But  even  if  it  had  been  transmissible 
to  his  successors,  the  infancy  of  his  son  Henry  IV.,  and  the 
factions  of  that  minority,  precluded  the  possibility  of  its  exer- 
cise. Nicolas  II.,  in  1059,  published  a  decree  which  restored 
the  right  of  election  to  the  Romans,  but  with  a  remarkable 
variation  from  the  original  form.  The  cardinal  bishops  (seven 
in  number,  holding  sees  in  the  neighborhood  of  Rome,  and 
consequently  suffragans  of  the  pope  as  patriarch  or  metropol- 
itan) were  to  choose  the  supreme  pontiff,  with  the  concurrence 
first  of  the  cardinal  priests  and  deacons  (or  ministers  of  the  par- 
ish churches  of  Rome),  and  afterwards  of  the  laity.  Thus 
elected,  the  new  pope  was  to  be  presented  for  confirmation  to 
Henry,  "  now  king,  and  hereafter  to  become  emperor,"  and  to 
such  of  his  successors  as  should  personally  obtain  that  priv- 
ilege/ This  decree  is  the  foundation  of  that  celebrated  mode  of 
election  in  a  conclave  of  cardinals  which  has  ever  since  de- 
termined the  headship  of  the  church.  It  was  intended  not  only 
to  exclude  the  citizens,  who  had  indeed  justly  forfeited  their 
primitive  right,  but  as  far  as  possible  to  prepare  the  way  for 
an  absolute  emancipation  of  the  papacy  from  the  imperial  con- 
trol ;  reserving  only  a  precarious  and  personal  concession  to 
the  emperors  instead  of  their  ancient  legal  prerogative  of  con- 
firmation. 

The  real  author  of  this  decree,  and  of  all  other  vigorous  meas- 
ures adopted  by  the  popes  of  that  age,  whether  for  the  assertion 
of  their  independence  or  the  restoration  of  discipline,  was  Hil- 
debrand,  archdeacon  of  the  church  of  Rome,  by  far  the  most 
conspicuous  person  of  the  eleventh  century.  Acquiring  by  his 
extraordinary  qualities  an  unbounded  ascendency  over  the 
Italian  clergy,  they  regarded  him  as  their  chosen  leader  and  the 
hope  of  their  common  cause.  He  had  been  empowered  singly 
to  nominate  a  pope  on  the  part  of  the  Romans  after  the  death 
of  Leo  IX.,  and  compelled  Henry  III.  to  acquiesce  in  his  choice 
of  Victor  II.g  No  man  could  proceed  more  fearlessly  towards 

^St.  Marc;  Muratori;  Schmidt;  Stru-  makes  the  consent  of  two-thirds  of  the 

vius.  college  necessary  for  a  pope's  election. 

/  St.  Marc,  t.  in    p    276.     The  first  Labb£  Concilia,  t  x.  p.  1508. 

canon    of    the    third    Lateran    council  g  St.  Marc,  pu  97. 

VOL.  IL— 8 


HALLAM 

his  object  than  Hildebrand,  nor  with  less  attention  to  conscien- 
tious impediments.  Though  the  decree  of  Nicolas  II.,  his  own 
work,  had  expressly  reserved  the  right  of  confirmation  of  the 
young  king  of  Germany,  yet  on  the  death  of  that  pope  Hilde- 
brand  procured  the  election  and  consecration  of  Alexander  II. 
without  waiting  for  any  authority./*  During  this  pontificate 
he  was  considered  as  something  greater  than  the  pope,  who 
acted  entirely  by  his  counsels.  On  Alexander's  decease  Hilde- 
brand,  long  since  the  real  head  of  the  church,  was  raised  with 
enthusiasm  to  its  chief  dignity,  and  assumed  the  name  of  Greg- 
ory VII.  [AD.  1073.] 

Notwithstanding  the  late  precedent  at  the  election  of  Alex- 
ander II,  it  appears  that  Gregory  did  not  yet  consider  his 
plans  sufficiently  mature  to  throw  off  the  yoke  altogether,  but 
declined  to  receive  consecration  until  he  had  obtained  the  con- 
sent of  the  King  of  Germany.*  This  moderation  was  not  of 
long  continuance.  The  situation  of  Germany  speedily  afforded 
him  an  opportunity  of  displaying  his  ambitious  views.  Henry 
IV.,  through  a  very  bad  education,  was  arbitrary  and  dissolute ; 
the  Saxons  were  engaged  in  a  desperate  rebellion ;  and  secret 
disaffection  had  spread  among  the  princes  to  an  extent  of  which 
the  pope  was  much  better  aware  than  the  king.;  He  began  by 
excommunicating  some  of  Henry's  ministers  on  pretence  of 
simony,  and  made  it  a  ground  of  remonstrance  that  they  were 
not  instantly  dismissed.  His  next  step  was  to  publish  a  decree, 
or  rather  to  renew  one  of  Alexander  II.,  against  lay  investi- 
tures>  The  abolition  of  these  was  a  favorite  object  of  Greg- 
ory, and  formed  an  essential  part  of  his  general  scheme  for 
emancipating  the  spiritual  and  subjugating  the  temporal 
power.  The  ring  and  crosier,  it  was  asserted  by  the  papal  ad- 
vocates, were  the  emblems  of  that  power  which  no  monarch 
could  bestow ;  but  even  if  a  less  offensive  symbol  were  adopted 
in  investitures,  the  dignity  of  the  church  was  lowered,  and  her 
purity  contaminated,  when  her  highest  ministers  were  com- 
pelled to  solicit  the  patronage  or  the  approbation  of  laymen. 
Though  the  estates  of  bishops  might,  strictly,  be  of  temporal 
right,  yet,  as  they  had  been  inseparably  annexed  to  their  spirit- 
ual office,  it  became  just  that  what  was  first  in  dignity  and  ini- 

h  St.  Marc,  p.  306.  /Schmidt;   St.  Marc.    These  two  are 

*  Ibid.,  p.   552.     He  acted,  however,  my  principal  authorities  for  the  contest 

as  pope,  corresponding  in  that  character  between  the  church  and  the  empire. 

with  bishops  of  all  countries  from  the  JfrSt.  Marc,  t.  iii.  p.  670. 

day  of  his  election.    P.  554. 


THE  MIDDLE  AGES  II5 

portance  should  carry  with  it  those  accessory  parts.  And  this 
was  more  necessary  than  in  former  times  on  account  of  the 
notorious  traffic  which  sovereigns  made  of  their  usurped  nom- 
ination to  benefices,  so  that  scarcely  any  prelate  sat  by  their 
favor  whose  possession  was  not  invalidated  by  simony. 

The  contest  about  investitures,  though  begun  by  Gregory 
VII.,  did  not  occupy  a  very  prominent  place  during  his  pon- 
tificate ;  its  interest  being  suspended  by  other  more  extraordi- 
nary and  important  dissensions  between  the  church  and  em- 
pire. The  pope,  after  tampering  some  time  with  the  disaffected 
party  in  Germany,  summoned  Henry  to  appear  at  Rome  and 
vindicate  himself  from  the  charges  alleged  by  his  subjects. 
Such  an  outrage  naturally  exasperated  a  young  and  passionate 
monarch.  Assembling  a  number  of  bishops  and  other  vassals 
at  Worms,  he  procured  a  sentence  that  Gregory  should  no 
longer  be  obeyed  as  lawful  pope.  But  the  time  was  past  for 
those  arbitrary  encroachments,  or  at  least  high  prerogatives,  of 
former  emperors.  The  relations  of  dependency  between 
church  and  state  were  now  about  to  be  reversed.  Gregory  had 
no  sooner  received  accounts  of  the  proceedings  at  Worms  than 
he  summoned  a  council  in  the  Lateran  palace,  and  by  a  sol- 
emn sentence  not  only  excommunicated  Henry,  but  deprived 
him  of  the  kingdoms  of  Germany  and  Italy,  releasing  his  sub- 
jects from  their  allegiance,  and  forbidding  them  to  obey  him  as 
sovereign.  Thus  Gregory  VII.  obtained  the  glory  of  leaving 
all  his  predecessors  behind,  and  astonishing  mankind  by  an 
act  of  audacity  and  ambition  which  the  most  emulous  of  his 
successors  could  hardly  surpass.* 

I  The  sentence  of  Gregory  VII.  against  reges  a  regno  deponere  posse  denegabit, 

the  Emperor  Henry  was  directed,   we  quicunque    decreta     sanctissimi     papje 

should  always  remember,  to  persons  al-  Gregoni    non    proscnbenda    judicabit 

ready  well  disposed  to  reject  his  author-  Ipse  enim  vir  apostolicus    .    ,    .    Prse- 

ity.^   Men  are  glad  to  be  told  that  it  is  terea,  hberi  homines  Henncum  eo  pacto 

their  duty  to  resist  a  sovereign  against  sibi  praeposuerunt  m  regem,  ut  electores 

whom  they  are  m  rebellion,,  and  will  not  suos  juste  judicare  et  regali  providentia 

be  very  scrupulous  m  examining  conclu-  gubernare  satageret,  quod  pactum  ille 

sions  which  fall  in  with  their  mchna-  postea  praevarlcan  et  contemnere  non 

tions  and  interests.    Allegiance  was  m  cessavit,    &c.     Ergo,    et    absque    sedis 

those  turbulent  ages  easily  thrown  off,  apostohcae   judicio   prmcipes   eum   pro 

and  tfoe  right  of  resistance  was*  in  con-  rege  mento  refutare  possent,  cum  pac- 

tinual  exercise.    To  the  Germans  of  the  turn  adimplere  contempserit,   quod  lis 

eleventh  century  a  prince  unfit  for  Chris-  pro  electione  su  promiserat;    quo  non 

tian   communion   would   easily   appear  adimpleto,  nee  rex  esse  poterat.    Vita 

unfit  to  reign  over  them,    and  though  Greg.   VII.  in  Muraton,   Script.   Rer. 

Henry  had  not  given  much  real  provo-  Ital.  t  in.  p   342. 

cation  to  the  pope,  his  vices  and  tyran-  Upon  the  other  hand,  the  friends  and 

ny  might  seem  to  challenge  any  spirit-  supporters  of  Henry,  though  ecclesias- 

ual  censure  or  temporal  chastisement.  tics,  protested  against  this  novel  stretch 

A  nearly  contemporary  writer  combines  of    prerogative    in    the    Roman    see 

the  two  justifications  of  the  rebellious  Several  proofs  of  this  are  adduced  by 

party.     Nemo  Romanorum.  pontificem  Schmidt,  t  hi.  p.  315. 


n6  HALLAM 

The  first  impulses  of  Henry's  mind  on  hearing  this  denun- 
ciation were  indignation  and  resentment.  But,  like  other  in- 
experienced and  misguided  sovereigns,  he  had  formed  an  er- 
roneous calculation  of  his  own  resources.  A  conspiracy,  long 
prepared,  of  which  the  dukes  of  Suabia  and  Carinthia  were 
the  chiefs,  began  to  manifest  itself.  Some  were  alienated  by 
his  vices,  and  others  jealous  of  his  family.  The  rebellious 
Saxons  took  courage;  the  bishops,  intimidated  by  excom- 
munications, withdrew  from  his  side ;  and  he  suddenly  found 
himself  almost  insulated  in  the  midst  of  his  dominions.  In 
this  desertion  he  had  recourse,  through  panic,  to  a  miserable 
expedient.  He  crossed  the  Alps  with  the  avowed  determina- 
tion of  submitting,  and  seeking  absolution  from  the  pope. 
Gregory  was  at  Canossa,  a  fortress  near  Reggio,  belonging  to 
his  faithful  adherent  the  Countess  Matilda.  It  was  in  a  winter 
of  unusual  severity.  [A.D.  1077.]  The  emperor  was  admitted, 
without  his  guards,  into  an  outer  court  of  the  castle,  and  three 
successive  days  remained  from  morning  till  evening  in  a  wool- 
len shirt  and  with  naked  feet ;  while  Gregory,  shut  up  with  the 
countess,  refused  to  admit  him  to  his  presence.  On  the  fourth 
day  he  obtained  absolution ;  but  only  upon  condition  of  ap- 
pearing on  a  certain  day  to  learn  the  pope's  decision  whether 
or  no  he  should  be  restored  to  his  kingdom,  until  which  time 
he  promised  not  to  assume  the  ensigns  of  royalty. 

This  base  humiliation,  instead  of  conciliating  Henry's  ad- 
versaries, forfeited  the  attachment  of  his  friends.  In  his  con- 
test with  the  pope  he  had  found  a  zealous  support  in  the  prin- 
cipal Lombard  cities,  among  whom  the  married  and  simonia- 
cal  clergy  had  great  influences  Indignant  at  his  submission 
to  Gregory,  whom  they  affected  to  consider  as  an  usurper  of 
the  papal  chair,  they  now  closed  their  gates  against  the  em- 
peror, and  spoke  openly  of  deposing  him.  In  this  singular  po- 
sition between  opposite  dangers,  Henry  retrod  his  late  steps, 
and  broke  off  his  treaty  with  the  pope ;  preferring,  if  he  must 

m  There  had  been  a  kind  of  civil  war  in  St.  Marc,  t  hi.  p.  230,  &c.,  and  in 
at  Milan  for  about  twenty  years  before  Muraton's  Annals  The  Milanese 
this  time,  excited  by  the  intemperate  clergy  set  up  a  pretence  to  retain  wives, 
zeal  of  some  partisans  who  endeavored  under  the  authority  of  their  great  arch- 
to  execute  the  papal  decrees  against  bishop,  St  Ambrose,  who,  it  seems,  has 
irregular  clerks  by  force.  The  history  of  spoken  with  more  indulgence  of  this 
these  feuds  has  been  written  by  two  con-  practice  than  most  of  the  fathers  Both 
temporaries,  Arnulf  and  Landulf,  pub-  Arnulf  and  Landulf  favor  th«  married 
lished  in  the  4th  volume  of  Muratori's  clerks;  and  were  perhaps  themselves 
Scnptores  Rerum  Itahcarum;  suffi-  of  that  description.  Muratori. 
cient  extracts  from  which  will  be  found 


THE  MIDDLE  AGES  117 

fall,  to  fall  as  the  defender  rather  than  the  betrayer  of  his  im- 
perial rights.  The  rebellious  princes  of  Germany  chose  an- 
other king,  Rodolph  Duke  of  Suabia,  on  whom  Gregory,  after 
some  delay,  bestowed  the  crown,  with  a  Latin  verse  importing 
that  it  was  given  by  virtue  of  the  original  commission  of  St. 
Peters  But  the  success  of  this  pontiff  in  his  immediate  designs 
was  not  answerable  to  his  intrepidity.  Henry  both  subdued 
the  German  rebellion  and  carried  on  the  war  with  so  much 
vigor,  or  rather  so  little  resistance,  in  Italy  that  he  was  crowned 
in  Rome  by  the  Antipope  Guibert,  whom  he  had  raised  in  a 
council  of  his  partisans  to  the  government  of  the  church  in- 
stead of  Gregory.  The  latter  found  an  asylum  under  the  pro- 
tection of  Roger  Guiscard,  at  Salerno,  where  he  died  an  exile. 
His  mantle,  however,  descended  upon  his  successors,  especially 
Urban  II.  and  Paschal  II.,  who  strenuously  persevered  in  the 
great  contest  for  ecclesiastical  independence ;  the  former  with 
a  spirit  and  policy  worthy  of  Gregory  VII.,  the  latter  with 
steady  but  disinterested  prejudices  They  raised  up  enemies 
against  Henry  IV.  out  of  the  bosom  of  his  family,  instigating 
the  ambition  of  two  of  his  sons  successively,  Conrad  and  Henry, 
to  mingle  in  the  revolts  of  Germany.  But  Rome,  under  whose 
auspices  the  latter  had  not  scrupled  to  engage  in  an  almost  par- 
ricidal rebellion,  was  soon  disappointed  by  his  unexpected 
tenaciousness  of  that  obnoxious  prerogative  which  had  occa- 
sioned so  much  of  his  father's  misery.  He  steadily  refused  to 
part  with  the  right  of  investiture;  and  the  empire  was  still 
committed  in  open  hostility  with  the  church  for  fifteen  years  of 
his  reign.  But  Henry  V.  being  stronger  in  the  support  of  his 
German  vassals  than  his  father  had  been,  none  of  the  popes 
with  whom  he  was  engaged  had  the  boldness  to  repeat  the 
measures  of  Gregory  VII.  At  length,  each  party  grown  weary 
of  this  ruinous  contention,  a  treaty  was  agreed  upon  between 
the  emperor  and  Calixtus  II.  which  put  an  end  by  compromise 
to  the  question  of  ecclesiastical  investitures.  [A.D.  1122.]  By 

n  Petra  dedit  Petro,  Petrus  diadema  sion,  as  may  be  imagined,  was  not  very 

Rodolpho.  satisfactory  to  the  cardinals  and  bishops 

o  Paschal  II  was  so  conscientious  in  about  Paschal's  court,  more  wordly- 
his  abhorrence  of  investitures,  that  he  minded  than  himself,  nor  to  those  of 
actually  signed  an  agreement  with  the  emperor*s  party,  whose  joint 
Henry  V.  in  mo,  whereby  the  prelates  clamor  soon  put  a  stop  to  the  treaty. 
were  to  resign  all  the  lands  and  other  St  Marc,  t.  iv  p.  976.  A  letter  of  Pas- 
possessions  which  they  held  in  fief  of  the  chal  to  Anselm  (Schmidt,  t.  xii  p,  304) 
emperor,  on  condition  of  the  latter  re-  seems  to  imply  that  he  thought  it  better 
nouncing  the  right  of  investiture,  which  for  the  church  to  be  without  riches  than 
indeed,  m  such  circumstances,  would  to  enjoy  them  on  condition  of  doing 
fall  of  itself.  This  extraordinary  conces-  homage  to  laymen. 


n8  HALL AM 

this  compact  the  emperor  resigned  forever  all  pretence  to  in- 
vest bishops  by  the  ring  and  crosier,  and  recognized  the  liberty 
of  elections.  But  in  return  it  was  agreed  that  elections  should 
be  made  in  his  presence  or  that  of  his  officers,  and  that  the  new 
bishop  should  receive  his  temporalities  from  the  emperor  by  the 
sceptre.^ 

Both  parties  in  the  concordat  at  Worms  receded  from  so 
much  of  their  pretensions,  that  we  might  almost  hesitate  to 
determine  which  is  to  be  considered  as  victorious.  On  the  one 
hand,  in  restoring  the  freedom  of  episcopal  elections  the  em- 
perors lost  a  prerogative  of  very  long  standing,  and  almost 
necessary  to  the  maintenance  of  authority  over  not  the  least 
turbulent  part  of  their  subjects.  And  though  the  form  of  in- 
vestiture by  the  ring  and  crosier  seemed  in  itself  of  no  im- 
portance, yet  it  had  been  in  effect  a  collateral  security  against 
the  election  of  obnoxious  persons.  For  the  emperors  detain- 
ing the  necessary  part  of  the  pontificals  until  they  should  con- 
fer investiture,  prevented  a  hasty  consecration  of  the  new 
bishop,  after  which,  the  vacancy  being  legally  filled,  it  would 
not  be  decent  for  them  to  withhold  the  temporalities.  But  then, 
on  the  other  hand,  they  preserved  by  the  concordat  their  feudal 
sovereignty  over  the  estates  of  the  church,  in  defiance  of  the 
language  which  had  recently  been  held  by  its  rulers.  Gregory 
VII.  had  positively  declared,  in  the  Lateran  council  of  1080, 
that  a  bishop  or  abbot  receiving  investiture  from  a  layman 
should  not  be  reckoned  as  a  prelate  g.  The  same  doctrine  had' 
been  maintained  by  all  his  successors,  without  any  limitation  of 
their  censures  to  the  formality  of  the  ring  and  crosier.  But 
Calixtus  II.  himself  had  gone  much  further,  and  absolutely  pro- 
hibited the  compelling  ecclesiastics  to  render  any  service  to 
laymen  on  account  of  their  benefices  r  It  is  evident  that  such  a 
general  immunity  from  feudal  obligations  for  an  order  who 
possessed  nearly  half  the  lands  in  Europe  struck  at  the  root  of 
those  institutions  by  which  the  fabric  of  society  was  principally 
held  together.  This  complete  independency  had  been  the  aim 
of  Gregory's  disciples ;  and  by  yielding  to  the  continuance  of 

£St.  Marc,t.  iv.  p.  1093;    Schmidt,  between  those  of  the  impure  laymen,    p. 

t.  in.  p.  178.   The  latter  quotes  the  Latin  956.    The  same  expressions  are  used  bv 

W°r|fS*  \T        *   -                   A  t..  t.  others,  and  are  levelled  at  the  form  of 

fffct.  Marc,  t.  iv  p.  774.    A  bishop  of  feudal  homage,  which,  according  to  the 

Flacentia  asserts  that  prelates  dishon-  principles  of  that  age,   ought  to  have 

oru   u  tY^Ilt  b7  PutjinF  their  hands  oeen  as  obnoxious  as  investiture, 

which  held  the  body  anci  blood  of  Christ,  r  Id.,  pp.  1061,  1067. 


THE  MIDDLE  AGES  119 

lay  investitures  in  any  shape  Calixtus  may,  in  this  point  of  view, 
appear  to  have  relinquished  the  principal  object  of  contentions 
The  emperors  were  not  the  only  sovereigns  whose  practice 
of  investiture  excited  the  hostility  of  Rome,  although  they  sus- 
tained the  principal  brunt  of  the  war.  A  similar  contest  broke 
out  under  the  pontificate  of  Paschal  II.  with  Henry  I.  of  Eng- 
land ;  for  the  circumstances  of  which,  as  they  contain  nothing 
peculiar,  I  refer  to  our  own  historians.  It  is  remarkable  that  it 
ended  in  a  compromise  not  unlike  that  adjusted  at  Worms; 
the  king  renouncing  all  sorts  of  investitures,  while  the  pope 
consented  that  the  bishop  should  do  homage  for  his  temporal- 
ities. This  was  exactly  the  custom  of  France,  where  an  investi- 
ture by  the  ring  and  crosier  is  said  not  to  have  prevailed  ;*  and 
it  answered  the  main  end  of  sovereigns  by  keeping  up  the  feudal 
dependency  of  ecclesiastical  estates.  But  the  kings  of  Castile 
were  more  fortunate  than  the  rest ;  discreetly  yielding  to  the 
pride  of  Rome,  they  obtained  what  was  essential  to  their  own 
authority,  and  have  always  possessed,  by  the  concession  of 
Urban  IL,  an  absolute  privilege  of  nomination  to  bishoprics  in 
their  dominions  .w  An  early  evidence  of  that  indifference  of  the 

.sRanke  observes  that  according  to  grant  no  more  lands  over  which  their 
the  concordat  of  Worms  predominant  suzerainty  was  to  be  disputed  ni  269. 
influence  was  yielded  to  the  emperor  in  The  emperors  retained  a  good  deal — 
Germany  and  to  the  pope  in  Italy;  an  the  regale,  or  possession  of  the  tempo- 
agreement,  however,  which  was  not  ex-  ralities  during  a  vacancy;  the  preroga- 
pressed  with  precision,  and  which  con-  tive,  on  a  disputed  election,  of  investing 
tained  the  germ  of  fresh  disputes  Hist.  whichever  candidate  they  pleased; 
of  Reform,  i  34.  But  even  if  this  vie-  above  all,  perhaps,  the  recognition  of  a 
tory  should  be  assigned  to  Rome  in  re-  great  principle,  that  the  church  was,  as 
spect  of  Germany,  it  does  not  seem  to  its  temporal  estate,  the  subject  of  the 
equally  clear  as  to  England.  Lmgard  civil  magistrate  The  feudal  element  of 
says  of  the  agreement  between  Henry  I.  society  was  so  opposite  to  the  ecclesias- 
and  Paschal  II ,— "  Upon  the  whole,  tical,  that  whatever  was  gained  by  the 
the  church  gamed  little  by  this  com-  former  was  so  much  subtracted  from 
promise.  It  might  check,  but  did  not  the  efficacy  of  the  latter.  This  left  an 
abolish,  the  principal  abuse.  If  Henry  importance  to  the  imperial  investiture 
surrendered  an  unnecessary  ceremony,  after  the  Calixtin  concordat,  which  was 
he  still  retained  the  substance  The  not  intended  probably  by  the  pope.  For 
right  which  he  assumed  of  nominating  the  words,  as  quoted  by  Schmidt  fin. 
bishops  and  abbots  was  left  umm-  301),  — Habeat  imperatona  dignitas 
paired "  Hist,  of  Engl.,  ii.  169.  But  if  electum  liber;  consecratum  canomce 
this  nomination  by  the  crown  was  so  regahter  per  sceptrum  sine  pretio  tamen 
great  an  abuse,  why  did  the  popes  con-  investire  solenmter  —  imply  nothing 
cede  it  to  Spain  and  France?  The  real  more  than  a  formality  The  emperor  is, 
truth  is,  that  no  mode  of  choosing  bish-  as  it  were,  commanded  to  invest  the 
ops  is  altogether  unexceptionable.  But,  bishop  after  consecration.  But  in  prac- 
upon  the  whole,  nomination  by  the  tice  the  emperors  always  conferred  the 
crown  is  likely  to  work  better  than  any  investiture  before  consecration, 
other,  even  for  the  religious  good  of  Schmidt,  iv.  153. 

the  church.    As  a  means  of  preserving  *  Histoire  du  Droit  public  ecclesias- 

the  connection  of  the  clergy  with  the  tique  Frangois,  p    261.    I  do  not  fully 

state,  it  is  almost  indispensable.  rely  on  this  authority. 

Schmidt  observes,  as  to  Germany,  that  u  F.  Paul  on  Benefices,  c  24;  Zurita, 

the  dispute  about  investitures  was  not  Anales  de  Aragon,  t.  iv.  p.  305.    Fleury 

wholly  to  the  advantage  of  the  church;  says  that  the  kings  of  Spain  nominate 

though  she  seemed  to  come  out  success-  to  bishoprics  by  virtue  of  a  particular 

fully,  yet  it  produced  a  hatred  on  the  indulgence,  renewed  by  the  pope  for 

part  of  the  laity,  and,  above  all,  a  deter-  the  life  of  each  prince.    Institutions  au 

mination  in  the  princes  and  nobility  to  Droit,  t.  i.  p.  10$. 


120  HALLAM 

popes  towards  the  real  independence  of  national  churches  to 
which  subsequent  ages  were  to  lend  abundant  confirmation. 

When  the  emperors  had  surrendered  their  pretensions  to 
interfere  in  episcopal  elections,  the  primitive  mode  of  collecting 
the  suffrages  of  clergy  and  laity  in  conjunction,  or  at  least  of 
the  clergy  with  the  laity's  assent  and  ratification,  ought  natur- 
ally to  have  revived.  But  in  the  twelfth  century  neither  the 
people,  nor  even  the  general  body  of  the  diocesan  clergy,  were 
considered  as  worthy  to  exercise  this  function.  It  soon  de- 
volved altogether  upon  the  chapters  of  cathedral  churches.** 
The  original  of  these  may  be  traced  very  high.  In  the  earliest 
ages  we  find  a  college  of  presbytery  consisting  of  the  priests  and 
deacons,  assistants  as  a  council  of  advice,  or  even  a  kind  of 
parliament,  to  their  bishops.  Parochial  divisions,  and  fixed 
ministers  attached  to  them,  were  not  established  till  a  later 
period.  But  the  canons,  or  cathedral  clergy,  acquired  after- 
wards a  more  distinct  character.  They  were  subjected  by  de- 
grees to  certain  strict  observances,  little  differing,  in  fact,  from 
those  imposed  on  monastic  orders.  They  lived  at  a  common 
table,  they  slept  in  a  common  dormitory,  their  dress  and  diet 
were  regulated  by  peculiar  laws.  But  they  were  distinguished 
from  monks  by  the  right  of  possessing,  individual  property, 
which  was  afterwards  extended  to  the  enjoyment  of  separate 
prebends  or  benefices.  These  strict  regulations,  chiefly  im- 
posed by  Louis  the  Debonair,  went  into  disuse  through  the 
relaxation  of  discipline;  nor  were  they  ever  effectually  re- 
stored. Meantime  the  chapters  became  extremely  rich;  and 
as  they  monopolized  the  privilege  of  electing  bishops,  it  be- 
came an  object  of  ambition  with  noble  families  to  obtain  canon- 
ries  for  their  younger  children,  as  the  surest  road  to  ecclesias- 
tical honors  and  opulence.  Contrary,  therefore,  to  the  general 
policy  of  the  church,  persons  of  inferior  birth  have  been  rigidly 
excluded  from  these  foundations.^ 


•u  Fra  Paolo  (Treatise  on  Benefices,  c»  firmed  by  Otho  IV.  in  the  capitulation 

24)  says  that  between  1122  and  1145  it  upon   his   accession.     Hist,    des   Alle- 

became  a  rule  almost  everywhere  es-  mands,  t.  iv.  p.  175.    Fleury  thinks  that 

tablished  that  bishops  should  be  chos-  chapters  had  not  an  exclusive  election 

en.  by  the  chapter.    Schmidt,  however,  till  the  end  of  the  twelfth  century.    The 

brings  a  few  instances  where  the  con-  second  Lateran  council  in  1139  represses 

sent  of  the  nobility  and  other  laics  is  their  attempts  to  engross  it.     Institu- 

expressed,    though   perhaps   little    else  tions  au  Droit  Eccles.,  t.  i.  p.  TOO. 
than  a  matter  of  form.     Innocent  II.  a;  Schmidt,  t.  ii.  pp.  224,  473;    t.  Hi 

seems  to  have  been  the  first  who  de-  p.  281.    Encyclopedic  art.  Chanoine,  F. 

clared  that  whoever  had  the  majority  Paul  on  Benefices,  c.  16     Fleury,  8me 

of  the  chapter  m  his  favor  should  be  Discours  sur  THist.  Eccles 
deemed  duly  elected;  and  this  was  con- 


THE  MIDDLE  AGES  121 

The  object  of  Gregory  VIL,  in  attempting  to  redress  those 
more  flagrant  abuses  which  for  two  centuries  had  deformed 
the  face  of  the  Latin  church,  is  not  incapable,  perhaps,  of  vin- 
dication, though  no  sufficient  apology  can  be  offered  for  the 
means  he  employed.  But  the  disinterested  love  of  reforma- 
tion, to  which  candor  might  ascribe  the  contention  against  in- 
vestitures, is  belied  by  the  general  tenor  of  his  conduct,  ex- 
hibiting an  arrogance  without  parallel,  and  an  ambition  that 
grasped  at  universal  and  unlimited  monarchy.  He  may  be 
called  the  common  enemy  of  all  sovereigns  whose  dignity  as 
well  as  independence  mortified  his  infatuated  pride.  Thus  we 
find  him  menacing  Philip  I.  of  France,  who  had  connived  at 
the  pillage  of  some  Italian  merchants  and  pilgrims,  not  only 
with  an  interdict,  but  a  sentence  of  deposition.*  Thus  too  he 
asserts,  as  a  known  historical  fact,  that  the  kingdom  of  Spain 
had  formerly  belonged,  by  special  right,  to  St.  Peter ;  and  by 
virtue  of  this  imprescriptible  claim  he  grants  to  a  certain  Count 
de  Rouci  all  territories  which  he  should  reconquer  from  the 
Moors,  to  be  held  in  fief  from  the  Holy  See  by  a  stipulated  rent.:v 
A  similar  pretension  he  makes  to  the  kingdom  of  Hungary,  and 
bitterly  reproaches  its  sovereign,  Solomon,  who  had  done  hom- 
age to  the  emperor,  in  derogation  of  St.  Peter,  his  legitimate 
lord.*  It  was  convenient  to  treat  this  apostle  as  a  great  feudal 
suzerain,  and  the  legal  principles  of  that  age  were  dexterously 
applied  to  rivet  more  forcibly  the  fetters  of  superstitions 

While  temporal  sovereigns  were  opposing  so  inadequate  a 
resistance  to  a  system  of  usurpation  contrary  to  all  precedent 
and  to  the  common  principles  of  society,  it  was  not  to  be  ex- 
pected that  national  churches  should  persevere  in  opposing 
pretensions  for  which  several  ages  had  paved  the  way.  Greg- 

x  St.  Marc,  t.  iii  p.  628;  Fleury,  Hist,  cupiens,  hanc  concessionem  ab   apos- 

Eccles  t.  xih.  pp.  281,  284.  tofica  sede  obtmuit,  ut  partem  illam, 

y  The  language  he  employs  is  worth  unde  paganos   suo  studio   et  adjuncto 

quoting  as  a  specimen  of  his  style;  Non  sibi  aliorum  auxilio  expellere  possit,  sub 

latere  vos  credimus,  regnuni  Hispamae  conditions  inter  nos  factse  pactionis  ex 

ab  antique  juris  sancti  JPetn  fuisse,  et  parte    Sti.    Petri    possideret.      Labbe", 

adhuc  licet  dm  a  pagams  sit  occupatum.  Concilia,  t.  x.  p.  10.    Three  instances 

lege  tamen  justitise  non  evacuata,  nulli  occur   in  the    Corps   Diplomatique  of 

mortahum,  sed  soli  apostolicse  sedi  ex  Dumont,  where  a  Duke  of  Dalmatia  Ct 

aequo    pertinere.     Quod    enim    auctore  i.  p    33),  a  Count  of  Provence  (p.  58), 

Deo  semel  in  proprietates  ecclesiarum  and  a  Count  of  Barcelona  (ibid.;,  p.ut 

juste  pervenent,  manente  Eo,  ab  usu  themselves  under  the  feudal  superiority 

quidem,  sed  ad  earum  jure,   occasione  and  protection  of  Gregory  VII.    The 

transeuntis  temporis,  sine  legitima  con-  motive  was  sufficiently  obvious, 

cessione    divelh    non    potent.     Itaque  z  St.  Marc,  t.  in  pp.  624,  674;  Schmidt, 

comes  Evalus  de  Roceio,  cujus  famam  p.  73. 

apud  vos  haud  obscuram  esse  putamus,  a  The  character  and  policy  of  Gregory 

terram  illam  ad  honorem  Sti    Petn  in-  VII.  are  well  discussed  by  Schmidt,  t. 

gredi,  et  a  paganorum  roanibus  enpere  nL  p.  307. 


122  HALL  AM 

ory  VII.  completed  the  destruction  of  their  liberties.  The 
principles  contained  in  the  decretals  of  Isidore,  hostile  as  they 
were  to  ecclesiastical  independence,  were  set  aside  as  insuffi- 
cient to  establish  the  absolute  monarchy  of  Rome.  By  a  con- 
stitution of  Alexander  II.,  during  whose  pontificate  Hildebrand 
himself  was  deemed  the  effectual  pope,  no  bishop  in  the  Catholic 
church  was  permitted  to  exercise  his  functions,  until  he  had  re- 
ceived the  confirmation  of  the  Holy  See  :  b  a  provision  of  vast 
importance,  through  which,  beyond  perhaps  any  other  means, 
Rome  has  sustained,  and  still  sustains,  her  temporal  influence, 
as  well  as  her  ecclesiastical  supremacy.  The  national  churches, 
long  abridged  of  their  liberties  by  gradual  encroachments,  now 
found  themselves  subject  to  an  undisguised  and  irresistible 
despotism.  Instead  of  affording  protection  to  bishops  against 
their  metropolitans,  under  an  insidious  pretence  of  which  the 
popes  of  the  ninth  century  had  subverted  the  authority  of  the 
latter,  it  became  the  favorite  policy  of  their  successors  to  harass 
all  prelates  with  citations  to  Rome.c  Gregory  obliged  the  met- 
ropolitans to  attend  in  person  for  the  pallium.^  Bishops  were 
summoned  even  from  England  and  the  northern  kingdoms  to 
receive  the  commands  of  the  spiritual  monarch.  William  the 
Conqueror  having  made  a  difficulty  about  permitting  his  prel- 
ates to  obey  these  citations,  Gregory,  though  in  general  on 
good  terms  with  that  prince,  and  treating  him  with  a  deference 
which  marks  the  effect  of  a  firm  character  in  repressing  the 
ebullitions  of  overbearing  pride,*  complains  of  this  as  a  perse- 
cution unheard  of  among  pagans/  The  great  quarrel  between 
Archbishop  Anselm  and  his  two  sovereigns,  William  Rufus 
and  Henry  I.,  was  originally  founded  upon  a  similar  refusal  to 
permit  his  departure  for  Rome. 

This  perpetual  control  exercised  by  the  popes  over  eccle- 
siastical, and  in  some  degree  over  temporal  affairs,  was  main- 
tained by  means  of  their  legates,  at  once  the  ambassadors  and 
the  lieutenants  of  the  Holy  See.  Previously  to  the  latter  part 
of  the  tenth  age  these  had  been  sent  not  frequently  and  upon 
special  occasions.  The  legatine  or  vicarial  commission  had 
generally  been  intrusted  to  some  eminent  metropolitan  of  the 
nation  within  which  it  was  to  be  exercised  ;  as  the  Archbishop 
of  Canterbury  was  perpetual  legate  in  England.  But  the  spe- 


--460'      o  €  St-  Marc'  PP-  fcBi  788;  Schmidt,  t.  m. 

e  Schmidt,  t  in.  pp.  80,  332.  p.  82. 

d  Id.  t.  iv.  p.  170.  /  St.  Marc,  t.  iv.  p.  761  ;  Collier,  p.  253. 


THE   MIDDLE  AGES 


123 


cial  commissioners,  or  legates  a  latere,  suspending  the  pope's 
ordinary  vicars,  took  upon  themselves  an  unbounded  authority 
over  the  national  churches,  holding  councils,  promulgating 
canons,  deposing  bishops,  and  issuing  interdicts  at  their  dis- 
cretion. They  lived  in  splendor  at  the  expense  of  the  bishops 
of  the  province.  This  was  the  more  galling  to  the  hierarchy, 
because  simple  deacons  were  often  invested  with  this  dignity, 
which  set  them  above  primates.  As  the  sovereigns  of  France 
and  England  acquired  more  courage,  they  considerably 
abridged  this  prerogative  of  the  Holy  See,  and  resisted  the  en- 
trance of  any  legates  into  their  dominions  without  their  con- 
sent* 

From  the  time  of  Gregory  VII.  no  pontiff  thought  of  await- 
ing the  confirmation  of  the  emperor,  as  in  earlier  ages,  before 
he  was  installed  in  the  throne  of  St.  Peter.  On  the  contrary, 
it  was  pretended  that  the  emperor  was  himself  to  be  confirmed 
by  the  pope.  This  had  indeed  been  broached  by  John  VIII. 
two  hundred  years  before  Gregory.^  It  was  still  a  doctrine  not 
calculated  for  general  reception ;  but  the  popes  availed  them- 
selves of  every  opportunity  which  the  temporizing  policy,  the 
negligence  or  bigotry  of  sovereigns  threw  into  their  hands. 
Lothaire  coming  to  receive  the  imperial  crown  at  Rome,  this 
circumstance  was  commemorated  by  a  picture  in  the  Lateran 
palace,  in  which,  and  in  two  Latin  verses  subscribed,  he  was 
represented  as  doing  homage  to  the  pope.*  When  Frederic 
Barbarossa  came  upon  the  same  occasion,  he  omitted  to  hold 
the  stirrup  of  Adrian  IV.,  who,  in  his  turn,  refused  to  give  him 
the  usual  kiss  of  peace ;  nor  was  the  contest  ended  but  by  the 
emperor's  acquiescence,  who  was  content  to  follow  the  prece- 
dents of  his  predecessors.  The  same  Adrian,  expostulating 
with  Frederic  upon  some  slight  grievance,  reminded  him  of 


g  De    Marca,    J.    vi.    c.    28,    30,    31.  sanguinis  effusione  rederni.    Et  si  pauca 

Schmidt,  t.  ii.  p.  498,  t  iii.  pp.  312,  320.  sunt  ista,  etiam  monarchias  addidi:  im- 

Hist.  du  Droit  Public  Eccl.  Francois,  p.  mo  sublato  rege  de  medio  totius  Romani 

250.     Fleury,  4me  Discours  sur  1'Hist,  imperil    vacantis    tibi    jura    permisi. 

Eccles.,  c.  10.  Schmidt,  t.  in  p.  78. 

A  Vide    supra.     It   appears    manifest  *  Rex  venit  ante  fores,  jurans  prius 

that  the  scheme  of  temporal  sovereignty  urbis  honores: 

was  only  suspended  by  the  disorders  of  Post  homo  fit  papae,  suimt  quo  dante 

the  Roman  See  in  the  tenth  century.  coronam. 

Peter  Damian,  a  celebrated  writer  of  the  Muratori,  Annali,  A.I>.  1157. 

age  of  Hildebrand,  and  his  friend,  puts  There  was  a  pretext  for  this  artful 

these  words  into  the  mouth  oi  Jesus  line.    Lothaire  had  received  the  estate 

Christ,  as  addressed  to  Pope  Victor  II.  of  Matilda  in  fief  from  the  pope,  with 

Ego  claves  totius  universahs  ecclesise  a  reversion  to  Henry  the  Proud,  his  son- 

mese  tins  manibus  tradidi,  et  super  earn  in-Iaw.    Schmidt,  p.  $49, 
te  mihi  vicanum  posui,  quam  proprii 


124  HALLAM 

the  imperial  crown  which  he  had  conferred,  and  declared  his 
willingness  to  bestow,  if  possible,  still  greater  benefits.  But 
the  phrase  employed  (majora  beneficia)  suggested  the  idea  of  a 
fief  ;  and  the  general  insolence  which  pervaded  Adrian's  letter 
confirming  this  interpretation,  a  ferment  arose  among  the  Ger- 
man princes,  in  a  congress  of  whom  this  letter  was  delivered. 
"  From  whom  then,"  one  of  the  legates  was  rash  enough  to 
say,  "  does  the  emperor  hold  his  crown,  except  from  the  pope  ?  " 
which  so  irritated  a  prince  of  Wittelsbach,  that  he  was  with 
difficulty  prevented  from  cleaving  the  priest's  head  with  his 
sabre,/  Adrian  IV.  was  the  only  Englishman  that  ever  sat  in 
the  papal  chair.  It  might,  perhaps,  pass  for  a  favor  bestowed 
on  his  natural  sovereign,  when  he  granted  to  Henry  II.  the 
kingdom  of  Ireland  ;  yet  the  language  of  this  donation,  where- 
in he  asserts  all  islands  to  be  the  exclusive  property  of  St.  Peter, 
should  not  have  had  a  very  pleasing  sound  to  an  insular  mon- 
arch. 

I  shall  not  wait  to  comment  on  the  support  given  to  Becket 
by  Alexander  III.,  which  must  be  familiar  to  the  English 
reader,  nor  on  his  speedy  canonization  ;  a  reward  which  the 
church  has  always  held  out  to  its  most  active  friends,  and  which 
may  be  compared  to  titles  of  nobility  granted  by  a  temporal 
sovereign.*  But  the  epoch  when  the  spirit  of  papal  usurpation 
was  most  strikingly  displayed  was  the  pontificate  of  Innocent 
III.  [A.D.  1194-1216.]  In  each  of  the  three  leading  objects 
which  Rome  has  pursued,  independent  sovereignty,  supremacy 
over  the  Christian  church,  control  over  the  princes  of  the  earth, 
it  was  the  fortune  of  this  pontiff  to  conquer.  He  realized,  as  we 
have  seen  in  another  place,  that  fond  hope  of  so  many  of  his 
predecessors,  a  dominion  over  Rome  and  the  central  parts  of 
Italy.  During  his  pontificate  Constantinople  was  taken  by  the 
Latins  ;  and  however  he  might  seem  to  regret  a  diversion  of 
the  crusaders,  which  impeded  the  recovery  of  the  Holy  Land, 
he  exulted  in  the  obedience  of  the  new.  patriarch  and  the  re- 
union of  the  Greek  church.  Never,  perhaps,  either  before  or 
since,  was  the  great  eastern  schism  in  so  fair  a  way  of  being 
healed;  even  the  kings  of  Bulgaria  and  of  Armenia  acknowl- 

/Muratori,  ubi  supra.    Schmidt,  t  in.       sort  of  apotheosis  till  the  pontificate  of 
PVThe  first  instance  of  a  solemn  papal  '  "* 


j^ 

pohtans  continued  to  meddle  with  this 


THE   MIDDLE  AGES  125 

edged  the  supremacy  of  Innocent,  and  permitted  his  interfer- 
ence with  their  ecclesiastical  institutions. 

The  maxims  of  Gregory  VII.  were  now  matured  by  more 
than  a  hundred  years,  and  the  right  of  trampling  upon  the 
necks  of  kings  had  been  received,  at  least  among  churchmen, 
as  an  inherent  attribute  of  the  papacy.  "  As  the  sun  and  the 
moon  are  placed  in  the  firmament "  (such  is  the  language  of 
Innocent),  "  the  greater  as  the  light  of  the  day,  and  the  lesser 
of  the  night,  thus  are  there  two  powers  in  the  church — the  pon- 
tifical, which,  as  having  the  charge  of  souls,  is  the  greater ;  and 
the  royal,  which  is  the  less,  and  to  which  the  bodies  of  men 
only  are  intrusted."  I  Intoxicated  with  these  conceptions  (if 
we  may  apply  such  a  word  to  successful  ambition),  he  thought 
no  quarrel  of  princes  beyond  the  sphere  of  his  jtirisdiction. 
"  Though  I  cannot  judge  of  the  right  to  a  fief,"  said  Innocent 
to  the  kings  of  France  and  England,  "  yet  it  is  my  province  to 
judge  where  sin  is  committed,  and  my  duty  to  prevent  all  pub- 
lic scandals."  Philip  Augustus,  who  had  at  that  time  the  worse 
in  his  war  with  Richard,  acquiesced  in  this  sophism ;  the  latter 
was  more  refractory  till  the  papal  legate  began  to  menace  him 
with  the  rigor  of  the  church.^  But  the  King  of  England,  as 
well  as  his  adversary,  condescended  to  obtain  temporary  ends 
by  an  impolitic  submission  to  Rome.  We  have  a  letter  from 
Innocent  to  the  King  of  Navarre,  directing  him,  on  pain  of 
spiritual  censures,  to  restore  some  castles  which  he  detained 
from  Richard.w  And  the  latter  appears  to  have  entertained 
hopes  of  recovering  his  ransom  paid  to  the  Emperor  and  Duke 
of  Austria  through  the  pope's  interferences  By  such  blind 
sacrifices  of  the  greater  to  the  less,  of  the  future  to  the  present, 
the  sovereigns  of  Europe  played  continually  into  the  hands  of 
their  subtle  enemy. 

Though  I  am  not  aware  that  any  pope  before  Innocent  III. 
had  thus  announced  himself  as  the  general  arbiter  of  differences 

I  Vita  Innocentii  Tertii  in  Muratori,          «  Innocentii  Opera  (Colonise,  1574),  P- 

Scnptores  Rerum  Ital.  t.  iii.  pars  i.  p  124. 

448-    This  Life  is  written  by  a  contem-          o  Id.  p.  134-    Innocent  actually  wrote 

porary.   St  Marc,  t.  v.  p,  325.    Schmidt,  some  letters  for  this  purpose,  but  with- 

t.  iv.  p  227.  out  any  effect*  nor  was  he  probably  at  all 

w  Philippus  rex  Francise  in  manu  ejus  solicitous  about  it.     P    139  and  p.  141- 

data  fide  protmsit  se  ad  mandatum  ijp-  Nor  had  he  interfered  to  procure  gich- 

sius  pacem  vel  treugas  cum  rege  Anglise  ard's  release  from  prison;  though  Jilea- 

initurum.    Richardus  autem  rex  Anglia  nor  wrote  him  a  letter,  in  which  she 

se  diffjcilem  ostendebat     Sed  cum  idem  asks,    "  Has   not   God   given   you   the 

legatus  ei  cepit  ngorem  ecclesiasticum  w-  power  to  govern  nations  and  kings? 

tentare,  saniori  ductus  consilio  acquievit.  Velly,  Hist  de  France,  t.  m.  p.  382. 
Vita  Innocentii,  Tertii,  t.  ni.  pars  i.  p. 
503. 


126  H  ALLAH 

and  conservator  of  the  peace  throughout  Christendom,  yet  the 
scheme  had  been  already  formed,  and  the  public  mind  was  in 
some  degree  prepared  to  admit  it.  Gerohus,  a  writer  who  lived 
early  in  the  twelfth  century,  published  a  theory  of  perpetual 
pacification,  as  feasible  certainly  as  some  that  have  been 
planned  in  later  times.  All  disputes  among  princes  were  to  be 
referred  to  the  pope.  If  either  party  refused  to  obey  the  sen- 
tence of  Rome,  he  was  to  be  excommunicated  and  deposed. 
Every  Christian  sovereign  was  to  attack  the  refractory  delin- 
quent under  pain  of  a  similar  forfeiture./*  A  project  of  this 
nature  had  not  only  a  magnificence  flattering  to  the  ambition 
of  the  church,  but  was  calculated  to  impose  upon  benevolent 
minds,  sickened  by  the  cupidity  and  oppression  of  princes.  No 
control  but  that  of  religion  appeared  sufficient  to  restrain  the 
abuses  of  society ;  while  its  salutary  influence  had  already  been 
displayed  both  in  the  Truce  of  God,*  which  put  the  first  check 
on  the  custom  of  private  war,  and  more  recently  in  the  protec- 
tion afforded  to  crusaders  against  all  aggression  during  the  con- 
tinuance of  their  engagement.  But  reasonings  from  the  ex- 
cesses of  liberty  in  favor  of  arbitrary  government,  or  from  the 
calamities  of  national  wars  in  favor  of  universal  monarchy,  in- 
volve the  tacit  fallacy,  that  perfect,  or  at  least  superior,  wisdom 
and  virtue  will  be  found  in  the  restraining  power.  The  experi- 
ence of  Europe  was  not  such  as  to  authorize  so  candid  an  ex- 
pectation in  behalf  of  the  Roman  See. 

There  were  certainly  some  instances,  where  the  temporal 
supremacy  of  Innocent  III.,  however  usurped,  may  appear  to 
have  been  exerted  beneficially.  He  directs  one  of"  his  legates 
to  compel  the  observance  of  peace  between  the  kings  of  Cas- 
tile and  Portugal,  if  necessary,  by  excommunication  and  inter- 
dict.? He  enjoins  the  King  of  Aragon  to  restore  his  coin, 
which  he  had  lately  debased,  and  of  which  great  complaint  had 
arisen  in  his  kingdom.*  Nor  do  I  question  his  sincerity  in 
these,  or  in  any  other  cases  of  interference  with  civil  govern- 
ment. A  great  mind,  such  as  Innocent  III.  undoubtedly  pos- 
sessed, though  prone  to  sacrifice  every  other  object  to  ambi- 
tion, can  never  be  indifferent  to  the  beauty  of  social  order  and 
the  happiness  of  mankind.  But,  if  we  may  judge  by  the  cor- 
respondence of  this  remarkable  person,  his  foremost  gratifica- 


a xnnocenr    iM^r?'  5 ?  «*  **A   sW^Mon  of  private   wars,   in- 

rp  378  P     '  P*  I4<5'  troduced  by  the  church  m  the  eleventh 

v  37°'  and  twelfth  centuries. 


THE  MIDDLE  AGES  127 

tion  was  the  display  of  unbounded  power.  His  letters,  espe- 
cially to  ecclesiastics,  are  full  of  unprovoked  rudeness.  As  im- 
petuous as  Gregory  VII.,  he  is  unwilling  to  owe  anything  to 
favor ;  he  seems  to  anticipate  denial ,  heats  himself  into  anger 
as  he  proceeds,  and,  where  he  commences  with  solicitation, 
seldom  concludes  without  a  menaces  An  extensive  learning 
in  ecclesiastical  law,  a  close  observation  of  whatever  was  pass- 
ing in  the  world,  an  unwearied  diligence,  sustained  his  fearless 
ambition.*  With  such  a  temper,  and  with  such  advantages,  he 
was  formidable  beyond  all  his  predecessors,  and  perhaps  be- 
yond all  his  successors.  On  every  side  the  thunder  of  Rome 
broke  over  the  heads  of  princes.  A  certain  Swero  is  excom- 
municated for  usurping  the  crown  of  Norway.  A  legate,  in 
passing  through  Hungary,  is  detained  by  the  king :  Innocent 
writes  in  tolerably  mild  terms  to  this  potentate,  but  fails  not 
to  intimate  that  he  might  be  compelled  to  prevent  his  son's 
accession  to  the  throne.  The  King  of  Leon  had  married  his 
cousin,  a  Princess  of  Castile.  Innocent  subjects  the  kingdom 
to  an  interdict.  When  the  clergy  of  Leon  petition  him  to  re- 
move it,  because,  when  they  ceased  to  perform  their  functions, 
the  laity  paid  no  tithes,  and  listened  to  heretical  teachers  when 
orthodox  mouths  were  mute,  he  consented  that  divine  service 
with  closed  doors,  but  not  the  rites  of  burial,  might  be  per- 
formed.w  The  king  at  length  gave  way,  and  sent  back  his  wife. 
But  a  more  illustrious  victory  of  the  same  kind  was  obtained 
over  Philip  Augustus,  who,  having  repudiated  Isemburga  of 
Denmark,  had  contracted  another  marriage.  The  conduct 
of  the  king,  though  not  without  the  usual  excuse  of  those 
times,  nearness  of  blood,  was  justly  condemned ;  and  Innocent 
did  not  hesitate  to  visit  his  sins  upon  the  people  by  a  general 
interdict.  This,  after  a  short  demur  from  some  bishops,  was 
enforced  throughout  France ;  the  dead  lay  unburied,  and  the 

$  Innocent.  Opera,  pp.  31,  73,  76,  &c ,  to  inquire  into  the  facts,  and,  if  they 

&c  prove  truly  stated,  to  compel  the  credit- 

t  The  following  instance  may  illustrate  or  by  spiritual  censures  to  restore  the 

the  character  of  this  pope,  and  his  spirit  premises,  reckoning  their  rent  during 

of  governing  the  whole  world,  as  much  the  time  of  his  mortgage  as  part  of  the 

as  those  of  a  more  public  nature.    He  debt,  and  to  receive  the  remainder.    Id. 

writes  to  the  chapter  of  Pisa  that  one  t.  ii.  p.  17.    It  must  be  admitted  that 

Rubens,   a   citizen  of  that   place,   had  Innocent   III    discouraged  in  general 

complained  to  him,  that,  having  mort-  those    vexatious    and    dilatory  appeals 

gaged  a  house  and  garden  for  two  hun-  from  inferior  ecclesiastical  tribunals  to 

dred   and  fifty-two  pounds,   on  condi-  the  court  of  Rome,  which  had  gamed 

tion  that  he  might  redeem  it  before  a  ground  before  his  time,  and  especially 

fixed  day,  within  which  time  he  had  in  the  pontificate  of  Alexander  III. 
been  unavoidably  prevented  from  rais-          « Innocent.  Opera,  t.  ii.  p.  411.    Vita 

ing  the  money,  the  creditor  had  now  Innocent  III. 
refused  to  accept  it;   and  directs  them 


128  HALLAM 

living  were  cut  off  from  the  offices  of  religion,  till  Philip,  thus 
subdued,  took  back  his  divorced  wife.  The  submission  of  such 
a  prince,  not  feebly  superstitious,  like  his  predecessor  Robert, 
nor  vexed  with  seditions,  like  the  Emperor  Henry  IV.,  but 
brave,  firm,  and  victorious,  is  perhaps  the  proudest  trophy  in 
the  scutcheon  of  Rome.  Compared  with  this,  the  subsequent 
triumph  of  Innocent  over  the  pusillanimous  John  seems 
cheaply  gained,  though  the  surrender  of  a  powerful  kingdom 
into  the  vassalage  of  the  pope  may  strike  us  as  a  proof  of 
stupendous  baseness  on  one  side,  and  audacity  on  the  others 
Yet,  under  this  very  pontificate,  it  was  not  unparalleled. 
Peter  II.  King  of  Aragon  received  at  Rome  the  belt  of  knight- 
hood and  the  royal  crown  from  the  hands  of  Innocent  III. ;  he 
took  an  oath  of  perpetual  fealty  and  obedience  to  him  and  his 
successors ;  he  surrendered  his  kingdom,  and  accepted  it  again 
to  be  held  by  an  annual  tribute,  in  return  for  the  protection  of 
the  Apostolic  See.w  This  strange  conversion  of  kingdoms  into 
spiritual  fiefs  was  intended  as  the  price  of  security  from  am- 
bitious neighbors,  and  may  be  deemed  analogous  to  the  change 
of  allodial  into  feudal,  or  more  strictly,  to  that  of  lay  into  eccle- 
siastical tenure,  which  was  frequent  during  the  turbulence  of 
the  darker  ages. 

I  have  mentioned  already  that  among  the  new  pretensions  ad- 
vanced by  the  Roman  See  was  that  of  confirming  the  election 
of  an  emperor.  It  had  however  been  asserted  rather  incident- 
ally than  in  a  peremptory  manner.  But  the  doubtful  elections 
of  Philip  and  Otho  after  the  death  of  Henry  VI.  gave  In- 
nocent III.  an  opportunity  of  maintaining  more  positively  this 
pretended  right.  In  a  decretal  epistle  addressed  to  the  Duke 
of  Zahringen,  the  object  of  which  is  to  direct  him  to  transfer 
his  allegiance  from  Philip  to  the  other  competitor,  Innocent, 
after  stating  the  mode  in  which  a  regular  election  ought  to  be 
made,  declares  the  pope's  immediate  authority  to  examine,  con- 
firm, anoint,  crown,  and  consecrate  the  elect  emperor,  provided 

v  The  stipulated  annual  payment  of  John  had  no  right  to  subject  the  king- 
1,000  marks  was  seldom  made  by  the  dom  to  a  superior  without  their  con- 
kings  of  England:  but  one  is  almost  sent,  which  put  an  end  forever  to  the 
ashamed  that  it  should  ever  have  been  applications.  Prynne's  Constitutions, 
so.  Henry  III.  paid  it  occasionally  vol  iii. 

when  he  had  any  object  to  attain,  and  w  Zunta,  Anales  de  Aragon.  t.  i.  f.  91. 

even  Edward  I    for  some  years;    the  This  was  not  forgotten  toward  the  latter 

latest  payment  on  record  is  in  the  seven-  part  of  the  same  century,  when  Peter 

teenth  of  his  reign.    After  a  long  dis-  III,  was  engaged  in  the  Sicilian  war, 

continuance,  it  was  demanded  in  the  and  served  as  a  pretence  for  the  pope's 

fortieth  of  Edward  III.  (1366),  but  the  sentence  of  deprivation, 
parliament   unanimously  declared  that 


THE  MIDDLE  AGES 


129 


he  shall  be  worthy ;  or  to  reject  him  if  rendered  unfit  by  great 
crimes,  such  as  sacrilege,  heresy,  perjury,  or  persecution  of  the 
church ;  in  default  of  election,  to  supply  the  vacancy ;  or,  in 
the  event  of  equal  suffrages,  to  bestow  the  empire  upon  any  per- 
son at  his  discretion.*  The  princes  of  Germany  were  not  much 
influenced  by  this  hardy  assumption,  which  manifests  the  tem- 
per of  Innocent  III.  and  of  his  court,  rather  than  their  power. 
But  Otho  IV.  at  his  coronation  by  the  pope  signed  a  capitula- 
tion, which  cut  off  several  privileges  enjoyed  by  the  emperors, 
even  since  the  concordat  of  Calixtus,  in  respect  of  episcopal 
elections  and  investitures.^ 


x  Decretal.  1.  i.  tit.  6,  c  34,  commonly 
cited  Venerabilem.  The  rubric  or  sy- 
nopsis of  this  epistle  asserts  the  pope's 
right  electum  imperatorem  exammare, 
approbare  et  mungere,  consecrare  et 
coronare,  si  est  dignus;  vel  rejicere  si 
est  indignus,  ut  quia  sacnlegus,  ex- 
communicatus,  tyrannus,  fatuus  et 


hsereticus,  paganus,  perjurus,  vel  ec- 
clesiae  persecutor.  Et  electoribus  uojen- 
tibus  ehgere,  papa  supplet.  Et  data 
pantate,  vocuin  ehgentium,  nee  acce- 
dente  majors  concordia,  papa  potest 
gratifican.  cui  vult.  The  epistle  itself  is, 
if  possible,  more  strongly  expressed. 
y  Schmidt,  t.  iv.  pp.  149,  175. 


VOL.  IL— 9 


130 


HALLAM 


PART  II. 

Continual  Progress  of  the  Papacy — Canon  Law — Mendicant  Orders — 
Dispensing  Power— Taxation  of  the  Clergy  by  the  Popes— Encroach- 
ments on  Rights  of  Patronage — Mandats,  Reserves,  &c. — General 
Disaffection  towards  the  See  of  Rome  in  the  Thirteenth  Century- 
Progress  of  Ecclesiastical  Jurisdiction— Immunity  of  the  Clergy  in 
Criminal  Cases— Restraints  imposed  upon  their  Jurisdiction— Upon 
their  Acquisition  of  Property— Boniface  VIIL— His  Quarrel  with 
Philip  the  Fair— Its  Termination— Gradual  Decline  of  Papal  Au- 
thority—Louis of  Bavaria— Secession  to  Avignon  and  Return  to 
Rome — Conduct  of  Avignon  Popes — Contested  Election  of  Urban 
and  Clement  produces  the  great  Schism — Council  of  Pisa — Con- 
stance— Basle — Methods  adopted  to  restrain  the  Papal  Usurpations 
in  England,  Germany,  and  France — Liberties  of  the  Gallican  Church 
— Decline  of  the  Papal  Influence  in  Italy. 

The  noonday  of  papal  dominion  extends  from  the  pontifi- 
cate of  Innocent  III.  inclusively  to  that  of  Boniface  VIIL ;  or, 
in  other  words,  through  the  thirteenth  century.  Rome  inspired 
during  this  age  all  the  terror  of  her  ancient  name.  She  was 
once  more  the  mistress  of  the  world,  and  kings  were  her  vas- 
sals. I  have  already  anticipated  the  two  most  conspicuous  in- 
stances when  her  temporal  ambition  displayed  itself,  both  of 
which  are  inseparable  from  the  civil  history  of  Italy  a  In  the 
first  of  these,  her  long  contention  with  the  house  of  Suabia, 
she  finally  triumphed.  After  his  deposition  by  the  council  of 
Lyons  the  affairs  of  Frederic  II.  went  rapidly  into  decay.  With 
every  allowance  for  the  enmity  of  the  Lombards  and  the  jeal- 
ousies of  Germany,  it  must  be  confessed  that  his  proscription 
by  Innocent  IV.  and  Alexander  IV.  was  the  main  cause  of  the 
ruin  of  his  family.  There  is,  however,  no  other  instance,  to  the 
best  of  my  judgment,  where  the  pretended  right  of  deposing 
kings  has  been  successfully  exercised.  Martin  IV.  absolved 
the  subjects  of  Peter  of  Aragon  from  their  allegiance,  and 
transferred  his  crown  to  a  Prince  of  France ;  but  they  did  not 
cease  to  obey  their  lawful  sovereign.  This  is  the  second  in- 

a  See  above,  Book  III. 


THE  MIDDLE  AGES  131 

stance  which  the  thirteenth  century  presents  of  interference  on 
the  part  of  the  popes  in  a  great  temporal  quarrel.  As  feudal 
lords  of  Naples  and  Sicily,  they  had  indeed  some  pretext  for 
engaging  in  the  hostilities  between  the  houses  of  Anjou  and 
Aragon,  as  well  as  for  their  contest  with  Frederic  II.  But  the 
pontiffs  of  that  age,  improving  upon  the  system  of  Innocent 
III.,  and  sanguine  with  past  success,  aspired  to  render  every 
European  kingdom  formally  dependent  upon  the  see  of  Rome. 
Thus  Boniface  VIIL  at  the  instigation  of  some  emissaries  from 
Scotland,  claimed  that  monarchy  as  paramount  lord,  and  in- 
terposed, though  vainly,  the  sacred  panoply  of  ecclesiastical 
rights  to  rescue  it  from  the  arms  of  Edward  IJ> 

This  general  supremacy  effected  by  the  Roman  church  over 
mankind  in  the  twelfth  and  thirteenth  centuries  derived  ma- 
terial support  from  the  promulgation  of  the  canon  law.  The 
foundation  of  this  jurisprudence  is  laid  in  the  decrees  of  coun- 
cils, and  in  the  rescripts  or  decretal  epistles  of  popes  to  ques- 
tions propounded  upon  emergent  doubts  relative  to  matters 
of  discipline  and  ecclesiastical  economy.  As  the  jurisdiction 
of  the  spiritual  tribunals  increased,  and  extended  to  a  variety 
of  persons  and  causes,  it  became  almost  necessary  to  establish 
a  uniform  system  for  the  regulation  of  their  decisions.  After 
several  minor  compilations  had  appeared,  Gratian,  an  Italian 
monk,  published  about  the  year  1140  his  Decretum,  or  general 
collection  of  canons,  papal  epistles,  and  sentences  of  fathers, 
arranged  and  digested  into  titles  and  chapters,  in  imitation  of 
the  Pandects,  which  very  little  before  had  begun  to  be  studied 
again  with  great  diligences  This  work  of  Gratian,  though  it 
seems  rather  an  extraordinary  performance  for  the  age  when  it 
appeared,  has  been  censured  for  notorious  incorrectness  as  well 
as  inconsistency,  and  especially  for  the  authority  given  in  it  to 
the  false  decretals  of  Isidore,  and  consequently  to  the  papal 
supremacy.  It  fell,  however,  short  of  what  was  required  in  the 
progress  of  that  usurpation.  Gregory  IX.  caused  the  five 
books  of  decretals  to  be  published  by  Raimond  de  Pennafort 
in  1234.  These  consist  almost  entirely  of  rescripts  issued  by 
the  later  popes,  especially  Alexander  III.,  Innocent  III., 
Honorius  III.,  and  Gregory  himself.  They  form  the  most  es- 
sential part  of  the  canon  law,  the  Decretum  of  Gratian  being 

b  Dalrymple's  Annals  of  Scotland,  vol.  c  Tiraboschi  has  fixed  on  1140  as  the 
1.  p.  267.  date  of  its  appearance  (iii.  343) ;  but 

others  bring  it  down  some  year?  later. 


I32  HALLAM 

comparatively  obsolete.  In  these  books  we  find  a  regular  and 
copious  system  of  jurisprudence,  derived  in  a  great  measure 
from  the  civil  law,  but  with  considerable  deviation,  and  possibly 
improvement.  Boniface  VIII.  added  a  sixth  part,  thence  called 
the  Sext,  itself  divided  into  five  books,  in  the  nature  of  a  sup- 
plement to  the  other  five,  of  which  it  follows  the  arrangement, 
and  composed  of  decisions  promulgated  since  the  pontificate 
of  Gregory  IX.  New  constitutions  were  subjoined  by  Clement 
V.  and  John  XXIL,  under  the  name  of  Clementines  and  Ex- 
travagantes  Johannis;  and  a  few  more  of  later  pontiffs  are 
included  in  the  body  of  canon  law,  arranged  as  a  second  sup- 
plement after  the  manner  of  the  Sext,  and  called  Extravagantes 
Communes. 

The  study  of  this  code  became  of  course  obligatory  upon  ec- 
clesiastical judges.  It  produced  a  new  class  of  legal  practi- 
tioners, or  canonists ;  of  whom  a  great  number  added,  like  their 
brethren,  the  civilians,  their  illustrations  and  commentaries,  for 
which  the  obscurity  and  discordance  of  many  passages,  more 
especially  in  the  Decretum,  gave  ample  scope.  From  the  gen- 
eral analogy  of  the  canon  law  to  that  of  Justinian,  the  two  sys- 
tems became,  in  a  remarkable  manner,  collateral  and  mutually 
intertwined,  the  tribunals  governed  by  either  of  them  borrow- 
ing their  rules  of  decision  from  the  other  in  cases  where  their 
peculiar  jurisprudence  is  silent  or  of  dubious  interpretation.^ 
But  the  canon  law  was  almost  entirely  founded  upon  the  legis- 
lative authority  of  the  pope ;  the  decretals  are  in  fact  but  a  new 
arrangement  of  the  bold  epistles  of  the  most  usurping  pontiffs, 
and  especially  of  Innocent  III.,  with  titles  or  rubrics  compre- 
hending the  substance  of  each  in  the  compiler's  language.  The 
superiority  of  ecclesiastical  to  temporal  power,  or  at  least  the 
absolute  independence  of  the  former,  may  be  considered  as  a 
sort  of  key-note  which  regulates  every  passage  in  the  canon 
law.*  It  is  expressly  declared  that  subjects  f  owe  no  allegiance 
to  an  excommunicated  lord,  if  after  admonition  he  is  not  recon- 

d  Duck,  De  Usu  Juris  Civilis,  1.  i.  c.  8.  /  Domino    excomraunicato    manente, 

*  Constitutions   pnncipum   ecclesias-  subditi  fidelitatem  non  debent:    et  si 

ticis  constitutiombus  non  preeminent,  longo  tempore  in  e  perstitent,  et  moni- 

sed    obsequuntur.    Decretum,    distinct.  tus  non  pareat  ecclesia,  ab  ems  debite 

10.    Statutum  generate  laicorum  ad  ec-  absolvuntur.    Decretal,  1.  v.  tit.  37,  c. 

clesias  vel   ad   ecclesia^ticas  Dersonas,  18.    I  must  acknowledge  that  the  decre- 

vel  eorum  bona,  m  earum  praejudicium  tal   epistle  of  Honorms   III.    scarcely 

non  extenditur.    Decretal,!,  i.  tit.  2,  c.  warrants  this  general  proposition  of  the 

so.    Qusecunque  a  jmncipibus  m  ordmi-  rubric,  though  it  seems  to  lead  to  it 
bus  vel  in  ecclesiasticis  rebus  decreta 
invenmntur,    nullius    auctoritatis    esse 
monstrantur     Decretum,  distinct.  96. 


THE  MIDDLE  AGES  I33 

ciled  to  the  church.  And  the  rubric  prefixed  to  the  declaration 
of  Frederic  II/s  deposition  in  the  council  of  Lyons  asserts  that 
the  pope  may  dethrone  the  emperor  for  lawful  causes.!:  These 
rubrics  to  the  decretals  are  not  perhaps  of  direct  authority  as 
part  of  the  law ;  but  they  express  its  sense,  so  as  to  be  fairly 
cited  instead  of  it.&  By  means  of  her  new  jurisprudence,  Rome 
acquired  in  every  country  a  powerful  body  of  advocates,  who, 
though  many  of  them  were  laymen,  would,  with  the  usual  big- 
otry of  lawyers,  defend  every  pretension'or  abuse  to  which  their 
received  standard  of  authority  gave  sanction.* 

Next  to  the  canon  law  I  should  reckon  the  institution  of  the 
mendicant  orders  among  those  circumstances  which  prin- 
cipally contributed  to  the  aggrandizement  of  Rome.  By  the 
acquisition,  and  in  some  respects  the  enjoyment,  or  at  least  os- 
tentation, of  immense  riches,  the  ancient  monastic  orders  had 
forfeited  much  of  the  public  esteem.;  Austere  principles  as  to 
the  obligation  of  evangelical  poverty  were  inculcated  by  the 
numerous  sectaries  of  that  age,  and  eagerly  received  by  the 
people,  already  much  alienated  from  an  established  hierarchy. 
No  means  appeared  so  efficacious  to  counteract  this  effect  as 
the  institution  of  religious  societies  strictly  debarred  from  the 
insidious  temptations  of  wealth.  Upon  this  principle  were 
founded  the  orders  of  Mendicant  Friars,  incapable,  by  the  rules 
of  their  foundation,  of  possessing  estates,  and  maintained  only 
by  alms  and  pious  remunerations.  Of  these  the  two  most  cele- 
brated were  formed  by  St.  Dominic  and  St.  Francis  of  Assist, 
and  established  by  the  authority  of  Honorius  III.  in  1216  and 
1223.  These  great  reformers,  who  have  produced  so  extraordi- 
nary an  effect  upon  mankind,  were  of  very  different  charac- 
ters ;  the  one,  active  and  ferocious,  had  taken  a  prominent  part 
in  the  crusade  against  the  unfortunate  Albigeois,  and  was 

g  Papa  imperatorem  deponere  potest  citations  from  the  canon  law  are  not 

ex  causis  legitimis.    1.  h.  tit    13,  c   2.  made  scientifically;   the  proper  mode  of 

h  If  I  understand  a  bull  of  Gregory  reference  is  to  the  first  word ,   but  the 

XIIL,  prefixed  to  his  recension  of  the  book  and  title  are  rather  more  conven- 

canon  law,  he  confirms  the  rubrics  or  ient;  and  there  are  not  many  readers  in 

glosses  along  with  the  text;  but  I  can-  England  who  will  detect  this  improprie- 

not  speak  with  certainty  as  to  his  mean-  ty. 

ing.  y  It  would  be  easy  to  bring  evidence 

t  For  the  canon  law  I  have  consulted,  from  the    writings  of  every  successive 

besides  the  Corpus  Juris  Canonici,  Tira-  century  to  the  general  viciousness  of  the 

boschi,   Storia  dclla  Litteratura,  t.  iv.  regular    clergy,    whose    memory    it    is 

and  v.;    Giannone,  1.  xiv.  c  3;   1.  xix.  sometimes  the  fashion  to  treat  with  re- 

c.  3;   1.  xxh.  c.  8.    Fleury,  Institutions  spect.    See  particularly  Muratori,  Dis- 

au  Droit  Ecclesiastique,  t.  i.  p.  10,  and  sert.   65;    and   Fleury,   8me  Discours. 

5me    Discours    sur    1'Histoire    Eccles.  The   latter   observes   that   their   great 

Duck,  De  Usu  Juris  Civihs,  1.  i.  c.  8.  wealth  was  the  cause  of  this  relaxation 

Schmidt,  t.  iv.  p.  39.    F.  Paul,  Treatise  in  discipline, 
of  Benefices,  c.  31.    I  fear  that  my  few 


134  HALLAM 

among  the  first  who  bore  the  terrible  name  of  inquisitor ;  while 
the  other,  a  harmless  enthusiast,  pious  and  sincere,  but  hardly 
of  sane  mind,  was  much  rather  accessory  to  the  intellectual  than 
to  the  moral  degradation  of  his  species.  Various  other  mendi- 
cant orders  were  instituted  in  the  thirteenth  century ;  but  most 
of  them  were  soon  suppressed,  and,  besides  the  two  principal, 
none  remain  but  the  Augustin  and  the  Carmelites.^ 

These  new  preachers  were  received  with  astonishing  appro- 
bation by  the  laity,  whose  religious  zeal  usually  depends  a  good 
deal  upon  their  opinion  of  sincerity  and  disinterestedness  in 
their  pastors.  And  the  progress  of  the  Dominican  and  Fran- 
ciscan friars  in  the  thirteenth  century  bears  a  remarkable  anal- 
ogy to  that  of  our  English  Methodists.  Not  deviating  from  the 
faith  of  the  church,  but  professing  rather  to  teach  it  in  greater 
purity,  and  to  observe  her  ordinances  with  greater  regularity, 
while  they  imputed  supineness  and  corruption  to  the  secular 
clergy,  they  drew  round  their  sermons  a  multitude  of  such  lis- 
teners as  in  all  ages  are  attracted  by  similar  means.  They 
practised  all  the  stratagems  of  itinerancy,  preaching  in  public 
streets,  and  administering  the  communion  on  a  portable  altar. 
Thirty  years  after  their  institution  a  historian  complains  that 
the  parish  churches  were  deserted,  that  none  confessed  except 
to  these  friars,  in  short,  that  the  regular  discipline  was  sub- 
verted./ This  uncontrolled  privilege  of  performing  sacerdotal 
functions,  which  their  modern  antitypes  assume  for  themselves, 
was  conceded  to  the  mendicant  orders  by  the  favor  of  Rome. 
Aware  of  the  powerful  support  they  might  receive  in  turn,  the 
pontiffs  of  the  thirteenth  century  accumulated  benefits  upon 
the  disciples  of  Francis  and  Dominic.  They  were  exempted 
from  episcopal  authority;  they  were  permitted  to  preach  or 
hear  confessions  without  leave  of  the  ordinary,^  to  accept  of 
legacies,  and  to  inter  in  their  churches.  Such  privileges  could 
not  be  granted  without  resistance  from  the  other  clergy ;  the 
bishops  remonstrated,  the  university  of  Paris  maintained  a 
strenuous  opposition ;  but  their  reluctance  served  only  to  pro- 
tract the  final  decision.  Boniface  VIII.  appears  to  have  per- 

k  Mosheim's    Ecclesiastical    History;  quoniam    casus    episcopales    reservati 

St?^*  %??  •DwcS9r5r    £revier,    His-  episcopis  ab  homine,  vel  a  jure,  com- 

toire  de  I'Umversite  dt  Pans,  t.  i.  p.  muuter  a   Deum  timentibus   episcopis 

?"-MO«.   TD  ,.-          *  lpsis«   fratttbus    committtmtur,    et   non 

*  matt.  Fans,  p.  607.  presbytens,  quorum  simplicitas  non  wfR. 

Coned*  t 


THE  MIDDLE  AGES  135 

emptorily  established  the  privileges  and  immunities  of  the 
mendicant  orders  in  1295.^ 

It  was  naturally  to  be  expected  that  the  objects  of  such  ex- 
tensive favors  would  repay  their  benefactors  by  a  more  than 
usual  obsequiousness  and  alacrity  in  their  service.  Accord- 
ingly the  Dominicans  and  Franciscans  vied  with  each  other 
in  magnifying  the  papal  supremacy.  Many  of  these  monks 
became  eminent  in  canon  law  arid  scholastic  theology.  The 
great  lawgiver  of  the  schools,  Thomas  Aquinas,  whose  opin- 
ions the  Dominicans  especially  treat  as  almost  infallible,  went 
into  the  exaggerated  principles  of  his  age  in  favor  of  the  see  of 
Rome.o  And  as  the  professors  of  those  sciences  took  nearly 
all  the  learning  and  logic  of  the  times  to  their  own  share,  it 
was  hardly  possible  to  repel  their  arguments  by  any  direct  rea- 
soning. But  this  partiality  of  the  new  monastic  orders  to  the 
popes  must  chiefly  be  understood  to  apply  to  the  thirteenth 
century,  circumstances  occurring  in  the  next  which  gave  in 
some  degree  a  different  complexion  to  their  dispositions  in  re- 
spect of  the  Holy  See. 

We  should  not  overlook,  among  the  causes  that  contributed 
to  the  dominion  of  the  popes,  their  prerogative  of  dispensing 
with  ecclesiastical  ordinances.  The  most  remarkable  exercise 
of  this  was  as  to  the  canonical  impediments  of  matrimony. 
Such  strictness  as  is  prescribed  by  the  Christian  religion  with 
respect  to  divorce  was  very  unpalatable  to  the  barbarous  na- 
tions. They  in  fact  paid  it  little  regard ;  under  the  Meroving- 
ian dynasty,  even  private  men  put  away  their  wives  at  pleas- 
ured In  many  capitularies  of  Charlemagne  we  find  evidence  of 
the  prevailing  license  of  repudiation  and  even  polygamy.^  The 
principles  which  the  church  inculcated  were  in  appearance  the 

»  Crevier,  Hist,  de  I'Umversite*  de  p  Marculfi  Formulas,  1.  ii  c.  30. 
Pans,  t,  i.  et  t.  11.  passim.  Fleury,  ubi  q  Although  a  man  might  not  marry- 
supra.  Hist,  du  Droit  Ecclesiastique  again  when  his  wife  had  taken  the  veil, 
Francois,  t.  i.  pp.  394,  396,  446.  Collier's  he  was  permitted  to  do  if  she  was  in- 
Ecclesiastical  History,  vol.  i.  pp  437,  fected  with  the  leprosy.  Compare  Ca- 
448,  452.  Wood's  Antiquities  of  Oxford,  pitttlana  Pippmi,  A  D  752  and  755.  If  a 
vol.  i.  pp.  376,  480.  (Gutch's  edition  )  woman  conspired  to  murder  her  hus- 

o  It  was  maintained  by  the  enemies  band,  he  might  marry.    Id  A.D.  753.    A 

of  the   mendicants,  especially  William  large  proportion  of  Pepm's  laws  relate 

St.   Amour,  that  the  pope  could  not  to  incestuous  connections  and  divorces, 

give  them  a  privilege  to  preach  or  per-  One   of   Charlemagne  seems  to  imply 

form   the   other   duties   of   the   parish  that  polygamy  was  not  unknown  even 

priests.     Thomas     Aquinas     answered  among    pnests     Si    sacerdotes    plures 

that  a  bishop  might  perform  any  spirit-  uxpres  habuermt,  sacerdotio  pnventur; 

ual    functions    within    his    diocese,    or  quia  sacularibus  deteriores  sunt,    Capi- 

commit  the  charge  to  another  instead,  tul.  A.D.  769     This  seems  to  imply  that 

and  that  the  pope,  being  to  the  whole  their  marriage  with  one  was  allowable, 

church  what  a  bishop  is  to  his  diocese,  which  nevertheless  is  contradicted  by 

might  do  the  same  everywhere.    Crevier,  other  passages  in  the  Capitularies, 
t,  i.  p.  474- 


136  HALLAM 

very  reverse  of  this  laxity ;  yet  they  led  indirectly  to  the  same 
effect.  Marriages  were  forbidden,  not  merely  within  the  limits 
which  nature,  or  those  inveterate  associations  which  we  call 
nature,  have  rendered  sacred,  but  as  far  as  the  seventh  degree 
of  collateral  consanguinity,  computed  from  a  common  ances- 
tor/ Not  only  was  affinity,  or  relationship  by  marriage,  put 
upon  the  same  footing  as  that  by  blood,  but  a  fantastical  con- 
nection, called  spiritual  affinity,  was  invented  in  order  to  pro- 
hibit marriage  between  a  sponsor  and  godchild.  A  union, 
however  innocently  contracted,  between  parties  thus  circum- 
stanced, might  at  any  time  be  dissolved,  ancj  their  subsequent 
cohabitation  forbidden;  though  their  children,  I  believe,  in 
cases  where  there  had  been  no  knowledge  of  the  impediment, 
were  not  illegitimate.  One  readily  apprehends  the  facilities  of 
abuse  to  which  all  this  led ;  and  history  is  full  of  dissolutions 
of  marriage,  obtained  by  fickle  passion  or  cold-hearted  ambi- 
tion, to  which  the  church  has  not  scrupled  to  pander  on  some 
suggestion  of  relationship.  'It  is  so  difficult  to  conceive,  I  do 
not  say  any  reasoning,  but  any  honest  superstition,  which  could 
have  produced  those  monstrous  regulations,  that  I  was  at  first 
inclined  to  suppose  them  designed  to  give,  by  a  side-wind,  that 
facility  of  divorce  which  a  licentious  people  demanded,  but  the 
church  could  not  avowedly  grant.  This  refinement  would,  how- 
ever, be  unsupported  by  facts.  The  prohibition  is  very  ancient, 
and  was  really  derived  from  the  ascetic  temper  which  intro- 
duced so  many  other  absurdities.-?  It  was  not  until  the  twelfth 
century  that  either  this  or  any  other  established  rules  of  dis- 
cipline were  supposed  liable  to  arbitrary  dispensation ;  at  least 
the  stricter  churchmen  had  always  denied  that  the  pope  could 
infringe  canons,  nor  had  he  asserted  any  right  to  do  so.*  But 
Innocent  III.  laid  down  as  a  maxim,  that  out  of  the  plenitude 

r  See  the  canonical  computation  ex-  to  be  unlawful  as  far  as  the  seventh  de- 
plained  in  St.  Marc,  t.  hi.  p.  376  Also  gree;  and  even,  if  I  understand  his 
m  Blackstone's  Law  Tracts,  Treatise  on  meaning,  as  long  as  any  relationship 
Consanguinity,  In  the  eleventh  cen-  could  be  traced;  which  seems  to  have 
tury  an  opinion  began  to  gain  ground  been  the  maxim  of  strict  theologians, 
in  Italy  that  third-cousins  might  marry,  though  not  absolutely  enforced.  Du 
being  m  the  seventh  degree  according  Cange,  v.  Generatix;  Fleury,  Hist.  EC- 
to  the  civil  law.  Peter  Damian,  a  pas-  cles,  t.  ix.  p  211. 
sionate  abettor  of  .Eildebrand  and  his  fJDe  Marca,  1.  iii.  cc.  7,  8, 14.  Schmidt, 
maxims,  treats  this  with  horror,  and  t.  iv.  p.  235,  Dispensations  were  origi- 
calls  it  a  heresy.  Fleury.  t.  xiii.  p.  nally  granted  only  as  to  canonical  pen- 
152.  St.  Marc,  ubi  supra.  This  opinion  ances,  but  not  prospectively  to  authorize 
was  supported  by  a  reference  to  the  In-  a  breach  of  discipline-  Gratian  asserts 
*titutes  of  Justinian;  a  proof,  among  that  the  pope  is  not  bound  by  the  can- 
several  others,  how  much  earlier  that  ons,  in  which,  Fleury  observes,  he  goes 
book  was  known  than  is  vulgarly  sup-  beyond  the  False  Decretals.  Septieme 
posed.  Biscours,  p.  291. 

$  Gregory  I.  pronounces  matrimony 


THE   MIDDLE  AGES  137 

of  his  power  he  might  lawfully  dispense  with  the  law;  and  ac- 
cordingly granted,  among  other  instances  of  this  prerogative, 
dispensations  from  impediments  of  marriage  to  the  Emperor 
Ofho  IV>  Similar  indulgences  were  given  by  his  successors, 
though  they  did  not  become  usual  for  some  ages.  The  fourth 
Lateran  council  in  1215  removed  a  great  part  of  the  restraint, 
by  permitting  marriages  beyond  the  fourth  degree,  or  what  we 
call  third-cousins ;  v  and  dispensations  have  been  made  more 
easy,  when  it  was  discovered  that  they  might  be  converted  into 
a  source  of  profit./  They  served  a  more  important  purpose  by 
rendering  it  necessary  for  the  princes  of  Europe,  who  seldom 
could  marry  into  one  another's  houses  without  transgressing 
the  canonical  limits,  to  keep  on  good  terms  with  the  court  of 
Rome,  which,  in  several  instances  that  have  been  mentioned, 
fulminated  its  censures  against  sovereigns  who  lived  without 
permission  in  what  was  considered  an  incestuous  union. 

The  dispensing  power  of  the  popes  was  exerted  in  several 
cases  of  a  temporal  nature,  particularly  in  the  legitimation  of 
children,  for  purposes  even  of  succession.  This  Innocent  III. 
claimed  as  an  indirect  consequence  of  his  right  to  remove  the 
canonical  impediment  which  bastardy  offered  to  ordination; 
since  it  would  be  monstrous,  he  says,  that  one  who  is  legitimate 
for  spiritual  functions  should  continue  otherwise  in  any  civil 
matter.^  JBut  the  most  important  and  mischievous  species  of 
dispensations  was  from  the  observance  of  promissory  oaths. 
Two  principles  are  laid  down  in  the  decretals — that  an  oath  dis- 
advantageous to  the  church  is  not  binding ;  and  that  one  ex- 
torted by  force  was  of  slight  obligation,  and  might  be  annulled 
by  ecclesiastical  authority.*  As  the  first  of  these  maxims  gave 
the  most  unlimited  privilege  to  the  popes  of  breaking  all  faith 
of  treaties  which  thwarted  their  interest  or  passion,  a  privilege 
which  they  continually  exercised,?  so  the  second  was  equally 

«  Secundum    plenitudinem    potestatis  opening  to  the  lax  casuistry  of  succeed- 

de  jure  possumus  supra  jus  dispensare.  ing  times. 

Schmidt,  t.  iv  p.  235  y  Take   one    instance    out  tof  many. 

v  Fleury,  Institutions  au  Droit  Ecclfc-  Piccmino,  the  famous  condottiere  of  the 

siastique,  t.  i.  p.  296.  fifteenth  century,  had  promised  not  to 

w  Decretal,  1  iv  tit.  17,  c.  13.  attack  Francis  Sforza,  at  the  time  en- 

x  Juramentum  contra  utilitatem  eccle-  gaged  against  the  pope.    Eugenias  IV 

siasticam  praestitum  non  tenet.    Deere-  (the  same  excellent  person  who  had  an- 

tal.  1.  11.  tit.  24,  c.  27,  et  Sext,  1.  i.  tit.  ix,  nulled  the  compatacta  with  the  Huss- 

c.  i.    A  juramento  per  metum  extorte  ites,  releasing  those  who  had  sworn  to 

ecclesia  solet  absolvere,  et  ejus  trans-  them,   and  who   afterwards  made  the 

gressores  ut  peccantes   mortahter  non  King  of  Hungary  break  his  treaty  with 

punientur.    Eodem,   lib.    et   tit.    c    15-  Amurath  II.)   absolves  him  from  this 

The  whole  of  this  title  m  the  decretals  promise,  on  the  express  ground  that  a 

upon  oaths  seems  to  have  given  the  first  treaty  disadvantageous  to  the  church 


238  HALLAM 

convenient  to  princes  weary  of  observing  engagements  towards 
their  subjects  or  their  neighbors.  They  protested  with  a  bad 
grace  against  the  absolution  of  their  people  from  allegiance  by 
an  authority  to  which  they  did  not  scruple  to  repair  in  order  to 
bolster  up  their  own  perjuries.^  Thus  Edward  L,  the  strenuous 
asserter  of  his  temporal  rights,  and  one  of  the  first  who  opposed 
a  barrier  to  the  encroachments  of  the  clergy,  sought  at  the 
hands  of  Clement  V.  a  dispensation  from  his  oath  to  observe 
the  great  statute  against  arbitrary  taxation.  / 

In  all  the  earlier  stages  of  papal  dominion  the  supreme  head 
of  the  church  had  been  her  guardian  and  protector  ;  and  this 
beneficent  character  appeared  to  receive  its  consummation  in 
the  result  of  that  arduous  struggle  which  restored  the  ancient 
practice  of  free  election  to  ecclesiastical  dignities.  Not  long, 
however,  after  this  triumph  had  been  obtained,  the  popes  began 
by  little  and  little  to  interfere  with  the  regular  constitution. 
Their  first  step  was  conformable  indeed  to  the  prevailing  sys- 
tem of  spiritual  independency.  By  the  concordat  of  Calixtus 
it  appears  that  the  decision  of  contested  elections  was  reserved 
to  the  emperor,  assisted  by  the  metropolitan  and  suffragans. 
In  a  few  cases  during  the  twelfth  century  this  imperial  pre- 
rogative was  exercised,  though  not  altogether  undisputed.* 
But  it  was  consonant  to  the  prejudices  of  that  age  to  deem  the 
supreme  pontiff  a  more  natural  judge,  as  in  other  cases  of 
appeal.  The  point  was  early  settled  in  England,  where  a  doubt- 
ful election  to  the  archbishopric  of  York,  under  Stephen,  was 
referred  to  Rome,  and  there  kept  five  years  in  litigation.*  Otho 
IV.  surrendered  this  among  other  rights  of  the  empire  to  Inno- 

ought  not  to  be  kept.  ,Sismondi,  t.  ix.  divines  and  sound  interpreters  of  canon 

p.    196.    The  church   in  that  age  was  law  maintain  that  the  pope  cannot  dis- 

synonymous  with  the  papal  territories  pense  with  the  divine  or  moral  law,  as 

m  Italy.  t  De  Marca  tells  us,  1.  m.  c  15,  though  he 

It  was  in  conformity  to  this  sweeping  admits  that  others  of  less  sound  judg- 

prmciple   of    ecclesiastical    utility   that  ment  assert  the  contrary,  as  was  corn- 

Urban  VI.  made  the  following  solemn  mon    enough,    I    believe,    among    the 

and  general  declaration  against  keeping  Jesuits  at  the  beginning  of  the  seven- 

faith  with  heretics.    Attendentes  quod  teenth  century.    His  power  of  mterpret- 

hujusmqdi   confoederationes,   colhgatio-  mg  the  law  was  of  itself  a  privilege  of 

nes,  et  hgse  seu  conventiones  factae  cum  dispensing  with  it. 

h-ujusmodi    haereticis    seu    schismaticis  s  Schmidt   t.  hi   D   200-    t  iv   t>    IA.Q 

postquam  tales  effecti  erant,  sunt  teme;  According  to  the  concordat,   elections 

rarije,  ilhcitae,  et  ipso  jure  ^nullse  (etsi  ought  to  be  made  in  the  presence  of  the 

forte  ante  .ipsprum  lapsum  in  schisma,  emperor  or  his  officers:  but  the  chao- 

seu   hseresm   mite  seu  facts  fuissent)  ters  contrived  to  exclude  them  by  de- 

etiam  si  forent  juramento  vel  fide  data  grees,  though  not  perhaps  till  the  thir- 

nrmata,    aut    confirmaftone    apostolica  teenth   century.    C&npare   Schmidt,   t. 

vel  quacunque  firmitate  aha  roborate,  ih. 


, 
rmitate  aha  roborate,       ih.  p.  206,  t.  iv.  p.  146, 

T;  Ut  Praemittitur>  sunt  ef-          «  Henry's  Hist,  of  England,  vol.  v.  p. 
ecti.    Rymer,  t  .  vii.  p   352.  334.    Lyttelton's  Henry  II.,  vol.  i.  o. 

It  was  of  httle  consequence  that  all       356. 


THE  MIDDLE  AGES  139 

cent  III.  by  his  capitulation ;  b  and  from  that  pontificate  the 
papal  jurisdiction  over  such  controversies  became  thoroughly 
recognized.  But  the  real  aim  of  Innocent,  and  perhaps  of  some 
of  his  predecessors,  was  to  dispose  of  bishoprics,  under  pretext 
of  determining  contests,  as  a  matter  of  patronage.  So  many 
rules  were  established,  so  many  formalities  required  by  their 
constitutions,  incorporated  afterwards  into  the  canon  law,  that 
the  court  of  Rome  might  easily  find  means  of  annulling  what 
had  been  done  by  the  chapter,  and  bestowing  the  see  on  a 
favorite  candidates  The  popes  soon  assumed  not  only  a  right 
of  decision,  but  of  devolution ;  that  is,  of  supplying  the  want 
of  election,  or  the  unfitness  of  the  elected,  by  a  nomination  of 
their  own.d  Thus  Archbishop  Langton,  if  not  absolutely  nom- 
inated, was  at  least  chosen  in  an  invalid  and  compulsory 
manner  by  the  order  of  Innocent  III.,  as  we  may  read  in  our 
English  historians.  And  several  succeeding  archbishops  of 
Canterbury  equally  owed  their  promotion  to  the  papal  pre- 
rogative. Some  instances  of  the  same  kind  occurred  in  Ger- 
many, and  it  became  the  constant  practice  in  Naples.* 

While  the  popes  were  thus  artfully  depriving  the  chapters 
of  their  right  of  election  to  bishoprics,  they  interfered  in  a  more 
arbitrary  manner  with  the  collation  of  inferior  benefices.  This 
began,  though  in  so  insensible  a  manner  as  to  deserve  no  notice 
but  for  its  consequences,  with  Adrian  IV.,  who  requested  some 
bishops  to  confer  the  next  benefice  that  should  become  vacant 
on  a  particular  clerk/  Alexander  III.  used  to  solicit  similar 
favors.^  These  recommendatory  letters  were  called  mandats. 
But  though  such  requests  grew  more  frequent  than  was  ac- 
ceptable to  patrons,  they  were  preferred  in  moderate  language, 
and  could  not  decently  be  refused  to  the  apostolic  chair.  Even 
Innocent  III.  seems  in  general  to  be  aware  that  he  is  not  as- 
serting a  right ;  though  in  one  instance  I  have  observed  his 

b  Schmidt,  t.  iv.  p.  149.  One  of  these  et  erat  idoneus  tempore  electionis,  con- 
was  the  spohum,  or  movable  estate  of  a  nrnmbitur;  si  autem  erit  mdignus  in 
bishop,  which  the  emperor  was  used  to  ordmibus  scientia  vel  aetate,  et  fuit  sci- 
seize  upon  his  decease,  p.  154.  It  was  enter  electus,  electus  a  minori  parte,  si 
certainly  a  very  leonine  prerogative;  but  est  dignus,  confirmabitur. 
the  popes  did  not  fail,  at  a  subsequent  A  person  canonically  disqualified 
time,  to  claim  it  for  themselves.  Fleury,  when  presented  to  the  pope  for  con- 
Institutions  au  Droit,  tip.  425.  Len-  firmation  was  said  to  be  posjtulatus^  not 
fant,  Concile  de  Constance,  t.  ii.  p.  130.  electus. 

c  F.  Paul,  c.  30     Schmidt,  t.  iv.  p.  177,  e  Giannone,  1.  xiv.  c.  6;  1.  xix,  c.  5. 

247.  f  St  Marc,  t.  v.  p.  41.    Art  de  verifier 

dThus  we  find  it  expressed,  as  cap-  les  Dates,  t.  i.  p.  288.    Encyclodpedie, 

tiously  as  words  could  be  devised,  in  the  art  Mandats. 

decretals,  1.  i.  tit.  6,  c    22.    Electus  a  g  Schmidt,  t  iv.  p.  239. 
majori  et  saniori  parte  capituli,  si  est, 


140  HALL  AM 

violent  temper  break  out  against  the  chapter  of  Poitiers,  who 
had  made  some  demur  to  the  appointment  of  his  clerk,  and 
whom  he  threatens  with  excommunication  and  interdict./*  But, 
as  we  find  in  the  history  of  all  usurping  governments,  time 
changes  anomaly  into  system,  and  injury  into  right  ;  examples 
beget  custom,  and  custom  ripens  into  law;  and  the  doubtful 
precedent  of  one  generation  becomes  the  fundamental  maxim 
of  another.  Honorius  III.  requested  that  two  prebends  in 
every  church  might  be  preserved  for  the  Holy  See  ;  but  neither 
the  bishops  of  France  nor  England,  to  whom  he  preferred  this 
petition,  were  induced  to  comply  with  it.*  Gregory  IX.  pre- 
tended to  act  generously  in  limiting  himself  to  a  single  ex- 
pectative,  or  letter  directing  a  particular  clerk  to  be  provided 
with  a  benefice  in  every  church./  But  his  practice  went  much 
further.  No  country  was  so  intolerably  treated  by  this  pope 
and  his  successors  as  England  throughout  the  ignominious 
reign  of  Henry  III.  Her  church  seemed  to  have  been  so  richly 
endowed  only  as  the  free  pasture  of  Italian  priests,  who  were 
placed,  by  the  mandatory  letters  of  Gregory  IX.  and  Innocent 
IV.,  in  all  the  best  benefices.  If  we  may  trust  a  solemn  re- 
monstrance in  the  name  of  the  whole  nation,  they  drew  from 
England,  in  the  middle  of  the  thirteenth  century,  sixty  or 
seventy  thousand  marks  every  year  ;  a  sum  far  exceeding  the 
royal  revenue.*?  This  was  asserted  by  the  English  envoys  at 
the  council  of  Lyons.  But  the  remedy  was  not  to  be  sought 
in  remonstrances  to  the  court  of  Rome,  which  exulted  in  the 
success  of  its  encroachments.  There  was  no  defect  of  spirit 
in  the  nation  to  oppose  a  more  adequate  resistance  ;  but  the 
weak-minded  individual  upon  the  throne  sacrificed  the  public 
interest  sometimes  through  habitual  timidity,  sometimes 
through  silly  ambition.  If  England,  however,  suffered  more 
remarkably,  yet  other  countries  were  far  from  being  untouched. 
A  German  writer  about  the  beginning  of  the  fourteenth  century 
mentions  a  cathedral  where,  out  of  about  thirty-five  vacancies 
of  prebends  that  had  occurred  within  twenty  years,  the  regular 
patron  had  filled  only  twoJ  The  case  was  not  very  different 
in  France,  where  the  continual  usurpations  of  the  popes  pro- 
duced the  celebrated  Pragmatic  Sanction  of  St.  Louis.  This 
edict,  the  authority  of  which,  though  probably  without  cause, 


k??1!?^  ?IL  °Pera'  &5°2v  y  F.  Paul  on  Benefices,  c.  30. 

.  *  Matt.  Paris,  p.  267.    De  Marca,  1.          k  M.  Paris,  pp.  579,  740 
w-  c-  9-  I  Schmidt,  t.  vi.  pi  iol 


THE  MIDDLE  AGES 


141 


has  been  sometimes  disputed,  contains  three  important  pro- 
visions ;  namely,  that  all  prelates  and  other  patrons  shall  enjoy 
their  full  rights  as  to  the  collation  of  benefices,  according  to  the 
canons ;  that  churches  shall  possess  freely  their  rights  of  elec- 
tion ;  and  that  no  tax  or  pecuniary  exaction  shall  be  levied  by 
the  pope,  without  consent  of  the  king  and  of  the  national 
church.^  We  do  not  find,  however,  that  the  French  govern- 
ment acted  up  to  the  spirit  of  this  ordinance ;  and  the  Holy 
See  continued  to  invade  the  rights  of  collation  with  less  cere- 
mony than  they  had  hitherto  used.  Clement  IV.  published 
a  bull  in  1266,  which,  after  asserting  an  absolute  prerogative 
of  the  supreme  pontiff  to  dispose  of  all  preferments,  whether 
vacant  or  in  reversion,  confines  itself  in  the  enacting  words 
to  the  reservation  of  such  benefices  as  belong  to  persons  dying 
at  Rome  (vacantes  in  curia)  .n  These  had  for  some  time  been 
reckoned  as  a  part  of  the  pope's  special  patronage ;  and  their 
number,  when  all  causes  of  importance  were  drawn  to  his  tri- 
bunal, when  metropolitans  were  compelled  to  seek  their  pallium 
in  person,  and  even  by  a  recent  constitution  exempt  abbots 


in  Ordonnances  des  Rois  de  France, 
t.  i.  p.  97.  Objections  have  been  made 
to  the  authenticity  of  this  edict,  and  in 
particular  that  we  do  not  find  the  king 
to  have  had  any  previous  differences 
with  the  see  of  Rome;  on  the  contrary, 
he  was  just  indebted  to  Clement  IV.  for 
bestowing  the  crown  of  Naples  on  his 
brother,  the  Count  of  Provence.  Velly 
has  defended  it,  Hist,  de  France,  t.  vi. 
p.  57;  and  in  the  opinion  of  the  learned 
Benedictine  editors  of  L'Art  de  verifier 
les  Dates,  t.  i  p  585,  cleared  up  all  dif- 
ficulties as  to  its  genuineness  In  fact, 
however,  the  Pragmatic  Sanction  of  St. 
Louis  stands  by  itself,  and  can  only  be 
considered  as  a  protestation  against 
abuses  which  it  was  still  impossible  to 
suppress. 

Of  this  law,  which  was  published  in 
12682  Sismondi  says,  En  lisant  la  prag- 
matique  sanction,  on  se  demande  avec 
6tonnement  ce  qui  a  pu  causer  sa  prodi- 
gieuse  celebrite".  Elle  n'introduit  aucun 
droit  nouveau;  elle  ne  change  nen  a 
1'orgamsation  ecclesiastique;  elle  de- 
clare settlement  que  tous  les  droits  exist- 
ans  seront  conserves,  que  toute  ^la  le- 
gislation canonique  soit  executee.  fA 
1'exception  de  Tarticle  v,  sur  la  levees 
d'argent  de  la  cour  de  Rome,  elle  ne 
contient  nen  que  cette  cour  n'eut  pu 
pubher  elle-meme;  et  quant  a  cet 
article,  qui  paroit  seul  dinge  centre  la 
chambre  apostolique,  il  n'est  pas  plus 
precis  que  ceux  que  bien  d'autres  rois 
de  France,  d'Angleterre,  et  d'Alle- 
magne,  avaient  deja  promulgues  a 
plusieurs  reprises,  et  toujours  sans  effet. 
Hist,  des  Franc,  v*  106.  But  Sismondi 


overlooks  the  fourth  article,  which  en- 
acts that  all  collations  of  benefices  shall 
be  made  according  to  the  maxims  of 
councils  and  fathers  of  the  church. 
This  was  designed  to  repress  the  dis- 
pensations of  the  pope;  and  if  the 
French  lawyers  had  been  powerful 
enough,  it  would  have  been  successful 
in  that  object.  He  goes  on,  indeed, 
himself  to  say, — Ce  qui  changea  la  prag- 
matique  sanction  en  une  barnere  puis- 
sante  centre  les  usurpations  de  la  cour 
de  Rome,  c'est  que  les  legistes  s'en  em- 
parerent;  ils  prirent  soin  de  rexphquer, 
de  la  co  mm  enter;  plus  elle  etait  vague, 
et  plus,  entre  leurs  mains  habiles,  elle 
pouvoit  recevoir  d'extension.  Elle  suf- 
fisait  seule  pour  garantir  toutes  les  li- 
bertes  du  royaume;  une  fois  que  les 
parlemens  etoient  resplus  de  ne  jamais 
permettre  qu'elle  fut  violee,  tout  empiete- 
ment  de  la  cour  de  Rome  ou  des  tribu- 
naux  ecclesiastiques  toute  levee  de 
denicrs  ordonnee  par  elle,  toute  election 
irreguhere,  toute  excommunication^ 
tout  mterait,  qui  touchoient  Tautonte 
royale  ou  les  droits  du  sujet,  furent  de- 
nonces  par  les  legistes  en  parlement, 
comme  contraires  aux  franchises  des 
eglises  de  France,  et  a  la  pragmatique 
sanction.  Amsi  s'introduisait  1'appel 
comme  d'abus  qui  reussit  seul  a  con- 
tenir  la  jurisdiction  ecclesiastique  dans 
de  justes  bornes. 

n  Sext.  Decretal.  1.  iii.  t.  iv.  c.  2.  F. 
Paul  on  Benefices,  c,  35.  This  writer 
thinks  the  privilege  of  nominating  bene- 
fices vacant  in  curta  to  have  been  among 
the  first  claimed  by  the  popes,  even  be- 
fore the  usage  of  mandats.  c.  30. 


142  HALLAM 

were  to  repair  to  Rome  for  confirmation^  not  to  mention  the 
multitude  who  flocked  thither  as  mere  courtiers  and  hunters 
after  promotion,  must  have  been  very  considerable.  Boniface 
VIII.  repeated  this  law  of  Clement  IV.  in  a  still  more  positive 
tone ;  P  and  Clement  V.  laid  down  as  a  maxim,  that  the  pope 
might  freely  bestow,  as  universal  patron,  all  ecclesiastical  bene- 
fices.g  In  order  to  render  these  tenable  by  their  Italian  cour- 
tiers, the  canons  against  pluralities  and  non-residence  were  dis- 
pensed with ;  so  that  individuals  were  said  to  have  accumulated 
fifty  or  sixty  preferments.'  It  was  a  consequence  from  this  ex- 
travagant principle,  that  the  pope  might  prevent  the  ordinary 
collator  upon  a  vacancy;  and  as  this  could  seldom  be  done 
with  sufficient  expedition  in  places  remote  from  his  court,  that 
he  might  make  reversionary  grants  during  the  life  of  an  in- 
cumbent, or  reserve  certain  benefices  specifically  for  his  own 
nomination. 

The  persons  as  well  as  estates  of  ecclesiastics  were  secure 
from  arbitrary  taxation  in  all  the  kingdoms  founded  upon  the 
ruins  of  the  empire,  both  by  the  common  liberties  of  freemen, 
and  more  particularly  by  their  own  immunities  and  the  horror 
of  sacrileges  Such  at  least  was  their  legal  security,  whatever 
violence  might  occasionally  be  practised  by  tyrannical  princes. 
But  this  exemption  was  compensated  by  annual  donatives, 
probably  to  a  large  amount,  which  the  bishops  and  monasteries 
were  accustomed,  and  as  it  were  compelled,  to  make  to  their 
sovereigns.*  They  were  subject  also,  generally  speaking,  to  the 
feudal  services  and  prestations.  Henry  I.  is  said  to  have  ex- 
torted a  sum  of  money  from  the  English  church.w  But  the 
first  eminent  instance  of  a  general  tax  required  from  the  clergy 
was  the  famous  Saladine  tithe ;  a  tenth  of  all  movable  estate, 
imposed  by  the  kings  of  France  and  England  upon  all  their 
subjects,  with  the  consent  of  their  great  councils  of  prelates 
and  barons,  to  defray  the  expense  of  their  intended  crusade. 
Yet  even  this  contribution,  though  called  for  by  the  imminent 
peril  of  the  Holy  Land  after  the  capture  of  Jerusalem,  was  not 
paid  without  reluctance ;  the  clergy  doubtless  anticipating  the 

*Matt  Paris,  p.  8i£  rid.  c.  33,  34,  35-    Schmidt,  t.  iv.  p. 

£Sext.  Decret.  1.  in.  t.  iv.  c.  3.    He  104. 

extended  the  vacancy  in  curia,  to  all  s  Muratori,  Dissert.  70;    Schmidt,  t 

places  within  two  days'  journey  of  the  in.  p.  an. 

papal  court.  /  Ibid ,  t.  Hi.  p.  211.    Du  Cange,  v. 

q  F.  Paul,  c.  as  Dona. 

,  u  Eadmer,  p.  83. 


THE  MIDDLE  AGES  I43 

future  extension  of  such  a  precedents  Many  years  had  not 
elapsed  when  a  new  demand  was  made  upon  them,  but  from 
a  different  quarter.  Innocent  III.  (the  name  continually  recurs 
when  we  trace  the  commencement  of  a  usurpation)  imposed 
in  1199  uPon  ^e  whole  church  a  tribute  of  one-fortieth  of  mov- 
able estate,  to  be  paid  to  his  own  collectors ;  but  strictly  pledg- 
ing himself  that  the  money  should  only  be  applied  to  the  pur- 
poses of  a  crusade.^  This  crusade  ended,  as  is  well  known, 
in  the  capture  of  Constantinople.  But  the  word  had  lost  much 
of  its  original  meaning;  or  rather  that  meaning  had  been 
extended  by  ambition  and  bigotry.  Gregory  IX.  preached  a 
crusade  against  the  Emperor  Frederic,  in  a  quarrel  which  only 
concerned  his  temporal  principality ;  and  the  church  of  Eng- 
land was  taxed  by  his  authority  to  carry  on  this  holy  war.* 
After  some  opposition  the  bishops  submitted ;  and  from  that 
time  no  bounds  were  set  to  the  rapacity  of  papal  exactions. 
The  usurers  of  Cahors  and  Lombardy,  residing  in  London, 
took  up  the  trade  of  agency  for  the  pope ;  and  in  a  few  years, 
he  is  said,  partly  by  levies  of  money,  partly  by  the  revenues  of 
benefices,  to  have  plundered  the  kingdom  of  950,000  marks; 
a  sum  equivalent,  perhaps,  to  not  less  than  fifteen  millions 
sterling  at  present.  Innocent  IV.,  during  whose  pontificate 
the  tyranny  of  Rome,  if  we  consider  her  temporal  and  spiritual 
usurpations  together,  seems  to  have  reached  its  zenith,  hit  upon 
the  device  of  ordering  the  English  prelates  to  furnish  a  certain 
number  of  men-at-arms  to  defend  the  church  at  their  expense. 
This  would  soon  have  been  commuted  into  a  standing  escuage 
instead  of  military  service  y  But  the  demand  was  perhaps  not 
complied  with,  and  we  do  not  find  it  repeated.  Henry  III/s 
pusillanimity  would  not  permit  any  effectual  measures  to  be 

v  Schmidt,  t    iv.  p.  212.    Lyttelton's  ing  a   good  table     But   Grosstete  ap- 

Henry  II.,  vol.  in.  p  472.    Velly,  t.  iii.  pears  to  have  been  imbued  in  a  great 

p.  316.  degree  with  the  spirit  of  his  age  as  to 

w  Innocent,   Opera,  p.  266  ecclesiastical   power,   though   unwilling 

jrM.  Paris,  p.  470.    It  was  hardly  pos-  to  yield  it  up  to  the  pope:   and  it  is  a 

sible  for  the  clergy  to  make  any  effective  strange  thing  to  reckon  him  among  the 

resistance  to  the  pope,  without  unravel-  precursors  of  the  Reformation.  M.  Paris, 

hng  a  tissue  which  they  had  been  assidu-  p.  754-    Bermgton's  Literary  History  of 

ously    weaving.    One    English    prelate  the  Middle  Ages,  p.  378. 

distinguished  Tiimself  in  this  reign  by  y  M.  Paris,  p.  613.    It  would  be  end- 

his   strenuous  protestation   against   all  less  to  multiply  proofs  from  Matthew 

abuses  of  the  church.    This  was  Robert  Paris,    which   indeed   occur  in  almost 

Grosstete,  Bishop  of  Lincoln,  who  died  every  page.    His  laudable  zeal  against 

in  1253,  the  most  learned  Englishman  of  papal  tyranny,  on  which  some  Protes- 

his  time,  and  the  first  who  had  any  tmct-  tant  writers  have  been  so  pleased  to 

ure  of  Greek  literature     Matthew  Paris  dwell,  was  a  little  stimulated  by  per- 

gives  him  a  high  character,  which  he  sonal  feelings  for  the  Abbey  of  St.  Al- 

deserved  for  his  learning  and  integrity;  .ban's;  and  the  same  remark  is  probably 

one  of  his  commendations  is  for  keep-  applicable  to  his  love  of  civjl  liberty. 


HALLAM 

adopted;  and  indeed  he  sometimes  shared  in  the  booty,  and 
was  indulged  with  the  produce  of  taxes  imposed  upon  his  own 
clergy  to  defray  the  cost  of  his  projected  war  against  Sicily  ~ 
A  nobler  example  was  set  by  the  kingdom  of  Scotland :  Cle- 
ment IV.  having,  in  1267  granted  the  tithes  of  its  ecclesiastical 
revenues  for  one  of  his  mock  crusades,  King  Alexander  III, 
with  the  concurrence  of  the  church,  stood  up  against  this  en- 
croachment, and  refused  the  legate  permission  to  enter  his 
dominions.^  Taxation  of  the  clergy  was  not  so  outrageous 
in  other  countries ;  but  the  popes  granted  a  tithe  of  benefices 
to  St.  Louis  for  each  of  his  own  crusades,  and  also  for  the 
expedition  of  Charles  of  Anjou  against  Manfred.**  In  the  coun- 
cil of  Lyons,  held  by  Gregory  X.  in  1274,  a  general  tax  in  the 
same  proportion  was  imposed  on  all  the  Latin  church,  for  the 
pretended  purpose  of  carrying  on  a  holy  war.c 

These  gross  invasions  of  ecclesiastical  property,  however  sub- 
missively endured,  produced  a  very  general  disaffection  to- 
wards the  court  of  Rome.  The  reproach  of  venality  and  avarice 
was  not  indeed  cast  for  the  first  time  upon  the  sovereign  pon- 
tiffs; but  it  had  been  confined,  in  earlier  ages,  to  particular 
instances,  not  affecting  the  bulk  of  the  Catholic  church.  But, 
pillaged  upon  every  slight  pretence,  without  law  and  without 
redress,  the  clergy  came  to  regard  their  once  paternal  mon- 
arch as  an  arbitrary  oppressor.  All  writers  of  the  thirteenth 
and  following  centuries  complain  in  terms  of  unmeasured  in- 
dignation, and  seem  almost  ready  to  reform  the  general  abuses 
of  the  church.  They  distinguished  however  clearly  enough 
between  the  abuses  which  oppressed  them  and  those  which 
it  was  their  interest  to  preserve,  nor  had  the  least  intention 
of  waiving  their  own  immunities  and  authority.  But  the  laity 
came  to  more  universal  conclusions.  A  spirit  of  inveterate 
hatred  grew  up  among  them,  not  only  towards  the  papal  tyr- 
anny, but  fie  whole  system  of  ecclesiastical  independence.  The 
rich  envie  i  and  longed  to  plunder  the  estates  of  the  superior 
clergy ;  the  poor  learned  from  the  Waldenses  and  other  sec- 
taries to  deem  such  opulence  incompatible  with  the  character 
of  evangelical  ministers.  The  itinerant  minstrels  invented  tales 


s  Rymer,  t.  i.  p.  590,  &c.    The  sub-  a  Dalrymple'i 

stance  of  English  ecclesiastical  history  i.  p.  170. 

during  the  reign  of  Henry  III.  may  be  b  Velly.  t.  iv. 

collected  from  Henry,  and  still  better  p.  47. 

from  Collier.  c  fa 


a  Dalrymple's  Annals  of  Scotland,  vol. 
p.  343?  t.  v.  p.  343;  t.  vi. 

Idem,  t.  vi.  p.  308.    St.  Marc,  t-  vi. 
P-  347- 


THE  MIDDLE  AGES  145 

to  satirize  vicious  priests,  which  a  predisposed  multitude  eager- 
ly swallowed.  If  the  thirteenth  century  was  an  age  of  more 
extravagant  ecclesiastical  pretensions  than  any  which  had  pre- 
ceded, it  was  certainly  one  in  which  the  disposition  to  resist 
them  acquired  greater  consistence. 

To  resist  had  indeed  become  strictly  necessary,  if  the  tem- 
poral governments  of  Christendom  would  occupy  any  better 
station  than  that  of  officers  to  the  hierarchy.  I  have  traced 
already  the  first  stage  of  that  ecclesiastical  jurisdiction,  which, 
through  the  partial  indulgence  of  sovereigns,  especially  Jus- 
tinian and  Charlemagne,  had  become  nearly  independent  of  the 
civil  magistrate.  Several  ages  of  confusion  and  anarchy  ensued, 
during  which  the  supreme  regal  authority  was  literally  sus- 
pended in  France,  and  not  much  respected  in  some  other  coun- 
tries. It  is  natural  to  suppose  that  ecclesiastical  jurisdiction, 
so  far  as  even  that  was  regarded  in  such  barbarous  times,  would 
be  esteemed  the  only  substitute  for  coercive  law,  and  the  best 
security  against  wrong.  But  I  am  not  aware  that  it  extended 
itself  beyond  its  former  limits  till  about  the  beginning  of  the 
twelfth  century.  From  that  time  it  rapidly  encroached  upon 
the  secular  tribunals,  and  seemed  to  threaten  the  usurpation 
of  an  exclusive  supremacy  over  all  persons  and  causes.  The 
bishops  gave  the  tonsure  indiscriminately,  in  order  to  swell 
the  list  of  their  subjects.  This  sign  of  a  clerical  state,  though 
below  the  lowest  of  their  seven  degrees  of  ordination,  implying 
no  spiritual  office,  conferred  the  privileges  and  immunities  of 
the  profession  on  all  who  wore  an  ecclesiastical  habit  and  had 
only  once  been  married.**  Orphans  and  widows,  the  stranger 
and  the  poor,  the  pilgrim  and  the  leper,  under  the  appellation 
of  persons  in  distress  (miserabiles  personae),  came  within  the 
peculiar  cognizance  and  protection  of  the  church ;  nor  could 
they  be  sued  before  any  lay  tribunal.  And  the  whole  body 
of  crusaders,  or  such  as  merely  took  the  vow  of  engaging  in 
a  crusade,  enjoyed  the  same  clerical  privileges. 

But  where  the  character  of  the  litigant  parties  could  not,  even 
with  this  large  construction,  be  brought  within  their  pale,  the 

d  Clerici  qui  cum  tuiicis  et  virgmibus  Philip  the  Bold,  however,  had  sub- 

contraxerunt,  si  tonsttram  et  vestes  de-  fected  these  married  clerks  to  taxes,  ^and 

ferant  clencales,  privilegium  retmeant  later   ordinances  of  the  French  kings 

praesenti  declaramus  edicto,  hujus-  rendered  them   amenable  f  to  temporal 

modi  clericos  conjugates  pro  commissis  jurisdiction;   from  which,  in  Naples,  by 

ab  lis  excessibus  vel  delictis,  trahi  non  various  provisions  of  th<  Angevin  line, 

posse  criminaliter  aut  civiliter  ad  judi-  they  always  continued  free.    Giannone, 

cium  saeculare.    Bonifacius  Octavus,  in  1.  xix.  c.  5. 
Sext.  Decretal  1.  hi.  tit.  ii.  c.  i. 

VOL.  II.— 10 


146  HALLAM 

bishops  found  a  pretext  for  their  jurisdiction  in  the  nature  of 
the  dispute.  Spiritual  causes  alone,  it  was  agreed,  could  ap- 
pertain to  the  spiritual  tribunal.  But  the  word  was  indefinite ; 
and  according  to  the  interpreters  of  the  twelfth  century,  the 
church  was  always  bound  to  prevent  and  chastise  the  commis- 
sion of  sin.  By  this  sweeping  maxim,  which  we  have  seen 
Innocent  III.  apply  to  vindicate  his  control  over  national  quar- 
rels, the  common  differences  of  individuals,  which  generally 
involve  some  charge  of  wilful  injury,  fell  into  the  hands  of  a 
religious  judge.  One  is  almost  surprised  to  find  that  it  did 
not  extend  more  universally,  and  might  praise  the  moderation 
of  the  church.  Real  actions,  or  suits  relating  to  the  property 
of  land,  were  always  the  exclusive  province  of  the  lay  court, 
even  where  a  clerk  was  the  defendants  But  the  ecclesiastical 
tribunals  took  cognizance  of  breaches  of  contract,  at  least  where 
an  oath  had  been  pledged,  and  of  personal  trusts/  They  had 
not  only  an  exclusive  jurisdiction  over  questions  immediately 
matrimonial,  but  a  concurrent  one  with  the  civil  magistrate 
in  France,  though  never  in  England,  over  matters  incident  to 
the  nuptial  contract,  as  claims  of  marriage  portion  and  of 
dower.g  They  took  the  execution  of  testaments  into  their 
hands,  on  account  of  the  legacies  to  pious  uses  which  testators 
were  advised  to  bequeath.^  In  process  of  time,  and  under  fa- 
vorable circumstances,  they  made  still  greater  strides.  They 
pretended  a  right  to  supply  the  defects,  the  doubts,  or  the  negli- 
gence of  temporal  judges ;  and  invented  a  class  of  mixed  causes, 
whereof  the  lay  or  ecclesiastical  jurisdiction  took  possession 
according  to  priority.  Besides  this  extensive  authority  in  civil 
disputes,  they  judged  of  some  offences  which  naturally  belong 
to  the  criminal  law,  as  well  as  of  some  others  which  participate 
of  a  civil  and  criminal  nature.  Such  were  perjury,  sacrilege, 
usury,  incest,  and  adultery ; *  from  the  punishment  of  all  which 

i  Decretal,  L  ii.  t.  ii.  Ordonnances  Cortes,  t.  iii.  p,  20;  and  in  other  re- 
des Rois,  t.  i  p.  40  (A.D.  1189).  In  the  spects  followed  the  example  of  his 
council  of  Lambeth  in  1261  the  bishops  father,  Alfonso  X ,  in  favoring  their  en- 
claim  a  right  to  judge  inter  clencos  croachments.  The  church  of  Scotland 
suos,  vel  inter  laicos  conquerentes  et  seems  to  have  had  nearly  the  same  juns- 
clericos  defendentes,  in  personalibus  diction  as  that  of  England.  Pmkerton's 
actiombus  super  contractibus,  aut  de-  History  of  Scotland,  vol.  i  p.  173. 
lictis  aut  quasi,  t  e.  quasi  dilictis.  Wil-  t  It  was  a  maxim  of  the  canon,  as  well 
kins.  Concilia,  t  i.  p.  74^.  as  the  common  law,  that  no  person 

f  Ordonnances  des  Rois,  p.  319  (A.D.  should  be  punished  twice  for  the  same 

1290).  offence;   therefore,  if  a  clerk  had  been 

g  Id.,  pp.  40,  121,  220,  319.  degraded,  or  a  penance  imposed  on  a 

h  Id.,   p    319      Glanvil,    1    vii.   c.   7.  layman,  it  was  supposed  unjust  to  pro- 

Sancho  IV.  gave  the  same  jurisdiction  ceed  against  him  in  a  temporal  court, 
to  the  clergy  of  Castile,  Teona  de  las 


THE   MIDDLE  AGES  I47 

the  secular  magistrate  refrained,  at  least  in  England,  after  they 
had  become  the  province  of  a  separate  jurisdiction.  Excom- 
munication still  continued  the  only  chastisement  which  the 
church  could  directly  inflict.  But  the  bishops  acquired  a  right 
of  having  their  own  prisons  for  lay  offenders,/  and  the  monas- 
teries were  the  appropriate  prisons  of  clerks.  Their  sentences 
of  excommunication  were  enforced  by  the  temporal  magistrate 
by  imprisonment  or  sequestration  of  effects ;  in  some  cases  by 
confiscation  or  death.* 

The  clergy  did  not  forget  to  secure  along  with  this  juris- 
diction their  own  absolute  exemption  from  the  criminal  justice 
of  the  state.  This,  as  I  have  above  mentioned,  had  been  con- 
ceded to  them  by  Charlemagne;  and  this  privilege  was  not 
enjoyed  by  clerks  in  England  before  the  conquest ;  nor  do  we 
find  it  proved  by  any  records  long  afterwards ;  though  it  seems, 
by  what  we  read  about  the  constitutions  of  Clarendon,  to  have 
grown  into  use  before  the  reign  of  Henry  II.  As  to  France  and 
Germany,  I  cannot  pretend  to  say  that  the  law  of  Charlemagne 
granting  an  exemption  from  ordinary  criminal  process  was 
ever  abrogated.  The  False  Decretals  contain  some  passages 
in  favor  of  ecclesiastical  immunity,  which  Gratian  repeats  in 
his  collection.'  About  the  middle  of  the  twelfth  century  the 
principle  obtained  general  reception,  and  Innocent  III.  de- 
cided it  to  be  an  inalienable  right  of  the  clergy,  whereof  they 
could  not  be  divested  even  by  their  own  consent.^  Much 
less  were  any  constitutions  of  princes,  or  national  usages, 
deemed  of  force  to  abrogate  such  an  important  privileges 
These,  by  the  canon  law,  were  invalid  when  they  affected  the 
rights  and  liberties  of  holy  church.^  But  the  spiritual  courts 
were  charged  with  scandalously  neglecting  to  visit  the  most 
atrocious  offences  of  clerks  with  such  punishment  as  they  could 

j  Charlemagne  is  said  by  Giannone  to  jurisdiction  by  Boniface  VIII.  in  the 

have   permitted    the   bishops   to    have  Sext.  1.  111.  tit.  xxin    c  ,40,  sive  ambae 

prisons  of  their  own.    1.  vi.  c.  7  partes   hoc   yoluermt,    sive   una   super 

k  Giannone,  1  xix.  c.  5,  t  in.  Schmidt,  causis  ecclesiasticis,  sive  qua  ad  forum 

t.  iv.  p.  195;   t.  vi  p    125.    Fleury,  7me  ecclesiasticum  ratione  personarum,  ne- 

Discours,  Mem.  de  1'Acad,  des  Inscnpt.  gotiorum,  vel  rerum  de  jure  vel  de  an- 

t     xxxix     p     603.    Ecclesiastical    juris-  tiqua  consuetttdine  pertinere  noscuntur. 

diction  not  having  been  uniform  in  dif-  /  Fleury,  Tine  Discours. 

ferent  ages  and  countries,  it  is  difficult  m  Id.   Institutions  au  Droit  Eccles.,  t 

without  much  attention  to  distinguish  n.  p.  8. 

its    general    and    permanent    attributes  «  In  criminalibus  causis  in  nullo  casu 

from  those  less  completely  established.  possunt  clenci  ab  aliquo  qttim  ab  ec- 

Its  description,  as  given  in  the  Deere-  clesiastico  judice   condemnan,  etiamsi 

tals,  lib.  11.  tit   ii.,  De  foro  competent!,  consuetude  regia  habeat  ut  fures  a  judi- 

does  not  support  the  pretensions  made  cibus  sseculanbus  judicentur.    Decretal, 

by  the  canonists,  nor  come  up  to  the  1.  i.  tit  i.  c.  8. 

sweeping     definition    of     ecclesiastical  o  Decret  distinct.  96. 


148  HALLAM 

inflict.  The  church  could  always  absolve  from  her  own  cen- 
sures; and  confinement  in  a  monastery,  the  usual  sentence 
upon  criminals,  was  frequently  slight  and  temporary.  Several 
instances  are  mentioned  of  heinous  outrages  that  remained 
nearly  unpunished  through  the  shield  of  ecclesiastical  privi- 
leged And  as  the  temporal  courts  refused  their  assistance  to 
a  rival  jurisdiction,  the  clergy  had  no  redress  for  their  own 
injuries,  and  even  the  murder  of  a  priest  at  one  time,  as  we 
are  told,  was  only  punishable  by  excommunications 

Such  an  incoherent  medley  of  laws  and  magistrates,  upon  the 
symmetrical  arrangement  of  which  all  social  economy  mainly 
depends,  could  not  fail  to  produce  a  violent  collision.  Every 
sovereign  was  interested  in  vindicating  the  authority  of  the 
constitutions  which  had  been  formed  by  his  ancestors,  or  by 
the  people  whom  he  governed.  But  the  first  who  undertook 
this  arduous  work,  the  first  who  appeared  openly  against  eccle- 
siastical tyranny,  was  our  Henry  II.  The  Anglo-Saxon  church, 
not  so  much  connected  as  some  others  with  Rome,  and  enjoy- 
ing a  sort  of  barbarian  immunity  from  the  thraldom  of  canon- 
ical discipline,  though  rich  and  highly  respected  by  a  devout 
nation,  had  never,  perhaps,  desired  the  thorough  independence 
upon  secular  jurisdiction  at  which  the  continental  hierarchy 
aimed.  William  the  Conqueror  first  separated  the  ecclesias- 
tical from  the  civil  tribunal,  and  forbade  the  bishops  to  judge 
of  spiritual  causes  in  the  hundred  courts  His  language  is, 
however,  too  indefinite  to  warrant  any  decisive  proposition  as 
to  the  nature  of  such  causes ;  probably  they  had  not  yet  been 
carried  much  beyond  their  legitimate  extent.  Of  clerical  ex- 
emption from  the  secular  arm  we  find  no  earlier  notice  than 
in  the  coronation  oath  of  Stephen;  which,  though  vaguely  ex- 
pressed, may  be  construed  to  include  it.J  But  I  am  not  certain 

p  Collier,   vol.   i.   p.   351.    It  is  laid  tical  matters  were  decided  loosely,  and 

down  m  the,  canon  laws  that  a  layman  rather  by  the  common  law  than  accord- 

cannot  be  a  witness  in  a  criminal  case  ing  to  the  canons     This  practice  had  al- 

against  a  clerk.    Decretal.  1.  ii.  tit   xx.  ready  been  forbidden  by  some  canons 

c*  JT*  .u.  i*     i   TT         -r-r        ,  enacted  under  Edgar,  id.  p.  83,  but  ap- 

Q  Lyttelton  s  Henry  II.,  vol.  in.  p  332.  parently  with  little  effect     The  separa- 

rhis  xnust.be  restricted  to  that  period  of  tion  of  the  civil  and  ecclesiastical  tni- 

open  hostility  between  the  church  and  bunals  was  not  made  in  Denmark  until 

?TA       «          -                ,  the  rei£n  of  Nicholas,  who  ascended  the 

r  Ut  nuiliis  episcopus  vel  archidiaco-  throne  in  1105.    Langebek,  Script.  Rer 

nus  de  Jegifaus  episcopalibus  amphus  in  Dame.  t.  iv.  p.  380     Others  refer  the  law 

Hundret   placita  teneant,   nee   causam  to  St.  Canut,  about  1080.    t.  ii   p.  200 

guae  ad  regimen  ammarum  pertinet,  ad  s  Ecclesiasticarum  personarum  et  om- 

J noicitim    sacttlanum    hommum    addu-  nium  clencorum,  et  rerum  eorum  jus- 

lefnr*  fte^JS?  ~fA?uSl0£a£0n'  23ti       titiam  et  Platen!  et  distributionem 

Before  the  conquest  the  bishop  and       honorum    ecclesiasticorum,    in    manu 

earl  sat  together  m  the  court  of  the       episcoporum  esse  perhibeo,  et  confirmo 

m 


THE   MIDDLE  AGES  I49 

that  the  law  of  England  had  unequivocally  recognized  that 
claim  at  the  time  of  the  constitutions  of  Clarendon.  It  was 
at  least  an  innovation,  which  the  legislature  might  without 
scruple  or  transgression  of  justice  abolish.  Henry  II.,  in  that 
famous  statute,  attempted  in  three  respects  to  limit  the  jurisdic- 
tion assumed  by  the  church ;  asserting  for  his  own  judges  the 
cognizance  of  contracts,  however  confirmed  by  oath,  and  of 
rights  of  advowson,  and  also  that  of  offences  committed  by 
clerks,  whom,  as  it  is  gently  expressed,  after  conviction  or  con- 
fession the  church  ought  not  to  protect.  These  constitutions 
were  the  leading  subject  of  difference  between  the  king  and 
Thomas  a  Beckett  Most  of  them  were  annulled  by  the  pope, 
as  derogatory  to  ecclesiastical  liberty.  It  is  not  improbable, 
however,  that,  if  Louis  VII.  had  played  a  more  dignified  part, 
the  see  of  Rome,  which  an  existing  schism  rendered  dependent 
upon  the  favor  of  those  two  monarchs,  might  have  receded  in 
some  measure  from  her  pretensions.  But  France  implicitly 
giving  way  to  the  encroachments  of  ecclesiastical  power,  it  be- 
came impossible  for  Henry  completely  to  withstand  them. 

The  constitutions  of  Clarendon,  however,  produced  some 
effect,  and  in  the  reign  of  Henry  III.  more  unremitted  and  suc- 
cessful efforts  began  to  be  made  to  maintain  the  independence 
of  temporal  government.  The  judges  of  the  king's  court  had 
until  that  time  been  themselves  principally  ecclesiastics,  and 
consequently  tender  of  spiritual  privileges.**  But  now,  abstain- 
ing from  the  exercise  of  temporal  jurisdiction,  in  obedience  to 
the  strict  injunctions  of  their  canons,^  the  clergy  gave  place  to 
common  lawyers,  professors  of  a  system  very  discordant  from 
their  own.  These  soon  began  to  assert  the  supremacy  of  their 
jurisdiction  by  issuing  writs  of  prohibition  whenever  the  eccle- 
siastical tribunals  passed  the  boundaries  which  approved  use 
had  established.1^  Little  accustomed  to  such  control,  the  proud 
hierarchy  chafed  under  the  bit ;  several  provincial  synods  pro- 
test against  the  pretensions  of  laymen  to  judge  the  anointed 

t  Wilkins,  Leges  Anglo-Saxon,  p  323;  placitum  de  advocatione  cujitsdam  eccksice 

Lyttelton's  Henry  II.;  Collier,  &c.  in  curia  christianitatis.  Epistle  dedica- 

«  Dugdale's  Ongines  Juridicales,  c.  8.  tory  to  Prynne's  Records,  vol  hi    Glan- 

v  Decretal.  1.  i  tit.  xxxvu.  c.  i  Wil-  vil  gives  the  form  of  a  writ  of  prohibi- 

kins.  Concilia,  t.  ii.  p.  4.  tion  to  the  spiritual  court  for  inquiring 

wFrynne  has  produced  several  ex-  de  feodo  laico;  for  it  had  jurisdiction 

tracts  from  the  pipe-rolls  of  Henry  II ,  over  lands  in  frankalraoign.  This  is 

where  a  person  nas  been  fined  quia  conformable  to  the  cons^itdtions  of 

placitavit  de  laico  ieodo  in  curia  chris-  Clarendon,  and  shows  that  they  were 

tianitatis  And  a  bishop  of  Durham  is  still  in  force,  .See  also  Lyttelton's 

fined  five  hundred  marks  quia  tenuit  Henry  IIff  vol,  in,  p.  97- 


ISO  HALLAM 

ministers  whom  they  were  bound  to  obey ;  *  the  cognizance  of 
rights  of  patronage  and  breaches  of  contract  is  boldly  as- 
serted ;  y  but  firm  and  cautious,  favored  by  the  nobility,  though 
not  much  by  the  king,  the  judges  receded  not  a  step,  and  ulti- 
mately fixed  a  barrier  which  the  church  was  forced  to  respect.* 
In  the  ensuing  reign  of  Edward  L,  an  archbishop  acknowledges 
the  abstract  right  of  the  king's  bench  to  issue  prohibitions ;  a 
and  the  statute  entitled  Circumspecte  agatis,  in  the  thirteenth 
>ear  of  that  prince,  while  by  its  mode  of  expression  it  seems 
designed  to  guarantee  the  actual  privileges  of  spiritual  juris- 
diction, had  a  tendency,  especially  with  the  disposition  of  the 
judges,  to  preclude  the  assertion  of  some  which  are  not  therein 
mentioned.  Neither  the  right  of  advowson  nor  any  temporal 
contract  is  specified  in  this  act  as  pertaining  to  the  church ; 
and  accordingly  the  temporal  courts  have  ever  since  main- 
tained an  undisputed  jurisdiction  over  them.fr  They  succeeded 
also  partially  in  preventing  the  impunity  of  crimes  perpetrated 
by  clerks.  It  was  enacted  by  the  statute  of  Westminster,  in 
1275,  or  rather  a  construction  was  put  upon  that  act,  which  is 
obscurely  worded,  that  clerks  indicted  for  felony  should  not 
be  delivered  to  their  ordinary  until  an  inquest  had  been  taken 
of  the  matter  of  accusation,  and,  if  they  were  found  guilty,  that 
their  real  and  personal  estate  should  be  forfeited  to  the  crown. 
In  later  times  the  clerical  privilege  was  not  allowed  till  the 
party  had  pleaded  to  the  indictment,  and  being  duly  convict, 
as  is  the  practice  at  presents 

x  Cum  judicandi  Christos  domini  nul-  contracts  not  confirmed  by  oath,  to 
la  sit  laicis  attnbuta  potestas,  apud  quos  which  I  am  not  certain  that  the  church 
manet^necessitas  obsequendi.  Wilkms,  ever  pretended  in  anjr  country,  the  spirit- 
Concilia,  t.  t.  p  747.  ual  court  had  no  jurisdiction  at  all, 
y  Id.  ibid  ;  et  t.  ii.  p  go.  even  where  an  oath  had  intervened,  un- 
z  Vide  Wilkms,  Concilia,  t.  ii.  passim.  less  there  was  a  deficiency  of  proof  by 
a  Licet  prohibitiones  hujusmodi  a  writing  or  witnesses  Glanvil,  1.  x.  c. 
curia  christianissimi  regis  nostri  juste  12;  Constitut  Clarendon,  art  15 
proculdubio,  ut  diximus,  concedantur.  c  2  Inst  p  163.  This  is  not  likely  to 
Id  t.  ii.  p.  100  and  p.  115.  mislead  a  well-informed  reader,  but  it 
b  The  statute  Circumspecte  agatis,  for  ought,  perhaps,  to  be  mentioned  that 
it  is  acknowledged  as  a  statute,  though  by  the  clerical  privilege  "  we  are  only 
not  drawn  up  in  the  form  of  one,  is  to  understand  what  is  called  benefit  of 
founded  upon  an  answer  of  Edward  I.  clergy,  which  in  fact  is,  or  rather  was 
to  the  prelates  who  had  petitioned  for  till  recent  alterations  of  the  law  since 
some  modification  of  prohibitions.  Col-  the  first  edition  of  this  work,  no  more 
her,  always^  prone  to  exaggerate  church  than  the  remission  of  capital  punish- 
authority,  insinuates  that  the  jurisdic-  ment  for  the  first  conviction  of  felony, 
tion  of  the  spiritual  court  over  breaches  and  that  not  for  the  clergy  alone,  but 
of  contract,  even  without  oath,  is  pre-  for  all  culprits  alike.  They  were  not 
served  by  this  statute;  but  the  express  called  upon  at  any  time,  I  believe,  to 
words  of  the  king  show  that  none  what-  prove  their  claim  as  clergy,  except  by 
ever  was  intended,  and  the  archbishop  reading  the  **  neck-verse  '*  after  trial  and 
complains  bitterly  of  it  afterwards.  conviction  in  the  king's  court.  Thev 
Wilkms,  Concilia,  t.  ii.  p.  118.  Collier's  were  then  in  strictness  to  be  committed 
Ecdesiast  Historv,  vol  i  p  487  So  to  the  orclmarv  or  ecclesiastical  supe- 
far  from  having  any  cognizance  of  civil  rior,  which  probably  was  not  often  done. 


THE  MIDDLE  AGES  151 

The  civil  magistrates  of  France  did  not  by  any  means  exert 
themselves  so  vigorously  for  their  emancipation.    The  same 
or  rather  worse  usurpations  existed;  and  the  same  complaints 
were  made,  under  Philip  Augustus,  St.  Louis,  and  Philip  the 
Bold  ;  but  the  laws  of  those  sovereigns  tend  much  more  to 
confirm  than  to  restrain  ecclesiastical  encroachments.^    Some 
limitations  were  attempted  by  the  secular  courts  ;  and  an  his- 
torian gives  us  the  terms  of  a  confederacy  among  the  French 
nobles  in  1246,  binding  themselves  by  oath  not  to  permit  the 
spiritual  judges  to  take  cognizance  of  any  matter,  except  her- 
esy, marriage,  and  usury.*    Unfortunately  Louis  IX.  was  al- 
most as  little  disposed  as  Henry  III.  to  shake  off  the  yoke  of 
ecclesiastical  dominion.     But  other  sovereigns  in  the  same 
period,  from  various  motives,  were  equally  submissive.    Fred- 
eric II.  explicitly  adopts  the  exemption  of  clerks  from  criminal 
as  well  as  civil  jurisdiction  of  seculars.^   And  Alfonso  X.  intro- 
duced the  same  system  in  Castile;  a  kingdom  where  neither 
the  papal  authority  nor  the  independence  of  the  church  had 
obtained  any  legal  recognition  until  the  promulgation  of  his 
code,  which  teems  with  all  the  principles  of  the  canon  law.* 
It  is  almost  needless  to  mention  that  all  ecclesiastical  powers 
and  privileges  were  incorporated  with  the  jurisprudence  of 
the  kingdom  of  Naples,  which,  especially  after  the  accession 
of  the  Angevin  line,  stood  in  a  peculiar  relation  of  dependence 
upon  the  Hole  See> 

The  vast  acquisitions  of  landed  wealth  made  for  many  ages 
by  bishops,  chapters,  and  monasteries,  began  at  length  to  excite 
the  jealousy  of  sovereigns.  They  perceived  that,  although  the 
prelates  might  send  their  stipulated  proportion  of  vassals  into 


d  It  seems  deducible  from  a  law  of  A  council  at  Borages,  Held  in  1276,  had 

Phihp  Augustus,  Ordonnances  des  Rois,  so  absolutely  condemned  all  interference 

t  i.  p.  39,  that  a  clerk  convicted  of  some  of  the  secular  power  with  clerks  that 

hemous  offences  might  be  capitally  pun-  the   king   was   obliged   to   solicit   this 

±4  ttas^rs  -«  r^^sT/^nco-^^ 

doubtful;   and  the  theory  of  clerical  im-  bre  las  Siete  Partidas,  c.  320,  &c.    Hist, 

munity  became  afterwards  more  fully  du  Droits  Eccles.  Franc,,  t.  i.  p.  44*. 

established.  AGiannone,  1.  xrc.  c   v,:l.  xx.  c.  8 

YMatt  Paris,  p.  629  One  provision  of  Robert  King  of  Na- 

f  Statuimus,  ut  nullus  ecclesiasticam  pies  is  remarkable-   it  extends  the  im- 

personam,   in   criminali   qusstione  vel  munity  of  clerks  to  their  concubines. 

Cs^«  fjlani  strongly  censures  a  law  made 

^&&l^&^ 

PMlip  the  BoldVd  obtained  leave  from  cases.    Though  the  state  could  make 

the   pope  to  arrest  clerks  accused  of  such  a  law,,  he  says  it  ^had  no  «p«to 

heinous  crimes,  on  condition  of  remit-  do    so    against   the    liberties    of   holy 

ting  them  to  the  bishop's  court  for  trial.  church.   1,  xu.  c.  43. 

Hist,  du  Droit  Eccl.  Fran?.,  t.  i.  426. 


iS2  HALLAM 

the  field,  yet  there  could  not  be  that  active  co-operation  which 
the  spirit  of  feudal  tenures  required,  and  that  the  national  arm 
was  palsied  by  the  diminution  of  military  nobles.  Again  the 
reliefs  upon  succession,  and  similar  dues  upon  alienation,  inci- 
dental to  fiefs,  were  entirely  lost  when  they  came  into  the  hands 
of  these  undying  corporations,  to  the  serious  injury  of  the 
feudal  superior.  Nor  could  it  escape  reflecting  men,  during 
the  contest  about  investitures,  that,  if  the  church  peremptorily 
denied  the  supremacy  of  the  state  over  her  temporal  wealth,  it 
was  but  a  just  measure  of  retaliation,  or  rather  self-defence, 
that  the  state  should  restrain  her  further  acquisitions.  Prohibi- 
tions of  gifts  in  mortmain,  though  unknown  to  the  lavish  de- 
votion of  the  new  kingdoms,  had  been  established  by  some 
of  the  Roman  emperors  to  check  the  overgrown  wealth  of  the 
hierarchy,*  The  first  attempt  at  a  limitation  of  this  descrip- 
tion in  modern  times  was  made  by  Frederic  Barbarossa,  who, 
in  1158,  enacted  that  no  fief  should  be  transferred,  either  to  the 
church  or  otherwise,  without  the  permission  of  the  superior 
lord,  Louis  IX.  inserted  a  provision  of  the  same  kind  in  his 
Establishments.;  Castile  had  also  laws  of  a  similar  tendency.^ 
A  license  from  the  crown  is  said  to  have  been  necessary  in  Eng- 
land before  the  conquest  for  alienations  in  mortmain ;  but  how- 
ever that  may  be,  there  seems  no  reason  to  imagine  that  any 
restraint  was  put  upon  them  by  the  common  law  before  Magna 
Charta;  a  clause  of  which  statute  was  construed  to  prohibit 
all  gifts  to  religious  houses  without  the  consent  of  the  lord  of 
the  fee.  And  by  the  7th  Edward  I.  alienations  in  mortmain  are 
absolutely  taken  away ;  though  the  king  might  always  exercise 
his  prerogative  of  granting  a  license,  which  was  not  supposed 
to  be  affected  by  the  statute  J 

It  must  appear,  I  think,  to  every  careful  inquirer  that  the 
papal  authority,  though  manifesting  outwardly  more  show  of 
strength  every  year,  had  been  secretly  undermined,  and  lost 
a  great  deal  of  its  hold  upon  public  opinion,  before  the  acces- 
sion of  Boniface  VIIL,  in  1294,  to  the  pontifical  throne.  The 
clergy  were  rendered  sullen  by  demands  of  money,  invasions 
of  the  legal  right  of  patronage,  and  unreasonable  partiality  to 

I  Giaanone,  1.  ui.     ^  .  k  Marina,  Ensayo  sobre  las  Siete  Par- 

/  Ordonnances  des  Rois,  p.  *i3.    See,  tidas,  c.  235. 

too,  p.  303  and  alibi    Du  Gauge,  v.  Ma-  1 2  Inst  p.  74.    Blaclcstone,  vol.  li  c 

nus  mrvrta     Amorttssimeri%  m  Denisart  iS. 

nd  other* French   law-books.    Fleury, 
ay  Droit,  t.  i.  p.  350, 


THE  MIDDLE  AGES  153 

the  mendicant  orders;  a  part  of  the  mendicants  themselves 
had  begun  to  declaim  against  the  corruptions  of  the  papal 
court ;  while  the  laity,  subjects  alike  and  sovereigns,  looked 
upon  both  the  head  and  the  members  of  the  hierarchy  with 
jealousy  and  dislike.  Boniface,  full  of  inordinate  arrogance 
and  ambition,  and  not  sufficiently  sensible  of  this  gradual 
change  in  human  opinion,  endeavored  to  strain  to  a  higher 
pitch  the  despotic  pretensions  of  former  pontiffs.  As  Gregory 
VII.  appears  the  most  usurping  of  mankind  till  we  read  the 
history  of  Innocent  IIL,  so  Innocent  III.  is  thrown  into  shade 
by  the  superior  audacity  of  Boniface  VIII.  But  independently 
of  the  less  favorable  dispositions  of  the  public,,  he  wanted  the 
most  essential  quality  for  an  ambitious  pope,  reputation  for 
integrity.  He  was  suspected  of  having  procured  through  fraud 
the  resignation  of  his  predecessor  Celestine  V.,  and  his  harsh 
treatment  of  that  worthy  man  afterwards  seems  to  justify  the 
reproach.  His  actions,  however,  display  the  intoxication  of 
extreme  self-confidence.  If  we  may  credit  some  historians, 
he  appeared  at  the  Jubilee  in  1300,  a  festival  successfully  in- 
stituted by  himself  to  throw  lustre  around  his  court  and  fill 
his  treasury,^  dressed  in  imperial  habits,  with  the  two  swords 
borne  before  him,  emblems  of  his  temporal  as  well  as  spiritual 
dominion  over  the  earth.w 

It  was  not  long  after  his  elevation  to  the  pontificate  before 
Boniface  displayed  his  temper.  The  two  most  powerful  sover- 
eigns of  Europe,  Philip  the  Fair  and  Edward  I.,  began  at  the 
same  moment  to  attack  in  a  very  arbitrary  manner  the  rev- 
enues of  the  church.  The  English  clergy  had,  by  their  own 
voluntary  grants,  or  at  least  those  of  the  prelates  in  their  name, 
paid  frequent  subsidies  to  the  crown  from  the  beginning  of 
the  reign  of  Henry  III.  They  had  nearly  in  effect  waived  the 
ancient  exemption,  and  retained  only  the  common  privilege 
of  English  freemen  to  tax  themselves  in  a  constitutional  man- 

w  The  jubilee  was  a  centenary  com-  rnanibus  rastellos,  rastellantes  pecuniatn 
melioration  in  honor  of  St  Peter  and  infinitam.  Auctor  apud  Muratori,  An- 
St.  Paul,  established  by  Boniface  VIII.  nali  d'ltaha.  Plenary  indulgences  were 
on  the  faith  of  an  imaginary  precedent  a  granted  by  Boniface  to  all  vrho  shquid 
century  before.  The  period  was  soon  keep  their  jubilee  at  Rome,  and  I  sup- 
reduced  to  fifty  years,  and  from  thence  pose  are  still  to  be  had,  on  the  same 
to  twenty-five,  as  it  still  continues  The  terms  Matteo  Villam  gives  a  .curious 
court  of  Rome,  at  the  next  jubilee,  will  account  of  the  throng  at  Rome  an  1350. 
however  read  with  a  sigh  the  descnp-  n  Giannone,  1.  xxi.  c  3.  Velly,  t  vn. 
tion  given  of  that  in  1300.  Papa  innu-  p.  149.  I  have  not  observed  any  good 
merabilem  pecuniam  ab  nsdem  recepit,  authority  referred  to  for  this  tact  which 
quia  die  et  nocte  duo  clenci  stabant  ad  is,  however,  in  the  character  of  Boni- 
altare  bancti  Pauli,  tenentes  in  eorum  face. 


154  HALLAM 

ner.  But  Edward  I.  came  upon  them  with  demands  so  fre- 
quent and  exorbitant,  that  they  were  compelled  to  take  advan- 
tage of  a  bull  issued  by  Boniface,  forbidding  them  to  pay  any 
contribution  to  the  state.  The  king  disregarded  every  pretext, 
and,  seizing  their  goods  into  his  hands,  with  other  tyrannical 
proceedings,  ultimately  forced  them  to  acquiesce  in  his  extor- 
tion. It  is  remarkable  that  the  pope  appears  to  have  been 
passive  throughout  this  contest  of  Edward  I.  with  his  clergy. 
But  it  was  far  otherwise  in  France.  Philip  the  Fair  had  im- 
posed a  tax  on  the  ecclesiastical  order  without  their  consent, 
a  measure  perhaps  unprecedented^  yet  not  more  odious  than 
the  similar  exactions  of  the  King  of  England  Irritated  by 
some  previous  differences,  the  pope  issued  his  bull  known  by 
the  initial  words  Clericis  laicos,  absolutely  forbidding  the  clergy 
of  every  kingdom  to  pay,  under  whatever  pretext  of  voluntary 
grant,  gift,  or  loan,  any  sort  of  tribute  to  their  government  with- 
out his  special  permission.  Though  France  was  not  particu- 
larly named,  the  king  understood  himself  to  be  intended,  and 
took  his  revenge  by  a  prohibition  to  export  money  from  the 
kingdom.  This  produced  angry  remonstrances  on  the  part  of 
Boniface ;  but  the  Gallican  church  adhered  so  faithfully  to  the 
crown,  and  showed  indeed  so  much  willingness  to  be  spoiled 
of  their  money,  that  he  could  not  insist  upon  the  most  unreason- 
able propositions  of  his  bull,  and  ultimately  allowed  that  the 
French  clergy  might  assist  their  sovereign  by  voluntary  con- 
tributions, though  not  by  way  of  tax. 

For  a  very  few  years  after  these  circumstances  the  pope 
and  King  of  France  appeared  reconciled  to  each  other;  and 
the  latter  even  referred  his  disputes  with  Edward  I.  to  the 
arbitration  of  Boniface,  "as  a  private  person,  Benedict  of 
Gaeta  (his  proper  name),  and  not  as  pontiff ; "  an  almost  nu- 
gatory precaution  against  his  encroachment  upon  temporal 
authority .0  But  a  terrible  storm  broke  out  in  the  first  year 
of  the  fourteenth  century.  A  bishop  of  Pamiers,  who  had 

o  Walt.     Hemingford,    p.     150.     The  mere  falsehoods  from  Mezeray  and  Bail- 

award  of  Boniface,  which  he  expresses  let,  while  he  refers  to  the  instrument  it- 

himself  to  make  both  as  pope  and  Bene-  self  in  Rymer,  which  disproves  them, 

diet  of  Gaeta,  is  published  in  Rymer,  Hist,  de  France,  t.  vii.  p.  139.    M.  Gail- 

t    11.    p.    819,   and   is   very    equitable  lard,  one  of  the  most  candid  critics  in 

Nevertheless,    the    French    historians  history    that    France    ever    produced, 

agreed   to    charge  him   with   partiality  pointed  out  the  error  of  her  common 

towards  Edward,  and  mention  several  historians  in  the  Mem    de  I'Academie 

proofs  of  it,  which  do  not  apoear  in  the  des  Inscriptions,  t.  xxxix.  p.  642;    and 

bull  itself.    Previous  to  its  publication  the    editors    of    I/ Art    de   verifier    les 

it  was  allowable  enough  to  follow  com-  Dates  have  also  rectified  it. 
mon    fame,     but    Velly    has    repeated 


THE  MIDDLE  AGES  I5S 

been  sent  as  legate  from  Boniface  with  some  complaint,  dis- 
played so  much  insolence  and  such  disrespect  towards  the 
king,  that  Philip,  considering  him  as  his  own  subject,  was 
provoked  to  put  him  under  arrest,  with  a  view  to  institute  a 
criminal  process.  Boniface,  incensed  beyond  measure  at  this 
violation  of  ecclesiastical  and  legatine  privileges,  published 
several  bulls  addressed  to  the  king  and  clergy  of  France, 
charging  the  former  with  a  variety  of  offences,  some  of  them 
not  at  all  concerning  the  church,  and  commanding  the  latter 
to  attend  a  council  which  he  had  summoned  to  meet  at  Rome. 
In  one  of  these  instruments,  the  genuineness  of  which  does 
not  seem  liable  to  much  exception,  he  declares  in  concise  and 
clear  terms  that  the  king  was  subject  to  him  in  temporal  as 
well  as  spiritual  matters.  This  proposition  had  not  hitherto 
been  explicitly  advanced,  and  it  was  now  too  late  to  advance  it. 
Philip  replied  by  a  short  letter  in  the  rudest  language,  and 
ordered  his  bulls  to  be  publicly  burned  at  Paris.  Determined, 
however,  to  show  the  real  strength  of  his  opposition,  he  sum- 
moned representatives  from  the  three  orders  of  his  kingdom. 
This  is  commonly  reckoned  the  first  assembly  of  the  States 
General.  The  nobility  and  commons  disclaimed  with  firmness 
the  temporal  authority  of  the  pope,  and  conveyed  their  senti- 
ments to  Rome  through  letters  addressed  to  the  college  of 
cardinals.  The  clergy  endeavored  to  steer  a  middle  course,  and 
were  reluctant  to  enter  into  an  engagement  not  to  obey  the 
pope's  summons ;  yet  they  did  not  hesitate  unequivocally  to 
deny  his  temporal  jurisdiction. 

The  council,  however,  opened  at  Rome ;  and  notwithstand- 
ing the  king's  absolute  prohibition,  many  French  prelates  held 
themselves  bound  to  be  present.  In  this  assembly  Boniface 
promulgated  his  famous  constitution,  denominated  Unam  sanc- 
tam.  The  church  is  one  body,  he  therein  declares,  and  has  one 
head.  Under  its  command  are  two  swords,  the  one  spiritual, 
and  the  other  temporal ;  that  to  be  used  by  the  supreme  pontiff 
himself ;  this  by  kings  and  knights,  by  his  license  and  at  his 
will.  But  the  lesser  sword  must  be  subject  to  the  greater,  and 
the  temporal  to  the  spiritual  authority.  He  concludes  by  de- 
claring the  subjection  of  every  human  being  to  the  see  of  Rome 
tp  be  an  article  of  necessary  faith.?  Another  bull  pronounces 

p  Uterque  est  in  potestate  ecclesis  ecclesia  exercendus;  Hie  sacerdotis,  is 
spmtalis  scilicet  gladms  et  materialis  manu  regum  ac  imlrttnn,  sed  ad  nutatn 
Sed  is  quidem  pro  ecclesia,  ille  vero  ab  et  patientiam  sacerdotis.  Oportet  au- 


156  HALLAM 

all  persons  of  whatever  rank  obliged  to  appear  when  personally 
cited  before  the  audience  or  apostolical  tribunal  at  Rome; 
"  since  such  is  our  pleasure,  who,  by  divine  permission,  rule 
the  world."  Finally,  as  the  rupture  with  Philip  grew  more 
evidently  irreconcilable,  and  the  measures  pursued  by  that  mon- 
arch more  hostile,  he  not  only  excommunicated  him,  but  of- 
fered the  crown  of  France  to  the  Emperor  Albert  I.  This 
arbitrary  transference  of  kingdoms  was,  like  many  other  pre- 
tensions of  that  age,  an  improvement  upon  the  right  of  depos- 
ing excommunicated  sovereigns.  Gregory  VII.  would  not 
have  denied  that  a  nation,  released  by  his  authority  from  its 
allegiance,  must  re-enter  upon  its  original  right  of  electing  a 
new  sovereign.  But  Martin  IV.  had  assigned  the  crown  of 
Aragon  to  Charles  of  Valois ;  the  first  instance,  I  think,  of  such 
a  usurpation  of  power,  but  which  was  defended  by  the  homage 
of  Peter  II.,  who  had  rendered  his  kingdom  feudally  depend- 
ent, like  Naples,  upon  the  Holy  See.g  Albert  felt  no  eagerness 
to  realize  the  liberal  promises  of  Boniface ;  who  was  on  the 
point  of  issuing  a  bull  absolving  the  subjects  of  Philip  from 
their  allegiance,  and  declaring  his  forfeiture,  when  a  very  un- 
expected circumstance  interrupted  all  his  projects. 

It  is  not  surprising,  when  we  consider  how  unaccustomed 
men  were  in  those  ages  to  disentangle  the  artful  sophisms,  and 
detect  the  falsehoods  in  point  of  fact,  whereon  the  papal  suprem- 
acy had  been  established,  that  the  King  of  France  should  not 
have  altogether  pursued  the  course  most  becoming  his  dignity 
and  the  goodness  of  his  cause.  He  gave  too  much  the  air  of 
a  personal  quarrel  with  Boniface  to  what  should  have  been  a 
resolute  opposition  to  the  despotism  of  Rome,  Accordingly, 
in  an  assembly  of  his  states  at  Paris,  he  preferred  virulent 
charges  against  the  pope,  denying  him  to  have  been  legiti- 
mately elected,  imputing  to  him  various  heresies,  and  ulti- 

tem  gladium  esse  sub  gladio,  et  t«n-  this  was  founded  on  the  request  of  the 

poralem    auctoritatem    spintali    subjici  Portugese     nobility    themselves,     who 

potestati.    Porro  subesse  Romano  pon-  were  dissatisfied  with  Sancho's  adminis- 

tifici   omni  humans  creaturae  declara-  tration.     Sext.   Decretal    1    i.  tit.  viii. 

mus,  dicimus,  defimmus  et  pronuncia-  c   2.    Art  de  verifier  les  Dates,  t.  i.  p* 

mus  omnino  esse  de  necessitate  fidei,  778. 

Extravagant.  1.  i  tit.  vih.  c.  i.  Boniface  invested  James  II.  of  Ara- 
q  Innocent  IV.  had,  however,  in  1245,  gon  with  the  crown  of  Sardinia,  over 
appointed  one  Bolon,  brother  to  Sancho  which,  however,  the  see  of  Rome  had 
I L,  King  of  Portugal,  to  be  a  sort  of  always  pretended  to  a  superiority  by 
coadjutor  in  the  government  of  that  virtue  of  the  concession  (probably  spun- 
kingdom,  enjoining  the  barons  to  ho»or  ous)  of  Louis  the  Debonair.  He 
him  as  their  sovereign,  at  the  same  time  promised  Frederic  King  of  Sicily  the 
declaring  that  he  did  not  intend  to  de-  empire  of  Constantinople,  which,  I  «UD- 
prive  the  king  or  his  lawful  issue,  if  he  pose,  was  not  a  fief  of  the  Holy  See, 
^hould  have  any,  of  the  kingdom.  But  Giannone,  J.  xxi.  c.  3. 


THE  MIDDLE  AGES  157 

mately  appealing  to  a  general  council  and  a  lawful  head  of  the 
church.  These  measures  were  not  very  happily  planned ;  and 
experience  had  always  shown  that  Europe  would  not  submit 
to  change  the  common  chief  of  her  religion  for  the  purposes 
of  a  single  sovereign.  But  Philip  succeeded  in  an  attempt  ap- 
parently more  bold  and  singular.  Nogaret,  a  minister  who 
had  taken  an  active  share  in  all  the  proceedings  against  Boni- 
face, was  secretly  despatched  into  Italy,  and,  joining  with  some 
of  the  Colonna  family,  proscribed  as  Ghibelins,  and  rancorously 
persecuted  by  the  pope,  arrested  him  at  Anagnia,  a  town  in 
the  neighborhood  of  Rome,  to  which  he  had  gone  without 
guards.  This  violent  action  was  not,  one  would  imagine,  cal- 
culated to  place  the  king  in  an  advantageous  light ;  yet  it  led 
accidentally  to  a  favorable  termination  of  his  dispute.  Boni- 
face was  soon  rescued  by  the  inhabitants  of  Anagnia ;  but  rage 
brought  on  a  fever  which  ended  in  his  death ;  and  the  first  act 
of  his  successor,  Benedict  XL,  was  to  reconcile  the  King  of 
France  to  the  Holy  See.** 

The  sensible  decline  of  the  papacy  is  to  be  dated  from  the 
pontificate  of  Boniface  VIIL,  who  had  strained  its  authority 
to  a  higher  pitch  than  any  of  his  predecessors.  There  is  a 
spell  wrought  by  uninterrupted  good  fortune,  which  captivates 
men's  understanding,  and  persuades  them,  against  reasoning 
and  analogy,  that  violent  power  is  immortal  and  irresistible. 
The  spell  is  broken  by  the  first  change  of  success.  We  have 
seen  the  working  and  the  dissipation  of  this  charm  with  a 
rapidity  to  which  the  events  of  former  times  bear  as  remote 
a  relation  as  the  gradual  processes  of  nature  to  her  deluges 
and  her  volcanoes.  In  tracing  the  papal  empire  over  man- 
kind we  have  no  such  marked  and  definite  crisis  of  revolution. 
But  slowly,  like  the  retreat  of  waters,  or  the  stealthy  pace  of 
old  age,  that  extraordinary  power  over  human  opinion  has 
been  subsiding  for  five  centuries.  I  have  already  observed 
that  the  symptoms  of  internal  decay  may  be  traced  further 
back.  But  as  the  retrocession  of  the  Roman  terminus  under 
Adrian  gave  the  first  overt  proof  of  decline  in  the  ambitious 
energies  of  that  empire,  so  the  tacit  submission  of  the  suc- 
cessors of  Boniface  VIIL  to  the  King  of  France  might  have 
been  hailed  by  Europe  as  a  token  that  their  influence  was  be- 

r  Velly,  Hist  de  France,  t  vii.  pp.  109-258;    Crevier,  Hist,  de  l'Uaiversit£  de 
Paris,  t.  ii.  p.  170,  &c. 


158  HALLAM 

ginning  to  abate.  Imprisoned,  insulted,  deprived  eventually 
of  life  by  the  violence  of  Philip,  a  prince  excommunicated, 
and  who  had  gone  all  lengths  in  defying  and  despising  the 
papal  jurisdiction,  Boniface  had  every  claim  to  be  avenged 
by  the  inheritors  of  the  same  spiritual  dominion.  When  Bene- 
dict XL  rescinded  the  bulls  of  his  predecessor,  and  admitted 
Philip  the  Fair  to  communion,  without  insisting  on  any  con- 
cessions, he  acted  perhaps  prudently,  but  gave  a  fatal  blow  to 
the  temporal  authority  of  Rome. 

Benedict  XL  lived  but  a  few  months,  and  his  successor 
Clement  V.,  at  the  instigation,  as  is  commonly  supposed,  of 
the  King  of  France,  by  whose  influence  he  had  been  elected, 
took  the  extraordinary  step  of  removing  the  papal  chair  to 
Avignon.  [A.D.  1305.]  In  this  city  it  remained  for  more  than 
seventy  years ;  a  period  which  Petrarch  and  other  writers  of 
Italy  compare  to  that  of  the  Babylonish  captivity.  The  ma- 
jority of  the  cardinals  was  always  French,  and  the  popes  were 
uniformly  of  the  same  nation.  Timidly  dependent  upon  the 
court  of  France,  they  neglected  the  interests  and  lost  the  af- 
fections of  Italy.  Rome,  forsaken  by  her  sovereign,  nearly 
forgot  her  allegiance ;  what  remained  of  papal  authority  in  the 
ecclesiastical  territories  was  exercised  by  cardinal  legates,  little 
to  the  honor  or  advantage  of  the  Holy  See.  Yet  the  series  of 
Avignon  pontiffs  were  far  from  insensible  to  Italian  politics. 
These  occupied,  on  the  contrary,  the  greater  part  of  their  at- 
tention. But  engaging  in  them  from  motives  too  manifestly 
selfish,  and  being  regarded  as  a  sort  of  foreigners  from  birth 
and  residence,  they  aggravated  that  unpopularity  and  bad  rep- 
utation which  from  various  other  causes  attached  itself  to  their 
court. 

Though  none  of  the  supreme  pontiffs  after  Boniface  VIIL 
ventured  upon  such  explicit  assumptions  of  a  general  jurisdic- 
tion over  sovereigns  by  divine  right  as  he  had  made  in  his  con- 
troversy with  Philip,  they  maintained  one  memorable  struggle 
for  temporal  power  against  the  Emperor  Louis  of  Bavaria. 
Maxims  long  boldly  repeated  without  contradiction,  and  en- 
grafted upon  the  canon  law,  passed  almost  for  articles  of  faith 
among  the  clergy  and  those  who  trusted  in  them ;  and  in  de- 
spite of  all  ancient  authorities,  Clement  V.  laid  it  down  that 
the  popes,  having  transferred  the  Roman  empire  from  the 
Greeks  to  the  Germans,  and  delegated  the  right  of  nominating 


THE  MIDDLE  AGES  isg 

an  emperor  to  certain  electors,  still  reserved  the  prerogative  of 
approving  the  choice,  and  of  receiving  from  its  subject  upon 
his  coronation  an  oath  of  fealty  and  obediences  This  had  a 
regard  to  Henry  VII.,  who  denied  that  his  oath  bore  any  such 
interpretation,  and  whose  measures,  much  to  the  alarm  of  the 
court  of  Avignon,  were  directed  towards  the  restoration  of  his 
imperial  rights  in  Italy.  Among  other  things,  he  conferred 
the  rank  of  vicar  of  the  empire  upon  Matteo  Visconti,  lord  of 
Milan.  The  popes  had  for  some  time  pretended  to  possess  that 
vicariate,  during  a  vacancy  of  the  empire ;  and  after  Henry's 
death  insisted  upon  Visconti's  surrender  of  the  title.  Several 
circumstances,  for  which  I  refer  to  the  political  historians  of 
Italy,  produced  a  war  between  the  pope's  legate  and  the  Vis- 
conti family.  The  Emperor  Louis  sent  assistance  to  the  latter, 
as  heads  of  the  Ghibelin  or  imperial  party.  This  interference 
cost  him  above  twenty  years  of  trouble.  John  XXIL,  a  man 
as  passionate  and  ambitious  as  Boniface  himself,  immediately 
published  a  bull  in  which  he  asserted  the  right  of  administering 
the  empire  during  its  vacancy  (even  in  Germany,  as  it  seems 
from  the  generality  of  his  expression),  as  well  as  of  deciding 
in  a  doubtful  choice  of  the  electors,  to  appertain  to  the  Holy 
See;  and  commanded  Louis  to  lay  down  his  pretended  au- 
thority until  the  supreme  jurisdiction  should  determine  upon 
his  election.  Louis's  election  had  indeed  been  questionable; 
but  that  controversy  was  already  settled  in  the  field  of  Muhl- 
dorf,  where  he  had  obtained  a  victory  over  his  competitor  the 
Duke  of  Austria ;  nor  had  the  pope  ever  interfered  to  appease 
a  civil  war  during  several  years  that  Germany  had  been  in- 
ternally distracted  by  the  dispute.  The  emperor,  not  yielding 
to  this  peremptory  order,  was  excommunicated;  his  vassals 
were  absolved  from  their  oath  of  fealty,  and  all  treaties  of  alli- 
ance between  him  and  foreign  princes  annulled.  [A.D.  1323.] 
Germany,  however,  remained  firm ;  and  if  Louis  himself  had 
manifested  more  decision  of  mind  and  uniformity  in  his  con- 
duct, the  court  of  Avignon  must  have  signally  failed  in  a  con- 
test from  which  it  did  not  in  fact  come  out  very  successful. 

sRomani  principes,  &c !Ro-  eorum  principes  jus  et  potestas  eligen- 

mano  pontifici,   a   quo   approbationem  di  regem,  m  imperatorem  postmodum 

personse  ad  imperialis  celsitudinis  api-  promovendtim,     pertmet,     adstringere 

cem    assumendse,    necnon    -unctionem,  vinculo  juramenti,  &c.    Clement  L  n.  t. 

consecrationem  et  impeni  coronam  ac-  ix.    The  terms  of  the  oath,  as  recited 

cipiunt,  sua  submittere  capita  non  re-  in  this  constitution,  do  not  warrant  the 

putarunt  mdignum,  seque  illi  et  eidem  pope's   interpretation,   but  imply  only 

ecclesiae,  quae  a  Grsecis  imperium  trans-  that  the  emperor  shall  be  the  advocate 

tulit  in  Germanos,  et  a  qua  ad  certos  or  defender  of  the  church. 


160  HALL  AM 

But  while  at  one  time  he  went  intemperate  lengths  against 
John  XXII.,  publishing  scandalous  accusations  in  an  assem- 
bly of  the  citizens  of  Rome,  and  causing  a  Franciscan  friar 
to  be  chosen  in  his  room,  after  an  irregular  sentence  of  dep- 
osition, he  was  always  anxious  to  negotiate  terms  of  accom- 
modation, to  give  up  his  own  active  partisans,  and  to  make 
concessions  the  most  derogatory  to  his  independence  and  dig- 
nity. From  John  indeed  he  had  nothing  to  expect  ;  but  Bene- 
dict XII.  would  gladly  have  been  reconciled,  if  he  had  not  feared 
the  kings  of  France  and  Naples,  political  adversaries  of  the 
emperor,  who  kept  the  Avignon  popes  in  a  sort  of  servitude. 
His  successor,  Clement  VI.,  inherited  the  implacable  animosity 
of  John  XXII.  towards  Louis,  who  died  without  obtaining  the 
absolution  he  had  long  abjectly  solicited.* 

Though  the  want  of  firmness  in  this  emperor's  character 
gave  sometimes  a  momentary  triumph  to  the  popes,  it  is  evi- 
dent that  their  authority  lost  ground  during  the  continuance 
of  this  struggle.  Their  right  of  confirming  imperial  elections 
was  expressly  denied  by  a  diet  held  at  Frankfort  in  1338,  which 
established  as  a  fundamental  principle  that  the  imperial  dignity 
depended  upon  God  alone,  and  that  whoever  should  be  chosen 
by  a  majority  of  the  electors  became  immediately  both  king  and 
emperor,  with  all  prerogatives  of  that  station,  and  did  not  re- 
quire the  approbation  of  the  pope.w  This  law,  confirmed  as 
it  was  by  subsequent  usage,  emancipated  the  German  empire, 
which  was  immediately  concerned  in  opposing  the  papal  claims. 
But  some  who  were  actively  engaged  in  these  transactions  took 
more  extensive  views,  and  assailed  the  whole  edifice  of  tem- 
poral power  which  the  Roman  see  had  been  constructing  for 
more  than  two  centuries.  Several  men  of  learning,  among 
whom  Dante,  Ockham,  and  Marsilius  of  Padua  are  the  most 
conspicuous,  investigated  the  foundations  of  this  superstruct- 
ure, and  exposed  their  insufficiency.^  Literature,  too  long  the 


t  Schmidt,  Hist,  des  Allemands,  t.  iv.  bet  ab  omnibus  Imperie  subjectis  obe- 

SPArJhf1?36'*S5CmB  I  H  vest  mode1fn  a«-  diri»  et  admimstrandi  jura  imperil,  et 

thonty  for  this  contest  between  .the  em-  csetera   faciendi,    quze   ad   imperatorem 

&™  aTTdc  P??acy-    See   also    Struvius,  verum  pertinent,  plenariam  nabet  po 

Corp.  Hist.  German,  p.  591.  testatem,  nee  papae  sive  sedis  apostoli- 

-JtPS0ilmpen?hSTvdlgmtas  <*  P°te-stas  u*  ant  alicujus  alterius  approbatfone, 

3T,S£2E  ?  solotD,P)'  et  <iu6d  de  iwc  confirmation     auctoritate    mdiget    vei 

™«l  ?-        consuetudme  antiquittts  ap-  censensu.    Schmidt,  p.  513. 

probata    postquam   aliquis   eligitur   fn  *  Giannone,  1.  aonLc.fi    Schmidt  t 

iSSS?°S5i.Siy*  regen\  ab  e.Iec.toribus  *•  P-  15*    Dante  was  dead  before  these 

T*1"'   TCr  T10-1   parte  cvents>    but    hls    Principles    were    the 

?  m  CX  S°  a  ^ectlone  est  same.    Ockham    had    already    exerted 

*et    in^Perator    Romanorum  his  talents  in  the  same  cause  by  writing 

t  noxmnandus   et  eidem  de- 


«  *  oanorum          s  aents  n  te  same  cause  by  writing 

censendus  et  noxmnandus,  et  eidem  de-       in  behalf  of  Philip  IV.,  against  Bom 


THE  MIDDLE  AGES  161 

passive  handmaid  of  spiritual  despotism,  began  to  assert  her 
nobler  birthright  of  ministering  to  liberty  and  truth.  Though 
the  writings  of  these  opponents  of  Rome  are  not  always  rea- 
soned upon  very  solid  principles,  they  at  least  taught  mankind 
to  scrutinize  what  had  been  received  with  implicit  respect,  and 
prepared  the  way  for  more  philosophical  discussions.  About 
this  time  a  new  class  of  enemies  had  unexpectedly  risen  up 
against  the  rulers  of  the  church.  These  were  a  part  of  the 
Franciscan  order,  who  had  seceded  from  the  main  body  on 
account  of  alleged  deviations  from  the  rigor  of  their  primitive 
rule.  Their  schism  was  chiefly  founded  upon  a  quibble  about 
the  right  of  property  in  things  consumable,  which  they  main- 
tained to  be  incompatible  with  the  absolute  poverty  prescribed 
to  them.  This  frivolous  sophistry  was  united  with  the  wildest 
fanaticism ;  and  as  John  XXII.  attempted  to  repress  their  fol- 
lies by  a  cruel  persecution,  they  proclaimed  aloud  the  corrup- 
tion of  the  church,  fixed  the  name  of  Antichrist  upon  the  pa- 
pacy, and  warmly  supported  the  Emperor  Louis  throughout  all 
his  contention  with  the  Holy  See.w 

Meanwhile  the  popes  who  sat  at  Avignon  continued  to  in- 
vade with  surprising  rapaciousness  the  patronage  and  revenues 
of  the  church.  The  mandats  or  letters  directing  a  particular 
clerk  to  be  preferred  seem  to  have  given  place  in  a  great  degree 
to  the  more  effectual  method  of  appropriating  benefices  by 
reservation  or  provision,  which  was  carried  to  an  enormous 
extent  in  the  fourteenth  century.  John  XXII.,  the  most  in- 
satiate of  pontiffs,  reserved  to  himself  all  the  bishoprics  in 
Christendom.-^  Benedict  XIL  assumed  the  privilege  for  his 
own  life  of  disposing  of  all  benefices  vacant  by  cession,  depri- 
vation, or  translation.  Clement  VI.  naturally  thought  that  his 
title  was  equally  good  with  his  predecessor's,  and  continued  the 
same  right  for  his  own  time ;  which  soon  became  a  permanent 
rule  of  the  Roman  chancery .y  Hence  the  appointment  of  a 

face,  a  dialogue  between  a  knight  and  temporal  authority  of  the  papacy,  and 

a  clerk  on  the  temporal  supremacy  of  to  pave  the  way  for  the  Reformation, 

the  church.    This  is  published  among  It  is  fully  treated  by.  Mosheim,  cent.  13 

other  tracts  of  the  same  class  in  Goldas-  and  id,  and  by  Creyier,  Hist,  de  1'Uni- 

tus,    Monarchia    Imperil,    p.    13.    This  versite  de  Pans,  t  ».  pp.  233-264,  &c. 

dialogue    is    translated   entire    in   the  #FUunr,  Institutions,   &c.,  t  *.  p, 

Songe  du  Vergier,   a  more  celebrated  363;  F.  Paul  on  Benefices,  e,  37. 

performance,    ascribed    to    Jtaoul    de  y  Ibid ,  c.   38,     Translations  of  bish- 

JPresles  tinder  Charles  V.  ops    have   been  made   by  the  author- 

W  The  schism  of  the  rigid  Franciscans  ity  of  the  metropolitan  till  Innocent 

or  Fratricelli  is  one  of  the  most  singular  III.  reserved  this  prerogative  to  the 

parts  of  ecclesiastical  history,  and  had  a  Holy  See.    De  Marcss,  L  vk  c.  8. 
material  tendency  both,  to  depress  the 

VOL.  II.— II 


i6*  HALLAM 

prelate  to  a  rich  bishopric  was  generally  but  the  first  link  in 
a  chain  of  translation  which  the  pope  could  regulate  according 
to  his  interest.  Another  capital  innovation  was  made  by  John 
XXII.  in  the  establishment  of  the  famous  tax  called  annates, 
or  first  fruits  of  ecclesiastical  benefices,  which  he  imposed  for 
his  own  benefit.  These  were  one  year's  value,  estimated  ac- 
cording to  a  fixed  rate  in  the  books  of  the  Roman  chancery, 
and  payable  to  the  papal  collectors  throughout  Europe.^  Vari- 
ous other  devices  were  invented  to  obtain  money,  which  these 
degenerate  popes,  abandoning  the  magnificent  schemes  of  their 
predecessors,  were  content  to  seek  as  their  principal  object. 
John  XXIL  is  said  to  have  accumulated  an  almost  incredible 
treasure,  exaggerated  perhaps  by  the  ill-will  of  his  contempo- 
raries ;  a  but  it  may  be  doubted  whether  even  his  avarice  re- 
flected greater  dishonor  on  the  church  than  the  licentious  pro- 
fuseness  of  Clement  VI.& 

These  exactions  were  too  much  encouraged  by  the  kings 
of  France,  who  participated  in  the  plunder,  or  at  least  re- 
quired the  mutual  assistance  of  the  popes  for  their  own  im- 
posts on  the  clergy.  John  XXIL  obtained  leave  of  Charles 
the  Fair  to  levy  a  tenth  of  ecclesiastical  revenues ;  c  and  Clem- 
ent VL,  in  return,  granted  two-tenths  to  Philip  of  Valois  for 
the  expenses  of  his  war.  A  similar  tax  was  raised  by  the  same 
authority  towards  the  ransom  of  John.d  These  were  contribu- 
tions for  national  purposes  unconnected  with  religion,  which 
the  popes  had  never  before  pretended  to  impose,  and  which 
the  king  might  properly  have  levied  with  the  consent  of  his 
clergy,  according  to  the  practice  of  England.  But  that  consent 
might  not  always  be  obtained  with  ease,  and  it  seemed  a  more 
expeditious  method  to  call  in  the  authority  of  the  pope.  A 
manlier  spirit  was  displayed  by  our  ancestors.  It  was  the  boast 

s'F.  Paul,  c.  38;    Fleury,  p.  424;    De  enough  to  listen  to  any  report  against 

Marca,  1.  vi,  c.  10;    Pasquier,  I   Hi.  c.  the  popes  of  Avignon.    1.  xi  c.  20.  Gian- 

28     The  popes  had  long  been  in  the  none,  1.  xxii.  c.  8. 

habit  of  receiving  a  pecuniary  gratuity  b  For    the    corruption  of    morals    at 

when  they  granted  toe  pallium  to  an  Avignon  during  the  secession,  see  De 

archbishop,  though  this  was  reprehend-  Sade,  Vie  de  Petrarque,  t.  i.  p.  70,  and 

ed  by  strict  men,  and  even  condemned  several  other  passages, 

by  themselves     De  Marca,  Ibid.    It  is  c  Contmuator    Gul.    de    Nangis,    in 

noticed  as  a  remarkable  thing  of  Inno-  Spicilegio  d'Achery,  t.  iii.  p.  86  (folio 

cent  IV.   that  he   gave  the  pall   to  a  edition).     Ita  miseram  ecclesiam,  says 

German  archbishop  without  accepting  this  monk,  unus  tondet,  alter  excoriat. 

anything     Schmidt,  t.  iv.  p.  172.    The  d  Fleury,  Institut    au  Droit  Ecclesi- 

onginal  and   nature  of  annates  is  co-  astique,  t.  n.  p.  245.    Villaret,  t.  ix    p 

piously  treated  in  Lenfant,  Concile  de  431.    It  became  a  regular  practice  for 

Constance,  t  ii.  p.  133.  the  king  to  obtain  the  pope's  consent 

a  G.  Villani  puts  this  at  25,000,000  of  to  lay;  a  tax  on  his  clergy,  tfiough  he 

florins,  which  it  is  hardly  possible  to  be-  sometimes  applied  first  to  themselves. 

Keve.      The    Italians    were    credulous  Gamier,  t.  xx,  p.  141. 


THE  MIDDLE  AGES  163 

of  England  to  have  placed  the  first  legal  barrier  to  the  usurpa- 
tions of  Rome,  if  we  except  the  insulated  Pragmatic  Sanction 
of  St.  Louis,  from  which  the  practice  of  succeeding  ages  in 
France  entirely  deviated.  The  English  barons  had,  in  a  letter 
addressed  to  Boniface  VIIL,  absolutely  disclaimed  his  temporal 
supremacy  over  their  crown,  which  he  had  attempted  to  set  up 
by  intermeddling  in  the  quarrel  of  Scotland.^  This  letter,  it 
is  remarkable,  is  nearly  coincident  in  point  of  time  with  that 
of  the  French  nobility ;  and  the  two  combined  may  be  consid- 
ered as  a  joint  protestation  of  both  kingdoms,  and  a  testimony 
to  the  general  sentiment  among  the  superior  ranks  of  the  laity. 
A  very  few  years  afterwards,  the  parliament  of  Carlisle  wrote 
a  strong  remonstrance  to  Clement  V.  against  the  system  of 
provisions  and  other  extortions,  including  that  of  first  fruits, 
which  it  was  rumored,  they  say,  he  was  meditating  to  demand.^ 
But  the  court  of  Avignon  was  not  to  be  moved  by  remon- 
strances ;  and  the  feeble  administration  of  Edward  II.  gave  way 
to  ecclesiastical  usurpations  at  home  as  well  as  abroad.^  His 
magnanimous  son  took  a  bolder  line.  After  complaining  inef- 
fectually to  Clement  VI.  of  the  enormous  abuse  which  reserved 
almost  all  English  benefices  to  the  pope,  and  generally  for  the 
benefit  of  aliens,*  he  passed  in  1350  the  famous  statute  of  pro- 
visors.  This  act,  reciting  one  supposed  to  have  been  made  at 
the  parliament  of  Carlisle,  which,  however,  does  not  appear,*" 
and  complaining  in  strong  language  of  the  mischief  sustained 
through  continual  reservations  of  benefices,  enacts  that  all  elec- 
tions and  collations  shall  be  free,  according  to  law,  and  that, 
in  case  any  provision  or  reservation  should  be  made  by  the 
court  of  Rome,  the  king  should  for  that  turn  have  the  collation 
of  such  a  benefice,  if  it  be  of  ecclesiastical  election  or  patronage ; 

eRymer,  t.  ii.  p.  373     Collier,  vol.  i.  is  founded  upon  the  statute  35  E.  I., 

p  725.  De  asportatis  religiosorum  (2  Inst  580) ; 

/  Rotuli    Parliament,    vol     i.    p.    204.  whereas  there  is  not  the  least  resem- 

This  passage,  hastily  read,  has  led  Col-  blance  in  the  words,  and  very  little,  if 

lier  and  other  English  writers,  such  as  any,  in  the  substance    BlacKstone,  in 

Henry  and  Blackstone,  into  the  suppo-  consequence,  mistakes  the  nature  of  that 

sition   that   annates   were   imposed   by  act  of  Edward  I.,  and  supposes  it  to 

Clement  V.    But  the  concurrent  testi-  have  been  made   against  papal   provi- 

mony  of  foreign  authors  refers  this  tax  sions,  to  which  I  do  not  perceive  even 

to  John  XXII.,  as  the  canon  law  also  an  allusion.    Whether  any  such  statute 

shows.    Extravagant    Communes,  1.  in.  was  really  made  in  the  Carlisle  parha- 

tit.  ii.  c.  u.  ment  of  35  E.  L,  as  is  asserted  both  m 

gThe  statute  called  Articuli  cleri,  in  25  E.  III.  and  in  the  roll  of  another 

1316,  was  directed  rather  towards  con-  parliament,  17  E   III.  (Rot  Parl  t.  ii, 

firming  than  limiting  the   clerical  im-  p.  144),  is  hard  to  decide;  and  perhaps 

nranity  in  criminal  cases.  those  who  examine  this  point  will  have 

ft  Collier,  p.  546.  to  choose  between  wilful  suppression 

ilt    is    singular    that    Sir    E     Coke  and  wilful  interpolation* 
should  assert  that  this  act  recites  and          ;  25  E.  III.  stat.  6. 


164  HALLAM 

This  devolution  to  the  crown,  which  seems  a  little  arbitrary, 
was  the  only  remedy  that  could  be  effectual  against  the  con- 
nivance and  timidity  of  chapters  and  spiritual  patrons.  We 
cannot  assert  that  a  statute  so  nobly  planned  was  executed 
with  equal  steadiness.  Sometimes  by  royal  dispensation,  some- 
times by  neglect  or  evasion,  the  papal  bulls  of  provision  were 
still  obeyed,  though  fresh  laws  were  enacted  to  the  same  effect 
as  the  former.  It  was  found  on  examination  in  1367  that  some 
clerks  enjoyed  more  than  twenty  benefices  by  the  pope's  dispen- 
sation.^ And  the  parliaments  both  of  this  and  of  Richard  II.'s 
reign  invariably  complain  of  the  disregard  shown  to  the  stat- 
utes of  provisors.  This  led  to  other  measures,  which  I  shall 
presently  mention. 

The  residence  of  the  popes  at  Avignon  gave  very  general 
offence  to  Europe,  and  they  could  not  themselves  avoid  per- 
ceiving the  disadvantage  of  absence  from  their  proper  diocese, 
the  city  of  St.  Peter,  the  source  of  all  their  claims  to  sovereign 
authority.  But  Rome,  so  long  abandoned,  offered  but  an  in- 
hospitable reception :  Urban  V.  returned  to  Avignon,  after  a 
short  experiment  of  the  capital ;  and  it  was  not  till  1376  that  the 
promise,  often  repeated  and  long  delayed,  of  restoring  the 
papal  chair  to  the  metropolis  of  Christendom,  was  ultimately 
fulfilled  by  Gregory  XL  His  death,  which  happened  soon  af- 
terwards, prevented,  it  is  said,  a  second  flight  that  he  was  pre- 
paring. This  was  followed  by  the  great  schism,  one  of  the  most 
remarkable  events  in  ecclesiastical  history.  [A.D.  1377.]  I*  *s 
a  difficult  and  by  no  means  an  interesting  question  to  deter- 
mine the  validity  of  that  contested  election  which  distracted 
the  Latin  church  for  so  many  years.  All  contemporary  testi- 
monies are  subject  to  the  suspicion  of  partiality  in  a  cause 
where  no  one  was  permitted  to  be  neutral.  In  one  fact,  how- 
ever, there  is  a  common  agreement,  that  the  cardinals,  of  whom 
the  majority  were  French,  having  assembled  in  conclave,  for 
the  election  of  a  successor  to  Gregory  XL,  were  disturbed  by 
a  tumultuous  populace,  who  demanded  with  menaces  a  Roman, 
or  at  least  an  Italian,  pope.  This  tumult  appears  to  have  been 
sufficiently  violent  to  excuse,  and  in  fact  did  produce,  a  consid- 
erable degree  of  intimidation.  After  some  time  the  cardinals 
made  choice  of  the  archbishop  of  Bari,  a  Neapolitan,  who  as- 
sumed the  name  of  Urban  VI.  His  election  satisfied  the  popu- 

k  Collier,  p.  568. 


THE   MIDDLE  AGES  r65 

lace,  and  tranquillity  was  restored.  The  cardinals  announced 
their  choice  to  the  absent  members  of  their  college,  and  be- 
haved towards  Urban  as  their  pope  for  several  weeks.  But  his 
uncommon  harshness  of  temper  giving  them  offence,  they 
withdrew  to  a  neighboring  town,  and,  protesting  that  his  elec- 
tion had  been  compelled  by  the  violence  of  the  Roman  popu- 
lace, annulled  the  whole  proceeding,  and  chose  one  of  their 
own  number,  who  took  the  pontifical  name  of  Clement  VII. 
Such  are  the  leading  circumstances  which  produced  the  fa- 
mous schism.  Constraint  is  so  destructive  of  the  essence  of 
election,  that  suffrages  given  through  actual  intimidation 
ought,  I  think,  to  be  held  invalid,  even  without  minutely  in- 
quiring whether  the  degree  of  illegal  force  was  such  as  might 
reasonably  overcome  the  constancy  of  a  firm  mind.  It  is  im- 
probable that  the  free  votes  of  the  cardinals  would  have  been 
bestowed  on  the  Archbishop  of  Bari ;  and  I  should  not  feel 
much  hesitation  in  pronouncing  his  election  to  have  been  void. 
But  the  sacred  college  unquestionably  did  not  use  the  earliest 
opportunity  of  protesting  against  the  violence  they  had  suf- 
fered ;  and  we  may  infer  almost  with  certainty,  that,  if  Urban's 
conduct  had  been  more  acceptable  to  that  body,  the  world 
would  have  heard  little  of  the  transient  riot  at  his  election. 
This,  however,  opens  a  delicate  question  in  jurisprudence; 
namely,  under  what  circumstances  acts,  not  only  irregular,  but 
substantially  invalid,  are  capable  of  receiving  a  retroactive  con- 
firmation by  the  acquiescence  and  acknowledgment  of  parties 
concerned  to  oppose  them.  And  upon  this,  I  conceive,  the 
great  problem  of  legitimacy  between  Urban  and  Clement  will 
be  found  to  depend.* 

Whatever  posterity  may  have  judged  about  the  pretensions 
of  these  competitors,  they  at  that  time  shared  the  obedience 
of  Europe  in  nearly  equal  proportions.  Urban  remained  at 
Rome ;  Clement  resumed  the  station  of  Avignon.  To  the  for- 
mer adhered  Italy,  the  Empire,  England,  and  the  nations  of 
the  north ;  the  latter  retained  in  his  allegiance  France,  Spain, 
Scotland,  and  Sicily.  Fortunately  for  the  church,  no  question 
of  religious  faith  intermixed  itself  with  this  schism ;  nor  did 

I  Lenfant  has  collected  all  the  original  list,  and  those  of  Avignon  are  not.  The 
testimonies  on  both  sides  m  the  first  modern  Italian  writers  express  doubt 
book  of  his  Concile  de  Pise.  No  posi-  about  the  legitimacy  of  Urban;  the 
tive  decision  has  ever  been  made  on  French  at  most  intimate  that  Clement  s 
this  subject,  but  the  Roman  popes  are  pretensions  were  not  to  be  wholly  re- 
numbered m  the  commonly  received  jected. 


1 66  H  ALLAH 

any  other  impediment  to  reunion  exist  than  the  obstinacy  and 
selfishness  of  the  contending  parties.  As  it  was  impossible  to 
come  to  any  agreement  on  the  original  merits,  there  seemed 
to  be  no  means  of  healing  the  wound  but  by  the  abdication  of 
both  popes  and  a  fresh  undisputed  election.  This  was  the  gen- 
eral wish  of  Europe,  but  urged  with  particular  zeal  by  the  court 
of  France,  and,  above  all,  by  the  university  of  Paris,  which  es- 
teems this  period  the  most  honorable  in  her  annals.  The  car- 
dinals, however,  of  neither  obedience  would  recede  so  far  from 
their  party  as  to  suspend  the  election  of  a  successor  upon  a1 
vacancy  of  the  pontificate,  which  would  have  at  least  removed 
one-half  of  the  obstacle.  The  Roman  conclave  accordingly 
placed  three  pontiffs  successively,  Boniface  IX.,  Innocent  VI., 
and  Gregory  XII.,  in  the  seat  of  Urban  VI. ;  and  the  cardinals 
at  Avignon,  upon  the  death  of  Clement  in  1394,  elected  Bene- 
dict XIII.  (Peter  de  Luna),  famous  for  his  inflexible  obstinacy 
in  prolonging  the  schism.  He  repeatedly  promised  to  sacrifice 
his  dignity  for  the  sake  of  union.  But  there  was  no  subterfuge 
to  which  this  crafty  pontiff  had  not  recourse  in  order  to  avoid 
compliance  with  his  word,  though  importuned,  threatened,  and 
even  besieged  in  his  palace  at  Avignon.  Fatigued  by  his  eva- 
sions, France  withdrew  her  obedience,  and  the  Gallican  church 
continued  for  a  few  years  without  acknowledging  any  supreme 
head.  But  this  step,  which  was  rather  the  measure  of  the 
university  of  Paris  than  of  the  nation,  it  seemed  advisable  to 
retract ;  and  Benedict  was  again  obeyed,  though  France  con- 
tinued to  urge  his  resignation.  A  second  subtraction  of  obedi- 
ence, or  at  least  declaration  of  neutrality,  was  resolved  upon, 
as  preparatory  to  the  convocation  of  a  general  council.  On  the 
other  hand,  those  who  sat  at  Rome  displayed  not  less  insin- 
cerity. Gregory  XII.  bound  himself  by  oath  on  his  accession 
to  abdicate  when  it  should  appear  necessary.  But  while  these 
rivals  were  loading  each  other  with  the  mutual  reproach  of 
schism,  they  drew  on  themselves  the  suspicion  of  at  least  a 
virtual  collusion  in  order  to  retain  their  respective  stations. 
At  length  the  cardinals  of  both  parties,  wearied  with  so  much 
dissimulation,  deserted  their  masters,  and  summoned  a  gen- 
eral council  to  meet  at  Pisa.^ 
The  council  assembled  at  Pisa  deposed  both  Gregory  and 

,   m  Villaret;  Lenfant,  Coatile  de  Pise;  Crevier,  Hist,  de  I'Univsrsite  de  Paris, 

t«     lllr 


THE  MIDDLE  AGES  167 

Benedict,  without  deciding  in  any  respect  as  to  their  preten- 
sions, and  elected  Alexander  V.  by  its  own  supreme  authority. 
[A.D.  1409.]  This  authority,  however,  was  not  universally  rec- 
ognized ;  the  schism,  instead  of  being  healed,  became  more 
desperate ;  for  as  Spain  adhered  firmly  to  Benedict,  and  Greg- 
ory was  not  without  supporters,  there  were  now  three  contend- 
ing pontiffs  in  the  church.  A  general  council  was  still,  however, 
the  favorite  and  indeed  the  sole  remedy ;  and  John  XXIIL,  a 
successor  of  Alexander  V.,  was  reluctantly  prevailed  upon,  or 
perhaps  trepanned,  into  convoking  one  to  meet  at  Constance. 
[A.D.  1414.]  In  this  celebrated  assembly  he  was  himself  de- 
posed ;  a  sentence  which  he  incurred  by  that  tenacious  clinging 
to  his  dignity,  after  repeated  promises  to  abdicate,  which  had 
already  proved  fatal  to  his  competitors.  The  deposition  of  John, 
confessedly  a  legitimate  pope,  may  strike  us  as  an  extraordinary 
measure.  But,  besides  the  opportunity  it  might  afford  of  re- 
storing union,  the  council  found  a  pretext  for  this  sentence  in 
his  enormous  vices,  which  indeed  they  seem  to  have  taken  upon 
common  fame  without  any  judicial  process.  The  true  motive, 
however,  of  their  proceedings  against  him  was  a  desire  to  make 
a  signal  display  of  a  new  system  which  had  rapidly  gained 
ground,  and  which  I  may  venture  to  call  the  whig  principles  of 
the  Catholic  church.  A  great  question  was  at  issue,  whether 
the  polity  of  that  establishment  should  be  an  absolute  or  an  ex- 
ceedingly limited  monarchy.  The  papal  tyranny,  long  endured 
and  still  increasing,  had  excited  an  active  spirit  of  reformation 
which  the  most  distinguished  ecclesiastics  of  France  and  other 
countries  encouraged.  They  recurred,  as  far  as  their  knowl- 
edge allowed,  to  a  more  primitive  discipline  than  the  canon  law, 
and  elevated  the  supremacy  of  general  councils.  But  in  the 
formation  of  these  they  did  not  scruple  to  introduce  material 
innovations.  The  bishops  have  usually  been  considered  the  sole 
members  of  ecclesiastical  assemblies.  At  Constance,  however, 
sat  and  voted  not  only  the  chiefs  of  monasteries,  but  the  am- 
bassadors of  all  Christian  princes,  the  deputies  of  universities, 
with  a  multitude  of  inferior  theologians,  and  even  doctors  of 
law.w  These  were  naturally  accessible  to  the  pride  of  sudden 
elevation,  which  enabled  them  to  control  the  strong,  and  hu- 

»Lenfant,  Concile  de  Constance,  t.  i.  faith,  but  only  on  Questions  relating  to 

p.  "107  (edit  1727).    Crevier,  t.  ui.  p.  405*  the  settlement  of  the  church.    But  the 

It   was   agreed   that   the   ambassadors  second  order  of  ecclesiastics  were  a> 

could   not  vote   upon  the   articles   of  lowed  to  vote,  generally'* 


1 68  HALLAM 

miliate  the  lofty.  In  addition  to  this  the  adversaries  of  the 
court  of  Rome  carried  another  not  less  important  innovation. 
The  Italian  bishops,  almost  universally  in  the  papal  interests, 
were  so  numerous  that,  if  suffrages  had  been  taken  by  the  head, 
their  preponderance  would  have  impeded  any  measures  of 
transalpine  nations  towards  reformation.  It  was  determined, 
therefore,  that  the  council  should  divide  itself  into  four  na- 
tions, the  Italian,  the  German,  the  French,  and  the  English, 
each  with  equal  rights ;  and  that,  every  proposition  having 
been  separately  discussed,  the  majority  of  the  four  should  pre- 
vails This  revolutionary  spirit  was  very  unacceptable  to  the 
'  cardinals,  who  submitted  reluctantly,  and  with  a  determination, 
that  did  not  prove  altogether  unavailing,  to  save  their  papal 
monarchy  by  a  dexterous  policy.  They  could  not,  however, 
prevent  the  famous  resolutions  of  the  fourth  and  fifth  sessions, 
which  declare  that  the  council  has  received,  by  divine  right,  an 
authority  to  which  every  rank,  even  the  papal,  is  obliged  to 
submit,  in  matters  of  faith,  in  the  extirpation  of  the  present 
schism,  and  in  the  reformation  of  the  church  both  in  its  head 
and  its  members;  and  that  every  person,  even  a  pope,  who 
shall  obstinately  refuse  to  obey  that  council,  or  any  other  law- 
fully assembled,  is  liable  to  such  punishment  as  shall  be  neces- 
sary.^ These  decrees  are  the  great  pillars  of  that  moderate 
theory  with  respect  to  the  papal  authority  which  distinguished 
the  Gallican  church,  and  is  embraced,  I  presume,  by  almost  all 
laymen  and  the  major  part  of  ecclesiastics  on  this  side  of  the 
Alps.2  They  embarrass  the  more  popish  churchmen,  as  the 
Revolution  does  our  English  tories ;  some  boldly  impugn  the 
authority  of  the  council  of  Constance,  while  others  chicane 
upon  the  interpretation  of  its  decrees.  Their  practical  impor- 
tance is  not,  indeed,  direct;  universal  councils  exist  only  in 

o  This  separation  of  England,  as  a  co-  At  a  time  when  a  very  different  spirit 
equal  limb  of  the  council  gave  great  prevailed,   the   English  bishops   under 
umbrage  to  the  French,  who  maintained  Henry  II.  and  Henry  III.  had  claimed 
that.   Tike    Denmark    and    Sweden,    it  as  a  right  that  no  more  than  four  of 
ought  to  have  been  reckoned  along  with  their  number  should  be  summoned  to 
Germany,    The  English  deputies  came  a  general  council.     Hoveden,   p.   320; 
down  with  a  profusion  of  authorities  to  Carte,    vol     li.    p.    84.     This   was   like 
prove  the  antiquity  of  their  monarchy,  boroughs  praying  to  be  released  from 
for^which  thev  did  not  fail  to  put  in  req-  sending  members  to  parliament, 
uisition  the  immeasurable  pedigrees  of  p  Id.  p.  164.    Crevier,  t  iii.  p   417. 
Ireland.      Joseph  t  of    Arimathea,    who  q  This  was  written  in  1816     The  pres- 
planted  Christianity  and  his   stick  at  ent  state  of  opinion  among  those  who 
Glastonbury,  did  his  best  to  help  the  belong  to  the  Gallican  church  has  be- 
cause.   The  _  recent    victory    at    Azin-  come  exceedingly  different  from  what  it 
court  I  am  inclined  to  think,  had  more  was  in  the  last  two  centuries.    [1847  ] 
weight  with  tfcs  council.    Lenfant,  t  ii. 
P.  46. 


THE   MIDDLE  AGES  t69 

possibility;  but  the  acknowledgment  of  a  possible  authority 
paramount  to  the  see  of  Rome  has  contributed,  among  other 
means,  to  check  its  usurpations. 

The  purpose  for  which  these  general  councils  had  been  re- 
quired, next  to  that  of  healing  the  schism,  was  the  reformation 
of  abuses.  All  the  rapacious  exactions,  all  the  scandalous 
venality  of  which  Europe  had  complained,  while  unquestioned 
pontiffs  ruled  at  Avignon,  appeared  light  in  comparison  of  the 
practices  of  both  rivals  during  the  schism.  Tenths  repeatedly 
levied  upon  the  clergy,  annates  rigorously  exacted  and  en- 
hanced by  new  valuations,  fees  annexed  to  the  complicated 
formalities  of  the  papal  chancery,  were  the  means  by  which 
each  half  of  the  church  was  compelled  to  reimburse  its  chief 
for  the  subtraction  of  the  other's  obedience.  Boniface  IX.,  one 
of  the  Roman  line,  whose  fame  is  a  little  worse  than  that  of  his 
antagonists,  made  a  gross  traffic  of  his  patronage  ;  selling  the 
privileges  of  exemption  from  ordinary  jurisdiction,  of  holding 
benefices  in  commendam,  and  other  dispensations  invented  for 
the  benefit  of  the  Holy  See.*"  Nothing  had  been  attempted  at 
Pisa  towards  reformation.  At  Constance  the  majority  were 
ardent  and  sincere  ;  the  representatives  of  the  French,  German, 
and  English  churches  met  with  a  determined  and,  as  we  have 
seen,  not  always  unsuccessful  resolution  to  assert  their  eccle- 
siastical liberties.  They  appointed  a  committee  of  reformation, 
whose  recommendations,  if  carried  into  effect,  would  have  an- 
nihilated almost  entirely  that  artfully  constructed  machinery 
by  which  Rome  had  absorbed  so  much  of  the  revenues  and 
patronage  of  the  church.  But  men,  interested  in  perpetuating 
these  abuses,  especially  the  cardinals,  improved  the  advantages 
which  a  skilful  government  always  enjoys  in  playing  against  a 
popular  assembly.  They  availed  themselves  of  the  jealousies 
arising  out  of  the  division  of  the  council  into  nations,  which 
exterior  political  circumstances  had  enhanced.  France,  then  at 
war  with  England,  whose  pretensions  to  be  counted  as  a  fourth 
nation  she  had  warmly  disputed,  and  not  well  disposed  towards 
the  Emperor  Sigismund,  joined  with  the  Italians  against  the 
English  and  German  members  of  the  council  in  a  matter  of  the 
utmost  importance,  the  immediate  election  of  a  pope  before  the 
articles  of  reformation  should  be  finally  concluded.  These  two 


Collier. 


rLenfant,  Hist,  du  Concilc  <ie  Pise,  passim;    Crener;    Villaret; 

iicr. 


170  HALLAM 

nations,  in  return,  united  with  the  Italians  to  choose  the  Cardi- 
nal Colonna,  against  the  advice  of  the  French  divines,  who 
objected  to  any  member  of  the  sacred  college.  The  court  of 
Rome  were  gainers  in  both  questions.  Martin  V.,  the  new 
pope,  soon  evinced  his  determination  to  elude  any  substantial 
reform.  After  publishing  a  few  constitutions  tending  to  re- 
dress some  of  the  abuses  that  had  arisen  during  the  schism, 
he  contrived  to  make  separate  conventions  with  the  several 
nations,  and  as  soon  as  possible  dissolved  the  council.-? 

By  one  of  the  decrees  passed  in  Constance,  another  gen- 
eral council  was  to  be  assembled  in  five  years,  a  second  at 
the  end  of  seven  more,  and  from  that  time  a  similar  repre- 
sentation of  the  church  was  to  meet  every  ten  years.  Martin 
V,  accordingly  convoked  a  council  at  Pavia,  which,  on  account 
of  the  plague,  was  transferred  to  Siena ;  but  nothing  of  impor- 
tance was  transacted  by  this  assembly.*  That  which  he  sum- 
moned seven  years  afterwards  to  the  city  of  Basle  had  very 
different  results.  [A.D.  1433.]  The  pope,  dying  before  the 
meeting  of  this  council,  was  succeeded  by  Eugenius  IV.,  who, 
anticipating  the  spirit  of  its  discussions,  attempted  to  crush  its 
independence  in  the  outset,  by  transferring  the  place  of  session 
to  an  Italian  city.  No  point  was  reckoned  so  material  in  the 
contest  between  the  popes  and  reformers  as  whether  a  council 
should  sit  in  Italy  or  beyond  the  Alps.  The  council  of  Basle 
began,  as  it  proceeded,  in  open  enmity  to  the  court  of  Rome. 
Eugenius,  after  several  years  had  elapsed  in  more  or  less  hostile 
discussions,  exerted  his  prerogative  of  removing  the  assembly 
to  Ferrara,  and  from  thence  to  Florence.  For  this  he  had  a 
specious  pretext  in  the  negotiation,  then  apparently  tending  to 
a  prosperous  issue,  for  the  reunion  of  the  Greek  church ;  a  tri- 
umph, however  transitory,  of  which  his  council  at  Florence  ob- 
tained the  glory.  On  the  other  hand,  the  assembly  of  Basle, 
though  much  weakened  by  the  defection  of  those  who  adhered 
to  Eugenius,  entered  into  compacts  with  the  Bohemian  in- 
surgents, more  essential  to  the  interests  of  the  church  than  any 
union  with  the  Greeks,  and  completed  the  work  begun  at  Con- 
stance by  abolishing  the  annates,  the  reservations  of  benefices, 
and  other  abuses  of  papal  authority.  In  this  it  received  the 

j  Lenfant,  Concile  de  Constance.    The  good  sketch  of  the  council,  and  Schmidt 

copiousness  as  well  as  impartiality  of  (Hist,  des  Allemandes,  t.  v  )  is  worthy 

this  work  justly  renders  it  an  almost  ex-  of  attention. 

elusive   authority.     Crevier    (Hist,    de  t  Lenfant,  Guerre  des  Hussites,  t  i.  p. 

TUniversite  de  Paris,  t.  iii )  has  given  a  223. 


THE   MIDDLE  AGES  17  z 

approbation  of  most  princes ;  but  when,  provoked  by  the  en- 
deavors of  the  pope  to  frustrate  its  decrees,  it  proceeded  so  far 
as  to  suspend  and  even  to  depose  him,  neither  France  nor  Ger- 
many concurred  in  the  sentence.    Even  the  council  of  Con- 
stance had  not  absolutely  asserted  a  right  of  deposing  a  lawful 
pope,  except  in  case  of  heresy,  though  their  conduct  towards 
John  could  not  otherwise  be  justified.**    This  question  indeed 
of  ecclesiastical  public  law  seems  to  be  still  undecided.    The 
fathers  of  Basle  acted,  however,  with  greater  intrepidity  than 
discretion,  and,  not  perhaps  sensible  of  the  change  that  was 
taking  place  in  public  opinion,  raised  Amadeus,  a  retired  Duke 
of  Savoy,  to  the  pontifical  dignity  by  the  name  of  Felix  V. 
They  thus  renewed  the  schism,  and  divided  the  obedience  of  the 
Catholic  church  for  a  few  years.  The  empire,  however,  as  well 
as  France,  observed  a  singular  and  not  very  consistent  neutral- 
ity ;  respecting  Eugenius  as  a  lawful  pope,  and  the  assembly 
at  Basle  as  a  general  council    England  warmly  supported 
Eugenius,  and  even  adhered  to  his  council  at  Florence ;  Ara- 
gon  and  some  countries  of  smaller  note  acknowledged  Felix. 
But  the  partisans  of  Basle  became  every  year  weaker;  and 
Nicholas  V.,  the  successor  of  Eugenius,  found  no  great  diffi- 
culty in  obtaining  the  cession  of  Felix,  and  terminating  this 
schism.    This  victory  of  the  court  of  Rome  over  the  council 
of  Basle  nearly  counterbalanced  the  disadvantageous  events 
at  Constance,  and  put  an  end  to  the  project  of  fixing  perma- 
nent limitations  upon  the  head  of  the  church  by  means  of  gen- 
eral councils.    Though  the  decree  that  prescribed  the  convo- 
cation of  a  council  every  ten  years  was  still  unrepealed,  no 
absolute  monarchs  have  ever  more  dreaded  to  meet  the  repre- 
sentatives of  their  people,  than  the  Roman  pontiffs  have  ab- 
horred the  name  of  those  ecclesiastical  synods:   once  alone, 
and  that  with  the  utmost  reluctance,  has  the  Catholic  church 
been  convoked  since  the  council  of  Basle;   but  the  famous 
assembly  to  which  I  allude  does  not  fall  within  the  scope  of 
my  present  undertakings 

«  The  council  of  Basle  endeavored  to  Catholic  church,  -whose  right  of  suffrage 

evade  this  difficulty  by  declaring  Eu-  seems    rather   an  anomalous   infringe- 

genius    a    relapsed    heretic.     Lenfant,  ment  of  episcopal  authority,  pressed  it 

Guerre  des  Hussites,  t.  ii.  p.  98.    But  as  with  much  heat  and  rashness.    See  a 

the  church  could  discover  no  heresy  in  curious  passage  on  this  subject  in  a 

his   disagreement  with   that  assembly,  speech  of  the  Cardinal  of  Aries,    Len- 

the  sentence  of  deposition  gained  little  fant,  t  ii.  p.  225. 

strength  by  this  previous  decision.    The  v  There  is  not,  I  believe,  any  sufficient 

bishops  were  unwilling  to  take  this  vio-  history  of  the  council  of  Basle.   Lenfant 

lent  step  against  Eugenius;    but  the  designed  to  write  it  from  the  original 

minor  theologians,  the  democracy  of  the  acts,  but,  finding  his  health  decline,  in- 


172  HALLAM 

It  is  a  natural  subject  of  speculation,  what  would  have  been 
the  effects  of  these  universal  councils,  which  were  so  popular 
in  the  fifteenth  century,  if  the  decree  passed  at  Constance  for 
their  periodical  assembly  had  been  regularly  observed.  Many 
Catholic  writers,  of  the  moderate  or  cisalpine  school,  have  la- 
mented their  disuse,  and  ascribed  to  it  that  irreparable  breach 
which  the  Reformation  has  made  in  the  fabric  of  their  church. 
But  there  is  almost  an  absurdity  in  conceiving  their  perma- 
nent existence.  What  chemistry  could  have  kept  united  such 
heterogeneous  masses,  furnished  with  every  principle  of  mu- 
tual repulsion?  Even  in  early  times,  when  councils,  though 
nominally  general,  were  composed  of  the  subjects  of  the  Ro- 
man empire,  they  had  been  marked  by  violence  and  contradic- 
tion ;  what  then  could  have  been  expected  from  the  delegates 
of  independent  kingdoms,  whose  ecclesiastical  polity,  whatever 
may  be  said  of  the  spiritual  unity  of  the  church,  had  long  been 
far  too  intimately  blended  with  that  of  the  state  to  admit  of  any 
general  control  without  its  assent  ?  Nor,  beyond  the  zeal,  un- 
questionably sincere,  which  animated  their  members,  especially 
at  Basle,  for  the  abolition  of  papal  abuses,  is  there  anything  to 
praise  in  their  conduct,  or  to  regret  in  their  cessation.  The 
statesman  who  dreaded  the  encroachments  of  priests  upon  the 
civil  government,  the  Christian  who  panted  to  see  his  rights 
and  faith  purified  from  the  corruption  of  ages,  found  no  hope 
of  improvement  in  these  councils.  They  took  upon  themselves 
the  pretensions  of  the  popes  whom  they  attempted  to  supersede. 
By  a  decree  of  the  fathers  at  Constance,  all  persons,  including 
princes,  who  should  oppose  any  obstacle  to  a  journey  under- 
taken by  the  Emperor  Sigismund,  in  order  to  obtain  the  cession 
of  Benedict,  are  declared  excommunicated,  and  deprived  of 
their  dignities,  whether  secular  or  ecclesiastical.^  Their  con- 
demnation of  Huss  and  Jerome  of  Prague,  and  the  scandalous 
breach  of  faith  which  they  induced  Sigismund  to  commit  on 
that  occasion,  are  notorious.  But  perhaps  it  is  not  equally  so 
that  this  celebrated  assembly  recognized  by  a  solemn  decree 
the  flagitious  principle  which  it  had  practised,  declaring  that 
Huss  was  unworthy,  through  his  obstinate  adherence  to  heresy, 
of  any  privilege ;  nor  ought  any  faith  or  promise  to  be  kept 

termixed  some  rather  imperfect  notices  Council  of  Basle    Schmidt,  Crevier,  Vil- 

of  its  transactions  with  his  history  of  laret  are  still  my  other  authorities, 

the   Hussite  war,   which  is   commonly  w  Lenfant,  t.  i,  p.  439* 
quoted  tinder  the  title  of  Etistory  of  the 


THE  MIDDLE  AGES  I73 

with  him,  by  natural,  divine,  or  human  law,  to  the  prejudice 
of  the  Catholic  religion.*  It  will  be  easy  to  estimate  the  claims 
of  this  congress  of  theologians  to  our  veneration,  and  to  weigh 
the  retrenchment  of  a  few  abuses  against  the  formal  sanction 
of  an  atrocious  maxim. 

It  was  not,  however,  necessary  for  any  government  of  toler- 
able energy  to  seek  the  reform  of  those  abuses  which  affected 
the  independence  of  national  churches,  and  the  integrity  of 
their  regular  discipline,  at  the  hands  of  a  general  council. 
Whatever  difficulty  there  might  be  in  overturning  the  princi- 
ples founded  on  the  decretals  of  Isidore,  and  sanctioned  by  the 
prescription  of  many  centuries,  the  more  flagrant  encroach- 
ments of  papal  tyranny  were  fresh  innovations,  some  within 
the  actual  generation,  others  easily  to  be  traced  up,  and  con- 
tinually disputed.  The  principal  European  nations  determined, 
with  different  degrees  indeed  of  energy,  to  make  a  stand  against 
the  despotism  of  Rome.  In  this  resistance  England  was  not 
only  the  first  engaged,  but  the  most  consistent ;  her  free  parlia- 
ment preventing,  as  far  as  the  times  permitted,  that  wavering 
policy  to  which  a  court  is  liable.  We  have  already  seen  that 
a  foundation  was  laid  in  the  statute  of  provisors  under  Edward 
III.  In  the  next  reign  many  other  measures  tending  to  repress? 
the  interference  of  Rome  were  adopted,  especially  the  great 
statute  of  praemunire,  which  subjects  all  persons  bringing  papal 
bulls  for  translation  of  bishops  and  other  enumerated  purposes 
into  the  kingdom  to  the  penalties  of  forfeiture  and  perpetual 
imprisonment.^  This  act  received,  and  probably  was  designed 

x  Nee  aliqua  sibi  fides  aut  promissio,  safe-conduct  was  a  legal  protection  witb- 

de   jure    naturah,    divmo,    et    humano,  in  the  city  of  Constance.    5.  Sigismund 

fuent  in  prejudicium  Catholicse  fidei  ob-  was  ^persuaded  to  acquiesce  ail  the  capital 

servanda.    Lenfant,  t.  i  p,  491.  punishment  of  Huss,  and  even  to  make 

This  proposition  is  the  great  disgrace  it   his  own  act    (Lenfant,   p.    409);  by 

of  the  council  in  the  affair  of  Huss.   But  which  he  manifestly  broke  ms  engage- 

the  violation  of  his  safe-conduct  being  a  ment    6.  It  is  evident  that  in  this  he 

famous  event  in  ecclesiastical  history,  acted  by  the  advice  and  sanction  of  the 

and  which  has  been  very  much  disputed  council,  who  thus  became  accessory  to 

•with   some  degree  of  erroneous   state-  the  guilt  of  his  treachery 

ment  on  both  sides,  it  may  be  proper  to  The  great  moral  to  be  drawn  from  the 

Sve  briefly  an  impartial  summary,     i.  story  of  John  Huss's  condemnation  is 

uss  came  to  Constance  with  a  safe-  that  no  breach  of  faith  can  be  excused 

conduct   of  the  emperor   very  loosely  by  our  opinion  of  ill  desert  in  the  party, 

worded,  and  not  directed  to  any  mdi-  or  by  a  narrow  interpretation  of  our 

viduals.     Lenfant,  t,  i.  p.  59.    2.  This  own  engagements      Every  capitulation 

pass,  however,  was  binding  upon  the  eni-  ought  to  be  construed  favorably  for  the 

peror  himself,  and  was  so  considered  by  weaker  side     In  such  cases  it  is  em- 

him,  when  he  remonstrated  against  the  phatically  true  that,  if  the  letter  killeth, 

arrest  of  Huss.    Id ,  pp.  73, 83.   3.  It  was  the  spirit  should  give  life. 

not  binding  on  the  council,  who  pos-  Gerson,  the  most  eminent  theologian 

sessed  no  temporal  power,  but  had  a  of  his  age,  and  the  coryphaeus  of  the 

right  to  decide  upon  the  question  of  party  that  opposed  the  transalpine  prm- 

heresy.    4.  It  is  not  manifest  by  what  ciples,   was  deeply  concerned   in   this 

civil  authority  Huss  was  arrested,  nor  atrocious  business.    Crevier,  p.  432. 

can  I  determine  how  far  the  imperial  y  16  Ric.  II.  c.  5. 


174  HALLAM 

to  receive,  a  larger  interpretation  than  its  language  appears  to 
warrant.  Combined  with  the  statute  of  provisors,  it  put  a  stop 
to  the  pope's  usurpation  of  patronage,  which  had  impoverished 
the  church  and  kingdom  of  England  for  nearly  two  centuries. 
Several  attempts  were  made  to  overthrow  these  enactments ; 
the  first  parliament  of  Henry  IV.  gave  a  very  large  power  to 
the  king  over  the  statute  of  provisors,  enabling  him  even  to 
annul  it  at  his  pleasures  This,  however,  does  not  appear  in 
the  statute-book.  Henry  indeed,  like  his  predecessors,  exer- 
cised rather  largely  his  prerogative  of  dispensing  with  the  law 
against  papal  provisions ;  a  prerogative  which,  as  to  this  point, 
was  itself  taken  away  by  an  act  of  his  own,  and  another  of  his 
son  Henry  V>  But  the  statute  always  stood  unrepealed ;  and 
it  is  a  satisfactory  proof  of  the  ecclesiastical  supremacy  of  the 
legislature  that  in  the  concordat  made  by  Martin  V.  at  the 
council  of  Constance  with  the  English  nation  we  find  no  men- 
tion of  reservation  of  benefices,  of  annates,  and  the  other  prin- 
cipal grievances  of  that  age;&  our  ancestors  disdaining  to 
accept  by  compromise  with  the  pope  any  modification  or  even 
confirmation  of  their  statute  law.  They  had  already  restrained 
another  flagrant  abuse,  the  increase  of  first  fruits  by  Boniface 
IX. ;  an  act  of  Henry  IV.  forbidding  any  greater  sum  to  be 
paid  on  that  account  than  had  been  formerly  accustomed.^ 

It  will  appear  evident  to  every  person  acquainted  with  the 
contemporary  historians,  and  the  proceedings  of  parliament, 
that,  besides  partaking  in  the  general  resentment  of  Europe 
against  the  papal  court,  England  was  under  the  influence  of 
a  peculiar  hostility  to  the  clergy,  arising  from  the  dissemination 
of  the  principles  of  Wicliff .d  All  ecclesiastical  possessions  were 
marked  for  spoliation  by  the  system  of  this  reformer ;  and  the 
house  of  commons  more  than  once  endeavored  to  carry  it  into 
effect,  pressing  Henry  IV.  to  seize  the  temporalities  of  the 
church  for  public  exigencies.*  This  recommendation,  besides 
its  injustice,  was  not  likely  to  move  Henry,  whose  policy  had 

z  Rot   Parl.,  vol.  iii.  p   428.  c  6  H.  IV,  c.  i. 

xr°7  ?;   i    jc>  8>  3  H   V.  c.  4  .Martin  d  See,   among   many  other  passages, 

V.  published  an  angry  bull  against  the  the  articles  exhibited  by  the  Lollards 

execrable     statute "     of    praemumre,  to  parliament  against  the  clergy  in  1304. 

enjoining  Archbishop  Chicheley  to  pro-  Collier  gives  the  substance  of  them,  and 

cure  its  repeal.     Collier,  p.  653.     Chi-  they    are     noticed    by    Henry;      but 

cheley  did  all  in  his  power;  but  the  com-  they  are  at  full  length  m  Wilkms,  t.  ni. 

mons  were  always  inexorable  on  this  p.  221. 

head,  p.  636;  and  the  archbishop  even  eWalsingham,  pp.  371,  370:  Rot  Parl., 

incurred    Martin's    resentment    by    it.  n.  H,  IV.  vol.  iii  p.  645.  The  remarkable 

Wilkms.  Concilia,  t.  m   p.  483.  circumstances  detailed  by  Walsingham 

o  Lenfant,  t.  n.  p.  444.  in  the  former  passage  are  not  corrobo- 


THE   MIDDLE  AGES  175 

been  to  sustain  the  prelacy  against  their  new  adversaries.  Ec- 
clesiastical jurisdiction  was  kept  in  better  control  than  formerly 
by  the  judges  of  common  law,  who,  through  rather  a  strained 
construction  of  the  statute  of  praemunire,  extended  its  penalties 
to  the  spiritual  courts  when  they  transgressed  their  limits/ 
The  privilege  of  clergy  in  criminal  cases  still  remained ;  but  it 
was  acknowledged  not  to  comprehend  high  treasons 

Germany,  as  well  as  England,  was  disappointed  of  her  hopes 
of  general  reformation  by  the  Italian  party  at  Constance ;  but 
she  did  not  supply  the  want  of  the  council's  decrees  with  suf- 
ficient decision.  A  concordat  with  Martin  V.  left  the  pope  in 
possession  of  too  great  a  part  of  his  recent  usurpations.^  This, 
however,  was  repugnant  to  the  spirit  of  Germany,  which  called 
for  a  more  thorough  reform  with  all  the  national  roughness 
and  honesty.  The  diet  of  Mentz,  during  the  continuance  of 
the  council  of  Basle,  adopted  all  those  regulations  hostile  to 
the  papal  interests  which  occasioned  the  deadly  quarrel  be- 
tween that  assembly  and  the  court  of  RomeJ  But  the  German 
empire  was  betrayed  by  Frederic  III.,  and  deceived  by  an  ac- 
complished but  profligate  statesman,  his  secretary  ^Eneas  Syl- 
vius. Fresh  concordats,  settled  at  Aschaffenburg  in  1448, 
nearly  upon  a  footing  of  those  concluded  with  Martin  V.,  sur- 
rendered great  part  of  the  independence  for  which  Germany 
had  contended.  The  pope  retained  his  annates,  or  at  least  a 
sort  of  tax  in  their  place ;  and  instead  of  reserving  benefices 
arbitrarily,  he  obtained  the  positive  right  of  collation  during 
six  alternate  months  of  every  year.  Episcopal  elections  were 
freely  restored  to  the  chapters,  except  in  case  of  translation, 

rated  by  anything  in  the  records.    But  Carte  tells  us,  vol.  11.  p.  664,  have  re- 

as  it  is  unlikely  that   so  particular  a  fused   to   try    Archbishop    Scrope   for 

narrative   should   have   no   foundation,  treason,    on  the    ground   that   no   one 

Hume  has  plausibly   conjectured  that  could  lawfully  sit  in  judgment  on  a 

the   roll   has   been   wilfully   mutilated.  bishop  for  his  life.    Whether  he  might 

As  this  suspicion  occurs  in  other  in-  have  declined  to  try  him  as  a  peer  is 

stances,  it  would  be  desirable  to  ascer-  another    question     The    pope    excom- 

tain,    by   examination   of   the    original  mumcated  all  who  were  concerned  in 

rolls,  whether  they  bear  any  external  Scrope's   death,   and   it  cost   Henry  a 

marks  of  injury.    The  mutilators,  how-  large   sum   to   obtain   absolution.    But 

ever,  if   such  there  were,  have  left  a  Boniface   IX.    was   no    arbiter   of  the 

great  deal     The  rolls  of  Henry  IV.  and  English   law.    Edward    IV.    granted    a 

V.'s  parliaments  are  quite  full  of  peti-  strange  charter  to  the  clergy,  not  only 

tions  against  the  clergy.  dispensing   with    the   statutes   of   prae- 

f  3  Inst ,  p   121 ;   Collier,  vol  i  p   668.  mumre,  but  absolutely  exempting  them 

g  2  Inst ,   p.   634;    where   several   in-  from  temporal  juridiction  in  cases  of 

stances  of  priests  executed  for  coining  treason  as  well  as  felony.    Wilfcins,  Con- 

and  other  treasons  are  adduced.    And  cilia,  t.  iii.  p.  583;  Collier,  p.  678.    This, 

this  may  also  be  inferred  from  25  E.  III.  however,  being  an  illegal  grant,  took  no 

stat.  3,  c.  4;  and  from  4  H  IV.  c  3   In-  effect,  at  least  after  his  death, 

deed  the  benefit  of  clergy  has  never  h  Lenfant,  t.  ii.  p.  428;  Schmidt,  t.  v. 

been  taken  away  by  statute  from  high  p.  131. 

treason.   This  renders  it  improbable  that  *  Ibid.,  t.  v.  p.  szi;  Lenfant. 
Chief    Justice     Gascoyne    should,     as 


i?6  HALLAM 

when  the  pope  still  continued  to  nominate ;  as  he  did  also  if 
any  person,  canonically  unfit,  were  presented  to  him  for  con- 
firmation /  Such  is  the  concordat  of  Aschaffenburg,  by  which 
the  Catholic  principalities  of  the  empire  have  always  been  gov- 
erned, though  reluctantly  acquiescing  in  its  disadvantageous 
provisions.  Rome,  for  the  remainder  of  the  fifteenth  century, 
not  satisfied  with  the  terms  she  had  imposed,  is  said  to  have 
continually  encroached  upon  the  right  of  election.^  But  she 
purchased  too  dearly  her  triumph  over  the  weakness  of  Fred- 
eric III.,  and  the  Hundred  Grievances  of  Germany,  presented 
to  Adrian  VL  by  the  diet  of  Nuremberg  in  1522,  manifested 
the  working  of  a  long-treasured  resentment,  that  had  made 
straight  the  path  before  the  Saxon  reformer. 

I  have  already  taken  notice  that  the  Castilian  church  was 
in  the  first  ages  of  that  monarchy  nearly  independent  of  Rome. 
But  after  many  gradual  encroachments  the  code  of  laws  pro- 
mulgated by  Alfonso  X.  had  incorporated  a  great  part  of  the 
decretals,  and  thus  given  the  papal  jurisprudence  an  authority 
which  it  nowhere  else  possessed  in  national  tribunals.*  That 
richly  endowed  hierarchy  was  a  tempting  spoil.  The  popes 
filled  up  its  benefices  by  means  of  expectatives  and  reserves 
with  their  own  Italian  dependents.  We  find  the  cortes  of 
Palencia  in  1388  complaining  that  strangers  are  beneficed  in 
Castile,  through  which  the  churches  are  ill  supplied,  and  native 
scholars  cannot  be  provided,  and  requesting  the  king  to  take 
such  measures  in  relation  to  this  as  the  kings  of  France,  Ara- 
gon,  and  Navarre,  who  do  not  permit  any  but  natives  to  hold 
benefices  in  their  kingdoms.  The  king  answered  to  this  peti- 
tion that  he  would  use  his  endeavors  to  that  end.w  And  this  is 
expressed  with  greater  warmth  by  a  cortes  of  1473,  who  de- 
clare it  to  be  the  custom  of  all  Christian  nations  that  foreigners 
should  not  be  promoted  to  benefices,  urging  the  discourage- 
ment of  native  learning,  the  decay  of  charity,  the  bad  perform- 
ance of  religious  rites,  and  other  evils  arising  from  the  non- 

]  Schmidt,  t.  v.  p.  250;   t.  vi.  p.  94,  little  disputes  with  tlie  pope  indicate 

&c.    He  observes  that  there  is  three  the  spirit  that  was  fermenting  in  Ger- 

times  as  much  money  at  present  as  in  many  throughout  the  fifteenth  century 

the   fifteenth   century;  if  therefore  the  But   this   is   the   proper   subject   of  a 

annates  are  now  felt  as  a  burden,  what  more  detailed  ecclesiastical  history,  and 

must  they  have  been?   -P.  113.    To  this  should  form  an  introduction  to  that  of 

Rome  would  answer,  if  the  annates  were  the  Reformation. 

but  sufficient  for  the  pope's  maintenance  /  Manna,  Ensayo  Historico-Critico,  c. 

at  that  time,  what  must  they  be  now?  320,  &c. 

k Schmidt,    p.    98;     ./Eneas    Sylvius,  mid.,  Teona  de  las  Cortes,  t.  iii.  p, 

Epist.  369  and  371;    and  De  Monbus  126. 
Germanorum,   pp.    1041,    1061.     Several 


THE  MIDDLE  AGES  177 

residence  of  beneficed  priests,  and  request  the  king  to  notify 
to  the  court  of  Rome  that  no  expectative  or  provision  in  favor 
of  foreigners  can  be  received  in  futures  This  petition  seems 
to  have  passed  into  a  law;  but  I  am  ignorant  of  the  conse- 
quences. Spain  certainly  took  an  active  part  in  restraining  the 
abuses  of  pontifical  authority  at  the  councils  of  Constance  and 
Basle ;  to  which  I  might  add  the  name  of  Trent,  if  that  assembly 
were  not  beyond  my  province. 

France,  dissatisfied  with  the  abortive  termination  of  her  ex- 
ertions during  the  schism,  rejected  the  concordat  offered  by 
Martin  V.,  which  held  out  but  a  promise  of  imperfect  reforma- 
tions She  suffered  in  consequence  the  papal  exactions  for 
some  years,  till  the  decrees  of  the  council  of  Basle  prompted 
her  to  more  vigorous  efforts  for  independence,  and  Charles 
VII.  enacted  the  famous  Pragmatic  Sanction  of  Bourges.p 
This  has  been  deemed  a  sort  of  Magna  Charta  of  the  Gallican 
church ;  for  though  the  law  was  speedily  abrogated,  its  prin- 
ple  has  remained  fixed  as  the  basis  of  ecclesiastical  liberties. 
By  the  Pragmatic  Sanction  a  general  council  was  declared 
superior  to  the  pope ;  elections  of  bishops  were  made  free  from 
all  control ;  mandats  or  grants  in  expectancy,  and  reservations 
of  benefices,  were  taken  away ;  first  fruits  were  abolished.  This 
defalcation  of  wealth,  which  had  now  become  dearer  than 
power,  could  not  be  patiently  borne  at  Rome.  Pius  II.,  the 
same  -Sneas  Sylvius  who  had  sold  himself  to  oppose  the  coun- 
cil of  Basle,  in  whose  service  he  had  been  originally  distin- 
guished, used  every  endeavor  to  procure  the  repeal  of  this 
ordinance.  With  Charles  VII.  he  had  no  success ;  but  Louis 
XL,  partly  out  of  blind  hatred  to  his  father's  memory,  partly 
from  a  delusive  expectation  that  the  pope  would  support  the 
Angevin  faction  in  Naples,  repealed  the  Pragmatic  Sanction.? 
This  may  be  added  to  other  proofs  that  Louis  XL,  even  ac- 
cording to  the  measures  of  worldly  wisdom,  was  not  a  wise 
politician.  His  people  judged  from  better  feelings ;  the  par- 
liament of  Paris  constantly  refused  to  enregister  the  revoca- 
tion of  that  favorite  law,  and  it  continued  in  many  respects  to 
be  acted  upon  until  the  reign  of  Francis  If  At  the  States 

wTeoria  de  las  Cortes,  t.  ii.  p.  364;  100;   Pasquier,  Rechercbfcs  de  la  France, 

Mariana,  Hist  Hispan.,  1  xix.  c.  i.  1.  iii.  c.  27. 

o  Villaret,  t,  xv  T>  126  gVillaret,  and  Gamier,  t.  xvi.;    Cre- 

pldem,  p.  263;  Hist,  du  Droit  Public  '    * 

rs*     i#_      •f*^L^^_?L      j_      "      _       TC«I^...J___ 


p  JLUCia,  p.  203 ',    xnsu  uu  i^ruit  JTIIUIH;  VlW,  t.  IV.  pp   2$6+  274- 

Eccle"s.  Francois,  t  ii.  p.  234;    Fleury,  r  Gamier,  t.  xvi.  p.  432;  t.  xvii.  p.  222 

Institutions  au  Droit ;   Crevier,  t,  iv.  p.  et  alibi.    Crevier,  t.  iv.  p.  318  et  alibi. 

VOL.  II.— 12 


1 78  H  ALLAH 

General  of  Tours,  in  1484,  the  inferior  clergy,  seconded  by  the 
two  other  orders,  earnestly  requested  that  the  Pragmatic  Sanc- 
tion might  be  confirmed ;  but  the  prelates  were  timid  or  cor- 
rupt, and  the  regent  Anne  was  unwilling  to  risk  a  quarrel  with 
the  Holy  See.-*  This  unsettled  state  continued,  the  Pragmatic 
Sanction  neither  quite  enforced  nor  quite  repealed,  till  Francis 
L,  having  accommodated  the  differences  of  his  predecessor  with 
Rome,  agreed  upon  a  final  concordat  with  Leo  X.,  the  treaty 
that  subsisted  for  almost  three  centuries  between  the  papacy 
and  the  kingdom  of  France.*  Instead  of  capitular  election  or 
papal  provision,  a  new  method  was  devised  for  filling  the  va- 
cancies of  episcopal  sees.  The  king  was  to  nominate  a  fit 
person,  whom  the  pope  was  to  collate.  The  one  obtained  an 
essential  patronage,  the  other  preserved  his  theoretical  suprem- 
acy. Annates  were  restored  to  the  pope ;  a  concession  of  great 
importance.  He  gave  up  his  indefinite  prerogative  of  reserving 
benefices,  and  received  only  a  small  stipulated  patronage.  This 
convention  met  with  strenuous  opposition  in  France ;  the  par- 
liament of  Paris  yielded  only  to  force ;  the  university  hardly 
stopped  short  of  sedition;  the  zealous  Gallicans  have  ever 
since  deplored  it,  as  a  fatal  wound  to  their  liberties.  There 
is  much  exaggeration  in  this,  as  far  as  the  relation  of  the  Gal- 
lican  church  to  Rome  is  concerned ;  but  the  royal  nomination 
to  bishoprics  impaired  of  course  the  independence  of  the  hier- 
archy. Whether  this  prerogative  of  the  crown  were  upon  the 
whole  beneficial  to  France,  is  a  problem  that  I  cannot  affect 
to  solve ;  in  this  country  there  seems  little  doubt  that  capitular 
elections,  which  the  statute  of  Henry  VIII.  has  reduced  to  a 
name,  would  long  since  have  degenerated  into  the  corruption 
of  close  boroughs;  but  the  circumstances  of  the  Gallican  es- 
tablishment may  not  have  been  entirely  similar,  and  the  ques- 
tion opens  a  variety  of  considerations  that  do  not  belong  to  my 
present  subject. 

From  the  principles  established  during  the  schism,  and  in 
the  Pragmatic  Sanction  of  Bourges,  arose  the  far-famed  liber- 
ties of  the  Gallican  church,  which  honorably  distinguished  her 
from  other  members  of  the  Roman  communion.  These  have 
been  referred  by  French  writers  to  a  much  earlier  era;  but 
except  so  far  as  that  country  participated  in  the  ancient  ecclesi- 

sGarnier,  t  xi'x.  pp.  216  and  321.  Droit  Public  Eccles    Fr.,  t    ii    p    243- 

/Ibid,    t     xxin.    p.    151;     Hist    dtt       Flenry,  Institutions  an  Droit,  t.  a.  p.  107. 


THE   MIDDLE  AGES  I79 

astical  independence  of  all  Europe,  before  the  papal  encroach- 
ments had  subverted  it,  I  do  not  see  that  they  can  be  properly 
traced  above  the  fifteenth  century.  Nor  had  they  acquired  even 
at  the  expiration  of  that  age  the  precision  and  consistency 
which  was  given  in  later  times  by  the  constant  spirit  of  the  par- 
liaments and  universities,  as  well  as  by  the  best  ecclesiastical 
authors,  with  little  assistance  from  the  crown,  which,  except 
in  a  few  periods  of  disagreement  with  Rome,  has  rather  been 
disposed  to  restrain  the  more  zealous  Gallicans.  These  liber- 
ties, therefore,  do  not  strictly  fall  within  my  limits ;  and  it  will 
be  sufficient  to  observe  that  they  depended  upon  two  maxims : 
one,  that  the  pope  does  not  possess  any  direct  or  indirect 
temporal  authority;  the  other,  that  his  spiritual  jurisdiction 
can  only  be  exercised  in  conformity  with  such  parts  of  the 
canon  law  as  are  received  by  the  kingdom  of  France.  Hence 
the  Gallican  church  rejected  a  great  part  of  the  Sext  and  Clem- 
entines, and  paid  little  regard  to  modern  papal  bulls,  which  in 
fact  obtained  validity  only  by  the  king's  approbations 

The  pontifical  usurpations  which  were  thus  restrained,  af- 
fected, at  least  in  their  direct  operation,  rather  the  church  than 
the  state ;  and  temporal  governments  would  only  have  been 
half  emancipated,  if  their  national  hierarchies  had  preserved 
their  enormous  jurisdictions  England,  in  this  also,  began  the 
work,  and  had  made  a  considerable  progress,  while  the  mis- 
taken piety  or  policy  of  Louis  IX.  and  his  successors  had  laid 
France  open  to  vast  encroachments.  The  first  method  adopted 
in  order  to  check  them  was  rude  enough ;  by  seizing  the  bish- 
op's effects  when  he  exceeded  his  jurisdiction.^  This  jurisdic- 
tion, according  to  the  construction  of  churchmen,  became  per- 
petually larger ;  even  the  reforming  council  of  Constance  give 

#  Fleury,  Institutions  au  Droit,  t.  ji.  p.  maintained  by  a  pope,  a  bishop,  or  a 

226,  &c,  and  Discours  stir  les  Libertes  presbyter.    Thus  Archbishop   Stratford 

de  I'Eglise  Galhcane.    The  last  editors  writes  to  Edward  III.:    Duo  sunt,  qui- 

of    this    dissertation    go    far    beyond  bus  principaliter  regitur  mundus,  sacra 

Fleury,  and  perhaps  reach  the  utmost  pontificahs  auctontas,  et  regalis  ordraa- 

point  in   limiting  the   papal   authority  ta  potestas:  in  quibus  est  pondus  tanto 

which  a  sincere  member  of  that  com-  gravius  et  subhmius  sacerqotum,  quan- 

munion  can  attain.    See  notes,  pp.  417  to  et  de  regibus  ilh  in  divino  reddituri 

and  445.  sunt  examine  rationem;    et  ideo  scire 

v  It  ought  always  to  be  remembered  debet  regia  celsi  tudo  ex  illorum  vos 

that  ecclesiastical,  and  not  merely  papal,  dependere  judicio,  non  illos  adp  vestram 

encroachments   are  what  civil  govern-  dirigi  posse  voluntatem.    Wilkins,  Con- 

ments  and  the  laity  in  general  have  had  cilia,  tup    663.    This  amazing  impu- 

to    resist;    a   point   which   some   very  dence  towards  such  a  prince  as  Edward 

zealous  opposers  of  Rome  have  been  did  not  succeed;   but  it  is  interesting  to 

willing  to  keep  out  of  sight.    The  latter  follow  the  track  of  the  star  which  was 

arose  out  of  the  former,  and  perhaps  now  rather  receding,  though  still  fierce, 
were  in  some  respects  less  objection-  w  De  Marca,  De  Concordantia,  L  iv. 

able.    But  the  true  enemy  is  what  are  c.  18. 
called  High-church  principles;   be  they 


i8o  H  ALLAH 

an  enumeration  of  ecclesiastical  causes  far  beyond  the  limits 
acknowledged  in  England,  or  perhaps  in  France-*  But  the 
parliament  of  Paris,  instituted  in  1304,  gradually  established 
a  paramount  authority  over  ecclesiastical  as  well  as  civil  tri- 
bunals. Their  progress  was  indeed  very  slow.  At  a  famous 
assembly  in  1329,  before  Philip  of  Valois,  his  advocate-general, 
Peter  de  Cugnieres,  pronounced  a  long  harangue  against  the" 
excesses  of  spiritual  jurisdiction.  This  is  a  curious  illustration 
of  that  branch  of  legal  and  ecclesiastical  history.  It  was  an- 
swered at  large  by  some  bishops,  and  the  king  did  not  venture 
to  take  any  active  measures  at  that  time.y  Several  regulations 
were,  however,  made  in  the  fourteenth  century,  which  took 
away  the  ecclesiastical  cognizance  of  adultery,  of  the  execution 
of  testaments,  and  other  causes  which  had  been  claimed  by 
the  clergy ,£  Their  immunity  in  criminal  matters  was  strait- 
ened by  the  introduction  of  privileged  cases,  to  which  it  did 
not  extend ;  such  as  treason,  murder,  robbery,  and  other  hein- 
ous offences.^  The  parliament  began  to  exercise  a  judicial 
control  over  episcopal  courts.  It  was  not,  however,  till  the 
beginning  of  the  sixteenth  century,  according  to  the  best  writ- 
ers, that  it  devised  its  famous  form  of  procedure,  the  "  appeal 
because  of  abuse."  &  This,  in  the  course  of  time,  and  through 
the  decline  of  ecclesiastical  power,  not  only  proved  an  effectual 
barrier  against  encroachments  of  spiritual  jurisdiction,  but 
drew  back  again  to  the  lay  court  the  greater  part  of  those 
causes  which  by  prescription,  and  indeed  by  law,  had  apper- 
tained to  a  different  cognizance.  Thus  testamentary,  and  even, 
in  a  great  degree,  matrimonial,  causes  were  decided  by  the 
parliament;  and  in  many  other  matters  that  body,  being  the 
judge  of  its  own  competence,  narrowed,  by  means  of  the  appeal 
because  of  abuse,  the  boundaries  of  the  opposite  jurisdictions 

#De  Marca,  De  Concordantia,  1.  iv.  p.  138.    In  the  famous  case  of  Balue.  a 

c.  15;    Lenfant,  Cone,  de  Constance,  t  bishop  and  cardinal,  whom  Louis  XL 

«•  P-  331-    De  Marca,  1.  iv.  c.  15,  gives  detected  in   a  treasonable  intrigue,    it 

us  passages  from  one  Durandus  about  was  contended  by  the  king  that  tie  had 

1309,  complaining  that  the  lay  judges  a  right  to   punish   him  capitally.    Du 

invaded  ecclesiastical  jurisdiction,  and  Clos,  Vie  de  Louis  XL  t.  i.  p  423:   Gar- 

reckonmg    the    cases    subject    to    the  nier,  Hist,  de  France,  t.  xvii.  p.  330. 

latter,  under  which  he  includes  feudal  Balue  was  confined  for  many  years  m  a 

and  criminal  causes  in  some  circum-  small  iron  cage,  which  till  lately  was 

stances,  and  also  those  in  which  the  shown  in  the  castle  of  Loches. 

temporal  judges  are  in  doubt;   si  quid  6  Pasquier,  1.  iii  c.  33:  Hist,  du  Droit 

ambiguum  inter  judices  saeculares  ori-  Eccle"s.  Francois,  t.  11   p.  119;    Fleury, 

atur,'r  „      .      .                    _,,  Institutions  au  Droit  Eccles.  Francois, 

y.Velly,  t  vni.  p.  *u;    Fleury,  Insti-  t.  ii.  p.  221;  De  Marca,  De  Concordant!* 

tutions,  t.  11.  p.^12;   Hist,  du  Droit  EC-  Sacerdotii  et  Imperil,  1.  iv.  c.  10.    The 

cles,  Frang  ,  t  n.  p.  86.  last   author   seems  to   carry   it   rather 

8  vuiaret,  t.  xi  p.  182  higher. 

a  Fleury,  Institutions  au  Droit,  t.  h.  c  Fleury,  Institutions,  t,  ii.  p.  42,  &c. 


THE   MIDDLE  AGES  181 

This  remedial  process  appears  to  have  been  more  extensively 
applied  than  our  English  writ  of  prohibition.  The  latter  merely 
restrains  the  interference  of  the  ecclesiastical  courts  in  matters 
which  the  law  has  not  committed  to  them.  But  the  parlia- 
ment of  Paris  considered  itself,  I  apprehend,  as  conservator 
of  the  liberties  and  discipline  of  the  Gallican  church;  and 
interposed  the  appeal  because  of  abuse,  whenever  the  spiritual 
court,  even  in  its  proper  province,  transgressed  the  canonical 
rules  by  which  it  ought  to  be  governed.** 

While  the  bishops  of  Rome  were  losing  their  general  in- 
fluence over  Europe,  they  did  not  gain  more  estimation  in 
Italy.  It  is  indeed  a  problem  of  some  difficulty,  whether  they 
derived  any  substantial  advantage  from  their  temporal  princi- 
pality. For  the  last  three  centuries  it  has  certainly  been  con- 
ducive to  the  maintenance  of  their  spiritual  supremacy,  which, 
in  the  complicated  relations  of  policy,  might  have  been  endan- 
gered by  their  becoming  the  subjects  of  any  particular  sover- 
eign. But  I  doubt  whether  their  real  authority  over  Christen- 
dom in  the  middle  ages  was  not  better  preserved  by  a  state  of 
nominal  dependence  upon  the  empire,  without  much  effective 
control  on  one  side,  or  many  temptations  to  worldly  ambition 
on  the  other.  That  covetousness  of  temporal  sway  which,  hav- 
ing long  prompted  their  measures  of  usurpation  and  forgery, 
seemed,  from  the  time  of  Innocent  III.  and  Nicholas  III.,  to 
reap  its  gratification,  impaired  the  more  essential  parts  of  the 
papal  authority*  In  the  fourteenth  and  fifteenth  centuries  the 
popes  degraded  their  character  by  too  much  anxiety  about  the 
politics  of  Italy.  The  veil  woven  by  religious  awe  was  rent 
asunder,  and  the  features  of  ordinary  ambition  appeared  with- 
out disguise.  For  it  was  no  longer  that  magnificent  and  orig- 
inal system  of  spiritual  power  which  made  Gregory  VII.,  even 
in  exile,  a  rival  of  the  emperor,  which  held  forth  redress  where 
the  law  could  not  protect,  and  punishment  where  it  could  not 
chastise,  which  fell  in  sometimes  with  superstitious  feeling,  and 
sometimes  with  political  interest.  Many  might  believe  that 
the  pope  could  depose  a  schismatic  prince,,  who  were  disgusted 
at  his  attacking  an  unoffending  neighbor.  As  the  cupidity 
of  the  clergy  in  regard  to  worldly  estate  had  lowered  their 
character  everywhere,  so  the  similar  conduct  of  their  head 
undermined  the  respect  felt  for  him  in  Italy.  The  censures 

d  De  Marca,  De  Concordantia,  1.  iv.  c.  the    excesses    of    ecclesiastical    courts 

9;   Fleury,  t.  ii.  p.  224.    In  Spain,  even  are  expelled  from  the  kingdom  and  de- 

now,  says  De  Marca,  bishops  or  clerks  prived  of  the  rights  of  demzenship. 
not  obeying  royal  mandates  that  inhibit 


i8a  HALLAM 

of  the  church,  those  excommunications  and  interdicts  which 
had  made  Europe  tremble,  became  gradually  despicable  as  well 
as  odious  when  they  were  lavished  in  every  squabble  for  terri- 
tory which  the  pope  was  pleased  to  make  his  own.*  Even  the 
crusades,  which  had  already  been  tried  against  the  heretics  of 
Languedoc,  were  now  preached  against  all  who  espoused  a 
different  party  from  the  Roman  see  in  the  quarrels  of  Italy. 
Such  were  those  directed  at  Frederick  II.,  at  Manfred,  and  at 
Matteo  Visconti,  accompanied  by  the  usual  bribery,  indul- 
gences, and  remission  of  sins.  The  papal  interdicts  of  the  four- 
teenth century  wore  a  different  complexion  from  those  of  for- 
mer times.  Though  tremendous  to  the  imagination,  they  had 
hitherto  been  confined  to  spiritual  effects,  or  to  such  as  were 
connected  with  religion,  as  the  prohibition  of  marriage  and 
sepulture.  But  Clement  V.,  on  account  of  an  attack  made 
by  the  Venetians  upon  Ferrara  in  1309,  proclaimed  the  whole 
people  infamous,  and  incapable  for  three  generations  of  any 
office,  their  goods,  in  every  part  of  the  world,  subject  to  con- 
fiscation, and  every  Venetian,  wherever  he  might  be  found, 
liable  to  be  reduced  into  slavery/  A  bull  in  the  same  terms 
was  published  by  Gregory  XI.  in  1376  against  the  Florentines. 
From  the  termination  of  the  schism,  as  the  popes  found  their 
ambition  thwarted  beyond  the  Alps,  it  was  diverted  more  and 
more  towards  schemes  of  temporal  sovereignty.  In  these  we 
do  not  perceive  that  consistent  policy  which  remarkably  act- 
uated their  conduct  as  supreme  heads  of  the  church.  Men 
generally  advanced  in  years,  and  born  of  noble  Italian  fam- 
ilies, made  the  papacy  subservient  to  the  elevation  of  their 
kindred,  or  to  the  interests  of  a  local  faction.  For  such  ends 
they  nungled  in  the  dark  conspiracies  of  that  bad  age,  dis- 
tinguished only  by  the  more  scandalous  turpitude  of  their  vices 
from  the  petty  tyrants  and  intriguers  with  whom  they  were 
engaged.  In  the  latter  part  of  the  fifteenth  century,  when  all 
favorable  prejudices  were  worn  away,  those  who  occupied  the 
most  conspicuous  station  in  Europe  disgraced  their  name  by 
more  notorious  profligacy  than  could  be  paralleled  in  the  dark- 
est age  that  had  preceded ;  and  at  the  moment  beyond  which 
this  work  is  not  carried,  the  invasion  of  Italy  by  Charles  VIII., 

e  In  1290  Pisa  was  put  under  an  inter-  a  free  city!    Six  years  before  the  Vene- 

dict  for  having  conferred  the  signiory  tians  had  heen  interdicted  because  they 

on  the  Count  of  Montefeltro;    and  he  would  not  allow  their  galleys  to  be  hired 

was  ordered,  on  pain  of  excommunica-  by  the  King  of  Naples.    But  it  would 

tion,  to  lay  down  the  government  with-  be  almost  endless  to  quote  every  in- 

in  a  month.    Muratori  ad  ann.    A  curi-  stance, 

ous  style  for  the  pope  tq  adopt  towards  /  Muratori. 


THE  MIDDLE  AGES  !83 

I  must  leave  the  pontifical  throne  in  the  possession  of  Alex- 
ander VI. 

It  has  been  my  object  in  the  present  chapter  to  bring  within 
the  compass  of  a  few  hours'  perusal  the  substance  of  a  great 
and  interesting  branch  of  history;  not  certainly  with  such 
extensive  reach  of  learning  as  the  subject  might  require, 
but  from  sources  of  unquestioned  credibility.  Unconscious 
of  any  partialities  that  could  give  an  oblique  bias  to  my  mind, 
I  have  not  been  very  solicitous  to  avoid  offence  where  offence 
is  so  easily  taken.  Yet  there  is  one  misinterpretation  of  my 
meaning  which  I  would  gladly  obviate.  I  have  not  designed, 
in  exhibiting  without  disguise  the  usurpations  of  Rome  during 
the  middle  ages,  to  furnish  materials  for  unjust  prejudice  or 
unfounded  distrust.  It  is  an  advantageous  circumstance  for 
the  philosophical  inquirer  into  the  history  of  ecclesiastical  do- 
minion, that,  as  it  spreads  itself  over  the  vast  extent  of  fifteen 
centuries,  the  dependence  of  events  upon  general  causes,  rather 
than  on  transitory  combinations  or  the  character  of  individuals, 
is  made  more  evident,  and  the  future  more  probably  foretold 
from  a  consideration  of  the  past,  than  we  are  apt  to  find  in 
political  history.  Five  centuries  have  now  elapsed,  during 
every  one  of  which  the  authority  of  the  Roman  see  has  succes- 
sively declined.  Slowly  and  silently  receding  from  their  claims 
to  temporal  power,  the  pontiffs  hardly  protect  their  dilapidated 
citadel  from  the  revolutionary  concussions  of  modern  times, 
the  rapacity  of  governments,  and  the  growing  averseness  to 
ecclesiastical  influence.  But  if,  thus  bearded  by  unmannerly 
and  threatening  innovation,  they  should  occasionally  forget 
that  cautious  policy  which  necessity  has  prescribed,  if  they 
should  attempt  (an  unavailing  expedient!)  to  revive  institu- 
tions which  can  be  no  longer  operative,  or  principles  that  have 
died  away,  their  defensive  efforts  will  not  be  unnatural,  nor 
ought  to  excite  either  indignation  or  alarm.  A  calm,  compre- 
hensive study  of  ecclesiastical  history,  not  in  such  scraps  and 
fragments  as  the  ordinary  partisans  of  our  ephemeral  literature 
obtrude  upon  us,  is  perhaps  the  best  antidote  to  extravagant 
apprehensions.  Those  who  know  what  Rome  has  once  been 
are  best  able  to  appreciate  what  she  is ;  those  who  have  seen 
the  thunderbolt  in  the  hands  of  the  Gregories  and  the  Inno- 
cents will  hardly  be  intimidated  at  the  sallies  of  decrepitude, 
the  impotent  dart  of  Priam  amidst  the  crackling  ruins  of  Troy,£ 

g  It  is  again  to  be  remembered  that  this  paragraph  inras  written  in  1816. 


1 84  HALLAM 

NOTES  TO  BOOK  VII. 

(PARTS  I.  AND  II.) 

NOTE  I. 

This  grant  is  recorded  in  two  charters  differing  materially  from  each 
other:  the  first  transcribed  in  Ingulfus's  History  of  Croyland,  and  dated 
at  Winchester  on  the  Nones  of  November,  855;  the  second  extant  in 
two  chartularies,  and  bearing  date  at  Wilton,  April  22,  854.  This  is 
marked  by  Mr.  Kemble  as  spurious  (Codex  Ang.-Sax.  Diplom.,  n. 
52) ;  and  the  authority  of  Ingulfus  is  not  sufficient  to  support  the  first 
The  fact,  however,  that  Ethelwolf  made  some  great  and  general  dona- 
tion to  the  church  rests  on  the  authority  of  Asser,  whom  later  writers 
have  principally  copied.  His  words  are,—"  Eodem  quoque  anno  [855] 
Adelwolfulus  venerabilis,  rex  Occidentalium  Saxonum,  decimam  totms 
regni  sui  partern  ab  omni  regali  servitio  et  tribute  liberavit,  et  in  sern- 
piterno  grafio  in  cruce  Christi,  pro  redemptipne  animae  suse  et  anteces- 
sorum  suorum,  Uni  et  Trino  Deo  immolavit."  (Gale,  XV.  Script  lii. 
156.) 

It  is  really  difficult  to  infer  anything  from  such  a  passage;  but  what- 
ever the  writer  may  have  meant,  or  whatever  truth  there  may  be  in  his 
story,  it  seems  impossible  to  strain  his  words  into  a  grant  of  tithes. 
The  charter  in  Ingulfus  rather  leads  to  suppose,  but  that  in  the  Codex 
Diplomaticus  decisively  proves,  that  the  grant  conveyed  a  tenth  part  of 
the  land,  and  not  of  its  produce.  Sir  F.  Palgrave,  by  quoting  only  the 
latter  charter,  renders  Selden's  Hypothesis,  that  the  general  right  to 
tithes  dates  from  this  concession  of  Ethelwolf,  even  more  untenable 
than  it  is.  Certainly  the  charter  copied  by  Ingulfus,  which  Sir  F.  Pal- 
grave  passes  in  silence,  does  grant  "  decimam  partem  bonorum; "  that 
is,  I  presume,  of  chattels,  which,  as  far  as  it  goes,  implies  a  tithe;  while 
the  words  applicable  to  land  are  so  obscure  and  apparently  corrupt 
that  Selden  might  be  warranted  in  giving  them  the  like  construction. 
Both  charters  probably  are  spurious;  but  there  may  have  been  an  ex- 
tensive grant  to  the  church,  not  only  of  immunity  from  the  trinoda 
necessitas,  which  they  express,  but  of  actual  possessions.  Since,  how- 
ever, it  must  have  been  impracticable  to  endow  the  church  with  a  tenth 
part  of  appropriated  lands,  it  might  possibly  be  conjectured  that  she 
took  a  tenth  part  of  the  produce,  either  as  a  composition,  or  until  means 
should  be  found  of  putting  her  in  possession  of  the  soil.  And  although, 
according  to  the  notions  of  those  times,  the  actual  property  might  be 
more  desirable,  it  is  plain  to  us  that  a  tithe  of  the  produce  was  of  much 
greater  value  than  the  same  proportion  of  the  land  itself. 

NOTE  II. 

Two  living  writers  of  the  Roman  Catholic  communion,  Dr.  Milner, 
in  his  History  of  Winchester,  and  Dr.  Lingard,  in  his  Antiquities  of 
the  Anglo-Saxon  Church,  contend  that  Elgiva,  whom  some  Protestant 
historians  are  willing  to  represent  as  the  queen  of  Edwy,  was  but  his 
mistress;  and  seem  inclined  to  justify  the  conduct  of  Odo  and  Dunstan 
towards  this  unfortunate  couple.  They  are  unquestionably  so  far  right, 
that  few,  if  any,  of  those  writers  who  have  been  quoted  as  authorities  in 
respect  of  this  story  speak  of  the  lady  as  a  queen  or  lawful  wife.  I  must 
therefore  strongly  reprobate  the  conduct  of  Dr.  Henry,  who,  calling 


THE   MIDDLE  AGES  185 

Elgiva  queen,  and  asserting  that  she  was  married,  refers,  at  the  bottom 
of  his  page,  to  William  of  Malmesbury  and  other  chroniclers,  who  give 
a  totally  opposite  account;  especially  as  he  does  not  intimate,  by  a  single 
expression,  that  the  nature  of  her  connection  with  the  king  was  equivo- 
cal. Such  a  practice,  when  it  proceeds,  as  I  fear  it  did  m  this  instance, 
not  from  oversight,  but  from  prejudice,  is  a  glaring  violation  of  histor- 
ical integrity,  and  tends  to  render  the  use  of  references,  that  great  im- 
provement of  modern  history,  a  sort  of  fraud  upon  the  reader.  The 
subject,  since  the  first  publication  of  these  volumes,  has  been  discussed 
by  Dr.  Lmgard  in  his  histories  both  of  England  and  of  the  Anglo-Saxon 
Church,  by  the  Edinburgh  reviewer  of  that  history,  vol  xhi.  (Mr. 
Allen),  and  by  other  late  writers.  Mr.  Allen  has  also  given  a  short  dis- 
sertation on  the  subject,  in  the  second  edition  of  his  Inquiry  into  the 
Royal  Prerogative,  posthumously  published  It  must  ever  be  impos- 
sible, unless  unknown  documents  are  brought  to  light,  to  clear  up  all  the 
facts  of  this  litigated  story.  But  though  some  Protestant  writers,  as  I 
have  said,  in  maintaining  the  matrimonial  connection  of  Edwy  and 
Elgiva,  quote  authorities  who  give  a  different  color  to  it,  there  is  a  pre- 
sumption of  the  marriage  from  a  passage  of  the  Saxon  Chronicle,  A  D 
958  (wanting  in  Gibson's  edition,  but  discovered  by  Mr.  Turner,  and 
now  restored  to  its  place  by  Mr.  Petne),  which  distinctly  says  that 
Archbishop  Odo  separated  Edwy  the  king  and  Elgiva  because  they 
were  too  nearly  related.  It  is  therefore  highly  probable  that  she  was 
queen,  though  Dr.  Lingard  seems  to  hesitate.  This  passage  was  written 
as  early  as  any  other  which  we  have  on  the  subject,  and  in  a  more  placid 
and  truthful  tone. 

The  royalty,  however,  of  Elgiva  will  be  out  of  all  possible  doubt,  if 
we  can  depend  on  a  document,  being  a  reference  to  a  charter,  in  the 
Cotton  library  (Claudius,  B.  vi.),  wherein  she  appears  as  a  witness. 
Turner  says  of  this — "  Had  the  charter  even  been  forged,  the  monks 
would  have  taken  care  that  the  names  appended  were  correct "  This 
Dr.  Lingard  inexcusably  calls  "  confessing  that  the  instrument  is  of 
very  doubtful  authenticity." 

The  Edinburgh  reviewer,  who  had  seen  the  manuscript,  believes  it 
genuine,  and  gives  an  account  of  it.  Mr.  Kemble  has  printed  it  without 
mark  of  spuriousness.  (Cod.  Diplom.,  vol.  v.  p.  378.)  In  this  document 
we  have  the  names  of  JElfgifu,  the  king's  wife,  and  of  ^Ethelgifu,  the 
king's  wife's  mother.  The  signatures  are  merely  recited,  so  that  the 
document  itself  cannot  be  properly  styled  a  charter;  but  we  are  only 
concerned  with  the  testimony  it  bears  to  the  existence  of  the  Queen 
Elgiva  and  her  mother. 

If  this  charter,  thus  recited,  is  established,  we  advance  a  step,  so  as  to 
prove  the  existence  of  a  mother  and  daughter,  bearing  nearly  the  same 
names,  and  such  names  as  apparently  imply  royal  blood,  the  latter  being 
married  to  Edwy.  This  would  tend  to  corroborate  the  coronation  story, 
divesting  it  of  the  gross  exaggerations  of  the  monkish  biographers  and 
their  followers.  It  might  be  supposed  that  the  young  king,  little  more 
than  a  boy,  retired  from  the  drunken  revelry  of  his  courtiers  to  converse, 
and  perhaps  romp,  with  his  cousin  and  her  mother;  that  Dunstan  au- 
daciously broke  in  upon  him,  and  forced  him  back  to  the  banquet;  that 
both  he  and  the  ladies  resented  this  insolence  as  it  deserved,  and  drove 
the  monk  into  exile;  and  that  the  marriage  took  place. 

It  is  more  difficult  to  deal  with  the  story  originally  related  by  the 
biographer  of  Odo,  that  after  his  marriage  Edwy  carried  off  a^  woman 
with  whom  he  lived,  and  whom  Odo  seized  and  sent  out  of  the  kingdom. 
This  lady  is  called  by  Eadmer  una  de  prgescrigtis  rnulieribus;  whence 
Dr  Lingard  assumes  her  to  have  been  Ethelgiva,  the  queen's  mother. 
This  was  in  his  History  of  England  (i.  517) ;  but  in  the  second  edi- 
tion of  the  Antiquities  of  the  Anglo-Saxon  Church  he  is  fat  less  coil- 


186  HALLAM 

fident  than  either  in  the  first  edition  of  that  work  or  in  his  history.  In 
fact,  he  plainly  confesses  that  nothing  can  be  clearly  made  out  beyond 
the  circumstances  of  the  coronation. 

Although  the  writers  before  the  conquest  do  not  bear  witness  to  the 
cruelties  exercised  on  some  woman  connected  with  the  king,  either  as 
queen  or  mistress,  at  Gloucester,  yet  the  subsequent  authorities  of  Ead- 
mer,  Osbern,  and  Malmesbury  may  lead  us  to  believe  that  there  was 
truth  in  the  mam  facts,  though  we  cannot  be  certain  that  the  person 
so  treated  was  the  Queen  Elgiva.  If  indeed  their  accounts  are  accurate, 
it  seems  at  first  that  they  do  not  agree  with  their  predecessors;  for 
they  represent  the  lady  as  being  in  the  king's  company  up  to  his  flight 
from  the  insurgents. — "  Regem  cum  adultera  fugitantem  persequi  non 
desistunt"  But  though  we  read  in  the  Saxon  Chronicle  that  Odo  di- 
vorced Edwy_and  Elgiva,  we  are  not  sure  that  they  submitted  to  the 
sentence.  It  is  therefore  possible  that  she  was  with  him  in  this  disas- 
trous flight,  and,  having  fallen  into  the  hands  of  the  pursuers,  was  put 
to  death  at  Gloucester.  True  it  is  that  her  proximity  of  blood  to  the 
king  would  not  warrant  Osbern  to  call  her  adultera;  but  bad  names 
cost  nothing  Malmesbury's  words  look  more  like  it,  if  we  might  supply 
something,  "  proxime  cognatam  invadens  uxorem  [cujusdam?]  ejus 
forma  deperibat; "  but  as  they  stand  in  his  text,  they  defy  my  scanty 
knowledge  of  the  Latin  tongue.  On  the  whole,  however,  no  reliance 
is  to  be  placed  on  very  passionate  and  late  authorities.  What  is  mani- 
fest alone  is,  that  a  young  king  was  persecuted  and  dethroned  by  the 
insolence  of  monkery  exciting  a  superstitious  people  against  him. 

NOTE  III. 

I  am  induced,  by  further  study,  to  modify  what  is  said  in  the  text  with 
respect  to  the  well-known  passages  in  Irenseus  and  Cyprian  The 
former  assigns,  indeed,  a  considerable  weight  to  the  Church  of  Rome, 
simply  as  testimony  to  apostolical  teaching;  but  this  is  plainly  not  lim- 
ited to  the  bishop  of  that  city,  not  is  he  personally  mentioned.  It  is 
therefore  an  argument,  and  no  slight  one,  against  the  pretended  su- 
premacy rather  than  the  contrary. 

The  authority  of  Cyprian  is  not,  perhaps,  much  more  to  the  purpose. 
For  the  only  words  in  his  treatise  De  Unitate  Ecclesise  which  assert  any 
authority  in  the  chair  of  St.  Peter,  or  indeed  connect  Rome  with  Peter 
at  all,  are  interpolations,  not  found  in  the  best  manuscripts  or  in  the 
oldest  editions  They  are  printed  within  brackets  in  the  best  modern 
ones.  (See  James  on  Corruptions  of  Scripture  in  the  Church  of  Rome, 
1612.)  True  it  is,  however,  that,  m  his  Epistle  to  Cornelius  Bishop  of 
Rome,  Cyprian  speaks  of  "  Petri  cathedram,  atque  ecclesiam  prin- 
cipalem  unde  unitas  sacerdotalis  exorta  est."  (Epist.  lix.  in  edit  Lip. 
1838;  Iv.  in  Baluze  and  others  )  And  in  another  he  exhorts  Stephen, 
successor  of  Cornelius,  to  write  a  letter  to  the  Bishops  of  Gaul,  that 
they  should  depose  Marcian  of  Aries  for  adhering  to  the  Novatian 
heresy.  (Epist.  Ixviii.  or  Ixvii.)  This  is  said  to  be  found  in  very  few 
manuscripts.  Yet  it  seems  too  long,  and  not  sufficiently  to  the  pur- 
pose, for  a  popish  forgery.  All  bishops  of  the  Catholic  church  assumed 
a  right  of  interference  with  each  other  by  admonition;  and  it  is  not 
entirely  clear  from  the  language  that  Cyprian  meant  anything  more 
authoritative;  though  I  incline,  on  the  whole,  to  believe  that,  when  on 
good  terms  with  the  see  of  Rome,  he  recognized  in  her  a  kind  of  prim- 
acy derived  from  that  of  St.  Peter. 

The  case,  nevertheless,  became  very  different  when  she  was  no  longer 
of  his  mind  In  a  nice  question  which  arose,  during  the  pontificate  of 
this  very  Stephen,  as  to  the  rebaptism  of  those  to  whom  the  rite  had 


THE   MIDDLE   AGES  187 

been  administered  by  heretics,  the  Bishop  of  Rome  took  the  negative 
side;  while  Cyprian,  with  the  utmost  vehemence,  maintained  the  con- 
trary. Then  we  find  no  more  honeyed  phrases  about  the  principal 
church  and  the  succession  to  Peter,  but  a  very  different  style:  "  Cur  in 
tantum  Stephani,  fratns  nostri,  obstmatio  dura  prorupit?"  (Epist. 
Ixxiv.)  And  a  correspondent  of  Cyprian,  doubtless  a  bishop,  Firmil- 
ianus  by  name,  uses  more  violent  language: — "  Audacia  et  insolentia 
ejus — aperta  et  manifesta  Stephani  stultitia—de  episcopates  sui  loco 
gloriatur,  et  se  successionem  Petri  tenere  contendit "  (Epist  Ixxv  ) 
Cyprian  proceeded  to  summon  a  council  of  the  African  bishops,  who 
met,  seventy-eight  in  number,  at  Carthage  They  all  agreed  to  con- 
demn heretical  baptism  as  absolutely  invalid.  Cyprian  addressed  them, 
requesting  that  they  would  use  full  liberty,  not  without  a  manifest  re- 
flection on  the  pretensions  of  Rome : — "  Neque  enim  quisquam  nostrum 
episcopum  se  esse  episcoporum  constitute,  aut  tyrannico  terrore  ad 
obsequendi  necessitatem  collegas  suos  adigit,  quando  ^  habeat  omnis 
episcopus  pro  licentia  hbertatis  et  potestatis  suse  arbitrium  propnum, 
tamque  judicari  ab  alio  non  possit,  quam  nee  ipse  potest  alterum 
judicare."  We  have  here  an  allusion  to  what  Tertulhan  had  called 
horrenda  vox,  "  episcopus  episcoporum; "  manifestly  intimating  that 
the  see  of  Rome  had  begun  to  assert  a  superiority  and  right  of  control, 
by  the  beginning  of  the  third  century,  but  at  the  same  time  that  it  was 
not  generally  endured.  Probably  the  notion  of  their  superior  authority, 
as  witnesses  of  the  faith,  grew  up  in  the  Church  of  Rome  very  early; 
and  when  Victor,  towards  the  end  of  the  second  century,  excommuni- 
cated the  churches  of  Asia  for  a  difference  as  to  the  time  of  keeping 
Easter,  we  see  the  germination  of  that  usurpation^  that  tyranny,  that 
uncharitableness,  which  reached  its  culminating  point  in  the  centre  of 
the  mediaeval  period. 


BOOK  VIII. 

THE  CONSTITUTIONAL  HISTORY   OF 
ENGLAND. 


BOOK  VIII. 

THE  CONSTITUTIONAL  HISTORY  OF  ENGLAND. 

PART  I. 

The  Anglo-Saxon  Constitution— Sketch  of  Anglo-Saxon  History- 
Succession  to  the  Crown— Orders  of  Men— Thanes  and  Ceorls— 
Witenagemot— Judicial  System— Division  into  Hundreds— County 
Court— Trial  by  Jury— Its  Antiquity  Investigated— Law  of  Frank- 
Pledge— Its  Several  Stages— Question  of  Feudal  Tenures  before  the 
Conquest. 

No  unbiassed  observer,  who  derives  pleasure  from  the  wel- 
fare of  his  species,  can  fail  to  consider  the  long  and  uninter- 
ruptedly increasing  prosperity  of  England  as  the  most  beau- 
tiful phenomenon  in  the  history  of  mankind.  Climates  more 
propitious  may  impart  more  largely  the  mere  enjoyments  oi 
existence;  but  in  no  other  region  have  the  benefits  that  polit- 
ical institutions  can  confer  been  diffused  over  so  extended 
a  population ;  nor  have  any  people  so  well  reconciled  the  dis- 
cordant elements  of  wealth,  order,  and  liberty.  These  advan- 
tages are  surely  not  owing  to  the  soil  of  this  island,  nor  to  the 
latitude  in  which  it  is  placed,  but  to  the  spirit  of  its  laws,  from 
which,  through  various  means,  the  characteristic  independence 
and  industriousness  of  our  nation  have  been  derived.  The  con- 
stitution, therefore,  of  England  must  be  to  inquisitive  men  of 
all  countries,  far  more  to  ourselves,  an  object  of  superior  in- 
terest ;  distinguished  especially,  as  it  is,  from  all  free  govern- 
ments of  powerful  nations  which  history  has  recorded,  by  its 
manifesting,  after  the  lapse  of  several  centuries,  not  merely  no 
symptom  of  irretrievable  decay,  but  a  more  expansive  energy. 
Comparing  long  periods  of  time,  it  may  be  justly  asserted  that 
the  administration  of  government  has  progressively  become 
more  equitable,  and  the  privileges  of  the  subject  more  secure; 
and,  though  it  would  be  both  presumptuous  and  unwise  to 

191 


194  HALLAM 

monarchy  coextensive  with  the  present  limits  of  England,  but 
asserted  at  least  a  supremacy  over  the  bordering  nations.^  Yet 
even  Edgar,  the  most  powerful  of  the  Anglo-Saxon  kings,  did 
not  venture  to  interfere  with  the  legal  customs  of  his  Danish 
subjects./* 

Under  this  prince,  whose  rare  fortune  as  well  as  judicious 
conduct  procured  him  the  surname  of  Peaceable,  the  kingdom 
appears  to  have  reached  its  zenith  of  prosperity.  But  his  prem- 
ature death  changed  the  scene.  The  minority  and  feeble 
character  of  Ethelred  II.  provoked  fresh  incursions  of  our  ene- 
mies beyond  the  German  Sea.  A  long  series  of  disasters,  and 
the  inexplicable  treason  of  those  to  whom  the  public  safety  was 
intrusted,  overthrew  the  Saxon  line,  and  established  Canute 
of  Denmark  upon  the  throne. 

The  character  of  the  Scandinavian  nations  was  in  some  meas- 
ure changed  from  what  it  had  been  during  their  first  invasions. 
They  had  embraced  the  Christian  faith  ;  they  were  consolidated 
into  great  kingdoms  ;  they  had  lost  some  of  that  predatory  and 
ferocious  spirit  which  a  religion  invented,  as  it  seemed,  for 
pirates  had  stimulated.  Those,  too,  who  had  long  been  settled 
in  England  became  gradually  more  assimilated  to  the  natives, 
whose  laws  and  language  were  not  radically  different  from  their 
own.  Hence  the  accession  of  a  Danish  line  of  kings  produced 
neither  any  evil  nor  any  sensible  change  of  polity.  But  the 
English  still  outnumbered  their  conquerors,  and  eagerly  re- 
turned, when  an  opportunity  arrived,  to  the  ancient  stock, 
Edward  the  Confessor,  notwithstanding  his  Norman  favorites, 
was  endeared  by  the  mildness  of  his  character  to  the  English 
nation,  and  subsequent  miseries  gave  a  kind  of  posthumous 
credit  to  a  reign  not  eminent  either  for  good  fortune  or  wise 
government. 

In  a  stage  of  civilization  so  little  advanced  as  that  of  the 
Anglo-Saxons,  and  tinder  circumstances  of  such  incessant  peril, 
the  fortunes  of  a  nation  chiefly  depend  upon  the  wisdom  and 
valor  of  its  sovereigns.  No  free  people,  therefore,  would  in- 
trust their  safety  to  blind  chance,  and  permit  a  uniform  ob- 
servance of  hereditary  succession  to  prevail  against  strong 
public  expediency.  Accordingly,  the  Saxons,  like  most  other 


*     ,    ^  Jt  seems  now  to  te  ascertained,  by  the 

h  Wilkins,  Leges  Anglo-Saxon,  p.  83.  comparison  of  dialects,  that  the  inhabi- 

In  1064,  after  a  revolt  of  the  Northum-  tants  from  the  Humber,  or  at  least  the 

bnans,  Edward  the  Confessor  renewed  Tyne,  to  the  Firth  of  Forth,  were  chiefly 

the  laws  of   Canute.    Chronic.   Saxon.  Danes, 


THE  MIDDLE  AGES  195 

European  nations,  while  they  limited  the  inheritance  of  the 
crown  exclusively  to  one  royal  family,  were  not  very  scrupulous 
about  its  devolution  upon  the  nearest  heir.  It  is  an  unwar- 
ranted assertion  of  Carte,  that  the  rule  of  the  Anglo-Saxon 
monarchy  was  "  lineal  agnatic  succession,  the  blood  of  the 
second  son  having  no  right  until  the  extinction  of  that  of  the 
eldest."  i  Unquestionably  the  eldest  son  of  the  last  king,  being 
of  full  age,  and  not  manifestly  incompetent,  was  his  natural 
and  probable  successor ;  nor  is  it  perhaps  certain  that  he  always 
waited  for  an  election  to  take  upon  himself  the  rights  of  sover- 
eignty, although  the  ceremony  of  coronation,  according  to  the 
ancient  form,  appears  to  imply  its  necessity.  But  the  public 
security  in  those  times  was  thought  incompatible  with  a  minor 
king ;  and  the  artificial  substitution  of  a  regency,  which  stricter 
notions  of  hereditary  right  have  introduced,  had  never  occurred 
to  so  rude  a  people.  Thus,  not  to  mention  those  instances 
which  the  obscure  times  of  the  Heptarchy  exhibit,  Ethelred  L, 
as  some  say,  but  certainly  Alfred,  excluded  the  progeny  of  their 
elder  brother  from  the  throne./  Alfred,  in  his  testament,  dilates 
upon  his  own  title,  which  he  builds  upon  a  triple  foundation, 
the  will  of  his  father,  the  compact  of  his  brother  Ethelred,  and 
the  consent  of  the  West  Saxon  nobility .&  A  similar  objection 
to  the  government  of  an  infant  seems  to  have  rendered  Athel- 
stan,  notwithstanding  his  reputed  illegitimacy,  the  public  choice 
upon  the  death  of  Edward  the  Elder.  Thus,  too,  the  sons  of 
Edmund  I.  were  postponed  to  their  uncle  Edred,  and,  again, 
preferred  to  his  issue.  And  happy  might  it  have  been  for  Eng- 
land if  this  exclusion  of  infants  had  always  obtained.  But  upon 
the  death  of  Edgar  the  royal  family  wanted  some  prince  of 
mature  years  to  prevent  the  crown  from  resting  upon  the  head 
of  a  child ;  Z  and  hence  the  minorities  of  Edward  II.  and  Ethel- 
red  II.  led  to  misfortunes  which  overwhelmed  for  a  time  both 
the  house  of  Cerdic  and  the  English  nation. 

The  Anglo-Saxon  monarchy,  during  its  earlier  period,  seems 
to  have  suffered  but  little  from  that  insubordination  among  the 

I  Vol.   i   p.  365.    Blackstone  has  la-  cousin,  which  he  would  bg.as  the  son 

bored  to  prove  the  same  proposition;  of  Ethelred. 

but  his  knowledge  QJ  English  history  Is  Spelman,  Vita  Alfred!,  Appendix, 

was  rather  superficial.  I  According  to  the  historian  of  Ram- 

;  Chromcon  Saxon,  p*  99.  Hume  says  sey,  a  sort  of  interregnum  took  place  on 
that  Ethelwold,  who  attempted  tQ  raise  Edgar's  death;  his  son's  birth  not  be- 
an insurrection  against  Edward  the  El-  ing  thought  sufficient  to  give  him  a 
der,  was  son  of  Ethelbert.  The  Saxon  clear  right  during  infancy.  3  Gait,  XV. 
Chronicle  only  calls  him  the  king's  Script,  p.  413. 


196  H  ALLAH 

superior  nobility  which  ended  in  dismembering  the  empire  of 
Charlemagne.  Such  kings  as  Alfred  and  Athelstan  were  not 
likely  to  permit  it.  And  the  English  counties,  each  under  its 
own  alderman,  were  not  of  a  size  to  encourage  the  usurpations 
of  their  governors.  But  when  the  whole  kingdom  was  sub- 
dued, there  arose,  unfortunately,  a  fashion  of  intrusting  great 
provinces  to  the  administration  of  a  single  earl.  Notwithstand- 
ing their  union,  Mercia,  Northumberland,  and  East  Anglia  were 
regarded  in  some  degree  as  distinct  parts  of  the  monarchy.  A 
difference  of  laws,  though  probably  but  slight,  kept  up  this 
separation.  Alfred  governed  Mercia  by  the  hands  of  a  noble- 
man who  had  married  his  daughter  Ethelfleda ;  and  that  lady 
after  her  husband's  death  held  the  reigns  with  a  masculine 
energy  till  her  own,  when  her  brother  Edward  took  the  prov- 
ince into  his  immediate  command.^  But  from  the  era  of  Ed- 
ward II.'s  succession  the  provincial  governors  began  to  over- 
power the  royal  authority,  as  they  had  done  upon  the  continent. 
England  under  this  prince  was  not  far  removed  from  the  con- 
dition of  France  under  Charles  the  Bald.  In  the  time  of  Ed- 
ward the  Confessor  the  whole  kingdom  seems  to  have  been 
divided  among  five  earls,w  three  of  whom  were  Godwin  and 
his  sons  Harold  and  Tostig.  It  cannot  be  wondered  at  that 
the  royal  line  was  soon  supplanted  by  the  most  powerful  and 
popular  of  these  leaders,  a  prince  well  worthy  to  have  founded 
a  new  dynasty,  if  his  eminent  qualities  had  not  yielded  to  those 
of  a  still  more  illustrious  enemy. 

There  were  but  two  denominations  of  persons  above  the 
class  of  servitude,  thanes,  and  ceorls ;  the  owners  and  the  cul- 
tivators of  land,  or  rather  perhaps,  as  a  more  accurate  distinc- 
tion, the  gentry  and  the  inferior  people.  Among  all  the  north- 
ern nations,  as  is  well  known,  the  weregild,  or  compensation 
for  murder,  was  the  standard  measure  of  the  gradations  of  so- 
ciety. In  the  Anglo-Saxon  laws  we  find  two  ranks  of  free- 
holders; the  first,  called  king's  thanes,  whose  lives  were 
valued  at  1200  shillings ;  the  second,  of  inferior  degree,  whose 
composition  was  half  that  sum  o  That  of  a  ceorl  was  200  shil- 
lings. The  nature  of  this  distinction  between  royal  and  lesser 

m  Chronicon  Saxon.  governor  of  a  county  or  province.  After 

wThe  word  earl  (eorl)  meant  origi-  the  conquest  it  superseded   altogether 

nally  a  man  of  noble  birth,  as  opposed  the  more  ancient  title     Selden's  Titles 

to  the  ceorl.    It  was  not  a  title  of  office  of  Honor,  vol.  iii.  p  638  (edit.  Wilkins), 

till  the  eleventh  century,  when  it  was  and  AngJto-Saxon  writings  passim. 

used  as  synonymous  to  alderman,  for  a  o  Wilkins,  pp.  40,  43.  $4»  7^>  »i. 


THE  MIDDLE  AGES  197 

thanes  is  very  obscure ;  and  I  shall  have  something  more  to 
say  of  it  presently.  However,  the  thanes  in  general,  or  Anglo- 
Saxon  gentry,  must  have  been  very  numerous.  A  law  of  Ethel- 
red  directs  the  sheriff  to  take  twelve  of  the  chief  thanes  in  every 
hundred,  as  his  assessors  on  the  bench  of  justice./*  And  from 
Domesday  Book  we  may  collect  that  they  had  formed  a  pretty 
large  class,  at  least  in  some  counties,  under  Edward  the  Con- 
fessors 

The  composition  for  the  life  of  a  ceorl  was,  as  has  been 
said,  200  shillings.  If  this  proportion  to  the  value  of  a  thane 
points  out  the  subordination  of  ranks,  it  certainly  does  not 
exhibit  the  lower  freemen  in  a  state  of  complete  abasement. 
The  ceorl  was  not  bound,  at  least  universally,  to  the  land  which 
he  cultivated ;  r  he  was  occasionally  called  upon  to  bear  arms 
for  the  public  safety ;  -?  he  was  protected  against  personal  in- 
juries, or  trespasses  on  his  land ;  *  he  was  capable  of  property, 
and  of  the  privileges  which  it  conferred.  If  he  came  to  possess 
five  hides  of  land  (or  about  600  acres),  with  a  church  and  man- 
sion of  his  own,  he  was  entitled  to  the  name  and  rights  of  a 
thane.w  And  if  by  owning  five  hides  of  land  he  became  a 
thane,  it  is  plain  that  he  might  possess  a  less  quantity  without 
reaching  that  rank.  There  were,  therefore,  ceorls  with  land  of 
their  own,  and  ceorls  without  land  of  their  own;  ceorls  who 
might  commend  themselves  to  what  lord  they  pleased,  and 
ceorls  who  could  not  quit  the  land  on  which  they  lived,  owing 
various  services  to  the  lord  of  the  manor,  but  always  freemen, 
and  capable  of  becoming  gentlemen.^ 

Some  might  be  inclined  to  suspect  that  the  ceorls  were  slid- 
ing more  and  more  towards  a  state  of  servitude  before  the 

p  Wilkins,  p.  117.  s  Leges  Ins,  c.  51,  ibid. 

q  Domesday  Book  having  been  com-  t  Leges  Alfredi,  c.  31,  35. 
piled  by  different  sets  of  commissioners,  u  Leges  Athelstam,  ibid ,  pp.  70,  71. 
their  language  has  sometimes  varied  m  v  It  is  said  in  the  Introduction  to  the 
describing  the  same  class  of  persons.  Supplementary  Records  of  Domesday, 
The  Itben  homines,  of  whom  we  find  con-  which  I  quote  from  Cooper's  Account 
tinual  mention  in  some  counties,  were  of  Public  Records  (i.  223),  that  the  word 
perhaps  not  different  from  the  thawi,  commendatio  is  confined  to  the  three 
who  occur  in  other  places.  But  this  counties  in  the  second  volume  of 
subject  is  very  obscure;  and  a  clear  ap-  Domesday,  except  that  it  occurs  twice 
prehension  of  the  classes  of  society  in  the  Inquisitio  Ehensis  t  for  Cam- 
mentioned  in  Domesday  seems  at  pre-  bndgeshire.  But,  if  this  particular  word 
sent  unattainable.  does  not  occur,  we  have  tjie  sense,  in 

r  Leges   Alfredi,    c.   33,    in   Wilkins.  "  ire  cum  terra  ubi  voluerit,"  or  "  quae- 

This  text  is  not  unequivocal;  and  I  con-  rere    domimim    ubi    voluerit,"    which 

fess  that  a  law  of  Ina  (c.  39}  has  rather  meet  our  eyes  perpetually  in  the  first 

a  contrary  appearance.    But  the  condi-  volume  of  Domesday.    The  difference 

tion  of  all  ceorls  need  not  be  supposed  of  phrases  in  this  record  must,  in  great 

to  have  been  the  same;  and  in  the  latter  measure,  be  attributed  to  that  of  the 

period  this  can  be  shown  to  have  been  persons  employed. 
subi«ct  to  much  diversity. 


1 98  HALLAM 

conquest.^  The  natural  tendency  of  such  times  of  rapine, 
with  the  analogy  of  a  similar  change  in  France,  leads  to  this 
conjecture.  But  there  seems  to  be  no  proof  of  it ;  and  the  pas- 
sages which  recognize  the  capacity  of  a  ceorl  to  become  a 
thane  are  found  in  the  later  period  of  Anglo-Saxon  law.  Nor 
can  it  be  shown,  as  I  apprehend,  by  any  authority  earlier  than 
that  of  Glanvil,  whose  treatise  was  written  about  1180,  that 
the  peasantry  of  England  were  reduced  to  that  extreme  de- 
basement which  our  law-books  call  villenage;  a  condition 
which  left  them  no  civil  rights  with  respect  to  their  lord.  For, 
by  the  laws  of  William  the  Conqueror,  there  was  still  a  com- 
position fixed  for  the  murder  of  a  villein  or  ceorl,  the  strongest 
proof  of  his  being,  as  it  was  called,  law-worthy,  and  possessing 
a  rank,  however  subordinate,  in  political  society.  And  this 
composition  was  due  to  his  kindred,  not  to  the  lord.*  Indeed, 
it  seems  positively  declared  in  another  passage  that  the  culti- 
vators, though  bound  to  remain  upon  the  land,  were  only  sub- 
ject to  certain  services.?  Again,  the  treatise  denominated  the 
Laws  of  Henry  L,  which,  though  not  deserving  that  appella- 
tion, must  be  considered  as  a  contemporary  document,  ex- 
pressly mentions  the  twyhinder  or  villein  as  a  freeman.^  No- 
body can  doubt  that  the  villani  and  bordarii  of  Domesday 
Book,  who  are  always  distinguished  from  the  serfs  of  the  de- 
mesne, were  the  ceorls  of  Anglo-Saxon  law.  And  I  presume 
that  the  socmen,  who  so  frequently  occur  in  that  record, 
though  far  more  in  some  counties  than  in  others,  were  ceorls 
more  fortunate  than  the  rest,  who  by  purchase  had  acquired 
freeholds,  or  by  prescription  and  the  indulgence  of  their  lords 
had  obtained  such  a  property  in  the  outlands  allotted  to  them 
that  they  could  not  be  removed,  and  in  many  instances  might 
dispose  of  them  at  pleasure.  They  are  the  root  of  a  noble 
plant,  the  free  socage  tenants,  or  English  yeomanry,  whose 
independence  has  stamped  with  peculiar  features  both  our  con- 
stitution and  our  national  character.^ 

Beneath  the  ceorls  in  political  estimation  were  the  conquered 
natives  of  Britain.  In  a  war  so  long  and  so  obstinately  main- 
tained as  that  of  the  Britons  against  their  invaders,  it  is  natural 
to  conclude  that  in  a  great  part  of  the  country  the  original  in- 

w  If  the  laws  that  bear  the  name  of  y  Id.  p  225- 

William  are,  as  is  generally  supposed,  s  Leges   He: 

those  of  his  predecessor  Edward,  they  Wilkins 

were  already  annexed  to  the  soil.  p.  225.  a  CNoxE  IJI.J 

p  Wilfcins,  p  221. 


ienr.   I ,   c.  70  and  76,  in 


THE  MIDDLE  AGES  199 

habitants  were  almost  extirpated,  and  that  the  remainder  were 
reduced  into  servitude.  This,  till  lately,  has  been  the  concur- 
rent opinion  of  our  antiquaries ;  and,  with  some  qualification, 
I  do  not  see  why  it  should  not  still  be  received.fr  In  every  king- 
dom of  the  continent  which  was  formed  by  the  northern  nations 
out  of  the  Roman  empire,  the  Latin  language  preserved  its 
superiority,  and  has  much  more  been  corrupted  through  ig- 
norance and  want  of  a  standard,  than  intermingled  with  their 
original  idiom.  But  our  own  language  is,  and  has  been  from 
the  earliest  times  after  the  Saxon  conquest,  essentially  Teu- 
tonic, and  of  the  most  obvious  affinity  to  those  dialects  which 
are  spoken  in  Denmark  and  Lower  Saxony.  With  such  as  are 
extravagant  enough  to  controvert  so  evident  a  truth  it  is  idle 
to  contend ;  and  those  who  believe  great  part  of  our  language 
to  be  borrowed  from  the  Welsh  may  doubtless  infer  that  great 
part  of  our  population  is  derived  from  the  same  source.c  If 
we  look  through  the  subsisting  Anglo-Saxon  records,  there  is 
not  very  frequent  mention  of  British  subjects.  But  some  un- 
doubtedly there  were  in  a  state  of  freedom,  and  possessed 
of  landed  estate.  A  Welshman  (that  is,  a  Briton)  who  held 
five  hides  was  raised,  like  a  ceorl,  to  the  dignity  of  thane.d 
In  the  composition,  however,  for  their  lives,  and  consequently 
in  their  rank  in  society,  they  were  inferior  to  the  meanest  Saxon 
freemen.  The  slaves,  who  were  frequently  the  objects  of  legis- 
lation, rather  for  the  purpose  of  ascertaining  their  punishment 

b  [NOTE  IV.]  quenng  race  are  apt  to  adopt  these 
c  it  is  but  just  to  mention  a  partial  names  from  the  conquered ;  and  thus, 
exception,  according  to  a  considerable  after  the  lapse  of  twelve  centuries  and 
authority,  to  what  has  been  said  in  the  innumerable  civil  convulsions,  the  prin- 
text  as  to  the  absence  of  British  roots  in  cipal  words  of  the  class  described  yet 
the  English  language;  though  it  can  prevail  in  the  language  of  our  people, 
but  slightly  affect  the  general  proposi-  and  partially  in  our  literature.  Man^f 
tion.  Mr.  Kemble  remarks  the  number  then,  of  the  words  which  we  seek  in 
of  minute  distinctions,  in  describing  the  vain  in  the  Anglo-Saxon  dictionaries, 
local  features  of  a  country,  which  are,  m  fact,  to  be  sought  in  those  of  the 
abound  in  the  Anglo-Saxon  charters,  and  Cymn,  from  whose  practice  they  were 
the  difficulties  which  occur  m  their  ex-  adopted  by  the  victorious  Saxons,  in  all 
planation.  One  of  these  relates  to  the  parts  of  the  country:  and  they  are  not 
language  itself.  "It  cannot  be  doubt-  Anglo-Saxon,  but  Welsh  (*  e.  foreign, 
ful  that  local  names,  and  those  devoted  Wyhsc),  very  frequently  unmodified 
to  distinguish  the  natural  features  of  a  either  in  meaning  or  pronunciation.' 
country,  possess  an  inherent  vitality,  Preface  to  Codex  Diplom.,  vol.  in.  p.  15 
which  even  the  urgency  of  conquest  is  Though  this  bears  intrinsic  marks  of 
frequently  unable  to  destroy.  A  race  is  probability,  it  is  yet  remarkable  that,  m 
rarely  so  entirely  removed  as  not  to  a  long  list  of  descriptive  words  which 
form  an  integral,  although  subordinate,  immediately  follows,  there  are  not  six 
part  of  the  new  state  based  upon  its  for  which  Mr.  Kemble  suggests  a  Cam- 
ruins;  and  in  the  case  where  the  culti-  brian  root:  and  of  these  some,  such  as 
vator  continues  to  be  occupied  with  the  comb,  a  valley,  belong  to  parts  of  Eng- 
soil,  a  change  of  master  will  not  neces-  land  where  the  British  long  kept  their 
sarily-  lead  to  the  abandonment  of  the  ground. 

names  by  which  the  land  itself  and  the  d  Leges  Inae,  p.  18;   Leg.  Atheist,  p, 

instruments  or  processes  of  labor  are  71- 
designated.    On  the  contrary,  the  con- 


200  HALLAM 

than  of  securing  their  rights,  may  be  presumed,  at  least  in 
early  times,  to  have  been  part  of  the  conquered  Britons.  For 
though  his  own  crimes,  or  the  tyranny  of  others,  might  possibly 
reduce  a  Saxon  ceorl  to  this  condition/  it  is  inconceivable  that 
the  lowest  of  those  who  won  England  with  their  swords  should 
in  the  establishment  of  the  new  kingdoms  have  been  left  desti- 
tute of  personal  liberty. 

The  great  council  by  which  an  Anglo-Saxon  king  was  guided 
in  all  the  main  acts  of  government  bore  the  appellation  of  wite- 
nagemot,  or  the  assembly  of  the  wise  men.  All  their  laws 
express  the  assent  of  this  council;  and  there  are  instances 
where  grants  made  without  its  concurrence  have  been  revoked. 
It  was  composed  of  prelates  and  abbots,  of  the  aldermen  of 
shires,  and,  as  it  is  generally  expressed,  of  the  noble  and  wise 
men  of  the  kingdom/  Whether  the  lesser  thanes,  or  inferior 
proprietors  of  lands,  were  entitled  to  a  place  in  the  national 
council,  as  they  certainly  were  in  the  shiregemot,  or  county- 
court,  is  not  easily  to  be  decided.  Many  writers  have  con- 
cluded, from  a  passage  in  the  History  of  Ely,  that  no  one,  how- 
ever nobly  born,  could  sit  in  the  witenagemot,  so  late  at  least 
as  the  reign  of  Edward  the  Confessor,  unless  he  possessed  forty 
hides  of  land,  or  about  five  thousand  acres.g  But  the  passage 
in  question  does  not  unequivocally  relate  to  the  witenagemot ; 
and  being  vaguely  worded  by  an  ignorant  monk,  who  perhaps 
had  never  gone  beyond  his  fens,  ought  not  to  be  assumed 
as  an  incontrovertible  testimony.  Certainly  so  very  high  a 
qualification  cannot  be  supposed  to  have  been  requisite  in  the 
kingdoms  of  the  Heptarchy;  nor  do  we  find  any  collateral 
evidence  to  confirm  the  hypothesis.  If,  however,  all  the  body 
of  thanes  or  freeholders  were  admissible  to  the  witenagemot, 
it  is  unlikely  that  the  privilege  should  have  been  fully  exer- 
cised. Very  few,  I  believe,  at  present  imagine  that  there  was 
any  representative  system  in  that  age ;  much  less  that  the  ceorls 
or  inferior  freemen  had  the  smallest  share  in  the  deliberations 
of  the  national  assembly.  Every  argument  which  a  spirit  of 
controversy  once  pressed  into  this  service  has  long  since  been 
victoriously  refuted.^ 

It  has  been  justly  remarked  by  Hume,  that,  among  a  people 

e  Leges  Inse,  c.  24-  terrae  doxninitim  minima  obtineret,  licet 

/  Leges  Anglo-Saxon.  In  Wilkins,  nobilis  esset,  inter  proceres  tune  numer- 
passim.  ari  non  potuit.  3  Gale,  p.  513. 

g  Quoniam  ille  quadraginta  hydarum          h  [NOTE  V.] 


THE  MIDDLE  AGES  201 

who  lived  in  so  simple  a  manner  as  these  Anglo-Saxons,  the 
judicial  power  is  always  of  more  consequence  than  the  legisla- 
tive. The  liberties  of  these  Anglo-Saxon  thanes  were  chiefly 
secured,  next  to  their  swords  and  their  free  spirits,  by  the  ines- 
timable right  of  deciding  civil  and  criminal  suits  in  their  own 
county-court ;  an  institution  which,  having  survived  the  con- 
quest, and  contributed  in  no  small  degree  to  fix  the  liberties 
of  England  upon  a  broad  and  popular  basis,  by  limiting  the 
feudal  aristocracy,  deserves  attention  in  following  the  history 
of  the  British  constitution. 

The  division  of  the  kingdom  into  counties,  and  of  these  into 
hundreds  and  decennaries,  for  the  purpose  of  administering 
justice,  was  not  peculiar  to  England.  In  the  early  laws  of 
France  and  Lombardy  frequent  mention  is  made  of  the  hun- 
dred-court, and  now  and  then  of  those  petty  village  magistrates 
who  in  England  were  called  tything-men.  It  has  been  usual 
to  ascribe  the  establishment  of  this  system  among  our  Saxon 
ancestors  to  Alfred,  upon  the  authority  of  Ingulfus,  a  writer 
contemporary  with  the  conquest.  But  neither  the  biographer 
of  Alfred,  Asserius,  nor  the  existing  laws  of  that  prince,  bear 
testimony  to  the  fact.  With  respect  indeed  to  the  division  of 
counties,  and  their  government  by  aldermen  and  sheriffs,  it 
is  certain  that  both  existed  long  before  his  time ; *  and  the  ut- 
most that  can  be  supposed  is,  that  he  might  in  some  instances 
have  ascertained  an  unsettled  boundary.  There  does  not  seem 
be  equal  evidence  as  to  the  antiquity  of  the  minor  divisions. 
Hundreds,  I  think,  are  first  mentioned  in  a  law  of  Edgar, 
and  tythings  in  one  of  Canute./  But  as  Alfred,  it  must  be 
remembered,  was  never  master  of  more  than  half  the  king- 
dom, the  complete  distribution  of  England  into  these  districts 
cannot,  upon  any  supposition,  be  referred  to  him. 

There  is,  indeed,  a  circumstance  observable  in  this  division 
which  seems  to  indicate  that  it  could  not  have  taken  place  at 

* Counties,  as  well  as  the  alderman  waste,  taken  together.    Introduction  to 

who  presided  over  them,  are  mentioned  Domesday,    i.    185.    But    this    implies 

in  the  laws  of  Ina,  c.  36.  equality  of  size,  which  is  evidently  not 

For  the  division  of  counties,  which  the  case.    A  passage  in  the  Dialogus  de 

were  not  always  formed  in  the  same  age,  Scaccarip  (p.  31)  is  conclusive- — Hyda 

nor  on  the  same  plan,  see  Palgrave,  i.  a  primitiva  institutione  in  centum  acris 

116.    We  do  not  know  much  about  the  constat:   hundredtts  est  ex  hydarum  ali- 

mland  counties  in  general;  those  on  the  quot  centenanis,  sed  non  determinatis; 

coasts  are  in  general  larger,   and  are  quidam  enim  ex  pluribus,  quidam  ex 

mentioned  in  history.    All  we  can  say  is,  paucioribus  hydis  constat. 

that  they  all  existed  at  the  conquest  as  ;  Wilkins,  pp    87,   136.    The  former, 

at  present.    The  hundred  is  supposed  however,  refers  to  them  as  an  ancient 

by  Sir  H.  Ellis,  on  the  authority  of  an  institution:    quseratur  Centura  conven- 

ancient  record,  to  have  consisted  of  a  tus,  sicut  antea  institutum  erat 
hundred  hides  of  land,  cultivated  and 


202  HALLAM 

one  time,  nor  upon  one  system ;  I  mean  the  extreme  inequal- 
ity of  hundreds  in  different  parts  of  England.  Whether  the 
name  be  conceived  to  refer  to  the  number  of  free  families,  or 
of  landholders,  or  of  petty  vills,  forming  so  many  associations 
of  mutual  assurance  or  frankpledge,  one  can  hardly  doubt 
that,  when  the  term  was  first  applied,  a  hundred  of  one  or  other 
of  these  were  comprised,  at  an  average,  reckoning,  within  the 
district.  But  it  is  impossible  to  reconcile  the  varying  size  of 
hundreds  to  any  single  hypothesis.  The  county  of  Sussex  con- 
tains sixty-five,  that  of  Dorset  forty-three;  while  Yorkshire 
has  only  twenty-six,  and  Lancashire  but  six.  No  difference 
of  population,  though  the  south  of  England  was  undoubtedly 
far  the  best  peopled,  can  be  conceived  to  account  for  so  pro- 
digious a  disparity.  I  know  of  no  better  solution  than  that  the 
divisions  of  the  north,  properly  called  wapentakes,&  were 
planned  upon  a  different  system,  and  obtained  the  denomina- 
tion of  hundreds  incorrectly  after  the  union  of  all  England 
under  a  single  sovereign. 

Assuming,  therefore,  the  name  and  partition  of  hundreds 
to  have  originated  in  the  southern  counties,  it  will  rather,  I 
think,  appear  probable  that  they  contained  only  an  hundred 
free  families,  including  the  ceorls  as  well  as  their  landlords. 
If  we  suppose  none  but  the  latter  to  have  been  numbered, 
we  should  find  six  thousand  thanes  in  Kent,  and  six  thousand 
five  hundred  in  Sussex;  a  reckoning  totally  inconsistent  with 
any  probable  estimate.*  But  though  we  have  little  direct  testi- 
mony as  to  the  population  of  those  times,  there  is  one  passage 
which  falls  in  very  sufficiently  with  the  former  supposition. 
Bede  says  that  the  kingdom  of  the  South  Saxons,  comprehend- 
ing Surrey  as  well  as  Sussex,  contained  seven  thousand  fam- 
ilies. The  county  of  Sussex  alone  is  divided  into  sixty-five 
hundreds,  which  comes  at  least  close  enough  to  prove  that 
free  families,  rather  than  proprietors,  were  the  subject  of  that 
numeration.  And  this  is  the  interpretation  of  Du  Cange  and 
Muratori  as  to  the  Centenae  and  Decanise  of  their  own  ancient 
laws. 

I  cannot  but  feel  some  doubt,  notwithstanding  a  passage  in 
the  laws  ascribed  to  Edward  the  Confessor,^  whether  the  tyth- 

k  Leges  Edwardi  Confess.,  c.  ^3.  w  Leges    Edwardi    Confess,    p.    203 

pilt  would  be  easy  to  mention  par-  Nothing,  as  far  as  I  know,  confirms 
ticular  hundreds  in  these  counties  so  this  passage,  which  hardly  tallies  with 
small  as  to  render  this  supposition  quite  what  the  genuine  Anglo-Saxon  docu- 
ndiculons.  ments  contain  as  to  the  judicial  ar- 

rangements of  that  period- 


THE   MIDDLE  AGES  203 

ing-man  ever  possessed  any  judicial  magistracy  over  his  small 
district.  He  was,  more  probably,  little  different  from  a  petty 
constable,  as  is  now  the  case,  I  believe,  wherever  that  denomi- 
nation of  office  is  preserved.  The  court  of  the  hundred  was 
held,  as  on  the  continent,  by  its  own  centenarius,  or  hundred- 
man,  more  often  called  alderman,  and,  in  the  Norman  times, 
bailiff  or  constable,  but  under  the  sheriff's  writ.  It  is,  in  the 
language  of  the  law,  the  sheriff's  tourn  and  leet.  And  in  the 
Anglo-Saxon  age  it  was  a  court  of  justice  for  suitors  within  the 
hundred,  though  it  could  not  execute  its  process  beyond  that 
limit.  It  also  punished  small  offences,  and  was  intrusted  with 
the  "  view  of  frankpledge,"  and  the  maintenance  of  the  great 
police  of  mutual  surety.  In  some  cases,  that  is,  when  the  hun- 
dred was  competent  to  render  judgment,  it  seems  that  the 
county-court  could  only  exercise  an  appellant  jurisdiction  for 
denial  of  right  in  the  lower  tribunal.  But  in  course  of  time 
the  former  and  more  celebrated  court  being  composed  of  far 
more  conspicuous  judges,  and  held  before  the  bishop  and  the 
earl,  became  the  real  arbiter  of  important  suits ;  and  the  court- 
leet  fell  almost  entirely  into  disuse  as  a  civil  jurisdiction,  con- 
tenting itself  with  punishing  petty  offences  and  keeping  up  a 
local  police.^  It  was,  however,  to  the  county-court  that  an 
English  freeman  chiefly  looked  for  the  maintenance  of  his  civil 
rights.  In  this  assembly,  held  twice  in  the  year  by  the  bishop 
and  the  alderman,*?  or,  in  his  absence,  the  sheriff,  the  oath  of 
allegiance  was  administered  to  all  freemen,  breaches  of  the 
peace  were  inquired  into,  crimes  were  investigated,  and  claims 
were  determined.  I  assign  all  these  functions  to  the  county- 
court  upon  the  supposition  that  no  other  subsisted  during  the 
Saxon  times,  and  that  the  separation  of  the  sheriff's  tourn  for 
criminal  jurisdiction  had  not  yet  taken  place ;  which,  however, 
I  cannot  pretend  to  determined 

A  very  ancient  Saxon  instrument,  recording  a  suit  in  the 
county-court  under  the  reign  of  Canute,  has  been  published 
by  Hickes,  and  may  be  deemed  worthy  of  a  literal  translation 
in  this  place.  "  It  is  made  known  by  this  writing  that  in  the 

«  [NOTE  VI.]  London  had  f  aldermen  from  time  im- 

aThe  alderman  was  the  highest  rank  memorial.    Alter  the  conquest  the  title 

after  the  royal  family,  to  which  he  some-  seems  t  to  have  become  appropriated  to 

times  belonged     Every  county  had  its  municipal  magistrates, 

alderman;   but  the  name  is  not  applied  p  This  point  is  obscure;  but  I  do  not 

in  written  documents  to  magistrates  of  perceive  that  the  Anglo-Saxon  laws  dis- 

boroughs    before    the    conquest.    Pal-  tinguish  the  civil  from  the  criminal  tri- 

grave,  11.  350.    He  thinks,  however,  that  bunal. 


204  HALL  AM 

shiregemot  (county-court)  held  at  Agelnothes-stane  (Aylston 
in  Herefordshire)  in  the  reign  of  Canute  there  sat  Athelstan 
the  bishop,  and  Ranig  the  alderman,  and  Edwin  his  son, 
Leofwin  Wulfig's  son;  and  Thurkil  the  White  and  Tofig 
came  there  on  the  king's  business ;  and  there  were  Bryning 
the  sheriff,  and  Athelweard  of  Frome,  and  Leofwin  of  Frome, 
and  Goodric  of  Stoke,  and  all  the  thanes  of  Hereford- 
shire. Then  came  to  the  mote  Edwin  son  of  Enneawne,  and 
sued  his  mother  for  some  lands,  called  Weolintun  and 
Cyrdeslea.  Then  the  bishop  asked  who  would  answer  for 
his  mother.  Then  answered  Thurkil  the  White,  and  said  that 
he  would,  if  he  knew  the  facts,  which  he  did  not.  Then  were 
seen  in  the  mote  three  thanes,  that  belonged  to  Feligly  (Fawley, 
five  miles  from  Aylston),  Leofwin  of  Frome,  -Sgelwig  the  Red, 
and  Thinsig  Staegthman ;  and  they  went  to  her,  and  inquired 
what  she  had  to  say  about  the  lands  which  her  son  claimed. 
She  said  that  she  had  no  land  which  belonged  to  him,  and  fell 
into  a  noble  passion  against  her  son,  and,  calling  for  Leofleda 
her  kinswoman,  the  wife  of  Thurkil,  thus  spake  to  her  before 
them :  *  This  is  Leofleda  rny  kinswoman,  to  whom  I  give  my 
lands,  money,  clothes,  and  whatever  I  possess  after  my  life ; ' 
and  this  said,  she  thus  spake  to  the  thanes :  '  Behave  like 
thanes,  and  declare  my  message  to  all  the  good  men  in  the 
mote,  and  tell  them  to  whom  I  have  given  my  lands  and  all 
my  possessions,  and  nothing  to  rny  son ; '  and  bade  them  be 
witnesses  to  this.  And  thus  they  did,  rode  to  the  mote,  and 
told  all  the  good  men  what  she  had  enjoined  them.  Then 
Thurkil  the  White  addressed  the  mote,  and  requested  all  the 
thanes  to  let  his  wife  have  the  lands  which  her  kinswoman  had 
given  her;  and  thus  they  did,  and  Thurkil  rode  to  the  church 
of  St.  Ethelbert,  with  the  leave  and  witness  of  all  the  people,  and 
had  this  inserted  in  a  book  in  the  church."  q 

It  may  be  presumed  from  the  appeal  made  to  the  thanes 
present  at  the  county-court,  and  is  confirmed  by  other  ancient 
authorities/  that  all  of  them,  and  they  alone,  to  the  exclusion 

g  Hickes,  Dissertatio  Epistolaris,  p.  4,  be  so;  but  the  county-court  has  at  least 

in  Thesaurus  Antiquitatum  Septentrion,  long  ceased  to  be  a  court  of  record; 

vol.  iii.     "  Before  the  Conquest,"  says  and  one  would  ask  for  proof  of  that  as- 

Gurdon     (on     Courts-Baron,     i>     589),  sertion.    The  book  kept  in  the  church 

**  grants  were  enrolled  in  the  shire-book  of   St.    Ethelbert,    wherein   Thurkil   is 

in  public  shire-mote,  after  proclamation  said  to  have  inserted  the  proceedings  of 

made  for  any  to  come  in  that  could  the  county-court,  may  or  may  not  have 

claim  the  lands  conveyed;  and  this  was  been  a  public  record 

as  irreversible  as  the  modern  fine  with  r  Id ,  p.  3.  Leges  Henr.  Primi.,  c.  29. 
proclamations,  or  recovery  '*  This  may 


THE  MIDDLE  AGES  205 

of  inferior  freemen,  were  the  judges  of  civil  controversies. 
The  latter  indeed  were  called  upon  to  attend  its  meetings,  or, 
in  the  language  of  our  present  law,  were  suitors  to  the  court, 
and  it  was  penal  to  be  absent.  But  this  was  on  account  of 
other  duties,  the  oath  of  allegiance  which  they  were  to  take, 
or  the  frankpledges  into  which  they  were  to  enter,  not  in 
order  to  exercise  any  judicial  power ;  unless  we  conceive  that 
the  disputes  of  the  ceorls  were  decided  by  judges  of  their  own 
rank.  It  is  more  important  to  remark  the  crude  state  of  legal 
process  and  inquiry  which  this  instrument  denotes.  Without 
any  regular  method  of  instituting  or  conducting  causes,  the 
county-court  seems  to  have  had  nothing  to  recommend  it  but, 
what  indeed  is  no  trifling  matter,  its  security  from  corruption 
and  tyranny ;  and  in  the  practical  jurisprudence  of  our  Saxon 
ancestors,  even  at  the  beginning  of  the  eleventh  century,  we 
perceive  no  advance  of  civility  and  skill  from  the  state  of  their 
own  savage  progenitors  on  the  banks  of  the  Elbe.  No  appeal 
could  be  made  to  the  royal  tribunal,  unless  justice  was  denied 
in  the  county-courts  This  was  the  great  constitutional  judica- 
ture in  all  questions  of  civil  right.  In  another  instrument,  pub- 
lished by  Hickes,  of  the  age  of  Ethelred  II.,  the  tenant  of  lands 
which  were  claimed  in  the  king's  court  refused  to  submit  to  the 
decree  of  that  tribunal,  without  a  regular  trial  in  the  county; 
which  was  accordingly  granted.*  There  were,  however,  royal 
judges,  who,  either  by  way  of  appeal  from  the  lower  courts, 
or  in  excepted  cases,  formed  a  paramount  judicature;  but 
how  their  court  was  composed  under  the  Anglo-Saxon  sover- 
eigns I  do  not  pretend  to  assert.w 

It  had  been  a  prevailing  opinion  that  trial  by  jury  may  be 
referred  to  the  Anglo-Saxon  age,  and  common  tradition  has 
ascribed  it  to  the  wisdom  of  Alfred.  In  such  a  historical  de- 
duction of  the  English  government  as  I  have  attempted,  an 
institution  so  peculiarly  characteristic  deserves  every  attention 
to  its  origin ;  and  I  shall,  therefore,  produce  the  evidence  which 

s  Leges   Eadgari,   p.   77;     Catmti,   p.  however,  several  instances  of  decisions 

136;    Henrici  Pnmi,  c.  34.    I  quote  the  before  the  king;    and  in  some  cases  it 

latter   freely    as    Anglo-Saxon,    though  seems  that  the  witenageniot  had  a  judi- 

posterior  to  the  conquest;    their  spirit  cial  authority.    Leges  Canuti,  pp.  135, 

being  perfectly  of  the  former  period.  136;   Hist.  Eliensis,  p.  469;   Chron.  Sax. 

t  Dissertatio  Epistolans,  p.  5.  p.  169.   In  the  Leges  Henr.  I.,  c.  io»  the 

«Madox,  History  of  the  Exchequer,  limits  of  the  royal  and  local  junsdic- 

p.  65,  will  not  admit  the  existence  of  any  tions  are  defined,  as  to  criminal  matters, 

court   analogous   to   the    Curia    Regis  and  seem  to  have  been  little  changed 

before  the  conquest;  all  pleas  being  de-  since  the  reign  of  Canute,  p.  rss  [z8i8]. 

termined   in   the   county.    There    are,  [NpxEVIL]                   ^ 


206  HALLAM 

has  been  supposed  to  bear  upon  this  most  eminent  part  of  our 
judicial  system.  The  first  text  of  the  Saxon  laws  which  may 
appear  to  have  such  a  meaning  is  in  those  of  Alfred.  "  If  any 
one  accuse  a  king's  thane  of  homicide,  if  he  dare  to  purge  him- 
self (ladian),  let  him  do  it  along  with  twelve  king's  thanes." 
"  If  any  one  accuse  a  thane  of  less  rank  (laessa  maga)  than  a 
king's  thane,  let  him  purge  himself  along  with  eleven  of  his 
equals,  and  one  king's  thane."  v  This  law,  which  Nicholson 
contends  to  mean  nothing  but  trial  by  jury,  has  been  referred 
by  Hickes  to  that  ancient  usage  of  compurgation,  where  the 
accused  sustained  his  own  oath  by  those  of  a  number  of  his 
friends,  who  pledged  their  knowledge,  or  at  least  their  belief, 
of  his  innocence.^ 

In  the  canons  of  the  Northumbrian  clergy  we  read  as  fol- 
lows :  "  If  a  king's  thane  deny  this  (the  practice  of  heathen 
superstitions),  let  twelve  be  appointed  for  him,  and  let  him  take 
twelve  of  his  kindred  (or  equals,  maga)  and  twelve  British 
strangers ;  and  if  he  fail,  then  let  him  pay  for  his  breach  of 
law  twelve  half-marcs :  If  a  landholder  (or  lesser  thane)  deny 
the  charge,  let  as  many  of  his  equals  and  as  many  strangers 
be  taken  as  for  a  royal  thane ;  and  if  he  fail,  let  him  pay  six 
half-marcs :  If  a  ceorl  deny  it,  let  as  many  of  his  equals  and 
as  many  strangers  be  taken  for  him  as  for  the  others;  and 
if  he  fail,  let  him  pay  twelve  orae  for  his  breach  of  law/'*  It 
is  difficult  at  first  sight  to  imagine  that  these  thirty-six  so  se- 
lected were  merely  compurgators,  since  it  seems  absurd  that 
the  judge  should  name  indifferent  persons,  who  without  in- 
quiry were  to  make  oath  of  a  party's  innocence.  Some  have 
therefore  conceived  that,  in  this  and  other  instances  where 
compurgators  are  mentioned,  they  were  virtually  jurors,  who, 
before  attesting  the  facts,  were  to  inform  their  consciences  by 
investigating  them.  There  are,  however,  passages  in  the  Saxon 
laws  nearly  parallel  to  that  just  quoted,  which  seem  incom- 
patible with  this  interpretation.  Thus,  by  a  law  of  Athelstan, 
if  anyone  claimed  a  stray  ox  as  his  own,  five  of  his  neighbors 
were  to  be  assigned,  of  whom  one  was  to  maintain  the  claim- 
ant's oath.y  Perhaps  the  principle  of  these  regulations,  and 
indeed  of  the  whole  law  of  compurgation,  is  to  be  found  in  that 

v  Leges  Alfred!,  p.  47-  «  Wilkins,  p  100. 

•w  Nicholson,  Prefatio  ad  Leges  Anglo-          y  Leges  Atftelstani,  p.  58. 
Saxon.;    Wilkms,  p    10;    Hickes,  Dis- 
sertatio  Epistolaris. 


THE   MIDDLE  AGES  207 

stress  laid  upon  general  character  which  pervades  the  Anglo- 
Saxon  jurisprudence.  A  man  of  ill  reputation  was  compelled 
to  undergo  a  triple  ordeal,  in  cases  where  a  single  one  sufficed 
for  persons  of  credit ;  a  provision  rather  inconsistent  with  the 
trust  in  a  miraculous  interposition  of  Providence  which  was 
the  basis  of  that  superstition.  And  the  law  of  frankpledge 
proceeded  upon  the  maxim  that  the  best  guarantee  of  every 
man's  obedience  to  the  government  was  to  be  sought  in  the 
confidence  of  his  neighbors.  Hence,  while  some  compurga- 
tors  were  to  be  chosen  by  the  sheriff,  to  avoid  partiality  and 
collusion,  it  was  still  intended  that  they  should  be  residents 
of  the  vicinage,  witnesses  of  the  defendant's  previous  life,  and 
competent  to  estimate  the  probability  of  his  exculpatory  oath. 
For  the  British  strangers,  in  the  canon  quoted  above,  were 
certainly  the  original  natives,  more  intermingled  with  their 
conquerors,  probably,  in  the  provinces  north  of  the  Humber 
than  elsewhere,  and  still  denominated  strangers,  as  the  dis- 
tinction of  races  was  not  done  away. 

If  in  this  instance  we  do  not  feel  ourselves  warranted  to 
infer  the  existence  of  trial  by  jury,  still  less  shall  we  find  even 
an  analogy  to  it  in  an  article  of  the  treaty  between  England 
and  Wales  during  the  reign  of  Ethelred  II.  "  Twelve  persons 
skilled  in  the  law,  six  English  and  six  Welsh,  shall  instruct 
the  natives  of  each  country,  on  pain  of  forfeiting  their  posses- 
sions, if,  except  through  ignorance,  they  give  false  informa- 
tion." z  This  is  obviously  but  a  regulation  intended  to  settle 
disputes  among  the  Welsh  and  English,  to  which  their  igno- 
rance of  each  other's  customs  might  give  rise. 

By  a  law  of  the  same  prince,  a  court  was  to  be  held  in  every 
wapentake,  where  the  sheriff  and  twelve  principal  thanes  should 
swear  that  they  would  neither  acquit  any  criminal  nor  convict 
any  innocent  person.*  It  seems  more  probable  that  these 
thanes  were  permanent  assessors  to  the  sheriff,  like  the  scabini 
so  frequently  mentioned  in  the  early  laws  of  France  and  Italy, 
than  jurors  indiscriminately  selected.  This  passage,  however, 
is  stronger  than  those  which  have  been  already  adduced;  and 
it  may  be  thought,  perhaps  with  justice,  that  at  least  the  seeds 
of  our  present  form  of  trial  are  discoverable  in  it.  In  the  His- 
tory of  Ely  we  twice  read  of  pleas  held  before  twenty-four 

s  Leges  Ethelredi,  p.  125.  a  Ibid.,  p,  117* 


208  HALLAM 

judges  in  the  court  of  Cambridge ;  which  seems  to  have  been 
formed  out  of  several  neighboring  hundreds.^ 

But  the  nearest  approach  to  a  regular  jury  which  has  been 
preserved  in  our  scanty  memorials  of  the  Anglo-Saxon  age 
occurs  in  the  history  of  the  monastery  of  Ramsey.  A  contro- 
versy relating  to  lands  between  that  society  and  a  certain  noble- 
man was  brought  into  the  county-court,  when  each  party  was 
heard  in  his  own  behalf.  After  this  commencement,  on  account 
probably  of  the  length  and  difficulty  of  the  investigation,  it 
was  referred  by  the  court  to  thirty-six  thanes,  equally  chosen 
by  both  sides.c  And  here  we  begin  to  perceive  the  manner 
in  which  those  tumultuous  assemblies,  the  mixed  body  of  free- 
holders in  their  county-court,  slid  gradually  in  a  more  steady 
and  more  diligent  tribunal.  But  this  was  not  the  work  of  a 
single  age.  In  the  Conqueror's  reign  we  find  a  proceeding 
very  similar  to  the  case  of  Ramsey,  in  which  the  suit  has  been 
commenced  in  the  county-court,  before  it  was  found  expedient 
to  remit  it  to  a  select  body  of  freeholders.  In  the  reign  of 
William  Rufus,  and  down  to  that  of  Henry  II.,  when  the  trial 
of  writs  of  right  by  the  grand  assize  was  introduced,  Hickes 
has  discovered  other  instances  of  the  original  usage.**  The 
language  of  Domesday  Book  lends  some  confirmation  to  its 
existence  at  the  time  of  that  survey ;  and  even  our  common 
legal  expression  of  trial  by  the  country  seems  to  be  derived 
from  a  period  when  the  form  was  literally  popular. 

In  comparing  the  various  passages  which  I  have  quoted  it 
is  impossible  not  to  be  struck  with  the  preference  given  to 
twelve,  or  some  multiple  of  it,  in  fixing  the  number  either  of 
judges  or  compurgators.  This  was  not  peculiar  to  England. 
Spelman  has  produced  several  instances  of  it  in  the  early  Ger- 
man laws.  And  that  number  seems  to  have  been  regarded 
with  equal  veneration  in  Scandinavian  It  is  very  immaterial 
from  what  caprice  or  superstition  this  predilection  arose.  But 
its  general  prevalence  shows  that,  in  searching  for  the  origin 
of  trial  by  jury,  we  cannot  rely  for  a  moment  upon  any  analogy 
which  the  mere  number  affords.  I  am  induced  to  make  this 
observation,  because  some  of  the  passages  which  have  been 
alleged  by  eminent  men  for  the  purpose  of  establishing  the 

6  Hist.  Eliensis,  in  Gale's  Scriptores,  e  Spelman's    Glossary,    voc.    Jurata; 

iii.  pp.  471  and  478.  Bu  Cange,  voc.  Nembda;  Edinb.  Re- 

c  Hist.  Ramsey,  id.,  p.  415.  view,  vol.  xxxi.  p.  115— a  most  learned 

d  Hickesii  Dissertatio  Epistolaris,  pp.  and  elaborate  essay, 

33,  3& 


THE   MIDDLE  AGES  209 

existence  of  that  mslitution  before  the  conquest  seem  to  have 
little  else  to  support  them/ 

There  is  certainly  no  part  of  the  Anglo-Saxon  polity  which 
has  attracted  so  much  notice  of  modern  times  as  the  law  of 
frankpledge,  or  mutual  responsibility  of  the  members  of  a 
tything  for  each  other's  abiding  the  course  of  justice.  This, 
like  the  distribution  of  hundreds  and  tythings  themselves,  and 
like  trial  by  jury,  has  been  generally  attributed  to  Alfred ;  and 
of  this,  I  suspect,  we  must  also  deprive  him.  It  is  not  sur- 
prising that  the  great  services  of  Alfred  to  his  people  in  peace 
and  in  war  should  have  led  posterity  to  ascribe  every  institu- 
tion, of  which  the  beginning  was  obscure,  to  his  contrivance, 
till  his  fame  has  become  almost  as  fabulous  in  legislation  as 
that  of  Arthur  in  arms.  The  English  nation  redeemed  from 
servitude,  and  their  name  from  extinction ;  the  lamp  of  learn- 
ing refreshed,  when  scarce  a  glimmer  was  visible ;  the  watchful 
observance  of  justice  and  public  order — these  are  the  genuine 
praises  of  Alfred,  and  entitle  him  to  the  rank  he  has  always 
held  in  men's  esteem,  as  the  best  and  greatest  of  English  kings. 
But  of  his  legislation  there  is  little  that  can  be  asserted  with 
sufficient  evidence ;  the  laws  of  his  time  that  remain  are  neither 
numerous  nor  particularly  interesting ;  and  a  loose  report  of 
late  writers  is  not  sufficient  to  prove  that  he  compiled  a  dom- 
boc,  or  general  code  for  the  government  of  his  kingdom. 

An  ingenious  and  philosophical  writer  has  endeavored  to 
found  the  law  of  frankpledge  upon  one  of  those  general  prin- 
ciples to  which  he  always  loves  to  recur.  "  If  we  look  upon 
a  tything,"  he  says,  "  as  regularly  composed  of  ten  families, 
this  branch  of  its  police  will  appear  in  the  highest  degree  arti-1 
ficial  and  singular ;  but  if  we  consider  that  society  as  of  the 
same  extent  with  a  town  or  village,  we  shall  find  that  such 
a  regulation  is  conformable  to  the  general  usage  of  barbarous 
nations,  and  is  founded  upon  their  common  notions  of  justice.'^ 
A  variety  of  instances  is  then  brought  forward,  drawn  from 
the  customs  of  almost  every  part  of  the  world,  wherein  the 
inhabitants  of  a  district  have  been  made  answerable  for  crimes 
and  injuries  imputed  to  one  of  them.  But  none  of  these  fully 
resemble  the  Saxon  institution  of  which  we  are  treating.  They 
relate  either  to  the  right  of  reprisals,  exercised  with  respect  to 

/  [NOTE  VIII.]  g  Millar  on  the  English  Government, 

vol.  i.  p.  189 

VOL.  II.— 14 


210  HALLAM 

the  subjects  of  foreign  countries,  or  to  the  indemnification 
exacted  from  the  district,  as  in  our  modern  statutes  which  give 
an  action  in  certain  cases  of  felony  against  the  hundred,  for 
crimes  which  its  internal  police  was  supposed  capable  of  pre- 
venting. In  the  Irish  custom,  indeed,  which  bound  the  head 
of  a  sept  to  bring  forward  every  one  of  his  kindred  who  should 
be  charged  with  any  heinous  crime,  we  certainly  perceive  a 
strong  analogy  to  the  Saxon  law,  not  as  it  latterly  subsisted, 
but  under  one  of  its  prior  modifications.  For  I  think  that 
something  of  a  gradual  progression  may  be  traced  to  the  his- 
tory of  this  famous  police,  by  following  the  indications  afforded 
by  those  laws  through  which  alone  we  become  acquainted  with 
its  existence. 

The  Saxons  brought  with  them  from  their  original  forests 
at  least  as  much  roughness  as  any  of  the  nations  which  over- 
turned the  Roman  empire ;  and  their  long  struggle  with  the 
Britons  could  not  contribute  to  polish  their  manners.  The 
royal  authority  was  weak ;  and  little  had  been  learned  of  that 
regular  system  of  government  which  the  Franks  and  Lom- 
bards had  acquired  from  the  provincial  Romans,  among  whom 
they  were  mingled.  Xo  people  were  so  much  addicted  to  rob- 
bery, to  riotous  frays,  and  to  feuds  arising  out  of  family  re- 
venge, as  the  Anglo-Saxons.  Their  statutes  are  filled  with 
complaints  that  the  public  peace  was  openly  violated,  and 
with  penalties  which  seem  by  their  repetition  to  have  been 
disregarded.  The  vengeance  taken  by  the  kindred  of  a  mur- 
dered man  was  a  sacred  right,  which  no  law  ventured  to  forbid, 
though  it  was  limited  by  those  which  established  a  composition, 
and  by  those  which  protected  the  family  of  the  murderer  from 
their  resentment.  Even  the  author  of  the  laws  ascribed  to  the 
Confessor  speaks  of  this  family  warfare,  where  the  composition 
had  not  been  paid,  as  perfectly  lawful.^  But  the  law  of  compo- 
sition tended  probably  to  increase  the  number  of  crimes. 
Though  the  sums  imposed  were  sometimes  heavy,  men  paid 
them  with  the  help  of  their  relations,  or  entered  into  voluntary 
associations,  the  purposes  whereof  might  often  be  laudable, 
but  which  were  certainly  susceptible  of  this  kind  of  abuse.  And 
many  led  a  life  of  rapine,  forming  large  parties  of  ruffians,  who 

h  Parentibus  occisi  fiat  emendatio,  vel  taken  from  some  older  laws,  or  at  least 

gucrra  eonim  portetur.    Wilkins.  p.  199.  traditions.    I  do  not  conceive  that  this 

This,    like   many   other  parts   of  that  private  revenge  was  tolerated  by  law 

spurious  treatise,  appears  to  have  been  after  the  Conquest. 


THE   MIDDLE  AGES  211 

committed  muider  and  robbery  with  little  dread  of  punish- 
ment. 

Against  this  disorderly  condition  of  society,  the  wisdom  of 
our  English  kings,  with  the  assistance  of  their  great  councils, 
was  employed  in  devising  remedies,  which  ultimately  grew 
up  into  a  peculiar  system.  No  man  could  leave  the  shire  to 
which  he  belonged  without  the  permission  of  its  alderman.* 
No  man  could  be  without  a  lord,  on  whom  he  depended; 
though  he  might  quit  his  present  patron,  it  was  under  the 
condition  of  engaging  himself  to  another.  If  he  failed  in 
this,  his  kindred  were  bound  to  present  him  in  the  county- 
court,  and  to  name  a  lord  for  him  themselves.  Unless  this 
were  done,  he  might  be  seized  by  anyone  who  met  him  as  a 
robber;  Hence,  notwithstanding  the  personal  liberty  of  the 
peasants,  it  was  not  very  practicable  for  one  of  them  to  quit 
his  place  of  residence.  A  stranger  guest  could  not  be  received 
more  than  two  nights  as  such ;  on  the  third  the  host  became 
responsible  for  his  inmate's  conduct.^ 

The  peculiar  system  of  frankpledges  seems  to  have  passed 
through  the  following  very  gradual  stages.  At  first  an  accused 
person  was  obliged  to  find  bail  for  standing  his  triaU  At  a 
subsequent  period  his  relations  were  called  upon  to  become 
sureties  for  payment  of  the  composition  and  other  fines  to 
which  he  was  liable.^  They  were  even  subject  to  be  im- 
prisoned until  payment  was  made,  and  this  imprisonment  was 
commutable  for  a  certain  sum  of  money.  The  next  stage 
was  to  make  persons  already  convicted,  or  of  suspicious  re- 
pute, give  sureties  for  their  future  behavior.w  It  is  not  till 
the  reign  of  Edgar  that  we  find  the  first  general  law,  which 
places  every  man  in  the  condition  of  the  guilty  or  suspected, 
and  compels  him  to  find  a  surety,  who  shall  be  responsible 
for  his  appearance  when  judicially  summoned/?  This  is  per- 
petually repeated  and  enforced  in  later  statutes,  during  his 
reign  and  that  of  Ethelred.  Finally,  the  laws  of  Canute  declare 
the  necessity  of  belonging  to  some  hundred  and  tything,  as 
well  as  of  providing  sureties ;  P  and  it  may,  perhaps,  be  inferred 
that  the  custom  of  rendering  every  member  of  a  tything  an- 
swerable for  the  appearance  of  all  the  rest,  as  it  existed  after 
the  conquest,  is  as  old  as  the  reign  of  this  Danish  monarch. 

I  Leges  Alfredi,  c.  33  m  Leges  Edwardi  Senioris,  p.  53. 

3  Leges  Athelstam,  p.  56  «  Leges  Athelstem,  p.  S7»  c-  ^  7.  8. 

k  Leges  EdwardS  Confess  ,  p.  202.  o  Leges  Eadgari,  p.  78. 

/  Leges  Lotharii  [regis  Cantu],  p.  8.  p  Leges  Camiti,  p.  137. 


HALLAM 


It  is  by  no  means  an  accurate  notion  which  the  writer  to 
whom  I  have  already  adverted  has  conceived  that  4l  the  mem- 
bers of  every  tything  were  responsible  for  the  conduct  of  one 
another;  and  that  the  society,  or  their  leader,  might  be  pros- 
ecuted and  compelled  to  make  reparation  for  an  injury  com- 
mitted by  any  individual."  Upon  this  false  apprehension  of 
the  nature  of  frankpledges  the  whole  of  his  analogical  rea- 
soning is  founded.  It  is  indeed  an  error  very  current  in  popular 
treatises,  and  which  might  plead  the  authority  of  some  whose 
professional  learning  should  have  saved  them  from  so  obvious 
a  misstatement.  But  in  fact  the  members  of  a  tything  were 
no  more  than  perpetual  bail  for  each  other.  "  The  greatest 
security  of  the  public  order  (says  the  laws  ascribed  to  the  Con- 
fessor) is  that  every  man  must  bind  himself  to  one  of  those 
societies  which  the  English  in  general  call  freeborgs,  and  the 
people  of  Yorkshire  ten  men's  tale."  2  This  consisted  in  the 
responsibility  of  ten  men,  each  for  the  other,  throughout  every 
village  in  the  kingdom  ;  so  that,  if  one  of  the  ten  committed 
any  fault,  the  nine  should  produce  him  in  justice  ;  where  he 
should  make  reparation  by  his  own  property  or  by  personal 
punishment.  If  he  fled  from  justice,  a  mode  was  provided 
according  to  which  the  tything  might  clear  themselves  from 
participation  in  his  crime  or  escape  ;  in  default  of  such  exculpa- 
tion, and  the  malefactor's  estate  proving  deficient,  they  were 
compelled  to  make  good  the  penalty.  And  it  is  equally  mani- 
fest, from  every  other  passage  in  which  mention  is  made  of  this 
ancient  institution,  that  the  obligation  of  the  tything  was  merely 
that  of  permanent  bail,  responsible  only  indirectly  for  the  good 
behavior  of  their  members. 

Every  freeman  above  the  age  of  twelve  years  was  required 
to  be  enrolled  in  some  tything.^  In  order  to  enforce  this  essen- 
tial part  of  police,  the  courts  of  the  tourn  and  leet  were  erected, 
or  rather  perhaps  separated  from  that  of  the  county.  The 
periodical  meetings  of  these,  whose  duty  it  was  to  inquire  into 
the  state  of  tythings,  whence  they  were  called  the  view  of 
frankpledge,  are  regulated  in  Magna  Charta.  But  this  cus- 
tom, which  seems  to  have  been  in  full  vigor  when  Bracton 
wrote,  and  is  enforced  by  a  statute  of  Edward  II.,  gradually 
died  away  in  succeeding  times.*  According  to  the  laws  ascribed 

q  Leges  Edwardi,  in  Wilkins,  p.  201.         view  of  frankpledge  apoear  in  Cornwall 
r  Leges  Canuti,  p    136  as  late  as  the  loth  of  Henry  VI.    Rot. 

s  Stat.  18  E.  II.    Traces  of  the  actual       Parliarn  ,  vol    iv.  p.  403.     And  indeed 


THE   MIDDLE  AGES  2I3 

to  the  Confessor,  which  are  perhaps  of  insufficient  authority 
to  fix  the  existence  of  any  usage  before  the  Conquest,  lords 
who  possessed  a  baronial  jurisdiction  \\ere  permitted  to  keep 
their  military  tenants  and  the  servants  of  their  household  under 
their  own  peculiar  frankpledge  t  Nor  was  any  freeholder,  in 
the  age  of  Bracton,  bound  to  be  enrolled  in  a  tything.w 

It  remains  only,  before  we  conclude  this  sketch  of  the  Anglo- 
Saxon  system,  to  consider  the  once  famous  question  respecting 
the  establishment  of  feudal  tenures  m  England  before  the  Con- 
quest, The  position  asserted  by  Sir  Henry  Spelman  in  his 
Glossary,  that  lands  were  not  held  feudally  before  that  period, 
having  been  denied  by  the  Irish  judges  in  the  great  case  of 
tenures,  he  was  compelled  to  draw  up  his  treatise  on  Feuds, 
in  which  it  is  more  fully  maintained.  Several  other  writers, 
especially  Hickes,  Madox,  and  Sir  Martin  Wright,  have 
taken  the  same  side.  But  names  equally  respectable  might 
be  thrown  into  the  opposite  scale ;  and  I  think  the  prevailing 
bias  of  modern  antiquaries  is  in  favor  of  at  least  a  modified 
affirmative  as  to  this  question. 

Lands  are  commonly  supposed  to  have  been  divided,  among 
the  Anglo-Saxons,  into  bocland  and  folkland.  The  former  was 
held  in  full  propriety,  and  might  be  conveyed  by  boc  or  written 
grant ;  the  latter  was  occupied  by  the  common  people,  yielding 
rent  or  other  service,  and  perhaps  without  any  estate  in  the 
land,  but  at  the  pleasure  of  the  owner.  These  two  species  of 
tenure  might  be  compared  to  freehold  and  copyhold,  if  the 
latter  had  retained  its  original  dependence  upon  the  will  of 

Selden  tells  us  (Janus  Anglorum,  t.  ii.  part  of  England  which  had  formed  the 

E.  993)  that  it  was  not  quite  obsolete  m  kingdom  or  Northumberland.    Vol  i.  p. 

is  time.    The  form  may,  for  aught  I  202    Jhis  indeed  contradicts  a  passage 

know,   be   kept   up   m    some    parts    of  quoted  in  the  text  from   the  laws  of 

England  at  this  day     For  some  reason  Edward  the  Confessor,  which  Sir  F.  P. 

which  I  cannot  explain,  the  distribution  suspects    to    be    interpolated.    But   we 

by  tens  was  changed  into  one  by  dozens.  find   a  presentment   by  the   county  of 

Briton,  c.  29,  and  Stat   18  E  II.  Westmoreland  in  20  Ed    I. ;— Comitatus 

t  o.  202.  recordatur  quod  nulla  Englescheria  pre- 

«  Sir  F.  Palgrave,  \vho  does  not  admit  sentatur  in  comitatu  isto,  nee  murdrum, 

the  application  of  some  of  the  laws  cited  nee  est  ahqua  decenna  nee  visus  franc- 

in  the  text,  says:     "At  some  period,  plegii  nee  manupastus  m  comitatu  isto, 

towards  the  close  x>f  the  Anglo-Saxon  nee  unquam  fuit  m  partibus  borealibus 

monarchy,  the  free-pledge  was  certainly  citra  Trentram.    Ibidem.    "  It  is  impos- 

estabhshed  in  the  greater  part  of  Wes-  sible  to  speak  positively  to  a  negative 

sex   and   Mercia,   though,   even   there,  proposition;    and  in  the  vast  mass  of 

some   special   exceptions   existed.    The  these  most  valuable  records,  all  of  which 

system  was  developed  between  the  ac-  are  still  unindexed,  some  entry  relating: 

cession  of  Canute  and  the  demise  of  the  to  the  collective  frankpledge  may  be 

Conqueror;    and  it  is  not  improbable  concealed.    Yet,    from    their    generaj 

but  that  the  Normans  completed  what  tenor,  I  doubt  whether  any  will  oe  dis- 

the  Danes  had  begun."    Vol.  ii  p.  123.  covered.**   The  immense  knowledge  of 

It  is  very  remarkable  that  there  is  no  records  possessed  by  &r  F.  P.  gives  the 

appearance  of  the  frankpledge  m  that  highest  weight  to  his  judgment 


2i4  HALLAM 

the  lord.^  Bocland  was  devisable  by  will ;  it  was  equally  shared 
among  the  children ;  it  was  capable  of  being  entailed  by  the 
person  under  whose  grant  it  was  originally  taken ;  and  in  case 
of  a  treacherous  or  cowardly  desertion  from  the  army  it  was 
forfeited  to  the  crowns  But  a  different  theory,  at  least  as 
to  the  nature  of  folkland,  has  lately  been  maintained  by  writers 
of  very  great  authority.* 

It  is  an  improbable  and  even  extravagant  supposition,  that 
all  these  hereditary  estates  of  the  Anglo-Saxon  freeholders 
were  originally  parcels  of  the  royal  demesne,  and  consequently 
that  the  king  was  once  the  sole  proprietor  in  his  kingdom. 
Whatever  partitions  were  made  upon  the  conquest  of  a  British 
province,  we  may  be  sure  that  the  shares  of  the  army  were 
coeval  with  those  of  the  general.  The  great  mass  of  Saxon 
property  could  not  have  been  held  by  actual  beneficiary  grants 
from  the  crown.  However,  the  royal  demesnes  were  undoubt- 
edly very  extensive.  They  continued  to  be  so,  even  in  the  time 
of  the  Confessor,  after  the  donations  of  his  predecessors.  And 
several  instruments  granting  lands  to  individuals,  besides  those 
in  favor  of  the  church,  are  extant.  These  are  generally  couched 
in  that  style  of  full  and  unconditional  conveyance  which  is  ob- 
servable in  all  such  charters  of  the  same  age  upon  the  continent. 
Some  exceptions,  however,  occur;  the  lands  bequeathed  by 
Alfred  to  certain  of  his  nobles  were  to  return  to  his  family 
in  default  of  male  heirs ;  and  Hickes  is  o'f  opinion  that  the 
royal  consent,  which  seems  to  have  been  required  for  the  testa- 
mentary disposition  of  some  estates,  was  necessary  on  account 
of  their  beneficiary  tenures 

All  the  freehold  lands  of  England,  except  some  of  those 
belonging  to  the  church,  were  subject  to  three  great  public 
burdens :  military  service  in  the  king's  expeditions,  or  at  least 
in  defensive  war/  the  repair  of  bridges,  and  that  of  royal  fort- 
resses. These  obligations,  and  especially  the  first,  have  been 

v  This    supposition    may    plead    the  in  Domesday  Book,  merely  correspond 

great  authorities  of  Somner  and  X«ye,  with  the  other  two  denominations, 

the    Anglo-Saxon   lexicographers,    and  w  Willdns,  pp,  43,  145.    The  latter  law 

appears  to  me  far  more  probable  than  is  copied  from  one  of  Charlemagne's 

the  theory  of  Sir  John  Dalrymple,  in  Capitularies.    Baluze,  p.  767. 

his  Essay  on  Feudal  Property,  or  that  x  [NOTE  IX.] 

of  the  author  of  a  discourse  on  the  Boc-  y  Dissertatio  T£pistolaris,  p.  60. 

land  and  Folkland  of  the  Saxons,  1775,  #This    duty   is   by    some    expressed 

whose   name,    I   think,    was   Ibbetson*  rata  expeditio;    by  others,  hostis  pro- 

The  first  of  these  supposes  bocland  to  pulsio,  which  seems  to  "make  no  small 

have  been  feudal,  and  folkland  allodial;  difference.    But,  unfortunately,  most  of 

the  second  takes  folkland  for  feudal.    I  the  military  service  which  an  Anglo- 

cannot  satisfy  myself  whether  thainland  Saxon  freeholder  had  to  render  was  of 

and  reveland,  which  occur  sometimes  the  latter  kind. 


THE   MIDDLE  AGES  215 

sometimes  thought  to  denote  a  feudal  tenure.  There  is,  how- 
ever, a  confusion  into  which  we  may  fall  by  not  sufficiently 
discriminating  the  rights  of  a  king  as  chief  lord  of  his  vassals, 
and  as  sovereign  of  his  subjects.  In  every  country  the  supreme 
power  is  entitled  to  use  the  arm  of  each  citizen  in  the  public 
defence.  The  usage  of  all  nations  agrees  with  common  reason 
in  establishing  this  great  principle.  There  is  nothing  therefore 
peculiarly  feudal  in  this  military  service  of  landholders ;  it  was 
due  from  the  allodial  proprietors  upon  the  continent;  it  was 
derived  from  their  German  ancestors ;  it  had  been  fixed,  prob- 
ably, by  the  legislatures  of  the  Heptarchy  upon  the  first  settle- 
ment in  Britain. 

It  is  material,  however,  to  observe  that  a  thane  forfeited  his 
hereditary  freehold  by  misconduct  in  battle:  a  penalty  more 
severe  than  was  inflicted  upon  allodial  proprietors  on  the  con- 
tinent. We  even  find  in  the  earliest  Saxon  laws  that  the  sith- 
cundman,  who  seems  to  have  corresponded  to  the  inferior 
thane  of  later  times,  forfeited  his  land  by  neglect  of  attendance 
in  war ;  for  which  an  allodialist  in  France  would  only  have  paid 
his  heribannum,  or  penalty.^  Nevertheless,  as  the  policy  of 
different  states  may  enforce  the  duties  of  subjects  by  more 
or  less  severe  sanctions,  I  do  not  know  that  a  law  of  forfeiture 
in  such  cases  is  to  be  considered  as  positively  implying  a  feudal 
tenure. 

But  a  much  stronger  presumption  is  afforded  by  passages 
that  indicate  a  mutual  relation  of  lord  and  vassal  among  the 
free  proprietors.  The  most  powerful  subjects  have  not  a  nat- 
ural right  to  the  service  of  other  freemen.  But  in  the  laws 
enacted  during  the  Heptarchy  we  find  that  the  sithcundman, 
or  petty  gentleman,  might  be  dependent  on  a  superior  lord.* 
This  is  more  distinctly  expressed  in  some  ecclesiastical  canons, 
apparently  of  the  tenth  century,  which  distinguish  the  king's 
thane  from  the  landholder,  who  depended  upon  a  lord.*  Other 
proofs  of  this  might  be  brought  from  the  Anglo-Saxon  laws.d 
It  is  not,  however,  sufficient  to  prove  a  mutual  relation  between 
the  higher  and  lower  orders  of  gentry,  in  order  to  establish 
the  existence  of  feudal  tenures.  For  this  relation  was  often 
personal,  as  I  have  mentioned  more  fully  in  another  place, 

a  Leges  Inse,  p.  23;    Du  Cange,  voq.  b  Leges.  Inae,  pp.  IQ  a& 

Heribannum.    By  the  laws  of  Canute,  c  WiEbns,  p.  101, 

P-  13$,  a  fine  only  was  imposed  for  this  d  Pp*  71,  144, 14$, 
offence. 


216  HALLAM 

bore  the  name  of  commendation.  And  no  nation  was  so  rig- 
orous as  the  English  in  compelling  every  man,  from  the  king's 
thane  to  the  ceorl,  to  place  himself  under  a  lawful  superior. 
Hence  the  question  is  not  to  be  hastily  decided  on  the  credit 
of  a  few  passages  that  express  this  gradation  of  dependence ; 
feudal  vassalage,  the  object  of  our  inquiry,  being  of  a  real,  not 
a  personal  nature,  and  resulting  entirely  from  the  tenure  of 
particular  lands.  But  it  is  not  unlikely  that  the  personal  rela- 
tion of  client,  if  I  may  use  that  word,  might  in  a  multitude 
of  cases  be  changed  into  that  of  vassal  And  certainly  many 
of  the  motives  which  operated  in  France  to  produce  a  very 
general  commutation  of  allodial  into  feudal  tenure  might  have 
a  similar  influence  in  England,  where  the  disorderly  condition 
of  society  made  it  the  interest  of  every  man  to  obtain  the  pro- 
tection of  some  potent  lord. 

The  word  thane  corresponds  in  its  derivation  to  vassal ;  and 
the  latter  term  is  used  by  Asserius,  the  contemporary  biog- 
rapher of  Alfred,  in  speaking  of  the  nobles  of  that  prince.* 
In  their  attendance,  too,  upon  the  royal  court,  and  the  fidelity 
which  was  expected  from  them,  the  king's  thanes  seem  ex- 
actly to  have  resembled  that  class  of  followers  who,  under 
different  appellations,  were  the  guards  as  well  as  courtiers  of 
the  Frank  and  Lombard  sovereigns.  But  I  have  remarked 
that  the  word  thane  is  not  applied  to  the  whole  body  of  gentry 
in  the  more  ancient  laws,  where  the  word  eorl  is  opposed  to 
the  ceorl  or  roturier,  and  that  of  sithcundman  /  to  the  royal 
thane.  It  would  be  too  much  to  infer,  from  the  extension  of 
this  latter  word  to  a  large  class  of  persons,  that  we  should  in- 
terpret it  with  a  close  attention  to  etymology,  a  very  uncer- 
tain guide  in  almost  all  investigations. 

For  the  age  immediately  preceding  the  Norman  invasion 
we  cannot  have  recourse  to  a  better  authority  than  Domes- 

eAliredus  cum  panels  suis  nobilibus  but  I  have  found  one  of  Edgar,  AD 

et  etiam  cum  quibusdam  mihtibus  et  967.     Cod.  Diplomat.,  hi.   n.     I  think 

Vassallis.  p,  166..   Nobiles  Vassal*  Su-  that  Mr.  Spence,  in  the  ninth  and  tenth 

mertiraensis  pagi,  p.  167,    Yet  Hickes  chapters  of  his  learned  work,  has  too 

objects  to  the  authenticity  of  a  charter  much  blended  the  Anglo-Saxon  man  of 

ascribed  to  Edgar,  because  it  contains  a  lord;  with  the  continental  vassal  j  which 

the  word  Vassallus,  "  q*am  a  Nortman-  t$  a  peteho  pnncipn.    Certainly  the  word 

ms  Angh  habuerunt"   Dissertatio  Epis-  was  of  rare  use  in  England;    and  the 

to£L  P'  7-   ,          „  t    .  amhettticf^  of  Asserius,  whom  I  have 

The  word  vassallus  occurs  not  only  in  quoted  as  a  contemporary  biographer  of 

the  suspicious  charter  of  Cenolf,  quoted  Alfred,  whicfc  is  the  common  opinion, 

in  a  subsequent  note,,  but  in  one  JUD  952  has   been   called   in   question   by   Mr. 

(Co<?€5  fP1tion8t"  "•  ?#•  .t°ir3bidl.  *  Wnghk  who  refers  that  Life  to  the  age 

was  led  by  Mr.  Spence  (Equitable  Juris-  of  the  Conqttest  Archsologia,  vol.  xxix, 
diction,  p.  44),  who  quotes  another  from          f  Wilkins,  pp.  &  7,  23,  &c. 
p.  323,  which  is  probably  a  misprint;  a 


THE  MIDDLE  AGES  217 

day  Book.  That  incomparable  record  contains  the  names  of 
every  tenant,  and  the  conditions  of  his  tenure,  under  the  Con- 
fessor, as  well  as  at  the  time  of  its  compilation,  and  seems  to 
give  little  countenance  to  the  notion  that  a  radical  change  in 
the  system  of  our  laws  had  been  effected  during  the  interval. 
In  almost  every  page  we  meet  with  tenants  either  of  the  crown 
or  of  other  lords,  denominated  thanes,  freeholders  (liberi 
homines),  or  socagers  (socmanni).  Some  of  these,  it  is  stated, 
might  sell  their  lands  to  whom  they  pleased ;  others  were  re- 
stricted from  alienation.  Some,  as  it  is  expressed,  might  go 
with  their  lands  whither  they  would ;  by  which  I  understand 
the  right  of  commending  themselves  to  any  patron  of  their 
choice.  These  of  course  could  not  be  feudal  tenants  in  any 
proper  notion  of  that  term.  Others  could  not  depart  from  the 
lord  whom  they  served;  not,  certainly,  that  they  were  per- 
sonally bound  to  the  soil,  but  that,  so  long  as  they  retained  it, 
the  seigniory  of  the  superior  could  not  be  defeated.£  But  I 
am  not  aware  that  military  service  is  specified  in  any  instance 
to  be  due  from  one  of  these  tenants ;  though  it  is  difficult  to 
speak  as  to  a  negative  proposition  of  this  kind  with  any  con- 
fidence. 

No  direct  evidence  appears  as  to  the  ceremony  of  homage 
or  the  oath  of  fealty  before  the  Conquest.  The  feudal  ex- 
action of  aid  in  certain  prescribed  cases  seems  to  have  been 
unknown.  Still  less  could  those  of  wardship  and  marriage 
prevail,  which  were  no  general  parts  of  the  great  feudal  sys- 
tem. The  English  lawyers,  through  an  imperfect  acquaintance 
with  the  history  of  feuds  upon  the  continent,  have  treated 
these  unjust  innovations  as  if  they  had  formed  essential  parts 
of  the  system,  and  sprung  naturally  from  the  relation  between 
lord  and  vassal.  And,  with  reference  to  the  present  question, 
Sir  Henry  Spelman  has  certainly  laid  too  much  stress  upon 
them  in  concluding  that  feudal  tenures  did  not  exist  among  the 
Anglo-Saxons,  because  their  lands  were  not  in  ward,  nor 

g  It  sometimes  weakens  a  proposition,  termiimm  poterat  ire  cum  ea  ad  qpem 

which  is  capable  of  innumerable  proofs,  vellet  dommutn     P.  72. 

to  take  a  very  few  at  random;    yet  the  Tres  Angli  tenuerunt  Darneford  T.  R. 

following  casual  specimens  will  illustrate  E.  et  non  poterant  ab  ecclesia"  separari. 

the    common   language   o!    Domesday  Duo  ex  us  reddebant  v.  solidos,  ct  ter- 

Kopk:  tius  serviebat  sicut  Tnainus.    F^6S. 

Haec  tria  maneria  tenuit  Ulveva  tern-  Has  terras  qtti  temierunt'T^IL  ;E.  cfa6 

pore  regis  Edwardi  et  potuit  ire  cum  voluerunt    ire   potenrot;  furrier  tirmm 

terra  quo  volebat    P.  8&_  Seric  vocattmi,  qui  ii*  3&igf£adal  teirait 

Toti  emit  earn  T-  R,  E.  (temp   regis  iii   catticatas '  teYra:    seaTiKm"  poterat 

EdwardiKde  ecclesia  Malmsburiensi  ad  cum  e£  afeifci  T^cMe|e;;.fE  235.  ' 
tstatem  tnum  nomurum;   et  infrsi 


2i8  HALL  AM 

their  persons  sold  in  marriage.  But  I  cannot  equally  concur 
with  this  eminent  person  in  denying  the  existence  of  reliefs 
during  the  same  period.  If  the  heriot,  which  is  first  mentioned 
in  the  time  of  Edgar/*  (though  it  may  probably  have  been  an 
established  custom  long  before),  were  not  identical  with  the 
relief,  it  bore  at  least  a  very  strong  analogy  to  it.  A  charter 
of  Ethelred's  interprets  one  word  by  the  others  In  the  laws 
of  William,  which  re-enact  those  of  Canute  concerning  heriots, 
the  term  relief  is  employed  as  synonymous.;  Though  the  heriot 
was  in  later  times  paid  in  chattels,  the  relief  in  money,  it  is 
equally  true  that  originally  the  law  fixed  a  sum  of  money  in 
certain  cases  for  the  heriot,  and  a  chattel  for  the  relief.  And 
the  most  plausible  distinction  alleged  by  Spelman,  that  the 
heriot  is  by  law  due  from  the  personal  estate,  but  the  relief 
from  the  heir,  seems  hardly  applicable  to  that  remote  age,  when 
the  law  of  succession  as  to  real  and  personal  estate  was  not 
different. 

It  has  been  shown  in  another  place  how  the  right  of  ter- 
ritorial jurisdiction  was  generally,  and  at  last  inseparably,  con- 
nected with  feudal  tenure.  Of  this  right  we  meet  frequent 
instances  in  the  laws  and  records  of  the  Anglo-Saxons,  though 
not  in  those  of  an  early  date.  A  charter  of  Edred  grants  to 
the  monastery  of  Croyland,  soc,  sac,  toll  team,  and  infangthef : 
words  which  generally  went  together  in  the  description  of  these 
privileges,  and  signify  the  right  of  holding  a  court  to  which 
all  freemen  of  the  territory  should  repair,  of  deciding  pleas 
therein,  as  well  as  of  imposing  amercements  according  to  law, 
of  taking  tolls  upon  the  sale  of  goods,  and  of  punishing  capi- 
tally a  thief  taken  in  the  fact  within  the  limits  of  the  manor.fe 
Another  charter  from  the  Confessor  grants  to  the  abbey  of 
Ramsey  similar  rights  over  all  who  were  suitors  to  the  sheriff's 
court,  subject  to  military  service,  and  capable  of  landed  pos- 
sessions ;  that  is,  as  I  conceive,  all  who  were  not  in  servitude.* 
By  a  law  of  Ethelred,  none  but  the  king  could  have  jurisdiction 
over  a  royal  thane.w  And  Domesday  Book  is  full  of  decisive 
proofs  that  the  English  lords  had  their  courts  wherein  they 

IfL  Selden's  Works,  vol.  ii.  p.  1620.  in  question.  Dissert  Epist.,  p.  66  But 

i  Hist.  Ramseiens,  p,  430.  some  later  antiquaries  seem  to  have  been 

/Leges  Canuti,  p  144;  Leges  Gu-  more  favorable.  Archseoloffia,  vol.  xvhi. 

lielmi,  p.  22j,  p.  49;  Nouveau  Traite  de  Diplomatique, 

k  Ingulfus,  p  35.  I  do  not  pretend  to  t.  i.p  348. 

assert  the  authenticity  of  these  charters,  /  Hist.  Ramsey,  p.  454. 

which  at  all  events  are  nearly  as  old  as  m  P.  118.    This  is  the  earliest  allusion, 

the  Conquest.    Hicks  calls  most  of  them  if  I  am  not  mistaken,  to  territorial  juris- 


THE   MIDDLE  AGES  219 

rendered  justice  to  their  suitors,  like  the  continental  nobility: 
privileges  which  are  noticed  with  great  precision  in  that  record, 
as  part  of  the  statistical  survey.  For  the  right  of  jurisdiction 
at  a  time  when  punishments  were  almost  wholly  pecuniary  was 
a  matter  of  property,  and  sought  from  motives  of  rapacity  as 
well  as  pride. 

Whether  therefore  the  law  of  feudal  tenures  can  be  said* 
to  have  existed  in  England  before  the  Conquest  must  be  left 
to  every  reader's  determination.  Perhaps  any  attempt  to 
decide  it  positively  would  end  in  a  verbal  dispute,  In  trac- 
ing the  history  of  every  political  institution,  three  things  are 
to  be  considered,  the  principle,  the  form,  and  the  name.  The 
last  will  probably  not  be  found  in  any  genuine  Anglo-Saxon 
record.^  Of  the  form  or  the  peculiar  ceremonies  and  inci- 
dents of  a  regular  fief,  there  is  some,  though  not  much,  ap- 
pearance. But  those  who  reflect  upon  the  dependence  in 
which  free  and  even  noble  tenants  held  their  estates  of  other 
subjects,*?  and  upon  the  privileges  of  territorial  jurisdiction,  will, 

diction  in  the  Saxon  laws     Probably  it  gave  him;    and  if  he  have  bocland,  let 

was  not  frequent  till  near  the  end  of  the  that  go  into  the  king's  hands."    Ancient 

tenth  century.    u  Laws,  p    180.    And  we  read  of  lands 

Mr,   Kemble  is  of  opinion  that  the  called   hlajordsgifu,    lord's   gift.    Leges 

words   granting  territorial  jurisdiction  Ethelred  I.,  Ancient  Laws,  p.  125.    But 

do  not  occur  in  any  genuine  charter  be-  these  were  not  always  feudal,  or  even 

fore  the  Confessor.     Codex  Diplom  ,  i  hereditary;    they  were  what  was  called 

43.    They  are  of  constant  occurrence  in  on  the  continent  praestanse,  granted  for 

those  of  the  first  Norman  reigns.    But  life  or  for  a  certain  term;    and  this,  as 

the  Normans  did  not  understand  them,  it  appears  to  me,  may  have  been  the 

and  the  words  are  often  misspelled     He  proper  meaning  of  the  term  laen-lands. 

thinks,  therefore,  that  the  rights  were  But  the  general  tenure  of  lands  was 

older  than  the  Conquest,  and  accounts  still  allodial.    Taim  lex  est,  says  a  cu- 

for  the  rare  mention  of  them  by  the  nous  document  on  the  rights,  that  is  ob« 

somewhat     unsatisfactory     supposition  ligations,  of  different  ranks,  published 

that  they  were  so  inherent  in  the  pos-  by    Mr.    Thorpe,— ut    sit    dignus    rec- 

session  of  land  as  not  to  require  partic-  titudme  testamenti  sui   (his  tjoc-rightes 

ular  notice.     See  Spence,  Fquit.  Juris.  wyrthe,  that  is,  perhaps  bound  to  the 

pp  64,  68  duties  implied  by  the  deed  which  creates 

«Feodum  twice  occurs  in  the  testa-  his  estates),— et  ut  ita  faciat  pro  terra 

ment  of  Alfred;   but  it  does  not  appear  sua,  scilicet  expeditionem  burhbotam  et 

to  be  used  in  its  proper  sense,  nor  do  I  bngbotam.    Et   de   multis   terns   majus 

apprehend  that  instrument  to  have  been  landirectum  exsurgit  ad  bannum  regis, 

originally    written    in    Latin     It    was  &c.  p.  185.    Here  we  find  the  well-known 

much  more  consonant  to  Alfred's  prac-  tnnoda  necessitas  of  allodial  land,  with 

tice  to  employ  his  own  language.  other  contingent  liabilities  imposed  by 

o  It  will  probably  be  never  disputed  grant  or  .usage.* 

again  that  lands  were  granted  by  a  mili-  We  may^  probably  not  err  very  much 

tary^  tenure  before  the  Conquest.    Thus,  in  supposing  that  the  state  of  tenures 

besides  the  proofs  in  the  text,  in  the  in  England  under  Canute  or  the  Confes- 

laws  of  Canute  (c.  78} : — "  And  the  man  sor  was  a  good  deal  like  those  in  France 

who  shall  flee  from  his  lord  or  from  his  tinder  Charlemagne  or  Charles  the  Bald, 

comrade  by  reason  of  his  cowardice,  be  an     allodial     trunk     with     numerous 

it  in  the  shipfyrd,  be  it  in  the  landfyrd,  branches  of  feudal  benefice  grafted  into 

let  him  forfeit  all  he  owns,  and  his  own  it.    But  the  conversion  of  the  one  mode 

life;    and  let  the  lord  seize  his  posses-  of  tenure  into  the  other,  so  frequent  in 

sions,  and  his  land  which  he  previously  France,  does  not  appear  by  evidence  to 

*<Mr.  Kemble  has^  printed  a  charter  of  Cenulf  King  of  Mercia  to  the  abbey  of 
Abingdon,  in  820,  without  the  asterisk  of  spuriousness  (Codex  Diplom.,  i.  260) ;  and 
it  is  quoted  by  Sir  F.  Palgrave  (vol.  i  p  159)  in  proof  of  military  tenures.  The  ex- 
pression, however,  expeditionem  cum  duodecim  vassalhs,  et  totidem  scutts  exerceant, 
seems  not  a  little  against  its  authenticity.  The  former  has  observed  that  ths  testa- 


220  HALLAM 

I  think,  perceive  much  of  the  intrinsic  character  of  the  feudal 
relation,  though  in  a  less  mature  and  systematic  shape  than 
it  assumed  after  the  Norman  conquest. 

have  prevailed  on  this  side  of  the  chan-  while  the  republic  endured,  and  which 

nel.  was  incorporated  with  the  principles  of 

I  will  only  add  here  that  Mr.  Spence,  despotism  introduced   during   the   em- 

an  authority  of  great  weight,  maintains  pire."    It    is    because    the    aristocratic 

a  more  complete  establishment  of  the  principle  could  not  be  incorporated  with 

feudal  polity  before  the  Conquest  than  I  that  of  despotism,  that  I  conceive  the 

have  done.    p.  48     This  is  a  subject  on  feudal  system  to  have  been   incapable 

which  it  is  hard  to  lay  down  a  definite  of  development,  whatever  inchoate  rudi- 

hne.    But  I   must  protest  against  my  ments  of  it  may  be  traced,  until  a  pow- 

learned  friend's  derivation  of  the  feudal  erful  territorial  aristocracy  had  rendered 

system  from  "  the  aristocratic  principle  despotism  no  longer  possible.    [1847.] 
that  prevailed  in  the  Roman  dominions 

mentary  documents  before  the  Conquest,  made  by  men  who  were  under  a  superior 
lord,  contain  a  clause  of  great  interest;  namely,  an  earnest  prayer  to  the  lord  that 
he  will  permit  the  will  to  stand  according  to  the  disposition  of  the  testator,  coupled 
not  unfrequently  with  a  legacy  to  him  on  condition  of  his  so  doing,  or  to  some 

Eerson  of  influence  about  him  for  intercession  on  the  testator's  behalf  And  hence 
e  infers  that,  "  as  no  man  supplicates  for  that  which  he  is  of  his  own  right  en- 
titled to  enjoy,  it  appears  as  if  these  great  vassals  of  the  crown  had  not  the  power 
of  disposing  of  their  lands  and  chattels  but  as  the  king  might  permit,  and,  m  the 
strict  construction  of  the  bond  between  the  king  and  them,  all  that  they  gained  in 
his  service  must  be  taken  to  fall  into  his  hands  after  their  death."  Introduction  to 
Cod.  Dip.,  p.  in.  This  inference  seems  hardly  borne  out  by  the  premises,  a  man 
might  sometimes  be  reduced  to  supplicate  a  superior  for  that  which  he  had  a  right 
to  enjoy. 


THE   MIDDLE  AGES  221 


PART  II. 

The  Anglo-Norman  Constitution— Causes  of  the  Conquest— Policy  and 
Character  of  William— His  Tyranny— Introduction  of  Feudal  Ser- 
vices—Difference between  the  Feudal  Governments  of  France  and 
England — Causes  of  the  Great  Power  of  the  First  Norman  Kings — 
Arbitrary  Character  of  their  Government — Great  Council — Resist- 
ance of  the  Barons  to  John — Magna  Charta — Its  Principal  Articles — 
Reign  of  Henry  III. — The  Constitution  Acquires  a  More  Liberal 
Character — Judicial  System  of  the  Anglo-Normans — Curia  Regis, 
Exchequer,  &c  —Establishment  of  the  Common  Law— Its  Effect  in 
Fixing  the  Constitution — Remarks  on  the  Limitation  of  Aristocrat- 
ical  Privileges  in  England. 

It  is  deemed  by  William  of  Malmesbury  an  extraordinary 
work  of  Providence  that  the  English  should  have  given  up 
all  for  lost  after  the  battle  of  Hastings,  where  only  a  small 
though  brave  army  had  perished.o  It  was  indeed  the  conquest 
of  a  great  kingdom  by  the  prince  of  a  single  province,  an  event 
not  easily  paralleled,  where  the  vanquished  were  little,  if  at  all, 
less  courageous  than  their  enemies,  and  where  no  domestic 
factions  exposed  the  country  to  an  invader.  Yet  William  was 
so  advantageously  situated,  that  his  success  seems  neither  un- 
accountable nor  any  matter  of  discredit  to  the  English  nation. 
The  heir  of  the  house  of  Cerdic  had  been  already  set  aside  at 
the  election  of  Harold ;  and  his  youth,  joined  to  a  mediocrity  of 
understanding  which  excited  neither  esteem  nor  fear,&  gave 
no  encouragement  to  the  scheme  of  placing  him  upon  the 
throne  in  those  moments  of  imminent  peril  which  followed 
the  battle  of  Hastings  England  was  peculiarly  destitute  of 
great  men.  The  weak  reigns  of  Ethelred  and  Edward  had 

a  Malmesbury,  p,  53.  And  Henry  of  attempts  to  recover  the  kingdom,  was 

Huntingdon  says  emphatically,  Mille-  treated  by  William  with  a  kindness 

simo  et  sexagesimo  sexto  anno  gratiae  which  could  only  have  proceeded  from 

perfecit  dominator  Deus  de  gente  An-  contempt  of  his  understanding;  for  he 

glorum  quod  dm  cogitaverat.  Genti  was  not  wanting  m  courage.  He  be- 

namque  Normannorum  asperse  et  calli-  came  the  intimate  friend  of  Robert 

da  tradidit  eos  ad  exterminandum.  P.  Duke  of  Normandy,  whose  fortunes,  as 

210.  well  as  character,  much  resembled  his 

b  Edgar,  after  one  or  two  ineffectual  own. 


222  H  ALLAH 

rendered  the  government  a  mere  oligarchy,  and  reduced  the 
nobility  into  the  state  of  retainers  to  a  few  leading  houses, 
the  representatives  of  which  were  every  way  unequal  to  meet 
such  an  enemy  as  the  Duke  of  Normandy.  If  indeed  the 
concurrent  testimony  of  historians  does  not  exaggerate  his 
forces,  it  may  be  doubted  whether  England  possessed  military 
resources  sufficient  to  have  resisted  so  numerous  and  well- 
appointed  an  army.c 

This  forlorn  state  of  the  country  induced,  if  it  did  not  jus- 
tify, the  measure  of  tendering  the  crown  to  William,  which 
he  had  a  pretext  or  title  to  claim,  arising  from  the  intentions, 
perhaps  the  promise,  perhaps  even  the  testament  of  Edward, 
which  had  more  weight  in  those  times  than  it  deserved,  and 
was  at  least  better  than  the  naked  title  of  conquest.  And 
this,  supported  by  an  oath  exactly  similar  to  that  taken  by  the 
Anglo-Saxon  kings,  and  by  the  assent  of  the  multitude,  Eng- 
lish as  well  as  Normans,  on  the  day  of  his  coronation,  gave  as 
much  appearance  of  a  regular  succession  as  the  circumstances 
of  the  times  would  permit.  Those  who  yielded  to  such  cir- 
cumstances could  not  foresee,  and  were  unwilling  to  anticipate, 
the  bitterness  of  that  servitude  which  William  and  his  Nor- 
man followers  were  to  bring  upon  their  country. 

c  It  has  been  suggested,  in  the  second  were  bound  Nor  is  it  quite  accurate  to 
Report  of  a  Committee  of  the  Lords'  speak  of  a  military  force  then  established 
House  on  the  Dignity  of  a  Peer,  to  in  Normandy,  or  anywhere  else.  We 
which  I  shall  have  much  recourse  in  the  apply  these  words  to  a  permanent  body 
following  pages,*  that  "  the  facility  with  always  under  arms.  This  was  no  attri- 
which  the  Conquest  had  been  achieved  bute  of  feudal  tenure,  however  the  fre- 
seems  to  have  been,  in  part,  the  conse-  quency  of  war,  general  or  private,  may 
quence  of  defects  in  the  Saxon  institu-  have  inured  the  tenants  by  military  ser- 
tions,  and  of  the  want  of  a  military  force  vice  to  a  more  habitual  discipline  than 
similar  to  that  which  had  then  been  the  thanes  of  England  ever  knew  The 
established  m  Normandy,  and  in  some  adventurers  in  William's  army  were 
other  parts  of  the  continent  of  Europe  from  various  countries,  and  most  of 
The  adventurers  in  the  army  of  William  them,  doubtless,  had  served  before,  but 
were  of  those  countries  in  which  such  whether  as  hired  mercenaries  or  no  we 
a  military  establishment  had  prevailed."  have  probably  not  sufficient  means  of 
P.  24.  It  cannot  be  said,  I  think,  that  determining.  The  practice  of  hiring 
there  were^any  manifest  defects  in  the  troops  does  not  attract  the  notice  of  his- 
Saxon  institutions,  so  far  as  related  to  torians,  I  believe,  in  so  early  an  age. 
the  defence  of  the  country  against  in-  We  need  not,  however,  resort  to  this 
vasion.  It  was  part  of  the  tnnoda  neces-  conjecture,  since  history  sufficiently  ex- 
«*{%. to  which  all  allodial  landholders  plains  the  success  of  William. 

This  Report  I  generally  quote  from  that  printed  in  1819;  but  in  1820  it  was 
reprinted  with  corrections.  It  has  been  said  that  these  were  occasioned  by  the  strict- 
ures of  Mr.  m Allen,  in  the  35th  volume  of  the  Edinburgh  Review,  not  more  remark- 
able for  their  learning  and  acuteness  than  their  seventy  on  the  Report.  The  cor- 
rections, I  apprehend,  are  chiefly  confined  to  errors  of  names,  dates,  and  others  of 
a  similar  kind,  which  no  doubt  had  been  copiously  pointed  out.  But  it  has  not 
appeared  .to  me  that  the  Lords'  Committee  have  altered,  in  any  considerable  degree, 
tne  positions  upon  which  the  reviewer  animadverts.  It  was  hardly,  indeed,  to  be 
expected  that  the  .supposed  compiler  of  the  Report,  the  late  Lord  Redesdale, 
having  taken  up  his  own  line  of  opinion,  would  abandon  it  on  the  suggestions 
of  one  whose  comments,  though  extremely  able,  and  often,  in  the  eyes  of  many, 
well  founded,  are  certainly  not  couched  in  the  most  conciliatory  or  respectful 
language* 


THE   MIDDLE  AGES  223 

The  commencement  of  his  administration  was  tolerably 
equitable.  Though  many  confiscations  took  place,  in  order 
to  gratify  the  Norman  army,  yet  the  mass  of  property  was  left 
in  the  hands  of  its  former  possessors.  Offices  of  high  truot 
were  bestowed  upon  Englishmen,  even  upon  those  whose  fam- 
ily renown  might  have  raised  the  most  aspiring  thoughts.^ 
But  partly  through  the  insolence  and  injustice  of  William's 
Norman  vassals,  partly  through  the  suspiciousness  natural  to 
a  man  conscious  of  having  overturned  the  national  govern- 
ment, his  yoke  soon  became  more  heavy.  The  English  were 
oppressed ;  they  rebelled,  were  subdued,  and  oppressed  again. 
All  their  risings  were  without  concert,  and  desperate;  they 
wanted  men  fit  to  head  them,  and  fortresses  to  sustain  their 
revolt*  After  a  very  few  years  they  sank  in  despair,  and 
yielded  for  a  century  to  the  indignities  of  a  comparatively 
small  body  of  strangers  without  a  single  tumult.  So  possible 
is  it  for  a  nation  to  be  kept  in  permanent  servitude,  even  with* 
out  losing  its  reputation  for  individual  courage,  or  its  desire 
of  freedom.^ 

The  tyranny  of  William  displayed  less  of  passion  or  inso- 
lence than  of  that  indifference  about  human  suffering  which 
distinguishes  a  cold  and  far-sighted  statesman.  Impressed  by 
the  frequent  risings  of  the  English  at  the  commencement  of 
his  reign,  and  by  the  recollection,  as  one  historian  observes, 

d  Ordencus  Vitalis,  p  520  (in  Du  given  it  in  some  detail  from  the  former. 
Chesne,  Hist  Norm  Script ).  Hereward  ultimately  made  his  peace 
t  e  Ordericus  notices  the  want  of  castles  with  William,  and  recovered  his  estate, 
m  England  as  one  reason  why  rebel-  According  to  Ingulfus,  he  died  peace- 
lions  were  easily  quelled.  P.  511  Fail-  ably,  and  was  buried  at  Croyland;  ac- 
mg  in  their  attempts  at  a  generous  re-  cording  to  Gaimar,  he  was  assassinated 
sistance,  the  English  endeavored  to  get  in  his  house  by  some  Normans.  The 
nd^of  their  enemies  by  assassination,  to  latter  account  is  confirmed  by  an  early 
which  many  Normans  became  victims.  chronicler,  from  whom  an  extract  is 
William  therefore  enacted  that  in  every  given  by  Mr.  Wright.  A  more  detailed 
case  of  murder,  which  strictly  meant  the  memoir  of  Hereward  (De  Gestis  Here- 
killing  of  anyone  by  an  unknown  hand,  wardi  Saxoms)  is  found  in  the  chartu- 
tne  hundred  should  be  liable  in  a  fine,  lary  of  Swaffham  Abbey,  now  preserved 
unless  they  could  prove  the  person  mur-  in  Peterborough  Cathedral,  and  said 
dered  to  be  an  Englishman.  This  was  to  be  as  old  as  the  twelfth  century.  Mr. 
tried  by  an  inquest,  upon  what  was  Wright  published  it  in  1838,  from  a  copy 
called  a  presentment  of  Englishry.  But  in  the  library  of  Trinity  College,  Cam- 
from  the  reign  of  Henry  II ,  the  two  bridge.  If  the  author  is  to  be  be- 
nations  having  been  very  much  inter-  lieved,  he  had  conversed  with  some 
mingled,  this  inquiry,  as  we  learn  from  companions  of  Hereward.  But  such 
the  Dialogue  de  Scaccano,  p.  26,  ceased:  testimony  is  often  feigned  by  the  medi- 
and  in  every  case  of  a  freeman  murdered  seval  semi-romancers.  Though  the  writer 
by  persons  unknown  the  hundred  was  appears  to  affect  a  different  origin,  he  is 
fined.  See  however  Bracton,  1.  iii.  c.  too  full  of  Anglo-Saxon  sympathies  to 
J5,_1_  be  disguised;  and  in  fact,  he  has  evi- 

f  The  brave  resistance  of  Hereward  in  dently  borrowed  greatly  from  exagger- 

the  fens  of  Lincoln  and  Cambridge  is  ated  legends,  perhaps  metrical,  current 

well  told  by  M.  Thierry,  from  Ingulfus  among  the  English,  as  to  the  early  life 

and  Gaimar.  Conquete  d'Anglet.  par  les  of  Hereward,  to  which  Ingulfus,  or  who- 

Normands,  vol.  ii.  p.  168.  Turner  had  ever  personated  him,  cursorily  alludes. 


224 


HALLAM 


that  the  mild  government  of  Canute  had  only  ended  in  the 
expulsion  of  the  Danish  line/  he  formed  the  scheme  of  rivet- 
ing such  fetters  upon  the  conquered  nation,  that  all  resistance 
should  become  impracticable.  Those  who  had  obtained  hon- 
orable offices  were  successively  deprived  of  them;  even  the 
bishops  and  abbots  of  English  birth  were  deposed ;  fc  a  stretch 
of  power  very  singular  in  that  age.  Morcar,  one  of  the  most 
illustrious  English,  suffered  perpetual  imprisonment.  Wal» 
theoff,  a  man  of  equally  conspicuous  birth,  lost  his  head  upon 
a  scaffold  by  a  very  harsh  if  not  iniquitous  sentence.  It  was 
so  rare  in  those  times  to  inflict  judicially  any  capital  punish- 
ment upon  persons  of  such  rank,  that  his  death  seems  to  have 
produced  more  indignation  and  despair  in  England  than  any 
single  circumstance.  The  name  of  Englishman  was  turned 
into  a  reproach.  None  of  that  race  for  a  hundred  years  were 
raised  to  any  dignity  in  the  state  or  church.*  Their  language 
and  the  characters  in  which  it  was  written  were  rejected  as 
barbarous ;  in  all  schools,  if  we  trust  an  authority  often  quoted, 
children  were  taught  French,  and  the  laws  were  administered 
in  no  other  tongue./  It  is  well  known  that  this  use  of  French 

g  Malmesbury,  p.  104.  portant  changes  among  the  English 
k  Hoveden,  p  453.  This  was  done  clergy ;  he  caused  Stigand  and  others  to 
with  the  concurrence  and  sanction  of  be  disposed,  and  he  filled  their  places 
the  pope,  Alexander  II.,  so  that  the  with  men  from  Normandy  and  Fiance, 
stretch  of  power  was  by  Rome  rather  who  were  distinguished  by  the  charac- 
than  by  William.  It  must  pass  for  a  ters  of  piety,  decorous  morals,  and  a 
gross  violation  o£  ecclesiastical  as  well  love  of  literature  This  measure  was  an 
as  of  national  rights,  and  Lanfranc  can-  important  addition  to  the  civilization  of 
not  be  reckoned,  notwithstanding  his  the  island,"  &c.  Hist,  of  England,  vol. 
distinguished  name,  as  any  better  than  i.  p  104.  Admitting  this  to  be  partly 
an  intrusive  bishop.  He  showed  his  ar-  true,  though  he  would  have  found  by  no 
rogant  scorn  of  the  English  nation  m  means  so  favorable  an  account  of  the 
another  and  rather  a  singular  manner.  Norman  prelates  in  Ordencus  Vitahs, 
They  were  excessively  proud  of  their  if  he  had  read  a  few  pages  beyond  the 
national  saints*  some  of  whom  were  lit-  passages  to  which  he  refers,  is  it  con- 
tie  known,  and  whose  barbarous  names  sonant  to  historical  justice  that  a  vio- 
disgusted  Italian  ears.  Angh  inter  lent  act,  like  the  deposition  of  almost 
qttos  vrvimus,  said  the  foreign  priests,  all  the  Anglo-Saxon  hierarchy,  should 
quosdam  sibi  instituerunt  sanctos,  quo-  be  spoken  of  in  a  tone  of  praise,  which 
rum  incerta  sunt  menta.  This  might  the  whole  tenor  of  the  paragraph  con- 
be  true  enough;  but  the  same  measure  veys? 

should    have   been    meted   to    others.          *  Becket  is  said  to  have  been  the  first 

Thierry,  vol.  ii.  p.  158,  edit  1830.    The  Englishman  who  reached  any  consider- 

Norman  bishops,  and  the  primate  es-  able  dignity.    Lord  Lyttelton's  Hist,  of 

pecially,   set  themselves  to   disparage,  Henry  II.  vol    u    p.  22     And  Eadmer 

and  in  fact  to  dispossess,  St.  Aldhelm,  declares  that  Henry  I.  would  not  place 

St.  Elfig,  and,  for  aught  we  know,  St.  a  single  Englishman  at  the  head  of  a 

Swithin,  St   Werburg,  St.  Ebb,  and  St.  monastery.    Si  Anglus  erat,  nulla  virtus, 

Alphage.  names,  it  must  be  owned,  ut   honore    ahquo    dignus   judicaretur, 

That  would  have  made   Qumtilian  eum  poterat  adjuvare,  p.  no. 

stare  and  gasp  "  /  Ingulfus,  p.  61.    Tantum  tune  An- 

We  may  judge  what  the  eminent  native  glicos  aboininati  sunt,  ut  quantocunque 

of  Pavia  thought  of  such  a  hagiology.  merito  pollerent,  de  dignitatibus  repelle- 

The  English  church  found  herself,  as  it  bantur,  et  multo  tnmus  habiles  alieni- 

were,  with  an  attainted  peerage.    But  genae  de  quacunque  alia  natione*  quae 

the   calendar   withstood  these  innova-  sub  ccelo  est,  extitissent,  gratanter  assu- 

tl°*n-s*  «*  merentur.    Ipsum  etiam  idioma  tantum 

Mr.  Turner,  in  his  usual  spirit  of  pane-  abhorrebant,   quod  leges   terrze,   statu- 

gync,  says,-—  *He  (William)  made  im-  taqtie  Anglicorum  regtim  lingua  Gallica 


THE   MIDDLE  AGES 


225 


in  all  legal  proceedings  lasted  till  the  reign  of  Edward  III. 
Several  English  nobles,  desperate  of  the  fortunes  of  their  coun- 
try, sought  refuge  in  the  court  of  Constantinople,  and  approved 
their  valor  in  the  wars  of  Alexius  against  another  Norman 
conqueror,  scarcely  less  celebrated  than  their  own  Robert 
Guiscard.  Under  the  name  of  Varangians,  those  true  and 
faithful  supporters  of  the  Byzantine  empire  preserved  to  its 
dissolution  their  ancient  Saxon  idiom.fe 

An  extensive  spoliation  of  property  accompanied  these  revo- 
lutions. It  appears  by  the  great  national  survey  of  Domesday 
Book,  completed  near  the  close  of  the  Conqueror's  reign,Z  that 
the  tenants  in  capite  of  the  crown  were  generally  foreigners. 
Undoubtedly  there  were  a  few  left  in  almost  every  county 
who  still  enjoyed  the  estates  which  they  held  under  Ed- 


tractarentur;  et  pueris  etiam  in  scholis 
prmcipia  hterarum  grammatica  Gallice, 
ac  non  Anghce  traderentur;  modus 
etiam  scribendi  Anghcus  omitteretur,  et 
modus  Gallicus  in  chartis  et  in  hbns 
omnibus  admitteretur. 

But  the  passage  in  Ingulfus,  quoted 
in  support  of  this  position,  has  been 
placed  by  Sir  F.  Palgrave  among  the 
proofs  that  we  have  a  forgery  of  the 
fourteenth  century  in  that  historian, 
the  facts  being  in  absolute  contradic- 
tion to  him.  "Before  the  reign  of  Henry 
III.  we  cannot  discover  a  deed  or  law 
drawn  or  composed  in  French.  Instead 
of  prohibiting  the  English  language,  it 
*  ~  by  the  Conqueror  and  his 
their  charters  until  the 


was  emplo 
successors  in 

reign  of  Henry  II.,  when  it  was  super- 
seded, not  by  the  French,  but  by  the 
Latin  language,  which  had  been  grad- 
ually gaming  or  rather  regaining 
ground."  Edmb.  Rev.,  xxxiv.  262.  "The 
Latin  language  had  given  way  in  a 
great  measure,  from  the  time  of  Canute, 
to  the  vernacular  Anglo-Saxon.  Several 


charters  in  the  latter  language  occur 
before;  but  for  fifty  years  ending  with 
the  Conquest,  out  of  254  (published  in 
the  fourth  volume  of  the  Codex  Dip- 
lomaticus),  137  are  in  Anglo-Saxon,  and 
only  117  in  Latin."  Kemble's  Preface, 
p.  6. 

If  I  have  rightly  translated,  in  the 
text  of  Ingulfus,  leges  tractarentur  by 
administered,  the  falsehood^  is  manifest; 
since  the  laws  were  administered  in  the 
county  and  hundred  courts,  and  cer- 
tainly not  there  in  French.  I  really  do 
not  perceive  how  this  passage  could 
have  been  written  by  Ingulfus,  who 
must  have  known  the  truth;  at  all 
events,  his  testimony  must  be  worth 
little  on  any  subject,  if  he  could  so  pal- 
pably misrepresent  a  matter  of  public 
notoriety.  The  supposition  of  entire 
forgery  is  one  which  we  should  not  ad- 
mit without  full  proof:  but,  in  this  in- 
stance, there  are,  perhaps,  fewer  difn- 

VOL.  II.— 15 


culties  .on  this  side  than  on  that  of  au- 
thenticity. 

k  Gibbon,  vol.  x.  p.  223.  No  writer, 
except,  perhaps,  the  Saxon  Chronicler, 
is  so  lull  of  William's  tyranny  as  Or- 
dencus  Vitahs  See  particularly  pp  507, 
512,  514,  521,  523,  in  Du  Chesne,  Hist. 
Norm.  Script.  Ordericus  was  an  Eng- 
lishman, but  passed  at  ten  years  old, 
A.D.  1084,  into  Normandy,  where  he  be- 
came professed  in  the  monastery  of  Eu. 
Ibid.  p.  924. 

I  The  regularity  of  the  course  adopt- 
ed when  this  record  was  compiled  is 
very  remarkable;  and  affords  a  satis- 
factory proof  that  the  business  of  the 
government  was  well  conducted,  and 
with  much  less  rudeness  than  is 
usually  supposed.  The  commissioners 
were  furnished  with  interrogatories, 
upon  Tvhich  they  examined  the  jurors 
of  the  shire  and  hundred,  and  also  such 
other  witnesses  as  they  thought  expe- 
dient 

Hie  subscribitur  inquisicio  terrarum 
quomodo  Barones  Reges  inquirunt, 
videlicet,  per  sacramentum  vicecomitis 
Scirae  et  omnium  Baronum  et  eorum 
Francigenarum  et  tocius  centunatus — 
presbiten  praepositi  VI.  villani  unius- 
cujusque  villae  [sic]. — Deinde  quomodo 
vocatur  mansio,  quis  tenuit  earn  tern- 
pore  Regis  Edwardi,  quis  modo  tenet, 
quot  hidae,  quot  carrucatae  in  domino 
quot  homines,  quot  villani,  quot  cotarii, 
quot  servi,  quot  liben  homines,  quot 
sochemanni,  quantum  silvae,  quantum 
prati,  quot  pascuorum,  quot  mohdenac, 
quot  piscinae,  quantum  est  additum  vel 
ablatum,  quantum  valebat  totum 
simul;  et  quantum  modo;  quantum  ibi 
quisque  liber  homo  vel  sochemanus 
habuit  vel  habet.  Hoc  totum  triplici- 
ter,  scilicet  tempore  Regis  JEdwardi;  et 
quando  Hex  wilhelmus  dedit;  et  quo- 
modo sit  modo,  et  si  plus  potest  haberi 
quam  habeatur.  Isti  homines  jurave- 
runt  (then  follow  the  names).  Inqui- 
sitio  Eliensis,  p.  497.  Palgrave,  ii.  444. 


HALLAM 

ward  the  Confessor,  free  from  any  superiority  but  that  of 
the  crown,  and  were  denominated,  as  in  former  times,  the  king's 
thanes.w  Cospatric,  son  perhaps  of  one  of  that  name  who  had 
possessed  the  earldom  of  Northumberland,  held  forty-one 
manors  in  Yorkshire,  though  many  of  them  are  stated  in 
Domesday  to  be  waste.  But  inferior  freeholders  were  much 
less  disturbed  in  their  estates  than  the  higher  class.  Brady 
maintains  that  the  English  had  suffered  universally  a  depriva- 
tion of  their  lands.  But  the  valuable  labors  of  Sir  Henry  Ellis, 
in  presenting  us  with  a  complete  analysis  of  Domesday  Book, 
afford  an  opportunity,  by  his  list  of  mesne  tenants  at  the  time 
of  the  survey,  to  form  some  approximation  to  the  relative  num- 
bers of  English  and  foreigners  holding  manors  under  the  im- 
mediate vassals  of  the  crown.  The  baptismal  names  (there  are 
rarely  any  others)  are  not  always  conclusive ;  but,  on  the  whole, 
we  learn  by  a  little  practice  to  distinguish  the  Norman  from  the 
Anglo-Saxon.  It  would  be  manifest,  by  running  the  eye  over 
some  pages  of  this  list,  how  considerably  mistaken  is  the  sup- 
position that  few  of  English  birth  held  entire  manors.  Though 
I  will  not  now  affirm  or  deny  that  they  were  a  majority,  they 
form  a  large  proportion  of  nearly  8,000  mesne  tenants,**  who 
are  summed  up  by  the  diligence  of  Sir  Henry  Ellis.  And  we 
may  presume  that  they  were  in  a  very  much  greater  proportion 
among  the  "  liberi  homines,"  who  held  lands,  subject  only  to 
free  services,  seldom  or  never  very  burdensome.  It  may  be 
added  that  many  Normans,  as  we  learn  from  history,  married 
English  heiresses,  rendered  so  frequently,  no  doubt,  by  the 
violent  deaths  of  their  fathers  and  brothers,  but  still  transmit- 
ting ancient  rights,  as  well  as  native  blood,  to  their  posterity. 
This  might  induce  us  to  suspect  that,  great  as  the  spoliation 
must  appear  in  modern  times,  and  almost  completely  as  the 
nation  was  excluded  from  civil  power  in  the  commonwealth, 
there  is  some  exaggeration  in  the  language  of  those  writers 
who  represent  them  as  universally  reduced  to  a  state  of  penury 

m  Brady,    whose    unfairness    always  though  it  makes  a  figure  In  the  contro- 

keeps  pace  with  his  ability,  pretends  versy  of  Normans  and  Anti-Normans, 

that  all  these  were  menial  officers  of  the  between  Dugdale  and  Brady  on  the  one 

king's   household.     But   notwithstand-  side,  and  Tyrrell,  Petyt,  and  Attwood 

ing  the  difficulty  of  disproving  these  on  the  other. 

gratuitous    suppositions,    it    is    pretty  n  Ellis's  Introduction  to  Domesday, 

certain  that  many  of  the  English  pro-  vol.  ii.  p.  8n.    "The  tenants  in  capite, 

prietors  m  Domesday  could  not  have  including     ecclesiastical     corporations, 

been  of  this  description.   See  pp.  99, 153,  amounted  scarcely  to  1400;  the  under- 

ziB,  319,  and  other  places.     The  ques-  tenants  were  7871, 
tfon,  however,  was  not  worth  a  battle, 


THE  MIDDLE  AGES  227 

and  servitude.  And  this  suspicion  may  be  in  some  degree 
just.  Yet  these  writers,  and  especially  the  most  English  in 
feeling  of  them  all,  M.  Thierry,  are  warranted  by  the  language 
of  contemporary  authorities.  An  important  passage  in  the 
Dialogus  de  Scaccario,  written  towards  the  end  of  Henry  IIL's 
reign,  tends  greatly  to  diminish  the  favorable  impression  which 
the  Saxon  names  of  so  many  mesne  tenants  in  Domesday  Book 
would  create.  If  we  may  trust  Gervase  of  Tilbury,  author  of 
this  little  treatise,  the  estates  of  those  who  had  borne  arms 
against  William  were  alone  confiscated;  though  the  others 
were  subjected  to  the  feudal  superiority  of  a  Norman  lord. 
But  when  these  lords  abused  their  power  to  dispossess  the  na- 
tive tenants,  a  clamor  was  raised  by  the  English,  and  complaint 
made  to  the  king ;  by  whom  it  was  ordered  (if  we  rightly  under- 
stand a  passage  not  devoid  of  obscurity)  that  the  tenant  might 
make  a  bargain  with  his  lord,  so  as  to  secure  himself  in  posses- 
sion ;  but  that  none  of  the  English  should  have  any  right  of 
succession,  a  fresh  agreement  with  the  lord  being  required  on 
every  change  of  tenancy.  The  Latin  words  will  be  found 
below.o  This,  as  here  expressed,  suggests  something  like  an 
uncertain  relief  at  the  lord's  will,  and  paints  the  condition  of 
the  English  tenant  as  wretchedly  dependent.  But  an  instru- 
ment published  by  Spelman,  and  which  will  be  found  in  Wil- 
kins,  Lex.  Ang.  Sax.  p.  287,  gives  a  more  favorable  view,  and 
asserts  that  William  permitted  those  who  had  taken  no  part 
against  him  to  retain  their  lands ;  though  it  appears  by  the 
very  same  record  that  the  Normans  did  not  much  regard  the 
royal  precept. 
But  whatever  may  have  been  the  legal  condition  of  the 

o  Post  regni  conquisitionem,  post  jus-  possessionibus  pellerentur,  nee  esset  qui 

tarn  rebelhum  subversionem,  cum  rex  ablatis  restituent,  communis  indigena- 

ipse  regisque  proceres  loca  nova  perlus-  rum  ad    regem    pervenit    quenmonia, 

trarent,  facta  est  inquisitio  dihgens,  qui  quasi     sic    omnibus     exosi     et    rebus 

fuerunt  qui  contra  regem  in  bello  dimi-  spoliatis  ad  alienigenas  transire  coge- 

cantes  per  fugam  se  salvaverant.     His  rentur.    Communicato  tantum  super  his 

omnibus  et  item  haredibus  eorum  qui  consilio,  decretum  est,  ut  quod  a  domi- 

in  bello  occubuerant,  spes  omnis  terra-  nis  suis  exigentibus  mentis  interveni- 

rtim  et  fundorum  atque  redituum  quos  ente   pactione   legitima   poterant    obti- 

ante  possederant,  praeclusa  est;  magnum  nere,  ilhs   mviolabihs  jur  concederen- 

namgue  reputabant  frui  vitae  beneficio  tur;   caeterum   autem  nomine  successi- 

sub  inimicis.    Veruni  qui  vocati  ad  bel-  onis  a  temponbus  subactae  gentis  nihil 

lum  necdum  convenerant,  vel  familiari-  sibi  vindicarent.    ...    Sic  igitur  quis- 

bus  vel  quibuslibet  necessariis  occupati  quis  de  gente  subacta  fundos  vel  aliquid 

negotiis  non  mterfuerant,  cum  tractu  hujusmodi  possidet,  non  quod  ratione 

temporis  devotis  obsequiis  gratiam  do*  successionis     deberi     sibi     videbatur, 

rnmorum  possedissent  sine  spe  succes-  adeptus  est;  sed  quod  solummodo  meri- 

sionis,  filii  tantum  pro  voluptate  [sic.  tis  suis  exigentibus,  vel  aliqua  pactione 

voluntate?]    tamen    dominorum  possi-  interveniente  obtinuit     Dial,  ae  Scac- 

dere    cceperunt    succedente   yero    tern-  cario,  c.  10. 
pore  cum  dommis  suis  odiosi  passim  a 


S28  H  ALLAH 

English  mesne  tenant,  by  knight-service  or  socage  (for  the 
case  of  villeins  is  of  course  not  here  considered),  during  the 
first  two  Norman  reigns,  it  seems  evident  that  he  was  protected 
by  the  charter  of  Henry  L  in  the  hereditary  possession  of  his 
lands,  subject  only  to  a  "  lawful  and  just  relief  towards  his 
lord/'  For  this  charter  is  addressed  to  all  the  liege  men  of 
the  crown, "  French  and  English ; "  and  purports  to  abolish  all 
the  evil  customs  by  which  the  kingdom  had  been  oppressed, 
extending  to  the  tenants  of  the  barons  as  well  as  those  of  the 
crown.  We  cannot  reasonably  construe  the  language  in  the 
Dialogue  of  the  Exchequer,  as  if  in  that  late  age  the  English 
tenant  had  no  estate  of  fee-simple.  If  this  had  been  the  case, 
there  could  not  have  been  the  difficulty,  which  he  mentions  in 
another  place,  of  distinguishing  among  freemen  or  freeholders 
(liberi  homines)  the  Norman  blood  from  the  Englishman,  which 
frequent  intermarriage  had  produced.  He  must,  we  are  led 
to  think,  either  have  copied  some  other  writer,  or  made  a  care- 
less and  faulty  statement  of  his  own.  But,  at  the  present,  we 
are  only  considering  the  state  of  the  English  in  the  reign  of 
the  Conqueror.  And  here  we  have,  on  the  one  hand,  a  manifest 
proof  from  the  Domesday  record  that  they  retained  the  usu- 
fruct, in  a  very  great  measure,  of  the  land ;  and  on  the  other, 
the  strong  testimony  of  contemporary  historians  to  the  spolia- 
tion and  oppression  which  they  endured.  It  seems  on  the  whole 
most  probable  that,  notwithstanding  innumerable  acts  of  tyr- 
anny, and  a  general  exposure  to  contumely  and  insolence,  they 
did  in  fact  possess  what  they  are  recorded  to  have  possessed 
by  the  Norman  commissioners  of  1085. 

The  vast  extent  of  the  Norman  estates  in  capite  is  apt  to 
deceive  us.  In  reading  of  a  baron  who  held  forty  or  fifty  or 
one  hundred  manors,  we  are  prone  to  fancy  his  wealth  some- 
thing like  what  a  similar  estate  would  produce  at  this  day. 
But  if  we  look  at  the  next  words,  we  shall  continually  find 
that  someone  else  held  of  him ;  and  this  was  a  holding  by 
knighf  s  service,  subject  to  feudal  incidents  no  doubt,  but  not 
leaving  the  seigniory  very  lucrative,  or  giving  any  right  of 
possessory  ownership  over  the  land.  The  real  possessions  of 
the  tenant  of  a  manor,  whether  holding  in  chief  or  not,  con- 
sisted in  the  demesne  lands,  the  produce  of  which  he  obtained 
without  cost  by  the  labor  of  the  villeins,  and  in  whatever  other 
payments  they  might  be  bound  to  make  in  money  or  kind.  It 


THE  MIDDLE  AGES  229 

will  be  remmbered,  what  has  been  more  than  once  inculcated, 
that  at  this  time  the  villani  and  bordarii,  that  is,  ceorls,  were  not 
like  the  villeins  of  Bracton  and  Littleton,  destitute  of  rights 
in  their  property;  their  condition  was  tending  to  the  lower 
stage,  and  with  a  Norman  lord  they  were  in  much  danger  of 
oppression ;  but  they  were  "  law-worthy/'  they  had  a  civil 
status  (to  pass  from  one  technical  style  to  another),  for  a  cen- 
tury after  the  conquest. 

Yet  I  would  not  extenuate  the  calamities  of  this  great  revo- 
lution, true  though  it  be  that  much  good  was  brought  out  of 
them,  and  that  we  owe  no  trifling  part  of  what  inspires  self- 
esteem  to  the  Norman  element  of  our  population  and  our  pol- 
ity. England  passed  under  the  yoke ;  she  endured  the  arro- 
gance of  foreign  conquerors ;  her  children,  even  though  their 
loss  in  revenue  may  have  been  exaggerated,  and  still  it  was 
enormous,  became  a  lower  race,  not  called  to  the  councils  of 
their  sovereign,  not  sharing  his  trust  or  his  bounty.  They 
were  in  a  far  different  condition  from  the  provincial  Romans 
after  the  conquest  of  Gaul,  even  if,  which  is  hardly  possible  to 
determine,  their  actual  deprivation  of  lands  should  have  been 
less  extensive.  For  not  only  they  did  not  for  several  reigns 
occupy  the  honorable  stations  which  sometimes  fell  to  the  lot 
of  the  Roman  subject  of  Clovis  or  Alaric,  but  they  had  a  great 
deal  more  freedom  and  importance  to  lose.  Nor  had  they 
a  protecting  church  to  mitigate  barbarous  superiority;  their 
bishops  were  degraded  and  in  exile ;  the  footstep  of  the  invader 
was  at  their  altars ;  their  monasteries  were  plundered,  and  the 
native  monks  insulted.  Rome  herself  looked  with  little  favor 
on  a  church  which  had  preserved  some  measure  of  indepen- 
dence. Strange  contrast  to  the  triumphant  episcopate  of  the 
Merovingian  kings !  P 

Besides  the  severities  exercised  upon  the  English  after  every 
insurrection,  two  instances  of  William's  unsparing  cruelty  are 
well  known,  the  devastation  of  Yorkshire  and  of  the  New 
Forest.  In  the  former,  which  had  the  tyrant's  plea,  necessity, 
for  its  pretext,  an  invasion  being  threatened  from  Denmark, 
the  whole  country  between  the  Tyne  and  the  Humber  was 
laid  so  desolate,  that  for  nine  years  afterwards  there  was  not 

P  The  oppression  of  the  English  dur-  Saxon    Chronicle.      Their  .  testimonies 

ing  the  first  reigns  after  the  Conquest  are  well  collected  by  M.  Thierry,  m  the 

is  fully  described  by  the  Norman  his-  second  volume  of  his  valuable  history, 
tonans  themselves,  as  well  as  by  the 


230 


HALLAM 


an  inhabited  village,  and  hardly  an  inhabitant,  left;  the  wast- 
ing of  this  district  having  been  followed  by  a  famine,  which 
swept  away  the  whole  populations  That  of  the  New  Forest, 
though  undoubtedly  less  calamitous  in  its  effects,  seems  even 
more  monstrous  from  the  frivolousness  of  the  caused  He 
afforested  several  other  tracts.  And  these  favorite  desmesnes 
of  the  Norman  kings  were  protected  by  a  system  of  iniquitous 
and  cruel  regulations,  called  the  Forest  Laws,  which  it  be- 
came afterwards  a  great  object  with  the  asserters  of  liberty 
to  correct.  The  penalty  for  killing  a  stag  or  a  boar  was  loss 
of  eyes ;  for  William  loved  the  great  game,  says  the  Saxon 
Chronicle,  as  if  he  had  been  their  father.* 

A  more  general  proof  of  the  ruinous  oppression  of  William 
the  Conqueror  may  be  deduced  from  the  comparative  condi- 
tion of  the  English  towns  in  the  reign  of  Edward  the  Con- 
fessor, and  at  the  compilation  of  Domesday.  At  the  former 
epoch  there  were  in  York  1,607  inhabited  houses,  at  the  latter 
967;  at  the  former  there  were  in  Oxford  721,  at  the  latter  243 ; 
of  172  houses  in  Dorchester,  100  were  destroyed;  of  243  in 
Derby,  103 ;  of  487  in  Chester,  205.  Some  other  towns  had 
suffered  less,  but  scarcely  any  one  fails  to  exhibit  marks  of  a 
decayed  population*  As  to  the  relative  numbers  of  the  peas- 
antry and  value  of  lands  at  these  two  periods,  it  would  not  be 
easy  to  assert  anything  without  laborious  examination  of 
Domesday  Book.* 

3;    Hoveden,   p.  courts  of  law,  but  were  set  apart  for  the 

.  314.    The  deso-  recreation  and  diversion  of  the  king,  as 

._      continued     m  waste  lands,  which  he  might  use  and 

Malmesbury's  time,  sixty  or  seventy  dispose  of  at  pleasure,'*  "Forestae," 
years  afterwards;  nudum  omnium  sol-  says  Sir  Henry  Spelman,  "nee  villas 
um  usque  ad  hoc  etiam  tempus.  propne  accepere,  nee  parochias,  nee  de 
r  Malmesbury,  p.  in.  corpore  ahcujus  comitatus  vel  episco- 
s  Chron.  Saxon.,  p.  191.  M.  Thierry  patus  habitae  sunt,  sed  extraneum  quid- 
conjectnres  that  these  severe  regula-  dam  et  feris  datum,  fermo  jure,  non 
tions  had  a  deeper  motive  than  the  civili,  non  municipal!  fruebantur;  re- 
mere  preservation  of  game,  and  were  gem  in  omnibus  agnoscentes  dominum 
intended  to  prevent  the  English  from  umcum  et  ex  arbitrio  disponentem." 
assembling  in  arms  on  pretence  of  the  Mr.  Allen  quotes  afterwards  a  passage 
chase.  Vol.  u.  p.  257.  But  perhaps  from  the  ^'Dialogus  de  Scaccano," 
this  is  not  necessary.  We  know  that  which  indicates  the  peculiarity  of  the 
a  disproportionate  severity  has  often  forest-laws.  "Forestarum  ratio,  posna 
guarded  the  beasts  and  birds  of  chase  quoque  vel  absqlutio  delinquentmm  in 
from  depredation.  eas,  sive  pecuniana  fuerit  sive  corpo- 
Allen  admits  (Edinburgh  Rev.,  xxvi.  rahs,  seorsim  ab  aliis  regni  judicns 
355)  that  the  forest  laws  seem  to  have  secernitur,  et  solius  regis  arbitrio,  vel 
been  enacted  by  the  king's  sole  author-  cujushbet  familiaris  ad  hoc  specialiter 
ity;  or,  as  we  may  rather  say,  that  they  deputati  subjicitur.  Legibus  quidem 
were  considered  as  a  part  of  his  preroga-  propriis  subsistit;  quas  non  communi 
tive.  The  royal  forests^were  protected  regni  jure,  sed  voluntaria  principum 
by  extraordinary  penalties  even  before  institutione  submxas  dicunt."  The  for- 
the  conquest  The  royal  forests  were  ests  were,  to  use  a  word  m  rather  an 
part  of  the  demesne  of  the  crown.  They  opposite  sense  to  the  usual,  an  oasis  of 
were  not  included  m  the  territorial  di-  despotism  in  the  midst  of  the  old  corn- 
Visions  of  the  kingdom,  civil  or  eccle-  mon  law. 
gjastical,  nor  governed  by  the  ordinary  *  The  population  recorded  in  Domes- 


THE  MIDDLE  AGES  231 

The  demesne  lands  of  the  crown,  extensive  and  scattered 
over  every  county,  were  abundantly  sufficient  to  support  its 
dignity  and  magnificence;**  and  William,  far  from  wasting 
this  revenue  by  prodigal  grants,  took  care  to  let  them  at  the 
highest  rate  to  farm,  little  caring  how  much  the  cultivators 
were  racked  by  his  tenants.^  Yet  his  exactions,  both  feudal 
and  in  the  way  of  tallage  from  his  burgesses  and  the  tenants 
of  his  vassals,  were  almost  as  violent  as  his  confiscations.  No 
source  of  income  was  neglected  by  him,  or  indeed  by  his  suc- 
cessors, however  trifling,  unjust,  or  unreasonable.  His  reve- 
nues, if  we  could  trust  Ordericus  Vitalis,  amounted  to  i,o6dL 
a  day.  This,  in  mere  weight  of  silver,  would  be  equal  to  nearly 
i,20O,ooo/.  a  year  at  present.  But  the  arithmetical  statements 
of  these  writers  are  not  implicitly  to  be  relied  upon.  He  left 
at  his  death  a  treasure  of  6o,ooo/,  which,  in  conformity  to  his 
dying  request,  his  successor  distributed  among  the  church 
and  poor  of  the  kingdom,  as  a  feeble  expiation  of  the  crimes 
by  which  it  had  been  accumulated  ;«>  an  act  of  disinterested- 
ness which  seems  to  prove  that  Rufus,  amidst  all  his  vices,  was 
not  destitute  of  better  feelings  than  historians  have  ascribed 
to  him.  It  might  appear  that  William  had  little  use  for  his 
extorted  wealth.  By  the  feudal  constitution,  as  established 
during  his  reign,  he  commanded  the  service  of  a  vast  army 
at  its  own  expense,  either  for  domestic  or  continental  war- 
fare. But  this  was  not  sufficient  for  his  purpose;  like  other 
tyrants,  he  put  greater  trust  in  mercenary  obedience.  Some 
of  his  predecessors  had  kept  bodies  of  Danish  troops  in  pay; 
partly  to  be  secure  against  their  hostility,  partly  from  the  con- 
venience of  a  regular  army,  and  the  love  which  princes  bear 
to  it.  But  William  carried  this  to  a  much  greater  length.  He 
had  always  stipendiary  soldiers  at  his  command-  Indeed  his 
army  at  the  Conquest  could  not  have  been  swollen  to  such 
numbers  by  any  other  means.  They  were  drawn,  by  the  al- 
lurement of  high  pay,  not  from  France  and  Brittany  alone, 
but  Flanders,  Germany,  and  even  Spain.  When  Canute  of 
Denmark  threatened  an  invasion  in  1085,  William,  too  con- 
scious of  his  own  tyranny  to  use  the  arms  of  his  English  sub- 
day  is  about  283,000,  which,  in  round  v  Chron.  Saxon*,  p.  188. 
numbers,  allowing  for  women  and  chil-  w  Huntingdon,  p.  371.  Ordericus 

dren,  may  be  called  about  a  million.  Vitalis  puts  a  long  penitential  speech 
Ellis*s  Introduction  to  Domesday,  vol.  into  William's  mouth  on  his  death-bed, 
ii.  p.  j ii.  p.  66.  Though  this  may  be  his  mven- 

wThey    consisted    of    1,422    manors.       tion,  yet  facts  seem  to  show  the  com- 
£ytteltgn.'s  Henry  II.,  vol.  ii.  p.  288.  pmwtaon,  Q|  the  tyrant's  conscience* 


232  HALLAM 

jects,  collected  a  mercenary  force  so  vast,  that  men  wondered, 
says  the  Saxon  chronicler,  how  the  country  could  maintain 
it.  This  he  quartered  upon  the  people,  according  to  the  pro- 
portion of  their  estates.* 

Whatever  may  be  thought  of  the  Anglo-Saxon  tenures,  it 
is  certain  that  those  of  the  feudal  system  were  thoroughly 
established  in  England  under  the  Conqueror.  It  has  been 
observed,  in  another  part  of  this  work,  that  the  rights,  or 
feudal  incidents,  of  wardship  and  marriage  were  more  com- 
mon in  England  and  Normandy  than  in  the  rest  of  France. 
They  certainly  did  not  exist  in  the  former  before  the  Conquest ; 
but  whether  they  were  ancient  customs  of  the  latter  cannot 
be  ascertained,  unless  we  had  more  incontestable  records  of 
its  early  jurisprudence.  For  the  Great  Customary  of  Nor- 
mandy is  a  compilation  as  late  as  the  reign  of  Richard  Coeur- 
de-Lion,  when  the  laws  of  England  might  have  passed  into 
a  country  so  long  and  intimately  connected  with  it.  But  there 
appears  reason  to  think  that  the  seizure  of  the  lands  in  ward- 
ship, the  selling  of  the  heiress  in  marriage,  were  originally 
deemed  rather  acts  of  violence  than  conformable  to  law.  For 
Henry  Us  charter  expressly  promises  that  the  mother,  or  next 
of  kin,  shall  have  the  custody  of  the  lands  as  well  as  person 
of  the  heir.y  And  as  the  charter  of  Henry  II.  refers  to  and 
confirms  that  of  his  grandfather,  it  seems  to  follow  that  what 
is  called  guardianship  in  chivalry  had  not  yet  been  established. 
At  least  it  is  not  till  the  assize  of  Clarendon,  confirmed  at 
Northampton  in  1176,2  that  the  custody  of  the  heir  is  clearly 
reserved  to  the  lord.  With  respect  to  the  right  of  consenting 
to  the  marriage  of  a  female  vassal,  it  seems  to  have  been,  as 
I  have  elsewhere  observed,  pretty  general  in  feudal  tenures. 
But  the  sale  of  her  person  in  marriage,  or  the  exaction  of  a 
sum  of  money  in  lieu  of  this  scandalous  tyranny,  was  only 
the  law  of  England,  and  was  not  perhaps  fully  authorized  as 
such  till  the  statute  of  Merton  in  1236. 

One  innovation  made  by  William  upon  the  feudal  law  is 
very  deserving  of  attention.  By  the  leading  principle  of  feuds, 
an  oath  of  fealty  was  due  from  the  vassal  to  the  lord  of  whom 
he  immediately  held  his  land,  and  to  no  other.  The  king  of 

x  Chrott.  Saxon.,  p.  185;  Ingulfus,  p.  met  sxmiliter  se  contineant  erga  filios 

79-  vel  filias  vel  uxores  hoxzumim  metniin. 

y  Tetrae  et  Kberorum  custos  erit  sive  Leges  AngloSaxomcae,  p.  234, 
uxor,  sive  alius  propinquorum,  qin  jus-  s  Ibid.,  p.  330. 

tas  esse  dcbebit;  et  precipio  ut  barones 


THE  MIDDLE  AGES  233 

France,  long  after  this  period,  had  no  feudal  and  scarcely  any 
royal  authority  over  the  tenants  of  his  own  vassals.  But  Will- 
iam received  at  Salisbury,  in  1085,  the  fealty  of  all  landholders 
in  England,  both  those  who  held  in  chief,  and  their  tenants; a 
thus  breaking  in  upon  the  feudal  compact  in  its  most  essential 
attribute,  the  exclusive  dependence  of  a  vassal  upon  his  lord. 
And  this  may  be  reckoned  among  the  several  causes  which 
prevented  the  continental  notions  of  independence  upon  the 
crown  from  ever  taking  root  among  the  English  aristocracy. 
The  best  measure  of  William  was  the  establishment  of  pub- 
lic peace.  He  permitted  no  rapine  but  his  own.  The  feuds 
of  private  revenge,  the  lawlessness  of  robbery,  were  repressed. 
A  girl  laden  with  gold,  if  we  believe  some  ancient  writers, 
might  have  passed  safely  through  the  kingdom.^  But  this 
was  the  tranquillity  of  an  imperious  and  vigilant  despotism, 
the  degree  of  which  may  be  measured  by  these  effects,  in  which 
no  improvement  of  civilization  had  any  share.  There  is  as- 
suredly nothing  to  wonder  at  in  the  detestation  with  which 
the  English  long  regarded  the  memory  of  this  tyrants  Some 
advantages  undoubtedly,  in  the  course  of  human  affairs, 
eventually  sprang  from  the  Norman  conquest  The  invaders, 
though  without  perhaps  any  intrinsic  superiority  in  social  vir- 
tues over  the  native  English,  degraded  and  barbarous  as  these 
are  represented  to  us,  had  at  least  their  exterior  polish  of 
courteous  and  chivalric  manners,  and  that  taste  for  refinement 
and  magnificence,  which  serve  to  elevate  a  people  from  mere 
savage  rudeness.  Their  buildings,  sacred  as  well  as  domestic, 
became  more  substantial  and  elegant.  The  learning  of  the 
clergy,  the  only  class  to  whom  that  word  could  at  all  be  ap- 
plicable, became  infinitely  more  respectable  in  a  short  time 
after  the  conquest.  And  though  this  may  be  by  some  ascribed 
to  the  general  improvements  of  Europe  in  that  point  during 
the  twelfth  century,  yet  I  think  it  was  partly  owing  to  the  more 
free  intercourse  with  France,  and  the  closer  dependence  upon 
Rome,  which  that  revolution  produced.  This  circumstance 

a  Chron.  Saxon.,  p.  187.  The  oath  of  10  I  will  not  omit  one  other  circum* 

allegiance  or  fealty,  for  they  were  in  stance,  apparently  praiseworthy,  which 

spirit  the  same,  had  been  due  to  the  Odencus  mentions  of  William,  that  he 

king  before  the  conquest;  we  find  it  tried  to  learn  English,  in  order  to  ren- 

among  the  laws  of  Edmund  Allen's  der  justice  by  understanding  every 

Inquiry,  p  68.  It  was  not,  therefore,  man's  complaint,  but  failed  on  account 

likely  that  William  would  surrender  of  his  advanced  age.t  P.  520.  This  was 

such  a  tie  upon  his  subjects.  But  it  had  in  the  early  part  of  his  reign,  before  the 

also  been  usual  in  France  under  Charle-  reluctance  of  the  English  to  submit  had 

magne,  and  perhaps  later.  exasperated  his  disposition. 

b  Chron.  Saxon.,  p.  190;  M.  Pans,  p.          c  W.  Malmsb.,  Praf.  ad.  I.  in. 


234  HALLAM 

was,  however,  of  no  great  moment  to  the  English  of  those 
times,  whose  happiness  could  hardly  be  effected  by  the  theo- 
logical reputation  of  Lanfranc  and  Anselm.  Perhaps  the  chief 
benefit  which  the  natives  of  that  generation  derived  from  the 
government  of  William  and  his  successors,  next  to  that  of  a 
more  vigilant  police  was  the  security  they  found  from  inva- 
sion on  the  side  of  Denmark  and  Norway.  The  high  reputa- 
tion of  the  Conqueror  and  his  sons,  with  the  regular  organiza- 
tion of  a  feudal  militia,  deterred  those  predatory  armies  which 
had  brought  such  repeated  calamity  on  England  in  former 
times. 

The  system  of  feudal  policy,  though  derived  to  England 
from  a  French  source,  bore  a  very  different  appearance  in  the 
two  countries.  France,  for  about  two  centuries  after  the  house 
of  Capet  had  usurped  the  throne  of  Charlemagne's  posterity, 
could  hardly  be  deemed  a  regular  confederacy,  much  less  an 
entire  monarchy.  But  in  England  a  government,  feudal  in- 
deed in  its  form,  but  arbitrary  in  its  exercise,  not  only  main- 
tained subordination,  but  almost  extinguished  liberty.  Several 
causes  seem  to  have  conspired  towards  this  radical  difference. 
In  the  first  place,  a  kingdom  comparatively  small  is  much1 
more  easily  kept  under  control  than  one  of  vast  extent.  And' 
the  fiefs  of  Anglo-Norman  barons  after  the  Conquest  were 
far  less  considerable,  even  relatively  to  the  size  of  the  two 
countries,  than  those  of  France.  The  Earl  of  Chester  held, 
indeed,  almost  all  that  county  ;d  the  Earl  of  Shrewsbury, 
nearly  the  whole  of  Salop.  But  these  domains  bore  no  com- 
parison with  the  dukedom  of  Guienne,  or  the  county  of  Tou- 
louse. In  general,  the  lordships  of  William's  barons,  whether 
this  were  owing  to  policy  or  accident,  were  exceedingly  dis- 
persed. Robert  Earl  of  Moreton,  for  example,  the  most  richly 
endowed  of  his  followers,  enjoyed  248  manors  in  Cornwall, 
54  in  Sussex,  196  in  Yorkshire,  99  in  Northamptonshire,  be- 
sides many  in  other  counties.*  Estates  so  disjoined,  however 
immense  in  their  aggregate,  were  ill  calculated  for  supporting 

d  This  was^  upon  the  whole,   more       of    Montgomery,    it    acquired    all    the 
MCfi     *         "       En"  Untr  the  MeSey  and  Rib* 


ish        rf  T*«*  -- 

«!&.•       t  w  tr       $h  t,dS  .Abnncisi  l>le-     Several    eminent   men    inherited 

nephew  of  William  I.,  had  barons  of  the  earldom;  but  upon  the  death  of  tS 

h1!,  °wnU°ne^J!hom  held  *°rty'*™  most  distinguUedrRanuH^n  1232    it 

and    another    thirty   manors      Chester  fell  into  a  female  Ime?  and   soon  'es- 

was  first  called  a  coum>palatine  tin-  cheated  to  the  crown 


3ft 


itures  of  the  house          *  Dugdale's  Baronage,  p.  25. 


THE  MIDDLE  AGES  235 

a  rebellion.  It  is  observed  by  Madox  that  the  knight's  fees 
of  almost  every  barony  were  scattered  over  various  counties. 

In  the  next  place,  these  baronial  fiefs  were  held  under  an 
actual  derivation  from  the  crown.  The  great  vassals  of  France 
had  usurped  their  dominions  before  the  accession  of  Hugh 
Capet,  and  barely  submitted  to  his  nominal  sovereignty.  They 
never^  intended  to  yield  the  feudal  tributes  of  relief  and  aid, 
nor  did  some  of  them  even  acknowledge  the  supremacy  of  his 
royal  jurisdiction.  But  the  Conqueror  and  his  successors  im- 
posed what  conditions  they  would  upon  a  set  of  barons  who 
owed  all  to  their  grants ;  and  as  mankind's  notions  of  right  are 
generally  founded  upon  prescription,  these  peers  grew  accus- 
tomed to  endure  many  burdens,  reluctantly  indeed,  but  with- 
out that  feeling  of  injury  which  would  have  resisted  an  attempt 
to  impose  them  upon  the  vassals  of  the  French  crown.  For 
the  same  reasons  the  barons  of  England  were  regularly  sum- 
moned to  the  great  council,  and  by  their  attendance  in  it,  and 
concurrence  in  the  measures  which  were  there  resolved  upon, 
a  compactness  and  unity  of  interest  was  given  to  the  monarchy 
which  was  entirely  wanting  in  that  of  France. 

We  may  add  to  the  circumstances  that  rendered  the  crown 
powerful  during  the  first  century  after  the  conquest,  an  extreme 
antipathy  of  the  native  English  towards  their  invaders.  Both 
William  Rufus  and  Henry  I.  made  use  of  the  former  to 
strengthen  themselves  against  the  attempts  of  their  brother 
Robert ;  though  they  forgot  their  promises  to  the  English  after 
attaining  their  object./  A  fact  mentioned  by  Ordericus  Vitalis 
illustrates  the  advantage  which  the  government  found  in  this 
national  animosity.  During  the  siege  of  Bridgenorth,  a  town 
belonging  to  Robert  de  Belesme,  one  of  the  most  turbulent  and 
powerful  of  the  Norman  barons,  by  Henry  I.  in  1102,  the  rest 
of  the  nobility  deliberated  together,  and  came  to  the  conclusion 
that  if  the  king  could  expel  so  distinguished  a  subject,  he  would 
be  able  to  treat  them  all  as  his  servants.  They  endeavorecf 
therefore  to  bring  about  a  treaty;  but  the  English  part  of 
Henry's  army,  hating  Robert  de  Belesme  as  a  Norman,  urged 
the  king  to  proceed  with  the  siege ;  which  he  did,  and  took 
the  castle.g 

Unrestrained,  therefore,  comparatively  speaking,  by  the  aris- 

/  W.  Malmesbury,  pp.  120  et  156.    H.          g  Du  Chesne,  Script.  Norman.,  p.  807. 
Hoveden,  p.  461.    Chron.  Saxon.,  p.  194. 


236  HALLAM 

tocratic  principles  which  influenced  other  feudal  countries,  the 
administration  acquired  a  tone  of  rigor  and  arbitrariness  under 
William  the  Conqueror,  which,  though  sometimes  perhaps  a 
little  mitigated,  did  not  cease  during  a  century  and  a  half.  For 
the  first  three  reigns  we  must  have  recourse  to  historians; 
whose  language,  though  vague,  and  perhaps  exaggerated,  is 
too  uniform  and  impressive  to  leave  a  doubt  of  the  tyrannical 
character  of  the  government.  The  intolerable  exactions  of 
tribute,  the  rapine  of  purveyance,  the  iniquity  of  royal  courts, 
are  continually  in  their  mouths.  "  God  sees  the  wretched 
people,"  says  the  Saxon  Chronicler,  "  most  unjustly  oppressed ; 
first  they  are  despoiled  of  their  possessions,  then  butchered. 
This  was  a  grievous  year  (1124).  Whoever  had  any  property 
lost  it  by  heavy  taxes  and  unjust  decrees."  &  The  same  ancient 
chronicle,  which  appears  to  have  been  continued  from  time 
to  time  in  the  abbey  of  Peterborough,  frequently  utters  similar 
notes  of  lamentation. 

From  the  reign  of  Stephen,  the  miseries  of  which  are  not' 
to  my  immediate  purpose,  so  far  as  they  proceeded  from  an- 
archy and  intestine  war,*  we  are  able  to  trace  the  character  of 
government  by  existing  records.;  These,  digested  by  the  in- 
dustrious Madox  into  his  History  of  the  Exchequer,  gives  us 
far  more  insight  into  the  spirit  of  the  constitution,  if  we  may 
use  such  a  word,  than  all  our  monkish  chronicles.  It  was  not 
a  sanguinary  despotism.  Henry  II.  was  a  prince  of  remarkable 
clemency;  and  none  of  the  Conqueror's  successors  were  as 
grossly  tyrannical  as  himself.  But  the  system  of  rapacious 
extortion  from  their  subjects  prevailed  to  a  degree  which  we 
should  rather  expect  to  find  among  eastern  slaves  than  that 
high-spirited  race  of  Normandy  whose  renown  then  filled  Eu- 
rope and  Asia.  The  right  of  wardship  was  abused  by  selling 
the  heir  and  his  land  to  the  highest  bidder.  That  of  marriage 

ftChron.  Saxon,  j>.  228.     Non  facile  in  cultivation.    Never  did  the  country 

potest  narrari  miseria,  says  Roger  de  suffer  greater  evils.     If  two  or  three 

Hoveden,  quam  sustinuit  illo  tempore  men  were  seen  ndmg  up  to  a  town,  all 

[circ.  ann.  1103]  terra  Anglorum  propter  its  inhabitants  left  it,  taking  them  for 

regias  exactiones.    P.  470.  plunderers.     And  this  lasted,   growing 

t  The  following  simple  picture  of  that  worse  and  worse,  throughout  Stephen's 

reign  from  the  Saxon  Chronicle  may  be  reign     Men  said  openly  that.  Christ  and 

worth  inserting.    "The  nobles  and  bish-  his  saints  were  asleep. '    P.  230. 

ops  built  castles,  and  filled  them  with  j  The  earliest  record  in  the  Pipe«office 

devilish  and  wicked  men,  and  oppressed  is  that  which  Madox,  in  conformity  to 

the  people,  cruelly  torturing  men  for  the  usage  of  others,  cites  by  the  name  of 

their  money*  They  imposed  taxes  upon  Magnum  Rotulum  quinto  Stephanu  But 

towns,  and,  when  they  had  exhausted  in  a  particular  dissertation,  subjoined  to 

them  of  everything,  set  them  on  fire.  his  History  of  the  Exchequer,   he  m- 

You  might  travel  a  day,  and  not  find  clines,  though  not  decisively,  to  refer 

one  man  living  in  a  town,  nor  any  land  this  record  to  the  reign  of  Henry  L 


THE  MIDDLE  AGES  237 

was  carried  to  a  still  grosser  excess.  The  kings  of  France 
indeed  claimed  the  prerogative  of  forbidding  the  marriage  of 
their  vassals'  daughters  to  such  persons  as  they  thought  un- 
friendly or  dangerous  to  themselves;  but  I  am  not  aware 
that  they  ever  compelled  them  to  marry,  much  less  that  they 
turned  this  attribute  of  sovereignty  into  a  means  of  revenue. 
But  in  England,  women  and  even  men,  simply  as  tenants  in 
chief,  and  not  as  wards,  fined  to  the  crown  for  leave  to  marry 
whom  they  would,  or  not  to  be  compelled  to  marry  any  other.fe 
Towns  not  only  fined  for  original  grants  of  franchises,  but  for 
repeated  confirmations.  The  Jews  paid  exorbitant  sums  for 
every  common  right  of  mankind,  for  protection,  for  justice. 
In  return  they  were  sustained  against  their  Christian  debtors 
in  demands  of  usury,  which  superstition  and  tyranny  rendered 
enormous .1  Men  fined  for  the  king's  good-will;  or  that  he 
would  remit  his  anger;  or  to  have  his  mediation  with  their 
adversaries.  Many  fines  seem  as  it  were  imposed  in  sport, 
if  we  look  to  the  cause ;  though  their  extent,  and  the  solemnity 
with  which  they  were  recorded,  prove  the  humor  to  have  been 
differently  relished  by  the  two  parties.  Thus  the  bishop  of 
Winchester  paid  a  tun  of  good  wine  for  not  reminding  the  king 
(John)  to  give  a  girdle  to  the  Countess  of  Albemarle;  and 
Robert  de  Vaux  five  best  palfreys,  that  the  same  king  might 
hold  his  peace  about  Henry  Pinel's  wife.  Another  paid  four 
marks  for  leave  to  eat  (pro  licentia  comedendi).  But  of  all  the 
abuses  which  deformed  the  Anglo-Norman  government,  none 
was  so  flagitious  as  the  sale  of  judicial  redress.  The  king,  we 
are  often  told,  is  the  fountain  of  justice ;  but  in  those  ages  it 
was  one  which  gold  alone  could  unseal.  Men  fined  to  have 
right  done  them ;  to  sue  in  a  certain  court ;  to  implead  a  cer- 
tain person;  to  have  restitution  of  land  which  they  had  re- 
covered at  law.w  From  the  sale  of  that  justice  which  every 
citizen  has  a  right  to  demand,  it  was  an  easy  transition  to  with- 
hold or  deny  it.  Fines  were  received  for  the  king's  help  against 
the  adverse  suitor;  that  is,  for  perversion  of  justice,  or  for 
delay.  Sometimes  they  were  paid  by  opposite  parties,  and, 
of  course,  for  opposite  ends.  These  were  called  counter-fines ; 
but  the  money  was  sometimes,  or  as  Lord  Lyttelton  thinks, 
invariably,  returned  to  the  unsuccessful  suitor.** 

It  Madox,  c.  10.  *  The    most    opposite    instances    of 

I  Id.,  c.  7.  tTie^e  exactions  are  well  selected  from 

mid.,  c.  12  and  13.  Madox  by  Hume,  Appendix  II.;  upon 


2$S  HALLAM 

Among  a  people  imperfectly  civilized  the  most  outrageous 
injustice  towards  individuals  may  pass  without  the  slightest 
notice,  while  in  matters  affecting  the  community  the  powers 
of  government  are  exceedingly  controlled.  It  becomes  there- 
fore an  important  question  what  prerogative  these  Norman 
kings  were  used  to  exercise  in  raising  money  and  in  general 
legislation.  By  the  prevailing  feudal  customs  the  lord  was 
entitled  to  demand  a  pecuniary  aid  of  his  vassals  in  certain 
cases.  These  were,  in  England,  to  make  his  eldest  son  a  knight, 
to  marry  his  eldest  daughter,  and  to  ransom  himself  from  cap- 
tivity. Accordingly,  when  such  circumstances  occurred,  aids 
were  levied  by  the  crown  upon  its  tenants,  at  the  rate  of  a  mark 
or  a  pound  for  every  knight's  fee.0  These  aids,  being  strictly 
due  in  the  prescribed  cases,  were  taken  without  requiring  the 
consent  of  parliament.  Escuage,  which  was  a  commutation 
for  the  personal  service  of  military  tenants  in  war,  having  rather 
the  appearance  of  an  indulgence  than  an  imposition,  might 
reasonably  be  levied  by  the  king.P  It  was  not  till  the  charter 
of  John  that  escuage  became  a  parliamentary  assessment;  the 
custom  of  commuting  service  having  then  grown  general,  and 
the  rate  of  commutation  being  variable. 

None  but  military  tenants  could  be  liable  for  escuage ;  but 
the  inferior  subjects  of  the  crown  were  oppressed  by  tallages.g 
The  demesne  lands  of  the  king  and  all  royal  towns  were  liable 
to  tallage ;  an  imposition  far  more  rigorous  and  irregular  than 
those  which  fell  upon  the  gentry.  Tallages  were  continually 
raised  upon  different  towns  during  all  the  Norman  reigns  with- 
out the  consent  of  parliament,  which  neither  represented  them 
nor  cared  for  their  interests.  The  itinerant  justices  in  their 
circuit  usually  set  this  tax.  Sometimes  the  tallage  was  assessed 
in  gross  upon  a  town,  and  collected  by  the  burgesses ;  some- 
times individually  at  the  judgment  of  the  justices.  There  was 
an  appeal  from  an  excessive  assessment  to  the  barons  of  the 

which  account  I  have  gone  less  into  de-  militum  summam  aliquam  solvi,  mar- 
tail  than  would  otherwise  have  been  cam  scilicet,  vel  hbram  unam;  tmde 
necessary.  militibus  stipendia  vel  donativa  suc- 

o  The  "  reasonable  aid  "  was  fixed  by  cedant.  Mavult  enim  princeps  stipen- 
the  Statute  of  Westminster  I.,  3  Edw.  I.,  diarios  quam  domesticos  bellicis  ex- 
c.  36,  at  twenty  shillings  tor  every  ponere  casibus.  Haec  itaque  summa, 
knight's  fee,  and  as  much  for  every  20?.  quia  nomine  scutorum  solvitur,  scuta- 
value  of  land  held  by  socage.  The_aid  gium  nominator.  Dialogus  de  Scac- 
pour  faire  fils  chevalier  might  be  raised  carlo,  ad  finem.  Madox,  Hist.  Ex- 
when  he  entered  into  his  fifteenth  year;  chequer,  p.  25  (edit,  in  folio), 
pour  fille  marier,  when  she  reached  the  q  The  tenant  in  capite  was  entitled  to 
age  of  seven.  be  reimbursed  what  would  have  been 

P  Fit  interdum,  ut  imminente  vel  in-  his  escuage  by  his  vassals  even  if  he  per- 

surgente  in  regnum  hostium  machina-  formed  personal  service.  Madox,  c.  16. 
tione,  decernat  rex  de  smgulis  feodis 


THE  MIDDLE  AGES 

exchequer.  Inferior  lords  might  tallage  their  own  tenants  and 
demesne  towns,  though  not,  it  seems,  without  the  king's  per- 
missions Customs  upon  the  import  and  export  of  merchan- 
dise, of  which  the  prisage  of  wine,  that  is,  a  right  of  taking 
two  casks  out  of  each  vessel,  seems  the  most  material,  were 
immemorially  exacted  by  the  crown.  There  is  no  appearance 
that  these  originated  with  parliaments  Another  tax,  extend- 
ing to  all  the  lands  of  the  kingdom,  was  Danegeld,  the  ship- 
money  of  those  times.  This  name  had  been  originally  given 
to  the  tax  imposed  under  Ethelred  IL,  in  order  to  raise  a  tribute 
exacted  by  the  Danes.  It  was  afterwards  applied  to  a  perma- 
nent contribution  for  the  public  defence  against  the  same  ene- 
mies. But  after  the  Conquest  this  tax  is  said  to  have  been  only 
occasionally  required ;  and  the  latest  instance  on  record  of  its 
payment  is  in  the  20th  of  Henry  II.  Its  imposition  appears 
to  have  been  at  the  king's  discretion.* 

The  right  of  general  legislation  was  undoubtedly  placed  in 
the  king,  conjointly  with  his  great  council,^  or,  if  the  expression 
be  thought  more  proper,  with  their  advice.  So  little  opposition 
was  found  in  these  assemblies  by  the  early  Norman  kings,  that 
they  gratified  their  own  love  of  pomp,  as  well  as  the  pride  of 
their  barons,  by  consulting  them  in  every  important  business. 
But  the  limits  of  legislative  power  were  extremely  indefinite. 
New  laws,  like  new  taxes,  affecting  the  community  required 
the  sanction  of  that  assembly  which  was  supposed  to  represent 
it;  but  there  was  no  security  for  individuals  against  acts  of 
prerogative,  which  we  should  justly  consider  as  most  tyran- 
nical. Henry  IL,  the  best  of  these  monarchs,  banished  from 
England  the  relations  and  friends  of  Becket,  to  the  number  of 
four  hundred.  At  another  time  he  sent  over  from  Normandy 
an  injunction,  that  all  the  kindred  of  those  who  obeyed  a  papal 
interdict  should  be  banished,  and  their  estates  confiscated.^ 

r  For  the  important  subject  of  tal-  cannot  suppose  that  all  the  barons  and 

lages,  see  Madox,  c.  17.  tenants  in  capite  could  have  been  duly 

s  Madox,  c.  18.     Hale's  Treatise  on  summoned  to  a  council   held  beyond 

the  Custom  in  Hargrave's  Tracts,  vol.  seas.      Some    English    barons    might 

i.  p.  1 1 6.  doubtless  have  been  with  the  king,  as  at 

t  Henr.  Huntingdon,  I.  v.  p.  205.  Dia-  Verneuil  in  1176,  where  a  mixed  assem- 

logus  de  Scaccano,  c.  u.    Madox,  c.  17.  bly  of  English  and  French  enacted  laws 

Lyttelton's  Henry  II.,  vol.  ii.  p.  170.  for  both    countries.     Benedict.   Abbas 

a  Glanvil,  Prologus  ad  Tractatum  de  apud  Hume.    So  at  Northampton,  in 

Consuetud.  1165,  several  Norman  barons  voted;  nor 

v  Hoveden,  p.  496.    Lyttelton,  vol.  ii.  is  any  notice  taken  of  this  as  irregular. 

p.  530.  The  latter  says  that  this  edict  Fitz    Stephen,    ibid.      So    unfixed,,  or 

must  have  been  framed  by  the  king  with  rather  unformed,  were  all  constitution- 

the  advice  and  assent  of  his  council.  al  principals.  jNoTE  X.] 
But  if  he  means  his  great  council,  I 


240  H  ALLAH 

The  statutes  of  those  reigns  do  not  exhibit  to  us  many  pro- 
visions calculated  to  maintain  public  liberty  on  a  broad  and 
general  foundation.  And  although  the  laws  then  enacted  have 
not  all  been  preserved,  yet  it  is  unlikely  that  any  of  an  ex- 
tensively remedial  nature  should  have  left  no  trace  of  their 
existence.  We  find,  however,  what  has  sometimes  been  called 
the  Magna  Charta  of  William  the  Conqueror,  published  by 
Wilkins  from  a  document  of  considerable  authority.^  We  will, 
enjoin,  and  grant,  says  the  king,  that  all  freemen  of  our  kingdom 
shall  enjoy  their  lands  in  peace,  free  from  all  tallage,  and  from 
every  unjust  exaction,  so  that  nothing  but  their  service  law- 
fully due  to  us  shall  be  demanded  at  their  hands.*  The  laws 
of  the  Conqueror,  found  in  Hoveden,  are  wholly  different  from 
those  in  Ingulfus,  and  are  suspected  not  to  have  escaped  con- 
siderable interpolations  It  is  remarkable  that  no  reference  is 
made  to  this  concession  of  William  the  Conqueror  in  any  sub- 
sequent charter.  A  charter  of  Henry  I.,  the  authenticity  of 
which  is  undisputed,  though  it  contains  nothing  specially  ex- 
pressed but  a  remission  of  unreasonable  reliefs,  wardships,  and 
other  feudal  burdens,*  proceeds  to  declare  that  he  gives  his 
subjects  the  laws  of  Edward  the  Confessor,  with  the  emenda- 
tions made  by  his  father  with  consent  of  his  barons.a  The 
charter  of  Stephen  not  only  confirms  that  of  his  predecessor, 
but  adds,  in  fuller  terms  than  Henry  had  used,  an  express  con- 

w  fNoTE  XI]  f  his  behavior  towards  the    people,    in 

jrVolumus  etiam,  as  firmiter  prsecipi-  contrast  with  that  of  preceding  times, 
mus  et  concedimtts,  tit  ornnes  hben  ho-  and  bears  explicit  testimony  to  the  con- 
mines  totms  monarchic  predicti  regni  firmation  and  amendment  of  Edward's 
nostri  habeant  et  teneant  terras  suas  et  laws  by  the  Conqueror  and  by  the  reign- 
possessiones  suas  bene,  et  in  pace,  ing  king — Qui  non  solum  legem  regis 
hbere  ab  omni  exactione  injusta,  et  ab  Eadwardi  nobis  reddidit,  quam  omni 
omni  tallagio,  ita  quod  nihil  ab  iis  ex-  gaudiorum  delectatione  suscepimus,  sed 
igatur  vel  capiatur,.  nisi  seryitium  suuro  beati  patris  ejus  emendatiombus  robo- 
liberum,  quod  de  jure  nobis  facere  de-  ratam  propnis  institutiombus  honesta- 
bent,  et  facere  teneutur;  et  prout  statu-  yit.  See  Cooper  on  Public  Records  (vol. 
turn  est  iis,  et  illis  a  nobis  datum  et  ii.  p.  423),  in  which  very  useful  collec- 
concessura  jure  hsereditano  in  perpetu-  tion  the  whole  fragment  (for  the  first 
um  per  commune  concilium  totius  regni  time  in  England)  is  published  from  a 
nostri  pradicti  Cottonian  manuscript.  Henry  ceased 

y  Selden,  ad  Eadmerum.   Hody  (Trea-  not,  according  to  the  Saxon  Chronicle, 

tise  on  Convocations,  p.  249)  infers  from  to  lay  on  many  tributes.    But  it  is  rea- 

the  great  alterations  visible  on  the  face  sonable  to   suppose  that    tallages    on 

of  these  laws  that  they  were  altered  from  towns  and  on  his  demesne  tenants,  at 

the  French  original  by  Glanvil.  that  time  legal,  were  reckoned  among 

s  Wilkins,  p.  234.    The  accession  of  them. 

Henry  inspired  hopes  into  the  English  a  A  great  impression  is  said  to  have 
nation  which  were  not  well  realized.  been  made  on  the  barons  confederated 
His  marriage  with  Matilda,  **  of  the  against  John  by  the  production  of 
rightful  English  kin,"  is  mentioned  with  Henry  I.'s  charter,  whereof  they  had 
apparent  pleasure  by  the  Saxon  Chroni-  been  ignorant.  Matt.  Paris,  p.  212.  But 
cler  under  the  year  iioo.  And  in  a  frag-  this  could  hardly  have  been  the  existing 
ment  of  a  Latin  treatise  on  the  English  charter,  for  reasons  alleged  by  Black- 
laws,  praising  them  wjth  a  genuine  feel-  stone.  Introduction  to  Magna  Charta, 
ing,  andprobably  written  in  the  earlier  p.  6. 
part  of  Henry's  reign,  the  author  extols 


THE  MIDDLE  AGES  242 

cession  of  the  laws  and  customs  of  Edward.&  Henry  II.  is 
silent  about  these,  although  he  repeats  the  confirmation  of  his 
grandfather's  charter.*  The  people  however  had  begun  to 
look  back  to  a  more  ancient  standard  of  law.  The  Norman 
conquest,  and  all  that  ensued  upon  it,  had  endeared  the  mem- 
ory of  their  Saxon  government.  Its  disorders  were  forgotten, 
or,  rather,  were  less  odious  to  a  rude  nation,  than  the  coercive 
justice  by  which  they  were  afterwards  restrained.^  Hence  it 
became  the  favorite  cry  to  demand  the  laws  of  Edward  the 
Confessor;  and  the  Normans  themselves,  as  they  grew  dis- 
satisfied with  the  royal  administration,  fell  into  these  English 
sentiments.*  But  what  these  laws  were,  or  more  properly,  per- 
haps, these  customs  subsisting  in  the  Confessor's  age,  was  not 
very  distinctly  understood/  So  far,  however,  was  clear,  that 
the  rigorous  feudal  servitude,  the  weighty  tributes  upon  poorer 
freemen,  had  never  prevailed  before  the  Conquest.  In  claiming 
the  laws  of  Edward  the  Confessor  our  ancestors  meant  but 
the  redress  of  grievances,  which  tradition  told  them  had  not 
always  existed. 

It  is  highly  probable,  independently  of  the  evidence  supplied 
by  the  charters  of  Henry  I.  and  his  two  successors,  that  a  sense 
of  oppression  had  long  been  stimulating  the  subjects  of  so  arbi- 
trary a  government,  before  they  gave  any  demonstrations  of  it 
sufficiently  palpable  to  find  a  place  in  history.  But  there  are 
certainly  no  instances  of  rebellion,  or  even,  as  far  as  we  know, 
of  a  constitutional  resistance  in  parliament,  down  to  the  reign 
of  Richard  I.  The  revolt  of  the  earls  of  Leicester  and  Norfolk 

b  Wilkins,  Leges  Anglo-Saxon.,  p.  310.  ditione  discedere.  Eapropter  pene  qui- 
5  ,$?'  po  3l8'  ~  cunque  sic  hodie  occisus  repentur.  ut 
a  L  he  baxon  Chronicler  complains  of  murdrum  punitur,  exceptis  his  quibus 
a  witenagemot,  as  he  calls  it,  or  assizes,  certa  sunt  ut  dixmus  servihs  conditionis 
held  at  Leicester  in  1124,  where  forty-  indicia  p.  26  [NOTE  XII.] 
four  thieves  were  hanged,  a  greater  /  Non  quas  tuht,  sed  quas  observa- 
xmmber  than  was  ever  before  known;  it  vent,  says  William  of  Malmesbury,  con- 
was  said  that  many  suffered  unjustly,  cernmg  the  Confessor's  laws.  Those 
p.  228.  Mr.  Turner  translates  this  dif-  bearing  his  name  in  Lambard  and  Wil- 
ferently;  but,  as  I  conceive,  without  at-  kins  are  evidently  spurious,  though  it 
tending  to  the  spirit  of  the  context.  may  not  be  easy  to  fix  upon  the  time 
Hist  of  Engl ,  vol.  i.  p.  174  when  they  were  forged.  Those  found  in 
m  e  The  distinction  between  the  two  na-  Ingulfus,  in  the  French  language,  are 
tions  was  pretty  well  obliterated  at  the  genuine,  though  translated  from  Latin, 
end  of  Henry  II/s  reign,  as  we  learn  and  were  confirmed  by  William  the  Con- 
from  the  Dialogue  on  the  Exchequer,  queror.  Neither  of  these  collections, 
then  written*  jam  cohabitantibus  An-  however,  can  be  thought  to  have  any 
ghcis  et  Normannis,  et  alterutrum  ux-  relation  to  the  civil  liberty  of  the  sub- 
ores  ducentibus  vel  nubentibus,  sic  per-  ject.  It  has  been  deemed  more  ra- 
mixtse  sunt  nationes,  ut  vix  discerni  tional  to  suppose  that  these  longings 
possit  hodie,  de  hberis  loquor,  quis  An-  for  Edward's  laws  were  rather  meant  for 
ghcus,  quis  Normannus,  sic  genere,  ex-  a  mild  administration  of  government, 
ceptis  duntaxat  ascnptatiis  qui  villani  free  from  unjust  Norman  innovations, 
dicuntur,  quibus  non  est  liberum  ob-  than  any  written  and  definitive  system, 
stantious  dommis  suis  a  sui  status  con- 

VOL.  II.— 16 


242  HALLAM 

against  Henry  II.,  which  endangered  his  throne  and  compre- 
hended his  children  with  a  large  part  of  his  barons,  appears 
not  to  have  been  founded  even  upon  the  pretext  of  public  griev- 
ances. Under  Richard  I.  something  more  of  a  national  spirit 
began  to  show  itself.  For  the  king  having  left  his  chancellor 
William  Longchamp  joint  regent  and  justiciary  with  the  Bishop 
of  Durham  during  his  crusade,  the  foolish  insolence  of  the 
former,  who  excluded  his  coadjutor  from  any  share  in  the  ad- 
ministration, provoked  every  one  of  the  nobility.  A  convention 
of  these,  the  king's  brother  placing  himself  at  their  head,  passed 
a  sentence  of  removal  and  banishment  upon  the  chancellor. 
Though  there  might  be  reason  to  conceive  that  this  would  not 
be  unpleasing  to  the  king,  who  was  already  apprised  how  much 
Longchamp  had  abused  his  trust,  it  was  a  remarkable  assump- 
tion of  power  by  that  assembly,  and  the  earliest  authority  for 
a  leading  principle  of  our  constitution,  the  responsibility  of 
ministers  to  parliament. 

In  the  succeeding  reign  of  John  all  the  rapacious  exactions 
usual  to  these  Norman  kings  were  not  only  redoubled,  but 
mingled  with  other  outrages  of  tyranny  still  more  intolerable.^ 
These  too  were  to  be  endured  at  the  hands  of  a  prince  utterly 
contemptible  for  his  folly  and  cowardice.  One  is  surprised 
at  the  forbearance  displayed  by  the  barons,  till  they  took  up 
arms  at  length  in  that  confederacy  which  ended  in  establishing 
the  Great  Charter  of  Liberties.  As  this  was  the  first  effort 
towards  a  legal  government,  so  is  it  beyond  comparison  the 
most  important  event  in  our  history,  except  that  Revolution 
without  which  its  benefits  would  have  been  rapidly  annihilated. 
The  constitution  of  England  has  indeed  no  single  date  from 
which  its  duration  is  to  be  reckoned.  The  institutions  of  posi- 
tive law,  the  far  more  important  changes  which  time  has 
wrought  in  the  order  of  society,  during  six  hundred  years  sub- 
sequent to  the  Great  Charter,  have  undoubtedly  lessened  its 
direct  application  to  our  present  circumstances.  But  it  is  still 
the  keystone  of  English  liberty.  All  that  has  since  been  ob- 
tained is  little  more  than  as  confirmation  or  commentary ;  ancf 
if  every  subsequent  law  were  to  be  swept  away,  there  would 
still  remain  the  bold  features  that  distinguish  a  free  from  a  des- 

g  In  1207  John  took  a  seventh  of  tlic  186,  cd.  1684.   But  his  insults  upon  the 

movables  of  lay  and  spiritual  persons,  nobility  in  debauching  their  wives  and 

cunctis   murmurantibus.   sed   contradi-  daughters  were,  as  usually  happens,  the 

cere  non  audcntibus.    Matt  Paris,  p.  most  exasperating  provocation. 


THE  MIDDLE  AGES  243 

potic  monarchy.  It  has  been  lately  the  fashion  to  depreciate 
the  value  of  Magna  Charta,  as  if  it  had  sprung  from  the 
private  ambition  of  a  few  selfish  barons,  and  redressed  only 
some  feudal  abuses.  It  is  indeed  of  little  importance  by  what 
motives  those  who  obtained  it  were  guided.  The  real  charac- 
ters of  men  most  distinguished  in  the  transactions  of  that 
time  are  not  easily  determined  at  present.  Yet  if  we  bring 
these  ungrateful  suspicions  to  the  test,  they  prove  destitute  of 
all  reasonable  foundation.  An  equal  distribution  of  civil  rights 
to  all  classes  of  freemen  forms  the  peculiar  beauty  of  the 
charter.  In  this  just  solicitude  for  the  people,  and  in  the 
moderation  which  infringed  upon  no  essential  prerogative  of 
the  monarchy,  we  may  perceive  a  liberality  and  patriotism 
very  unlike  the  selfishness  which  is  sometimes  rashly  imputed 
to  those  ancient  barons.  And,  as  far  as  we  are  guided  by 
historical  testimony,  two  great  men,  the  pillars  of  our  church 
and  state,  may  be  considered  as  entitled  beyond  the  rest  to 
the  glory  of  this  monument ;  Stephen  Langton,  Archbishop 
of  Canterbury,  and  William  Earl  of  Pembroke.  To  their  tem- 
perate zeal  for  a  legal  government,  England  was  indebted  dur- 
ing that  critical  period  for  the  two  greatest  blessings  that  pa- 
triotic statesmen  could  confer :  the  establishment  of  civil  liberty 
upon  an  immovable  basis,  and  the  preservation  of  national  in- 
dependence under  the  ancient  line  of  sovereigns,  which  rasher 
men  were  about  to  exchange  for  the  dominion  of  France. 

By  the  Magna  Charta  of  John  reliefs  were  limited  to  a  certain 
sum  according  to  the  rank  of  the  tenant,  the  waste  committed 
by  guardians  in  chivalry  restrained,  the  disparagement  in 
matrimony  of  female  wards  forbidden,  and  widows  secured 
from  compulsory  marriage.  These  regulations,  extending  to 
the  sub-vassals  of  the  crown,  redressed  the  worst  grievances 
of  every  military  tenant  in  England.  The  franchises  of  the  city 
of  London  and  of  all  towns  and  boroughs  were  declared  in- 
violable. The  freedom  of  commerce  was  guaranteed  to  alien 
merchants.  The  Court  of  Common  Pleas,  instead  of  following 
the  king's  person,  was  fixed  at  Westminster.  The  tyranny 
exercised  in  the  neighborhood  of  royal  forests  met  with  some 
check,  which  was  further  enforced  by  the  Charter  of  Forests 
under  Henry  III. 

But  the  essential  clauses  of  Magna  Charta  are  those  which 
protect  the  personal  liberty  and  property  of  all  freemen,  by 


244  HALLAM 

giving  security  from  arbitrary  imprisonment  and  arbitrary 
spoliation.  "  No  freeman  (says  the  2gth  chapter  of  Henry 
IIL's  charter,  which,  as  the  existing  law,  I  quote  in  preference 
to  that  of  John,  the  variations  not  being  very  material)  shall 
be  taken  or  imprisoned,  or  be  disseized  of  his  freehold,  or  lib- 
erties, or  free  customs,  or  be  outlawed,  or  exiled,  or  any  other- 
wise destroyed;  nor  will  we  pass  upon  him,  nor  send  upon 
him,  but  by  lawful  judgment  of  his  peers,  or  by  the  law  of  the 
land.&  We  will  sell  to  no  man,  we  will  not  deny  or  delay  to 
any  man,  justice  or  right."  It  is  obvious  that  these  words, 
interpreted  by  any  honest  court  of  law,  convey  an  ample  secur- 
ity for  the  two  main  rights  of  civil  society.  From  the  era, 
therefore,  of  King  John's  charter,  it  must  have  been  a  clear 
principle  of  our  constitution  that  no  man  can  be  detained  in 
prison  without  trial.  Whether  courts  of  justice  framed  the 
writ  of  habeas  corpus  in  conformity  to  the  spirit  of  this  clause, 
or  found  it  already  in  their  register,  it  became  from  that  era 
the  right  of  every  subject  to  demand  it.  That  writ,  rendered 
more  actively  remedial  by  the  statute  of  Charles  IL,  but  founded 
upon  the  broad  basis  of  Magna  Charta,  is  the  principal  bulwark 
of  English  liberty ;  and  if  ever  temporary  circumstances,  or  the 
doubtful  plea  of  political  necessity,  shall  lead  men  to  look  on 
its  denial  with  apathy,  the  most  distinguishing  characteristic 
of  our  constitution  will  be  effaced. 

As  the  clause  recited  above  protects  the  subject  from  any 
absolute  spoliation  of  his  freehold  rights,  so  others  restrain 
the  excessive  amercements  which  had  an  almost  equally  ruin- 
ous operation.  The  magnitude  of  his  offence,  by  the  I4th  clause 
of  Henry  III/s  charter,  must  be  the  measure  of  his  fine ;  and 
in  every  case  the  contenement  (a  word  expressive  of  chattels 
necessary  to  each  man's  station,  as  the  arms  of  a  gentleman, 
the  merchandise  of  a  trader,  the  plough  and  wagons  of  a  peas- 

h  Nisi   per   legale    judicmm    parium  legem  terrae,  occurs.    Blackstone's  Char- 

suorum,  vel  per  legem  terrse      Several  ters,  p.  42     And  the  word  ml  is  so  fre- 

explanations  have  been  offered  of  the  quently  used  for  et,  that  I  am  not  wholly 

alternative  clause,  which  some  have  re-  free  from  a  suspicion  that  it  was  so  in- 

ferred  to  judgment  by  default  or  de-  tended  m  this  place     The  meaning  will 

murrer— others  to  the  process  of  attach-  be  that  no  person  shall  be  disseized,  &c  , 

ment  for  contempt.    Certainly  there  are  except  upon  a  lawful  cause  of  action  or 

many  legal  procedures  besides  trial  by  indictment  found  by  the  verdict  of  a 

jury,  through  which  a  party's  goods  or  jury.    This  really  seems  as  good  as  any 

person  may  be  taken.    But  one  may  of  the  disjunctive  interpretations,  but  I 

doubt  whether  these  were  in  contempla-  do  not  offer  it  with  much  confidence, 

tion  of  the  framers  of  Magna  Charta.  But  perhaps  the  best  sense  of  the  dis- 

In  an  entry  of  the  charter  of  1217  by  a  junctive  will  be  perceived  by  remember- 

contemporary  hand,  preserved  in  a  book  ing  that  judicium  parmm  was  generally 

in  the  town  clerk's  office  in  London,  opposed  to  the  combat  or  the  ordeal, 

called    Liber   Custumarum    et    Regum  which  were  equally  lex  terra. 
antiquorum,  a  various  reading,  et  per 


THE  MIDDLE  AGES  245 

ant)  was  exempted  from  seizure.  A  provision  was  made  in  the 
charter  of  John  that  no  aid  or  escuage  should  be  imposed, 
except  in  the  three  feudal  cases  of  aid,  without  consent  of  par- 
liament. And  this  was  extended  to  aids  paid  by  the  city  of 
London.  But  the  clause  was  omitted  in  the  three  charters 
granted  by  Henry  III.,  though  parliament  seem  to  have  acted 
upon  it  in  most  part  of  his  reign.  It  had,  however,  no  reference 
to  tallages  imposed  upon  towns  without  their  consent.  Four- 
score years  were  yet  to  elapse  before  the  great  principle  of  par- 
liamentary taxation  was  explicitly  and  absolutely  recognized. 

A  law  which  enacts  that  justice  shall  neither  be  sold,  denied, 
nor  delayed,  stamps  with  infamy  that  government  under  which 
it  had  become  necessary.  But  from  the  time  of  the  charter, 
according  to  Madox,  the  disgraceful  perversions  of  right,  which 
are  upon  record  in  the  rolls  of  the  exchequer,  became  less 
frequent.* 

From  this  era  a  new  soul  was  infused  into  the  people  of 
England.  Her  liberties,  at  the  best  long  in  abeyance,  became 
a  tangible  possession,  and  those  indefinite  aspirations  for  the 
laws  of  Edward  the  Confessor  were  changed  into  a  steady  re- 
gard for  the  Great  Charter.  Pass  but  from  the  history  of  Roger 
de  Hoveden  to  that  of  Matthew  Paris,  from  the  second  Henry 
to  the  third,  and  judge  whether  the  victorious  struggle  had 
not  excited  an  energy  of  public  spirit  to  which  the  nation  was 
before  a  stranger.  The  strong  man,  in  the  sublime  language 
of  Milton,  was  aroused  from  sleep,  and  shook  his  invincible 
locks.  Tyranny,  indeed,  and  injustice  will,  by  all  historians  not 
absolutely  servile,  be  noted  with  moral  reprobation ;  but  never 
shall  we  find  in  the  English  writers  of  the  twelfth  century  that 
assertion  of  positive  and  national  rights  which  distinguishes 
those  of  the  next  age,  and  particularly  the  monk  of  St.  Albans. 
From  his  prolix  history  we  may  collect  three  material  propo- 
sitions as  to  the  state  of  the  English  constitution  during  the 
long  reign  of  Henry  III. ;  a  prince  to  whom  the  epithet  of 
worthless  seems  best  applicable ;  and  who,  without  committing 
any  flagrant  crimes,  was  at  once  insincere,  ill-judging,  and 
pusillanimous.  The  intervention  of  such  a  reign  was  a  very 
fortunate  circumstance  for  public  liberty,  which  might  possibly 
have  been  crushed  in  its  infancy  if  an  Edward  had  immediately 
succeeded  to  the  throne  of  John. 

i  Hist,  of  Exchequer,  c.  12. 


246  HALLAM 

i.  The  Great  Charter  was  always  considered  as  a  fundamen- 
tal law.  But  yet  it  was  supposed  to  acquire  additional  security 
by  frequent  confirmation.  This  it  received,  with  some  not  in- 
considerable variation,  in  the  first,  second,  and  ninth  years  of 
Henry'a  reign.  The  last  of  these  is  in  our  present  statute-book, 
and  has  never  received  any  alterations ;  but  Sir  E.  Coke  reck- 
ons thirty-two  instances  wherein  it  has  been  solemnly  ratified. 
Several  of  these  were  during  the  reign  of  Henry  III.,  and  were 
invariably  purchased  by  the  grant  of  a  subsidy.;  This  prudent 
accommodation  of  parliament  to  the  circumstances  of  their 
age  not  only  made  the  law  itself  appear  more  inviolable,  but 
established  that  correspondence  between  supply  and  redress 
which  for  some  centuries  was  the  balance-spring  of  our  con- 
stitution. The  charter,  indeed,  was  often  grossly  violated  by 
their  administration.  Even  Hubert  de  Burgh,  of  whom  history 
speaks  more  favorably  than  of  Henry's  later  favorites,  though 
a  faithful  servant  of  the  crown,  seems,  as  is  too  often  the  case 
with  such  men,  to  have  thought  the  king's  honor  and  interest 
concerned  in  maintaining  an  unlimited  prerogative.^  The  gov- 
ernment was,  however,  much  worse  administered  after  his  fall. 
From  the  great  difficulty  of  compelling  the  king  to  observe  the 
boundaries  of  law,  the  English  clergy,  to  whom  we  are  much 
indebted  for  their  zeal  in  behalf  of  liberty  during  this  reign, 
devised  means  of  binding  his  conscience  and  terrifying  his  im- 
agination by  religious  sanctions.  The  solemn  excommunica- 
tion, accompanied  with  the  most  awful  threats,  pronounced 
against  the  violators  of  Magna  Charta,  is  well  known  from  our 
common  histories.  The  king  was  a  party  to  this  ceremony, 
and  swore  to  observe  the  charter.  But  Henry  III.,  though 
a  very  devout  person,  had  his  own  notions  as  to  the  validity 
of  an  oath  that  affected  his  power,  and  indeed  passed  his  life 
in  a  series  of  perjuries.  According  to  the  creed  of  that  age, 
a  papal  dispensation  might  annul  any  prior  engagement ;  and 
he  was  generally  on  sufficiently  good  terms  with  Rome  to  obtain 
such  an  indulgence. 

2.  Though  the  prohibition  of  levying  aids  or  escuages  with- 
out consent  of  parliament  had  been  omitted  in  all  Henry's 
charters,  yet  neither  one  nor  the  other  seem  in  fact  to  have 
been  exacted  at  discretion  throughout  his  reign.  On  the  con- 
trary, the  barons  frequently  refused  the  aids,  or  rather  sub- 

/  Matt*  Paris,  p.  272,  k  Id.  p.  284. 


THE  MIDDLE  AGES  247 

sidies,  which  his  prodigality  was  always  demanding.  Indeed 
it  would  probably  have  been  impossible  for  the  king,  however 
frugal,  stripped  as  he  was  of  so  many  lucrative  though  oppres- 
sive prerogatives  by  the  Great  Charter,  to  support  the  expen- 
diture of  government  from  his  own  resources.  Tallages  on  his 
demesnes,  and  especially  on  the  rich  and  ill-affected  city  of 
London,  he  imposed  without  scruple ;  but  it  does  not  appear 
that  he  ever  pretended  to  a  right  of  general  taxation.  We  may 
therefore  take  it  for  granted  that  the  clause  in  John's  charter, 
though  not  expressly  renewed,  was  still  considered  as  of  bind- 
ing force.  The  king  was  often  put  to  great  inconvenience  by 
the  refusal  of  supply ;  and  at  one  time  was  reduced  to  sell  his 
plate  and  jewels,  which  the  citizens  of  London  buying,  he  was 
provoked  to  exclaim  with  envious  spite  against  their  riches, 
which  he  had  not  been  able  to  exhausU 

3.  The  power  of  granting  money  must  of  course  imply  the 
power  of  withholding  it;  yet  this  has  sometimes  been  little 
more  than  a  nominal  privilege.  But  in  this  reign  the  English 
parliament  exercised  their  right  of  refusal,  or,  what  was  much 
better,  of  conditional  assent.  Great  discontent  was  expressed 
at  the  demand  of  a  subsidy  in  1237;  and  the  king  alleging 
that  he  had  expended  a  great  deal  of  money  on  his  sister's 
marriage  with  the  emperor,  and  also  upon  his  own,  the  barons 
answered  that  he  had  not  taken  their  advice  in  those  affairs, 
nor  ought  they  to  share  the  punishment  of  acts  of  imprudence 
they  had  not  committed.^  In  1241,  a  subsidy  having  been 
demanded  for  the  war  in  Poitou,  the  barons  drew  up  a  re- 
monstrance, enumerating  all  the  grants  they  had  made  on 
former  occasions,  but  always  on  condition  that  the  imposition 
should  not  be  turned  into  precedent.  Their  last  subsidy,  it 
appears,  had  been  paid  into  the  hands  of  four  barons,  who 
were  to  expend  it  at  their  discretion  for  the  benefit  of  the  king 
and  kingdom ;«  an  early  instance  of  parliamentary  control 
over  public  expenditure.  On  a  similar  demand  in  1244  the 
king  was  answered  by  complaints  against  the  violation  of  the 
charter,  the  waste  of  former  subsidies,  and  the  maladministra- 
tion of  his  servants.^  Finally  the  barons  positively  refused  any 

I M.  Paris,  p.  630.  o  Id.  pp.  563,  572;  Matthew  Paris's  lan- 

m  Quod  haec  omnia  sine  consilio  fide-  guage   is   particularly   uncourtly:    rex 

hum  suorum  facerat,  nee  debuerant  esse  cum  instantissime,  ne  dicam  ixnpuden- 

pcenze  participes,   qui  fuerant  a   culpa  tissime,  auxilium  pecumare  ab  us  iterum 

immunes.    P.  367.  postularet,  toties  last  et  illusi,  contra- 

n  M.  Paris,  p.  $1$.  dixerunt  ei  unanimiter  «t  uno  ore  in 

facie. 


248  HALLAM 

money;  and  he  extorted  1,500  marks  from  the  city  of  London. 
Some  years  afterwards  they  declared  their  readiness  to  burden 
themselves  more  than  ever  if  they  could  secure  the  observance 
of  the  charter ;  and  requested  that  the  justiciary,  chancellor,  and 
treasurer  might  be  appointed  with  consent  of  parliament,  ac- 
cording, as  they  asserted,  to  ancient  custom,  and  might  hold 
their  offices  during  good  behavior^ 

Forty  years  of  mutual  dissatisfaction  had  elapsed,  when  a 
signal  act  of  Henry's  improvidence  brought  on  a  crisis  which 
endangered  his  throne.  Innocent  IV.,  out  of  mere  animosity 
against  the  family  of  Frederick  IL,  left  no  means  untried  to 
raise  up  a  competitor  for  the  crown  of  Naples,  which  Manfred 
had  occupied.  Richard  Earl  of  Cornwall  having  been  prudent 
enough  to  decline  this  speculation,  the  pope  offered  to  support 
Henry's  second  son,  Prince  Edmund.  Tempted  by  such  a 
prospect,  the  silly  king  involved  himself  in  irretrievable  em- 
barrassments by  prosecuting  an  enterprise  which  could  not 
possibly  be  advantageous  to  England,  and  upon  which  he 
entered  without  the  advice  of  his  parliament.  Destitute  him- 
self of  money,  he  was  compelled  to  throw  the  expense  of  this 
new  crusade  upon  the  pope ;  but  the  assistance  of  Rome  was 
never  gratuitous,  and  Henry  actually  pledged  his  kingdom  for 
the  money  which  she  might  expend  in  a  war  for  her  advantage 
and  his  own.fl  He  did  not  even  want  the  effrontery  to  tell  par- 
liament in  1257,  introducing  his  son  Edmund  as  King  of  Sicily, 
that  they  were  bound  for  the  repayment  of  14,000  marks  with 
interest.  The  pope  had  also,  in  furtherance  of  the  Neapolitan 
project,  conferred  upon  Henry  the  tithes  of  all  benefices  in 
England,  as  well  as  the  first  fruits  of  such  as  should  be  vacant.** 
Such  a  concession  drew  upon  the  king  the  implacable  resent- 
ment of  his  clergy,  already  complaining  of  the  cowardice  or 
connivance  that  had  during  all  his  reign  exposed  them  to  the 

p  De  comratrai  consiKo  regni,  sicttt  ab  followed  the  steps  of  his  predecessors 

antiquo    consuetum  ct  justum.    P    778.  in  appointing  these  three  great  officers 

This  was  not  so  great  an  encroachment  by  their  consent.     P.   646.     What  had 

as  it  may  appear.    Ralph  de  Neville,  been  in  fact  the  practice  of  former  kmgs 

Bishop  of  Chichester,  had  been  made  I  do  not  know;    but  it  is  not  likely  to 

chancellor  in  1223,  assensu  totius  regni;  have    been    such    as    they    represent, 

itaque  scilicet  ut  non  deponeretur  ab  Henry,  however,  had  named  the  Arch- 

ejus  sigilli  custodi  nisi  totius  regni  ordi-  bishop  of  York  to  the  regency  of  the 

nante  consensu  et  constlio.    P.  266.    Ac-  kingdom    during    his    absence    beyond 

cordingly,  the  king  demanding  the  great  seas  in  1242,  de  consiKo  omnium  cqmi- 

seal  from  him  in  1236,  he  refused  to  give  turn  et  baromim  nostrorum  et  omnium 

it  up,  alleging  that,  having  received  it  fjdelium   nostrorum.     Rymer,    t.    i.    p. 

in  the  general  council  of  the  kingdom,  400. 

he  could  not  resign  it  without  the  same  q  Id,  p.  771. 

authority,    P   363.    And  the^  parliament  r  P.  813, 
of  124$  complained  that  the  king  had  not 


THE  MIDDLE  AGES  249 

shameless  exactions  of  Rome.  Henry  had  now  indeed  cause 
to  regret  his  precipitancy.  Alexander  IV.,  the  reigning  pon- 
tiff, threatened  him  not  only  with  a  revocation  of  the  grant 
to  his  son,  but  with  an  excommunication  and  general  interdict, 
if  the  money  advanced  on  his  account  should  not  be  immedi- 
ately repaid/  and  a  Roman  agent  explained  the  demand  to  a 
parliament  assembled  in  London.  The  sum  required  was  so 
enormous,  we  are  told,  that  it  struck  all  the  hearers  with  aston- 
ishment and  horror.  The  nobility  of  the  realm  were  indignant 
to  think  that  one  man's  supine  folly  should  thus  bring  them 
to  ruin.*  Who  can  deny  that  measures  beyond  the  ordinary 
course  of  the  constitution  were  necessary  to  control  so  prodi- 
gal and  injudicious  a  sovereign?  Accordingly  the  barons  in- 
sisted that  twenty-four  persons  should  be  nominated,  half  by 
the  king  and  half  by  themselves,  to  reform  the  state  of  the 
kingdom.  These  were  appointed  on  the  meeting  of  the  par- 
liament at  Oxford,  after  a  prorogation. 

The  seven  years  that  followed  are  a  revolutionary  period, 
the  events  of  which  we  do  not  find  satisfactorily  explained  by 
the  historians  of  the  time.-w  A  king  divested  of  prerogatives 
by  his  people  soon  appears  even  to  themselves  an  injured  party. 
And,  as  the  baronial  oligarchy  acted  with  that  arbitrary  temper 
which  is  never  pardoned  in  a  government  that  has  an  air  of 
usurpation  about  it,  the  royalists  began  to  gain  ground,  chiefly 
through  the  defection  of  some  who  had  joined  in  the  original 
limitations  imposed  on  the  crown,  usually  called  the  provisions 
of  Oxford.  An  ambitious  man,  confident  in  his  talents  and 
popularity,  ventured  to  display  too  marked  a  superiority  above 
his  fellows  in  the  same  cause.  But  neither  his  character  nor 
the  battles  of  Lewes  and  Evesham  fall  strictly  within  the  limits 
of  a  constitutional  history.  It  is  however  important  to  observe, 
that,  even  in  the  moment  of  success,  Henry  III.  did  not  pre- 
sume to  revoke  any  part  of  the  Great  Charter.  His  victory 
had  been  achieved  by  the  arms  of  the  English  nobility,  who 
had,  generally  speaking,  concurred  in  the  former  measures 

.sRymer,  t.  i.  p.  632    This  inauspi-  Dolttit  igitur  nobilitas  regjni,  se  unius 

ciotis   negotiation   for   Sicily,   which   is  hominis   ita   conftmdi   supina   simplici- 

not  altogether  unlike  that  oi  James  I.  tate.    M.  Pans,  p.  827, 
about  the  Spanish  match,  in  its  folly,          wThe  best  account  of  the  provisions 

bad  success,  and  the  dissatisfaction  it  of  Oxford  m  1260  and  the  circumstances 

occasioned  at  home,   receives   a  good  connected  with  them  is  found  in  the 

deal  of  illustration  from  documents  m  Burton  Annals     2  Gale,  XV  Scriptores,  . 

Rymer's  collection.  p   407.    Many  of  these  provisions  were 

f  Quantitas  pecunise  ad  tantam  ascen-  afterwards    enacted   in   the    statute   of 

dit  summam,  ut  stuporem  simul  et  hor-  Marlebridge. 
roreni  in  auribus  generaret  audientium. 


250  HALLAM 

against  his  government,  and  whose  opposition  to  the  Earl  of 
Leicester's  usurpation  was  compatible  with  a  steady  attach- 
ment to  constitutional  liberty  .*> 

The  opinions  of  eminent  lawyers  are  undoubtedly,  where 
legislative  or  judicial  authorities  fail,  the  best  evidence  that  can 
be  adduced  in  constitutional  history.    It  will  therefore  be  satis- 
factory to  select  a  few  passages  from  Bracton,  himself  a  judge 
at  the  end  of  Henry  III.'s  reign,  by  which  the  limitations  of 
prerogative  by  law  will  clearly  appear  to  have  been  fully  es- 
tablished.   "The  king,"  says  he,  "must  not  be  subject  to 
any  man,  but  to  God  and  the  law ;  for  the  law  makes  him  king. 
Let  the  king  therefore  give  to  the  law  what  the  law  gives  to 
him,  dominion  and  power;  for  there  is  no  king  where  will, 
and  not  law,  bears  rule."  w    "  The  king  (in  another  place)  can 
do  nothing  on  earth,  being  the  minister  of  God,  but  what  he 
can  do  by  law ;  nor  is  what  is  said  (in  the  Pandects)  any  ob- 
jection, that  whatever  the  prince  pleases  shall  be  law;   be- 
cause by  the  words  that  follow  in  that  text  it  appears  to 
design  not  any  mere  will  of  the  prince,  but  that  which  is 
established  by  the  advice  of  his  councillors,  the  king  giving 
his  authority,  and  deliberation  being  had  upon  it."#    This 
passage  is  undoubtedly  a  misrepresentation  of  the  famous  lex 
regia,  which  has  ever  been  interpreted  to  convey  the  unlimited 
power  of  the  people  to  their  emperors.y    But  the  very  circum- 
stance of  so  perverted  a  gloss  put  upon  this  text  is  a  proof 
that  no  other  doctrine  could  be  admitted  in  the  law  of  England. 
In  another  passage  Bracton  reckons  as  superior  to  the  king, 
"  not  only  God  and  the  law,  by  which  he  is  made  king,  but  his 
court  of  earls  and  barons ;   for  the  former  (comites)  are  so 
styled  as  associates  of  the  king,  and  whoever  has  an  associate 
has  a  master ;  z  so  that,  if  the  king  were  without  a  bridle,  that 
is,  the  law,  they  ought  to  put  a  bridle  upon  him."  a    Several 
other  passages  in  Bracton  might  be  produced  to  the  same 
import ;  but  these  are  sufficient  to  demonstrate  the  important 
fact  that,  however  extensive  or  even  indefinite  might  be  the 
royal  prerogative  in  the  days  of  Henry  III.,  the  law  was  already 

v  The  Earl  of  Gloucester,  whose  per-  x  I.  ili.  c.  g.    These  words  are  nearly 

sonal  quarrel  with  Montfort  had  over-  copied  from   Glanvil's  introduction  to 

thrown  the  baronial  oligarchy,  wrote  to  his  treatise, 

the  king  in  1267,  ut  provisiones  Oxoniae  y  See  Selden  ad  Fletam,  p.  1046 

tenen  faciat  per  regnum  suum,  et  ut  s  This  means,  I  suppose,  that  he  who 

promissa  sibi  apud  Evesham  de  facto  acts  with  the  consent  of  others  must  be 

compleret.    Matt.  Paris,  p.  850.  in  some  degree  restrained  by  them ;  but 

w  1.  i.  c.  8.  it  is  ill  expressed. 

alii.  c.i6, 


THE  MIDDLE  AGES  251 

its  superior,  itself  but  made  part  of  the  law,  and  was  incom- 
petent to  overthrow  it.&  It  is  true  that  in  this  very  reign  the 
practice  of  dispensing  with  statutes  by  a  non-obstante  was 
introduced,  in  imitation  of  the  papal  dispensations.*  But  this 
prerogative  could  only  be  exerted  within  certain  limits,  and, 
however  pernicious  it  may  be  justly  thought,  was,  when  thus 
understood  and  defined,  not,  strictly  speaking,  incompatible 
with  the  legislative  sovereignty  of  parliament. 

In  conformity  with  the  system  of  France  and  other  feudal 
countries,  there  was  one  standing  council,  which  assisted  the 
kings  of  England  in  the  collection  and  management  of  their 
revenue,  the  administration  of  justice  to  suitors,  and  the  de- 
spatch of  all  public  business.  This  was  styled  the  king's 
court,  and  held  in  his  palace,  or  wherever  he  was  personally 
present.  It  was  composed  of  the  great  officers;  the  chief 
justiciary,^  the  chancellor,  the  constable,  marshal,  chamberlain, 
steward,  and  treasurer,  with  any  others  whom  the  king  might 
appoint.  Of  this  great  court  there  was,  as  it  seems,  from  the 
beginning,  a  particular  branch,  in  which  all  matters  relating 
to  the  revenue  were  exclusively  transacted.  This,  though  com- 
posed of  the  same  persons,  yet,  being  held  in  a  different  part 
of  the  palace,  and  for  different  business,  was  distinguished  from 

b  Allen  has  pointed  put  that  the  king  dum  loco  nostro  terram  nostram  Angliae 
might  have  been  sued  in  his  own  courts,  et  pacem  regni  nostri;  and  all  persons 
like  one  of  his  subjects,  until  the  reign  were  enjoined  to  obey  him  tanquam 
of  Edward  I.,  who  introduced  the  meth-  justitiario  nostro.  Rymer,  t.  i.  p  181. 
od  of  suing  by  petition  of  right,  and  Sometimes,  however,  the  king  issued 
in  the  Year  Book  of  Edward  III.  one  his  own  writ  de  ultra  mare.  The  first 
of  the  judges  says  that  he  has  seen  a  time  when  the  dignity  of  this  office  was 
writ  beginning— Prasnpe  Henry  regi  impaired  was  at  the  death  of  John, 
Anglic.  Bracton,  however,  expressly  when  the  justiciary,  Hubert  de  Burgh, 
asserts  the  contrary,  as  Mr.  Allen  owns,  being  beseiged  in  Dover  Castle,  those 
so  that  we  may  reckon  this  rather  doubt-  who  proclaimed  Henry  III.  at  Glou- 
ful.  Bracton  has  some  remarkable  words  cester  constituted  the  Earl  of  Pembroke 
which  I  have  omitted  to  quote,  after  he  governor  of  the  king  and  kingdom,  Hu- 
has  broadly  asserted  that  the  king  has  Bert  still  retaining  his  office.  This  is 
no  superior  but  God,  and  that  no  erroneously  stated  by  Matthew  Pans, 
remedy  can  be  had  by  law  aeainst  him,  who  has  misled  Spefman  in  his  Glos- 
he  proceeds:  Nisi  sit  qui  dicat,  quod  sary;  but  the  truth  appears  from  Hu- 
universitas  regni  et  baronagium  suum  bert's  answer  to  the  articles  of  charge 
hoc  facere  debeant  et  possint  in  curia  against  him,  and  from  a  record  in 
ipsius  regis.  By  curta  we  must  here  Madox's  Hist  of  Exch  c.  21,  note  A, 
understand  parliament,  and  not  the  law-  wherein  the  Earl  of  Pembroke  is  named 
courts,  rector  regis  et  regni,  and  Hubert  de 
c  M.  Pans,  pm  701.  Burgh  justiciary.  In  1241  the  Arch- 
d  The  chief  justiciary  was  the  greatest  bishop  of  York  was  appointed  to  the 
subject  in  England.  Besides  presiding  regency  during  Henry's  absence  in  Poi- 
in  the  king's  court  and  in  the  Ex-  tou,  without  the  title  of  justiciary.  Ry- 
chequer,  he  was  originally,  by  virtue  of  mer,  t.  i.  p.  410.  Still  the  office  was  so 
his  office,  the  regent  of  the  kingdom  considerable  that  the  barons  who  met 
during  the  absence  of  the  sovereign,  in  the  Oxford  parliament  of  1258  insisted 
which,  till  the  loss  of  Normandy,  oc-  that  the  Justiciary  should  be  annually 
curred  very  frequently.  Writs,  at  such  chosen  with  their  approbation.  But  the 
times,  tan  in  his  name,  and  were  tested  subsequent  successes  of  Henry  prevent- 
by  him.  Madox,  Hist,  of  Excheq  p.  16.  ed  this  being  established,  and  Edward 
His  appointment  upon  these  temporary  I,  discontinued  the  office  altogether. 
occasions  was  expressed,  ad  custodicn- 


252  HALLAM 

the  king's  court  by  the  name  of  the  exchequer ;  a  separation 
which  became  complete  when  civil  pleas  were  decided  and 
judgments  recorded  in  this  second  court.* 

It  is  probable  that  in  the  age  next  after  the  Conquest  few 
causes  in  which  the  crown  had  no  interest  were  carried  before 
the  royal  tribunals;  every  man  finding  a  readier  course  of 
justice  in  the  manor  or  county  to  which  he  belonged/  But 
by  degrees  this  supreme  jurisdiction  became  more  familiar; 
and,  as  it  seemed  less  liable  to  partiality  or  intimidation  than 
the  provincial  courts,  suitors  grew  willing  to  submit  to  its 
expensiveness  and  inconvenience.  It  was  obviously  the  in- 
terest of  the  king's  court  to  give  such  equity  and  steadiness 
to  its  decisions  as  might  encourage  this  disposition.  Nothing 
could  be  more  advantageous  to  the  king's  authority,  nor,  what 
was  perhaps  more  immediately  regarded,  to  his  revenue,  since 
a  fine  was  always  paid  for  leave  to  plead  in  his  court,  or  to 
remove  thither  a  cause  commenced  below.  But  because  few, 
comparatively  speaking,  could  have  recourse  to  so  distant  a 
tribunal  as  that  of  the  king's  court,  and  perhaps  also  on  account 
of  the  attachment  which  the  English  felt  to  their  ancient  right 
of  trial  by  the  neighboring  freeholders,  Henry  II.  established 
itinerant  justices  to  decide  civil  and  criminal  pleas  within  each 
county.gr  This  excellent  institution  is  referred  by  some  to  the 
twenty-second  year  of  that  prince ;  but  Madox  traces  it  several 
years  higher>  We  have  owed  to  it  the  uniformity  of  our  com- 
mon law,  which  would  otherwise  have  been  split,  like  that  of 
France,  into  a  multitude  of  local  customs ;  and  we  still  owe 
to  it  the  assurance,  which  is  felt  by  the  poorest  and  most  re- 
mote inhabitant  of  England,  that  his  right  is  weighed  by  the 
same  incorrupt  and  acute  understanding  upon  which  the  de- 
cision of  the  highest  questions  is  reposed.  The  justices  of 
assize  seem  originally  to  have  gone  their  circuits  annually; 
and  as  part  of  their  duty  was  to  set  tallages  upon  royal  towns, 

e  For   much    information   about   the  g  Dialogus  de  Scaccario,  p.  38. 

Curia  Regis,  and  especially  this  branch  h  Hist,    of    Exchequer,    c.    ui.    Lord 

of  it,  the  student  of  our  constitutional  Lyttelton   thinks   that   this    Institution 

history  should  have  recourse  to  Madox's  may  have  been  adopted  in  imitation  of 

History  of  the  Exchequer,  and  to  the  Louis  VI.,  who  half  a  century  before 

Dialogus  de  Scaccario,  written  in  the  had  introduced  a  similar  regulation  in 

time  of  Henry  II.  bv  Richard  Bishop  of  his  domains.    Hist,  of  Henry  II.  vol.  ii. 

Ely,  though  commonly  ascribed  to  Ger-  p.  206     Justices  in  Eyre,  or,  as  we  now 

vase  of  Tilbury.    This  treatise  he  will  call   them,   of  assize,   were   sometimes 

find  subjoined  to  Madox's  work-  [NOTE  commissioned  in  the  reign  of  Henry  I. 

XIII.]  Hardy's   Introduction  to  Close  Roll*; 

f  Omnis   causa   tmmnetur  comitatu,  They  do  not  appear  to  have  gone  their 

vel  hundred^  r*l  halimoto  socam  haben-  circuits  regularly  before  22  Hen.   II. 

tium.    X-eges  Henr.  I.  c  9  (1176.) 


THE   MIDDLE  AGES  253 

and  superintend  the  collection  of  the  revenue,  we  may  be  cer- 
tain that  there  could  be  no  long  interval.  This  annual  visitation 
was  expressly  confirmed  by  the  twelfth  section  of  Magna 
Charta,  which  provides  also  that  no  assize  of  novel  disseizin, 
or  mort  d'ancestor,  should  be  taken  except  in  the  shire  where 
the  lands  in  controversy  lay.  Hence  this  clause  stood  opposed 
on  the  one  hand  to  the  encroachments  of  the  king's  court,  which 
might  otherwise,  by  drawing  pleas  of  land  to  itself,  have  de- 
feated the  suitor's  right  to  a  jury  from  the  vicinage ;  and  on 
the  other,  to  those  of  the  feudal  aristocracy,  who  hated  any 
interference  of  the  crown  to  chastise  their  violations  of  law, 
or  control  their  own  jurisdiction.  Accordingly,  while  the  con- 
federacy of  barons  against  Henry  III.  was  in  its  full  power, 
an  attempt  was  made  to  prevent  the  regular  circuits  of  the 
judges.* 

Long  after  the  separation  of  the  exchequer  from  the  king's 
court,  another  branch  was  detached  for  the  decision  of  private 
suits.  This  had  its  beginning,  in  Madox's  opinion,  as  early  as 
the  reign  of  Richard  I.;  But  it  was  completely  established  by 
Magna  Charta.  "  Common  Pleas,"  it  is  said  in  the  fourteenth 
clause,  "  shall  not  follow  our  court,  but  be  held  in  some  certain 
place."  Thus  was  formed  the  Court  of  Common  Bench  at 
Westminster,  with  full,  and,  strictly  speaking,  exclusive  juris- 
diction over  all  civil  disputes,  where  neither  the  king's  interest, 
nor  any  matter  savoring  of  a  criminal  nature,  was  concerned. 
For  of  such  disputes  neither  the  court  of  king's  bench,  nor 
that  of  exchequer,  can  take  cognizance,  except  by  means  of 
a  legal  fiction,  which,  in  the  one  case,  supposes  an  act  of  force, 
and,  in  the  other,  a  debt  to  the  crown. 

The  principal  officers  of  state,  who  had  originally  been  effec- 
tive members  of  the  king's  court,  began  to  withdraw  from  it, 
after  this  separation  into  three  courts  of  justice,  and  left  their 
places  to  regular  lawyers,  though  the  treasurer  and  chancellor 
of  the  exchequer  have  still  seats  on  the  equity  side  of  that  court, 
a  vestige  of  its  ancient  constitution.  It  would  indeed  have  been 

•  Justiciarii  regis  Angliae,  qui  dicuntur  thinks  the  chief  justiciary  of  England 

itinens,  missi  Herfordiam  pro  stto  exe-  might  preside  in  the  two  courts,  as  well 

quendo  officio  repelhmtur,  allegantibus  as  m  the  exchequer  After  the  erection 

his  qui  regi  adversabantur,  ipsos  contra  of  the  Common  Bench  the  style  of  the 

fonnam  provisionum  Oxomse  nuper  fac-  superior  court  began  to  alten  it  ceasea 

tarum  venisse.  Chron  Nic.  Trivet.  A.D.  by  degrees  to  be  called  the  king  s  court. 

1260.  I  forget  where  I  found  this  quo-  Pleas  were  said  to  be  held  coram  rege. 

tation.  or  coram  rege  ubicunque  fuerit.  And 

j  Hist,  of  Exchequer,  c.  19.  Justices  thus  the  court  of  king>  bench  was 

of  the  bench  are  mentioned  several  years  formed  out  of .  the  remains  of  the  an- 

before  Magna  Charta.  But  Madox  went  cuna  regis. 


$54  H  ALLAH 

difficult  for  men  bred  in  camps  or  palaces  to  fulfil  the  ordinary 
functions  of  judicature  under  such  a  system  of  law  as  had  grown 
up  in  England.  The  rules  of  legal  decision,  among  a  rude 
people,  are  always  very  simple;  not  serving  much  to  guide, 
far  less  to  control,  the  feelings  of  natural  equity.  Such  were 
those  which  prevailed  among  the  Anglo-Saxons;  requiring 
no  subtler  intellect,  or  deeper  learning,  than  the  earl  or  sheriff 
at  the  head  of  his  county-court  might  be  expected  to  possess. 
But  a  great  change  was  wrought  in  about  a  century  after  the 
Conquest.  Our  English  lawyers,  prone  to  magnify  the  an- 
tiquity, like  the  other  merits  of  their  system,  are  apt  to  carry 
up  the  date  of  the  common  law,  till,  like  the  pedigree  of  an 
illustrious  family,  it  loses  itself  in  the  obscurity  of  ancient  time. 
Even  Sir  Matthew  Hale  does  not  hesitate  to  say  that  its  origin 
is  as  undiscoverable  as  that  of  the  Nile.  But  though  some 
features  of  the  common  law  may  be  distinguishable  in  Saxon 
times,  while  our  limited  knowledge  prevents  us  from  assigning 
many  of  its  peculiarities  to  any  determinable  period,  yet  the 
general  character  and  most  essential  parts  of  the  system  were 
of  much  later  growth.  The  laws  of  the  Anglo-Saxon  kings, 
Madox  truly  observes,  are  as  different  from  those  collected  by 
Glanvil  as  the  laws  of  two  different  nations.  The  pecuniary 
compositions  for  crimes,  especially  for  homicide,  which  run 
through  the  Anglo-Saxon  code  down  to  the  laws  ascribed  to 
Henry  L,fc  are  not  mentioned  by  Glanvil.  Death  seems  to  have 
been  the  regular  punishment  of  murder,  as  well  as  robbery. 
Though  the  investigation  by  means  of  ordeal  was  not  disused 
in  his  time,*  yet  trial  by  combat,  of  which  we  find  no  instance 
before  the  Conquest,  was  evidently  preferred.  Under  the  Saxon 
government,  suits  appear  to  have  commenced,  even  before  the 
king,  by  verbal  or  written  complaint  ;  at  least,  no  trace  remains 
of  the  original  writ,  the  foundation  of  our  civil  procedures 
The  descent  of  lands  before  the  Conquest  was  according  to  the 
custom  of  gavelkind,  or  equal  partition  among  the  children  ;  » 
in  the  age  of  Henry  I.  the  eldest  son  took  the  principal  fief 
to  his  own  share  ;  o  in  that  of  Glanvil  he  inherited  all  the  lands 

k  C  70.  purgation,  yet,  in  case*  of  murder,  they 

were  banished  the 


/  A  citizen  of  London,  suspected  of       were  banished  the  realm.    Wilkins,  Le- 
murder,  having  failed  in  the  ordeal  of 
cold  water,  was  hanged  by  order  of 
Henry  II.,  though  he  offered  500  marks       IIL's  reign. 
to  save  his  life.    Hoveden,  p.  566.    It          m  Hickes,  Dissert  Epistol.  p.  8. 
appears  as  if  the  ordeal  were  permitted          n  Leges  Guliclmi,  p.  225. 
to  persons  already  convicted  by  the  ver-          o  Leges  Henr.  I.  c.  70. 
diet  of  a  jury*    If  they  escaped  in  this 


,  .  , 

ailed  in  the  ordeal  of  ges  Anglo-Saxon,  p.  330.    Ordeals  were 

hanged  by  order  of  abolished  about  the  beginning  of  Henry 

h  he  offered  500  marks  IIL's  reign. 


THE  MIDDLE  AGES  255 

held  by  knight  service ;  but  the  descent  of  socage  lands  de- 
pended on  the  particular  custom  of  the  estate.  By  the  Saxon 
laws,  upon  the  death  of  the  son  without  issue,  the  father  in- 
herited ;  P  by  our  common  law,  he  is  absolutely,  and  in  every 
case,  excluded.  Lands  were,  in  general,  devisable  by  testament 
before  the  Conquest ;  but  not  in  the  time  of  Henry  II.,  except 
by  particular  custom.  These  are  sufficient  samples  of  the  dif- 
ferences between  our  Saxon  and  Norman  jurisprudence ;  but 
the  distinct  character  of  the  two  will  strike  more  forcibly  every- 
one who  peruses  successively  the  laws  published  by  Wilkins, 
and  the  treatise  ascribed  to  Glanvil.  The  former  resemble  the 
barbaric  codes  of  the  continent,  and  the  capitularies  of  Charle- 
magne and  his  family,  minute  to  an  excess  in  apportioning 
punishments,  but  sparing  and  indefinite  in  treating  of  civil 
rights ;  while  the  other,  copious,  discriminating,  and  technical, 
displays  the  characteristics,  as  well  as  unfolds  the  principles, 
of  English  law.  It  is  difficult  to  assert  anything  decisively 
as  to  the  period  between  the  Conquest  and  the  reign  of  Henry 
II.,  which  presents  fewer  materials  for  legal  history  than  the 
preceding  age ;  but  the  treatise  denominated  the  Laws  of  Henry 
I.,  compiled  at  the  soonest  about  the  end  of  Stephen's  reign,g 
bears  so  much  of  a  Saxon  character,  that  I  should  be  inclined 
to  ascribe  our  present  common  law  to  a  date,  so  far  as  it  is 
capable  of  any  date,  not  much  antecedent  to  the  publication 
of  Glanvil.r  At  the  same  time,  since  no  kind  of  evidence  attests 
any  sudden  and  radical  change  in  the  jurisprudence  of  Eng- 
land, the  question  must  be  considered  as  left  in  great  obscurity. 
Perhaps  it  might  be  reasonable  to  conjecture  that  the  treatise 
called  Leges  Henrici  Primi  contains  the  ancient  usages  still 
prevailing  in  the  inferior  jurisdictions,  and  that  of  Glanvil  the 
rules  established  by  the  Norman  lawyers  of  the  king's  court, 
which  would  of  course  acquire  a  general  recognition  and  effi- 
cacy, in  consequence  of  the  institution  of  justices  holding  their 
assizes  periodically  throughout  the  country. 

The  capacity  of  deciding  legal  controversies  was  now  only 
to  be  found  in  men  who  had  devoted  themselves  to  that  pecul- 
iar study ;  and  a  race  of  such  men  arose,  whose  eagerness  and 
even  enthusiasm  in  the  profession  of  the  law  were  stimulated 

p  Leges  Hear.  I.  c.  70.  1711.    Lord  Lyttelton,  vol.  ii.  p.  267, 

gThe  Decretum  of  Gratian  is  quoted  has  given  reasons  for  supposing  that 

in  this  treatise,  which  was  not  published  Glanvil   was   not    the   author  of   this 

in  Italy  till  wsi.  treatise,  but  some  clerk  under  nis  direc- 

rMadox,  Hist,  of  Exch.  p.  122,  edit.  tion. 


256  HALLAM 

by  the  self-complacency  of  intellectual  dexterity  in  threading 
its  intricate  and  thorny  mazes.  The  Normans  are  noted  in 
their  own  country  for  a  shrewd  and  litigious  temper,  which 
may  have  given  a  character  to  our  courts  of  justice  in  early 
times.  Something  too  of  that  excessive  subtlety,  and  that 
preference  of  technical  to  rational  principles,  which  runs 
through  our  system,  may  be  imputed  to  the  scholastic  philos- 
ophy which  was  in  vogue  during  the  same  period,  and  is 
marked  by  the  same  features.  But  we  have  just  reason  to  boast 
of  the  leading  causes  of  these  defects :  an  adherence  to  fixed 
rules,  and  a  jealousy  of  judicial  discretion,  which  have  in  nc 
country,  I  believe,  been  carried  to  such  a  length.  Hence  prece- 
dents of  adjudged  cases,  becoming  authorities  for  the  future 
have  been  constantly  noted,  and  form  indeed  almost  the  sole 
ground  of  argument  in  questions  of  mere  law.  But  these  au- 
thorities being  frequently  unreasonable  and  inconsistent,  partly 
from  the  infirmity  of  all  human  reason,  partly  from  the  imper- 
fect manner  in  which  a  number  of  unwarranted  and  incorreci 
reporters  have  handed  them  down,  later  judges  grew  anxious 
to  elude  by  impalpable  distinctions  what  they  did  not  venture 
to  overturn.  In  some  instances  this  evasive  skill  has  beer 
applied  to  acts  of  the  legislature.  Those  who  are  moderately 
conversant  with  the  history  of  our  law  will  easily  trace  othei 
circumstances  that  have  co-operated  in  producing  that  tech- 
nical and  subtle  system  which  regulates  the  course  of  real 
property.  For  as  that  formed  almost  the  whole  of  our  an- 
cient jurisprudence,  it  is  there  that  we  must  seek  its  original 
character.  But  much  of  the  same  spirit  pervades  every  parl 
of  the  law.  No  tribunals  of  a  civilized  people  ever  borrowed 
so  little,  even  of  illustration,  from  the  writings  of  philosophers 
or  from  the  institutions  of  other  countries.  Hence  law  has  been 
studied,  in  general,  rather  as  an  art  than  a  science,  with  more 
solicitude  to  know  its  rules  and  distinctions  than  to  perceive 
their  application  to  that  for  which  all  rules  of  law  ought  to  have 
been  established,  the  maintenance  of  public  and  private  rights, 
Nor  is  there  any  reading  more  jejune  and  unprofitable  to  a 
philosophical  mind  than  that  of  our  ancient  law-books.  Latet 
times  have  introduced  other  inconveniences,  till  the  vast  extent 
and  multiplicity  of  our  laws  have  become  a  practical  evil  oi 
serious  importance,  and  an  evil  which,  between  the  timidity 
of  the  legislature  on  the  one  hand,  and  the  selfish  views  oi 


THE  MIDDLE  AGES 


257 


practitioners  on  the  other,  is  likely  to  reach,  in  no  long  period, 
an  intolerable  excess.  Deterred  by  an  interested  clamor  against 
innovation  from  abrogating  what  is  useless,  simplifying  what 
is  complex,  or  determining  what  is  doubtful,  and  always  more 
inclined  to  stave  off  an  immediate  difficulty  by  some  patchwork 
scheme  of  modifications  and  suspensions  than  to  consult  for 
posterity  in  the  comprehensive  spirit  of  legal  philosophy,  we 
accumulate  statute  upon  statute,  and  precedent  upon  precedent, 
till  no  industry  can  acquire,  nor  any  intellect  digest,  the  mass 
of  learning  that  grows  upon  the  panting  student;  and  our 
jurisprudence  seems  not  unlikely  to  be  simplified  in  the  worst 
and  least  honorable  manner,  a  tacit  agreement  of  ignorance 
among  its  professors.  Much  indeed  has  already  gone  into 
desuetude  within  the  last  century,  and  is  known  only  as  an 
occult  science  by  a  small  number  of  adepts.  We  are  thus 
gradually  approaching  the  crisis  of  a  necessary  reformation, 
when  our  laws,  like  those  of  Rome,  must  be  cast  into  the  cru- 
cible. It  would  be  a  disgrace  to  the  nineteenth  century,  if 
England  could  not  find  her  Tribonian.s 

This  establishment  of  a  legal  system,  which  must  be  con- 
sidered as  complete  at  the  end  of  Henry  IIL's  reign,  when 
the  unwritten  usages  of  the  common  law  as  well  as  the  forms 
and  precedents  of  the  courts  were  digested  into  the  great  work 
of  Bracton,  might,  in  some  respects,  conduce  to  the  security 
of  public  freedom.  For,  however  highly  the  prerogative  might 
be  strained,  it  was  incorporated  with  the  law,  and  treated  with 
the  same  distinguished  and  argumentative  subtlety  as  every 
other  part  of  it.  Whatever  things,  therefore,  it  was  asserted  that 
the  king  might  do,  it  was  a  necessary  implication  that  there 

$  Whitelocke,  just  after  the  Restora-  sets  due  and  clear  bounds  betwixt  the 

tion,  complains  that  "  Now  the  volume  prerogative  royal  and  the  rights  of  the 

of  our  statutes_is  grown  or  swelled  to  a  people,    and   gives   remedy   in  private 

great     bigness."    The    volume!    What  causes,  there  needs  no  more  laws  to  be 

•would  he  have  said  to  the  monstrous  increased;  for  thereby  litigation  will  be 

birth  of  a  volume  tnennially,  filled  with  increased    likewise     It    were    a    work 

laws   professing    to    be    the   deliberate  worthy  of  a  parliament,  and  cannot  be 

work  of  the  legislature,  which  every  sub-  done  otherwise,  to  cause  a  review  of  all 

ject  is  supposed  to  read,  remember,  and  our  statutes,  to  repeal  such  as  they  shall 

understand'    The  excellent  sense  of  the  judge  inconvenient  to  remain  m  force; 

following  sentences  from  the  same  pas-  to  confirm  those  which  they  shall  think 

sage  may  well  excuse  me  for  quoting  fit  to  stand,  and  those  several  statutes 

them,  and,  perhaps,  in  this  age  of  bigot-  which  are  confused,  some  repugnant  to 

ed  averseness  to  innovation,  I  have  need  others,  many  touching  the  same  matters, 

of  some  apology  for  what  I  have  ven-  to  be  reduced  into  certainty,  all  of  one 

tured  to  say  in  the  text.    "I  remember  subject  into  one  statute,  that  perspicuity 

the  opinion  of  a  wise  and  learned  states-  and  clearness  may  appear  in  our  written 

man  and  lawyer  (the  Chancellor  Oxen-  laws,  which  at  this  day  few  students  or 

stiern),  that  multiplicity  of  written  laws  sages  can  find  in  them."   Whitelocke's 

do  but  distract  the  judges,  and  render  Commentary    on    Parliamentary    Writ, 

the  law  less  certain;  that  where  the  law  vol.  i.  p.  409. 

VOL.  II.— 17 


258  HALLAM 

were  other  things  which  he  could  not  do ;  else  it  were  vain 
to  specify  the  former.  It  is  not  meant  to  press  this  too  far ; 
since  undoubtedly  the  bias  of  lawyers  towards  the  prerogative 
was  sometimes  too  discernible.  But  the  sweeping  maxims  of 
absolute  power,  which  servile  judges  and  churchmen  taught 
the  Tudor  and  Stuart  princes,  seem  to  have  made  no  progress 
under  the  Plantagenet  line. 

Whatever  may  be  thought  of  the  effect  which  the  study  of 
the  law  had  upon  the  rights  of  the  subject,  it  conduced  mate- 
rially to  the  security  of  good  order  by  ascertaining  the  heredi- 
tary succession  of  the  crown.  Five  kings  out  of  seven  that 
followed  William  the  Conqueror  were  usurpers,  according  at 
least  to  modern  notions.  Of  these,  Stephen  alone  encountered 
any  serious  opposition  upon  that  ground;  and  with  respect 
to  him,  it  must  be  remembered  that  all  the  barons,  himself 
included,  had  solemly  sworn  to  maintain  the  succession  of  Ma- 
tilda. Henry  II.  procured  a  parliamentary  settlement  of  the 
crown  upon  his  eldest  and  second  sons ;  a  strong  presumption 
that  their  hereditary  right  was  not  absolutely  secure.*  A  mixed 
notion  of  right  and  choice  in  fact  prevailed  as  to  the  succession 
of  every  European  monarchy.  The  coronation  oath  and  the 
form  of  popular  consent  then  required  were  considered  as  more 
material,  at  least  to  perfect  a  title,  than  we  deem  them  at  present. 
•They  gave  seizin,  as  it  were,  of  the  crown,  and,  in  cases  of 
disputed  pretensions,  had  a  sort  of  judicial  efficacy.  The  Chron- 
icle of  Dunstable  says,  concerning  Richard  L,  that  he  was 
"  elevated  to  the  throne  by  hereditary  right,  after  a  solemn 
election  by  the  clergy  and  people : "  «*  words  that  indicate  the 
current  principles  of  that  age.  It  is  to  be  observed,  however, 
that  Richard  took  upon  him  the  exercise  of  royal  prerogatives 
without  waiting  for  his  coronation.^  The  succession  of  John 
has  certainly  passed  in  modern  times  for  a  usurpation.  I  do 
not  find  that  it  was  considered  as  such  by  his  own  contempo- 
raries on  this  side  of  the  Channel.  The  question  of  inheritance 
between  an  uncle  and  the  son  of  his  deceased  elder  brother 
was  yet  unsettled,  as  we  learn  from  Glanvil,  even  in  private 
successions  In  the  case  of  sovereignties,  which  were  some- 
times contended  to  require  different  rules  from  ordinary  patri- 

t  Lyttelton,  vol.  ii*  p.  14.  v  GuL  Neubrigensis,  L  iv.  c.  i. 

f  u  Ibid.,   vol.   iL  p.  42.     Haereditario          w  Glanvil,  L  vri.  c.  3. 
jure  promovendus  in  regnum,  post  dcri 
ct  poptili  solemiem  electionexru 


THE  MIDDLE  AGES  259 

monies,  it  was,  and  continued  long  to  be,  the  most  uncertain 
point  in  public  law.  John's  pretensions  to  the  crown  might 
therefore  be  such  as  the  English  were  justified  in  admitting, 
especially  as  his  reversionary  title  seems  to  have  been  acknowl- 
edged in  the  reign  of  his  brother  Richard.*  If  indeed  we  may 
place  reliance  on  Matthew  Paris,  Archbishop  Hubert,  on  this 
occasion,  declared  in  the  most  explicit  terms  that  the  crown 
was  elective,  giving  even  to  the  blood  royal  no  other  preference 
than  their  merit  might  challenges  Carte  rejects  this  as  a  fic- 
tion of  the  historian  ;  and  it  is  certainly  a  strain  far  beyond 
the  constitution,  which,  both  before  and  after  the  Conquest, 
had  invariably  limited  the  throne  to  one  royal  stock,  though 
not  strictly  to  its  nearest  branch.  In  a  charter  of  the  first  year 
of  his  reign,  John  calls  himself  king,  "  by  hereditary  right,  and 
through  the  consent  and  favor  of  the  church  and  people."  & 

It  is  deserving  of  remark,  that,  during  the  rebellions  against 
this  prince  and  his  son  Henry  III,  not  a  syllable  was  breathed 
in  favor  of  Eleanor,  Arthur's  sister,  who,  if  the  present  rules 
of  succession  had  been  established,  was  the  undoubted  heiress 
of  his  right.  The  barons  chose  rather  to  call  in  the  aid  of 
Louis,  with  scarcely  a  shade  of  title,  though  with  much  better 
means  of  maintaining  himself.  One  should  think  that  men 
whose  fathers  had  been  in  the  field  for  Matilda  could  make 
no  difficulty  about  female  succession.  But  I  doubt  whether, 
notwithstanding  that  precedent,  the  crown  of  England  was 
universally  acknowledged  to  be  capable  of  descending  to  a  fe- 
male heir.  Great  averseness  had  been  shown  by  the  nobility 
of  Henry  I.  to  his  proposal  of  settling  the  kingdom  on  his 
daughters  And  from  a  remarkable  passage  which  I  shall  pro- 
duce in  a  note,  it  appears  that  even  in  the  reign  of  Edward  III. 
the  succession  was  supposed  to  be  confined  to  the  male  line.fr 

At  length,  about  the  middle  of  the  thirteenth  century,  the 


3;  p.  16 
•ffjure 
cleri  et 


jrHoveden,  p,  702.  the  word  has  any  distinct  sense),  for 

165.  such  issue  to  inherit  the  kingdom;   and 

e  hsereditano,  et  mediante  *am  if  he  die  leaving  a  daughter  only,  Ed- 

populi  consensu  et  favore.    Gur-  ward  or  his  heir  shall  make  such  provi- 

don  on  Parliaments,  p  139.  sion  for  her  as  belongs  to  the  daughter 

a  Lyttelton,  vol.  L  p.  162.  of  a  king.    Rymer,  t.  v.  p.  114.    It  may 

b  This  is  intimatei  by  the  treaty  made  be  inferred  from  this  instrument  that, 

in  1330  for  a  marriage  between  the  eldest  in  Edward's  intention,   if  not  by  the 

son  of  Edward  III.  and  the  Duke  of  constitution,  the  Salic  law  was  to  regu- 

Brabant's     daughter.    Edward    therein  late  the  succession  of  the  English  crown. 

promises  that,  if  his  son  should  die  be-  This  law,  it  must  be  remembered,  he 

fore  him,  leaving  male  issue,  he  will  was  compelled  to  admit  in  his  claim  on 

procure    the    consent    of    his    barons,  the  kingdom  of  France,  though  with  a 

nobles,   and   cities    (that  is,   of  parlia-  certain  modification  which  gave  a  pre- 

ment;   nobles  here  meaning  knights,  if  text  of  title  to  himself. 


260  HALLAM 

lawyers  applied  to  the  crown  the  same  strict  principles  of 
descent  which  regulate  a  private  inheritance.  Edward  I.  was 
proclaimed  immediately  upon  his  father's  death,  though  absent 
in  Sicily.  Something  however  of  the  old  principle  may  be 
traced  in  this  proclamation,  issued  in  his  name  by  the  guardians 
of  the  realm,  where  he  asserts  the  crown  of  England  "  to  have 
devolved  upon  him  by  hereditary  succession  and  the  will  of  his 
nobles."  c  These  last  words  were  omitted  in  the  proclamation 
of  Edward  II. ;  d  since  whose  time  the  crown  has  been  abso- 
lutely hereditary.  The  coronation  oath,  and  the  recognition 
of  the  people  at  that  solemnity,  are  formalities  which  convey 
no  right  either  to  the  sovereign  or  the  people,  though  they 
may  testify  the  duties  of  each.? 

I  cannot  conclude  the  present  chapter  without  observing  one 
most  prominent  and  characteristic  distinction  between  the  con- 
stitution of  England  and  that  of  every  other  country  in  Europe ; 
I  mean  its  refusal  of  civil  privileges  to  the  lower  nobility,  or 
those  whom  we  denominate  the  gentry.  In  France,  in  Spain,  in 
Germany,  wherever  in  short  we  look,  the  appellations  of  noble- 
man and  gentleman  have  been  strictly  synonymous.  Those 
entitled  to  bear  them  by  descent,  by  tenure  of  land,  by  office 
or  royal  creation,  have  formed  a  class  distinguished  by  privi- 
leges inherent  in  their  blood  from  ordinary  freemen.  Marriage 
with  noble  families,  or  the  purchase  of  military  fiefs,  or  the 
participation  of  many  civil  offices,  were,  more  or  less,  interdicted 
to  the  commons  of  France  and  the  empire.  Of  these  restric- 
tions, nothing,  or  next  to  nothing,  was  ever  known  in  England. 
The  law  has  never  taken  notice  of  gentlemen/  From  the  reign 

cAd  nos  regni  gubernaculum  sue-  not  born  gentlemen  for  knights  of  the 
cessione  haereditana,  ac  procerum  regni  shire.  Much  less  should  I  have  thought 
voluntate,  et  fidehtate  nobis  praestitia  sit  of  noticing,  if  it  had  not  been  suggested 
devolutuia.  Brady  (History  of  England,  as  an  objection,  the  provision  of  the 
vol.  11.  Appendix,  p.  i)  expounds  pro-  statvte  of  Merton,  that  guardians  in 
cerum  volutate  to  mean  willingness,  not  chivalry  shall  not  marry  their  wards  to 
will;  as  much  as  to  say,  they  acted  veil  ems  or  burgesses,  to  their  disparage- 
readily  and  without  command.  But  in  rnent  Wherever  the  distinctions  of 
all  probability  it  was  intended  to  save  rank  and  property  are  felt  in  the  cus- 
the  usual  form  of  consent.  toms  of  society,  such  marriages  will  be 

d  Rymer,   t.   in.   p.   i.   Walsingham,  deemed  unequal;   and  it  was  to  obviate 

however,  asserts  that  Edward  II.   as-  the   tyranny   of  feudal   superiors   who 

cended  the  throne  non  tarn  jure  haere-  compelled  their  wards  to  accept  a  mean 

ditario  quam  unanimi  assensu  procerum  alliance,  or  to  forfeit  its  price,  that  this 

et  magnatum.  p  93.    Perhaps  we  should  provision  of  the  statute  was  made.    But 

omit  the  word  won,  and  he  might  intend  this  does  not  affect  the  proposition  I 

to  say  that  ^  the  king  had  not  only  his  had  maintained  as  to  the  legal  equality 

hereditary  title,  but  the  free  consent  of  of  commoners,  any  more  than  a  report 

his  barons.  of  a  Master  in  Chancery  at  the  present 

e  [NOTE  XIV.]  day,   that   a  proposed   marriage  for   a 

/  It  is  hardly  worth  while,  even  for  the  ward  of  the  court  was  unequal  to  what 

sake  of  obviating  cavils,  to  notice  as  an  her  station  in  society  appeared  to  claim, 

exception  the  statute  of  23  H.  VI.  c.  14,  would  invalidate  the  same  proposition, 
prohibiting  the  election  of  any  who  were 


THE   MIDDLE  AGES  261 

of  Henry  III.  at  least,  the  legal  equality  of  all  ranks  below  the 
peerage  was,  to  every  essential  purpose,  as  complete  as  at 
present.  Compare  two  writers  nearly  contemporary,  Bracton 
with  Beaumanoir,  and  mark  how  the  customs  of  England  are 
distinguishable  in  this  respect.  The  Frenchman  ranges  the 
people  under  three  divisions,  the  noble,  the  free,  and  the  servile ; 
our  countryman  has  no  generic  class,  but  freedom  and  villen- 
age.g  No  restraint  seems  ever  to  have  lain  upon  marriage; 
nor  have  the  children  even  of  a  peer  been  ever  deemed  to  lose 
any  privilege  by  his  union  with  a  commoner.  The  purchase 
of  lands  held  by  knight-service  was  always  open  to  all  freemen. 
A  few  privileges  indeed  were  confined  to  those  who  had  re- 
ceived knighthood.**  But,  upon  the  whole,  there  was  a  virtual 
equality  of  rights  among  all  the  commoners  of  England.  What 
is  most  particular  is,  that  the  peerage  itself  imparts  no  privi- 
lege except  to  its  actual  possessor.  In  every  other  country 
the  descendants  of  nobles  cannot  but  themselves  be  noble, 
because  their  nobility  is  the  immediate  consequence  of  their 
birth.  But  though  we  commonly  say  that  the  blood  of  a  peer 
is  ennobled,  yet  this  expression  seems  hardly  accurate,  and 
fitter  for  heralds  than  lawyers ;  since  in  truth  nothing  confers 
nobility  but  the  actual  descent  of  a  peerage.  The  sons  of 
peers,  as  we  well  know,  are  commoners,  and  totally  destitute 
of  any  legal  right  beyond  a  barren  precedence. 

There  is  no  part,  perhaps,  of  our  constitution  so  admirable 
as  this  equality  of  civil  rights ;  this  isonomia,  which  the  philos- 
ophers of  ancient  Greece  only  hoped  to  find  in  democratical 
government.*  From  the  beginning  our  law  has  been  no  re- 
specter of  persons.  It  screens  not  the  gentleman  of  ancient 
lineage  from  the  judgment  of  an  ordinary  jury,  nor  from  igno- 
minious punishment.  It  confers  not,  it  never  did  confer,  those 
unjust  immunities  from  public  burdens,  which  the  superior 
orders  arrogated  to  themselves  upon  the  continent.  Thus, 
while  the  privileges  of  our  peers,  as  hereditary  legislators  of 
a  free  people,  are  incomparably  more  valuable  and  dignified 
in  their  nature,  they  are  far  less  invidious  in  their  exercise 
than  those  of  any  other  nobility  in  Europe.  It  is,  I  am  firmly 

g  Beaumanoir,  c.  45.  Bracton,  1.  i.  c*  mocracy,  in  the  discussion  of  forms  of 

6.  government  which  Herodotus  (Thalia, 

k  See  for  these,  Selden's  Titles  of  c  80)  has  put  into  the  mouths  of  three 

Honor,  vol  in  p  806.  Persian  satraps,  after  the  t  murder  of 

z"IIXi)Oo5apYovfwpwTovM,ev6vvo/iajeaAXMrTov  Smerdis;  a  scene  conceived  in  the  spirit 

fyei,  tpwo/yuap,  says  the  advocate  of  de-  of  Corneille, 


262  HALLAM 

persuaded,  to  this  peculiarly  democratical  character  of  the 
English  monarchy,  that  we  are  indebted  for  its  long  perma- 
nence, its  regular  improvement,  and  its  present  vigor.  It  is 
a  singular,  a  providential  circumstance,  that,  in  an  age  when 
the  gradual  march  of  civilization  and  commerce  was  so  little 
foreseen,  our  ancestors,  deviating  from  the  usages  of  neigh- 
boring countries,  should,  as  if  deliberately,  have  guarded 
against  that  expansive  force  which,  in  bursting  through  ob- 
stacles improvidently  opposed,  has  scattered  havoc  over  Eu- 
rope. 

This  tendency  to  civil  equality  in  the  English  law  may,  I 
think,  be  ascribed  to  several  concurrent  causes.  In  the  first 
place  the  feudal  institutions  were  far  less  military  in  England 
than  upon  the  continent.  From  the  time  of  Henry  II.  the 
escuage,  or  pecuniary  commutation  for  personal  service,  be- 
came almost  universal.  The  armies  of  our  kings  were  com- 
posed of  hired  troops,  great  part  of  whom  certainly  were  knights 
and  gentlemen,  but  who,  serving  for  pay,  and  not  by  virtue  of 
their  birth  or  tenure,  preserved  nothing  of  the  feudal  character. 
It  was  not,  however,  so  much  for  the  ends  of  national  as  of 
private  warfare,  that  the  relation  of  lord  and  vassal  was  con- 
trived. The  right  which  every  baron  in  France  possessed  of 
redressing  his  own  wrongs  and  those  of  his  tenants  by  arms 
rendered  their  connection  strictly  military.  But  we  read  very 
little  of  private  wars  in  England.  Notwithstanding  some  pas- 
sages in  Glanvil,  which  certainly  appear  to  admit  their  legality, 
it  is  not  easy  to  reconcile  this  with  the  general  tenor  of  our 
laws./  They  must  always  have  been  a  breach  of  the  king's 
peace,  which  our  Saxon  lawgivers  were  perpetually  striving  to 
preserve,  and  which  the  Conqueror  and  his  sons  more  effect- 
ually maintained.^  Nor  can  we  trace  many  instances  (some 
we  perhaps  may)  of  actual  hostilities  among  the  nobility  of 
England  after  the  Conquest,  except  during  such  an  anarchy 

j  I  have  modified  this  passage  in  con-  individual  manor,  and  there  only  among 

sequence  of  the  just  animadversion,  of  a  Welshmen,  to  afford  an  inference  that  it 

periodical  critic.  In  the  first  edition  I  was  an  anomaly.  In  the  royal  manor  of 

have  stated  too  strongly  the  difference  Archenfeld  in  Herefordshire,  if  one 

which  I  still  believe  to  have  existed  be-  Welshman  kills  another,  it  was  a  cus- 

tween  the  customs  of  England  and  other  torn  for  the  relations  of  the  slam  to  as- 

feudal  countries  in  respect  of  private  semble  and  plunder  the  murderer  and 

warfare.  [NoxE  XV.]  his  kindred,  and  burn  their  houses  un- 

k  The  penalties  imposed  on  breaches  til  the  corpse  should  be  interred,  which 

of  the  peace,  in  Wilkins*s  Anglo-Saxon  was  to  take  place  by  noon  on  the  mor- 

Of 


j  are  too  numerous  to  be  particu-  row  of  his  death.    Of  this  plunder  the 

larly  inserted.    One  remarkable  passage  king  had  a  third  part,  and  the  rest  they 

in   Domesday  appears,   by   mentioning  kept  for  themselves,    J*.  179. 
a  legal  custom  of  private  feuds  in  an 


THE  MIDDLE  AGES  263 

as  the  reign  of  Stephen  or  the  minority  of  Henry  III.  Acts 
of  outrage  and  spoliation  were  indeed  very  frequent.  The 
statute  of  Marlebridge,  soon  after  the  baronial  wars  of  Henry 
III.,  speaks  of  the  disseizins  that  had  taken  place  during  the 
late  disturbances;*  and  thirty-five  verdicts  are  said  to  have 
been  given  at  one  court  of  assize  against  Foulkes  de  Breaute, 
a  notorious  partisan,  who  commanded  some  foreign  merce- 
naries at  the  beginning  of  the  same  reign  ;  m  but  these  are  faint 
resemblances  of  that  wide-spreading  devastation  which  the 
nobles  of  France  and  Germany  were  entitled  to  carry  among 
their  neighbors.  The  most  prominent  instance  perhaps  of 
what  may  be  deemed  a  private  war  arose  out  oi  a  contention 
between  the  earls  of  Gloucester  and  Hereford,  in  the  reign 
of  Edward  I.,  during  which  acts  of  extraordinary  violence 
were  perpetrated;  but,  far  from  its  having  passed  for  lawful, 
these  powerful  nobles  were  both  committed  to  prison,  and  paid 
heavy  finest  Thus  the  tenure  of  knight-service  was  not  in 
effect  much  more  peculiarly  connected  with  the  profession  of 
arms  than  that  of  socage.  There  was  nothing  in  the  former 
condition  to  generate  that  high  self-estimation  which  military 
habits  inspire.  On  the  contrary,  the  burdensome  incidents  of 
tenure  in  chivalry  rendered  socage  the  more  advantageous, 
though  less  honorable  of  the  two. 

In  the  next  place,  we  must  ascribe  a  good  deal  of  efficacy 
to  the  old  Saxon  principles  that  survived  the  conquest  of  Will- 
iam and  infused  themselves  into  our  common  law.  A  respect- 
able class  of  free  socagers,  having,  in  general,  full  rights  of 
alienating  their  lands,  and  holding  them  probably  at  a  small 
certain  rent  from  the  lord  of  the  manor,  frequently  occur  in 
Domesday  Book.  Though,  as  I  have  already  observed,  these 
were  derived  from  the  superior  and  more  fortunate  Anglo- 
Saxon  ceorls,  they  were  perfectly  exempt  from  all  marks  of 
villenage  both  as  to  their  persons  and  estates.  Most  have  de- 
rived their  name  from  the  Saxon  soc,  which  signifies  a  fran- 
chise, especially  one  of  jurisdiction^  and  they  undoubtedly 


2*^'  IJI*  lo«l»  whose  tenant,  or  rather  suitor,  the 

rans,  p.  271-  sokeman  is  described  to  be.    Soc  is  an 

n  Kot.  ran.  vol.  i,  p.  70  idle  and  improbable  etymology:    espe- 

o  It  now  appears  strange  to  me  that  cially  as  at  the  time  when  sokenJan  was 

I  could  ever  have  given  the  preference  most  in  use  there  was  hardly  a  word  of 

to  Bracton's  derivation  of  socage  from  a  French  root  in  the  language.    Soc  is 

soc  de  charue.  The  word  sokeman,  which  plainly  derived  from  seco,  and  therefore 

occurs  so  often  in  Domesday,  is  con-  cannot  pass  for  a  Teutonic  word. 

tinually  coupled  with  soca,  a.  franchise  I  once  thought  the  etymology  of  Brac- 

or  right  of  jurjsotetion  belonging  to  th?  ton,  and  Lytteltoa  curiously  illustrated 


264 


HALLAM 


were  suitors  to  the  court-baron  of  the  lord,  to  whose  soc,  or 
right  of  justice,  they  belonged.  They  were  consequently  judges 
in  civil  causes,  determined  before  the  manorial  tribunal./'  Such 
privileges  set  them  greatly  above  the  roturiers  or  censiers  of 
France.  They  were  all  Englishmen,  and  their  tenure  strictly 
English ;  which  seems  to  have  given  it  credit  in  the  eyes  of 
our  lawyers,  when  the  name  of  Englishman  was  affected  even 
by  those  of  Norman  descent,  and  the  laws  of  Edward  the  Con- 
fessor became  the  universal  demand.  Certainly  Glanvil,  and 
still  more  Bracton,  treat  the  tenure  in  free  socage  with  great 


by  a  passage  in  Blomefield's  Hist,  of 
Norfolk,  vol.  111.  p.  538  (folio).  In  the 
manor  of  Cawston  a  man  with  a  brazen 
hand  holding  a  ploughshare  was  carried 
before  the  steward  as  a  sign  that  it  was 
held  by  socage  of  the  duchy  of  Lan- 
caster. 

pThe  feudal  courts,  if  under  that 
name  we  include  those  of  landholders 
having  grants  of  soc,  sac,  infangthef, 
&c,  from  the  crown,  had  originally  a 
jurisdiction  exclusive  of  the  county  and 
hundred.  The  Laws  of  Henry  I ,  a 
treatise  of  great  authority  as  a  contem- 
porary exposition  of  the  law  of  England 
in  the  middle  of  the  twelfth  century, 
just  before  the  great  though  silent  revo- 
lution which  brought  in  the  Norman 
jurisprudence,  bear  abundant  witness  to 
the  territorial  courts,  collateral  to  and 
independent  of  those  of  the  sheriff. 
Other  proofs  are  easily  furnished  for  a 
later  period.  Vide  Chron.  Jocelyn  de 
Brakelonde,  et  alia. 

It  is  nevertheless  true  that  territorial 
jurisdiction  was  never  so  extensive  as  in 
governments  of  a  more  anstocratical 
character,  either  in  criminal  or  civil 
cases,  i.  In  the  laws  ascribed  to 
Henry  I.  it  is  said  that  all  great  offences 
could  only  be  tried  in  the  king's  court, 
or  by  his  commission,  c.  10  Glanvil 
distinguishes  the  criminal  pleas,  which 
could  only  be  determined  before  the 
king's  judges,  from  those  which  belong 
to  the  sheriff.  Treason,  murder,  rob- 
bery, and  rape  were  of  the  former  class; 
theft  of  the  latter.  1.  xiv.  The  criminal 
jurisdiction  of  the  sheriff  is  entirely 
taken  away  by  Magna  Charta.  c.  17.  Sir 
E  Coke  says  the  territorial  franchises 
of  infangthef  and  outfangthef  "  had 
some  continuance  afterwards,  but  either 
by  this  act,  or  per  desuetudinem,  for 
inconvenience,  these  franchises  within 
manors  are  antiquated  and  gone."  2 
Inst.  p.  31.  The  statute  hardly  seems  to 
reach  them;  and  they  were  certainly 
both  claimed  and  exercised  as  late  as 
the  reign  of  Edward  I.  Blomefield  men- 
tions two  instances,  both  in  1285,  where 
executions  for  felony  took  place  by  the 
sentence  of  a  court-baron.  In  these 
cases  the  lord's  privilege  was  called  in 
question  at  the  assizes,  by  which  means 
we  learn  the  transaction;  it  is  very  prob- 
able that  similar  executions  occurred  in 
manors  where  the  jurisdiction  was  not 


disputed.  Hist,  of  Norfolk,  vol.  i.  p. 
313,  vol.  in.  p.  50.  Felonies  are  now 
cognizable  m  the  greater  part  of 
boroughs,  though  it  is  usual,  except  in 
the  most  considerable  places,  to  remit 
such  as  are  not  within  benefit  of  clergy 
to  the  justices  of  ga9l  delivery  on  their 
circuit.  This  jurisdiction,  however,  is 
given,  or  presumed  to  be  given,  by 
special  charter,  and  perfectly  distinct 
from  that  which  was  feudal  and  terri- 
torial. Of  the  latter  some  vestiges 
appear  to  remain  in  particular  liberties, 
as  for  example  the  Soke  of  Peter- 
borough; but  most,  if  not  all,  of  these 
local  franchises  have  fallen,  by  right  or 
custom,  into  the  hands  of  justices  of  the 
peace  A  territorial  privilege  somewhat 
analogous  to  criminal  jurisdiction,  but 
considerably  more  oppressive,  was  that 
of  private  gaols.  At  the  parliament  of 
Merton,  1237,  the  lords  requested  to 
have  their  own  prison  for  trespasses 
upon  their  parks  and  ponds,  which  the 
king  refused.  Stat  Merton,  c,  11  But 
several  lords  enjoyed  this  as  a  particular 
franchise;  which  is  saved  by  the  statute 
5  H.  IV.  c.  10,  directing  j'ustices  of  the 
peace  to  imprison  no  man,  except  in  the 
common  gaol.  2.  The  civil  jurisdiction 
of  the  court-baron  was  rendered  insig- 
nificant, not  only  by  its  limitation  in 
personal  suits  to  debts  or  damages  not 
exceeding  forty  shillings,  but  by  the 
writs  of  tolt  and  pone,  which  at  once  re- 
moved a  suit  for  lands,  in  any  state  of 
its  progress  before  judgment,  into  the 
county  court  or  that  of  the  king.  The 
statute  of  Marlebridge  took  away  all 
appellant  jurisdiction  of  the  superior 
lord,  for  false  judgment  in  the  manorial 
court  of  his  tenant,  and  thus  aimed 
another  blow  at  the  feudal  connection. 
52  H.  III.  c.  19.  3.  The  lords  of  the 
counties  palatine  of  Chester  and  Dur- 
ham, and  the  Royal  franchise  of  Ely, 
had  not  only  a  capital  jurisdiction  in 
criminal  cases,  but  an  exclusive  cog- 
nizance of  civil  suits;  the  former  still 
is  retained  by  the  bishops  of  Durham 
and  Ely,  though  much  shorn  of  its 
ancient  extent  by  an  act  of  Henry  VIII. 
(27  H.  VIII.  c,  24),  and  administered 
by  the  king's  justices  of  assize;  the 
bishops  or  tneir  deputies  being  put  only 
on  the  footing  of  ordinary  justices  of 
the  peace.  Id.  s.  20. 


THE  MIDDLE  AGES  265 

respect.  And  we  have  reason  to  think  that  this  class  of  free- 
holders was  very  numerous  even  before  the  reign  of  Edward  I. 
But,  lastly,  the  change  which  took  place  in  the  constitution 
of  parliament  consummated  the  degradation,  if  we  must  use 
the  word,  of  the  lower  nobility:  I  mean,  not  so  much  their 
attendance  by  representation  instead  of  personal  summons  as 
their  election  by  the  whole  body  of  freeholders,  and  their 
separation,  along  with  citizens  and  burgesses,  from  the  house 
of  peers.  These  changes  will  fall  under  consideration  in  the 
following  chapter. 


266  HALLAM 


PART  III. 

Reign  of  Edward  L— Confirmatio  Chartarum— Constitution  of  Parlia- 
ment; 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  representa- 
tion was  confined  to  Tenants  in  capite  discussed — State  of  English 
Towns  at  the  Conquest  and  afterwards;  their  Progress — Represen- 
tatives from  them  Summoned  to  Parliament  by  Earl  of  Leicester — 
Improbability  of  an  earlier  Origin— Cases  of  St.  Albans  and  Barn- 
staple  considered — Parliaments  under  Edward  I. — Separation  of 
Knights  and  Burgesses  from  the  Peers — Edward  II. — Gradual  Prog- 
ress 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— Charter  of  the  Plantagenet 
Government— Prerogative;  its  Excesses;  erroneous  Views  cor- 
rected—Testimony of  Sir  John  Fortescue  to  the  Freedom  of  the  Con- 
stitution— Causes  ^  of  the  superior  Liberty  of  England  considered- 
State  of  Society  in  England — Want  of  Police — Villenage;  its  grad- 
ual 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. 

Though  the  undisputed  accession  of  a  prince  like  Edward  I. 
to  the  throne  of  his  father  does  not  seem  so  convenient  a  rest- 
ing-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  in- 
quiries. And,  indeed,  as  ours  is  emphatically  styled  a  govern- 
ment 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  b$  referred  to  the  age  of  Edward  I.,  it  will  b$ 


THE  MIDDLE  AGES  267 

nearer  the  truth  to  date  the  English  constitution  from  that  than 
from  any  earlier  era. 

The  various  statutes  affecting  the  law  of  property  and  ad- 
ministration 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  con- 
ceded by  the  king  in  the  twenty-fifth  year  of  his  reign.  I  do  not 
know  that  England  has  ever  produced  any  patriots  to  whose 
memory  she  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,  valor,  and  success,  required  a  far 
more  intrepid  patriotism.  Their  provocations,  if  less  outrag- 
eous than  those  received  from  John,  were  such  as  evidently 
manifested  a  disposition  in  Edward  to  reign  without  any  con- 
trol ;  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  prece- 
dent of  despotism.^  These  encroachments  made  resistance 
justifiable,  and  the  circumstances  of  Edward  made  it  prudent. 
His  ambition,  luckily  for  the  people,  had  involved  him  in  for- 
eign warfare,  from  which  he  could  not  recede  without  disap- 
pointment and  dishonor.  Thus  was  wrested  from  him  that 
famous  statute,  inadequately  denominated  the  Confirmation 
of  the  Charters,  because  it  added  another  pillar  to  our  con- 
stitution, not  less  important  than  the  Great  Charter  itself> 

a  The  fullest  account  we  possess  of  the  first  writer  who  had  the  merit  of  ex- 

these  domestic  transactions  from  1294  to  posmg  the  character  of  Edward  L    See 

1298  is  in  Walter  Hemingford,  one  of  the  too    Knyghton    in    Twysden's    Decem 

historians  edited  by  Hearne,  pp   52-168.  Scriptores,  col  2492-        ,    ,   _    . 

They   have   been   vilely   perverted   by  b  Walsmgham,  m  Camden's  Scnptores. 

Carte,  but  extremely  well  told  by  Hume,  Rer.  Anglicanim,  pp*  71-73. 


268  HALLAM 

It  was  enacted  by  the  25  Edward  I.  that  the  charter  of  liber- 
ties, and  that  of  the  forest,  besides  being  explicitly  confirmed/ 
should  be  sent  to  all  sheriffs,  justices  in  eyre,  and  other  mag- 
istrates 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,  ac- 
companied by  a  solemn  sentence  of  excommunication  against 
all  who  should  infringe  them ;  that  any  judgment  given  con- 
trary to  these  charters  should  be  invalid,  and  holden  for  naught. 
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.  Hith- 
erto the  king's  prerogative  of  levying  money  by  name  of  tallage 
or  prize  from  his  towns  and  tenants  in  demesne  had  passed 
unquestioned.  Some  impositions,  that  especially  on  the  export 
of  wool,  affected  all  his  subjects.  It  was  now  the  moment  to 
enfranchise  the  people,  and  give  that  security  to  private  prop- 
erty which  Magna  Charta  had  given  to  personal  liberty.  By 
the  5th  and  6th  sections  of  this  statute  "  the  aids,  tasks,  and 
prizes,"  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  prizes,  but  by  the  common  assent  of  the  realm, 
and  for  the  common  profit  thereof,  saving  the  ancient  aids  and 
prizes  due  and  accustomed/7  The  toll  upon  wool,  so  far  as 
levied  by  the  king's  mere  prerogative,  is  expressly  released  by 
the  seventh  section.** 

c  Edward  would  not  confirm  the  char-  sole  province  was  to  determine  offences 

ters,  notwithstanding  his  promise,  with-  against  the  two  charters,  with  the  power 

out  the  words,  salvo  ]ure  coronas  nos-  of  punishing  by  fine  and  imprisonment ; 

trae;  on  which   the   two   earls   retired  but  not  to  extend  to  any  case  wherein 

from  court    When  the  confirmation  was  a  remedy  by  writ  was  already  provided, 

read  to  the  people  at  St.  Paul's,  says  The  Confirmatio  Chartarum  is  properly 

Heniingford,  they  blessed  the  king  on  denominated    a    statute,    and    always 

seeing  the  charters  with  the  great  seal  printed  as  such;  but  in  form,  like  Magna 

affixed;    but  when  they  heard  the  cap-  Charta,  it  is  a  charter,  or  letters  patent, 

tious  conclusion,  they  cursed  him  in-  proceeding    from   the    crown,    without 

stead.    At  the  next  meeting  of  parha-  even  reciting  the  consent  of  the  realm. 

"  ment,  the  king  agreed  to  omit  these  And  its  "  teste  "  is  at  Ghent,  st  Nov. 

insidious  words,  p.  168.  1297;     Edward    having    engaged,    con- 

d  The  supposed  statute,  De  Tallagio  jointly  with  the  Count  of  Flanders,  in  a 

non    concedendo,    is    considered    by  war  with  Philip  the  Fair.    But  a  pasha- 

Blackstone   (Introduction  to   Charters,  ment  had  been  held  at  London,  when 

p.  67)  as  merely  an  abstract  of  the  Con-  the  barons  insisted  on  these  concessions, 

firmatio    Chartarum.    By   that   entitled  The  circumstances  are  not  wholly  unlike 

Articuli  super  Chi   '         ~  ~     ' 

court  was  erected 
three  knights  or  c 
by  the  commons 


Articuli  super  Chartas,  28  Edw,   I ,  a       those  of  Magna  Charta. 

court  was  erected  in  every  county,  of          The  Lordsr  Committee  do  not  seem  to 


three  knights  or  others,  to  be  elected       reject  the  statute  "  de  tallagio  non  con- 
"       "  qf  the  shire,  whose       cedendo"  altogether,  but  say  that,  "if 


THE  MIDDLE  AGES  269 

We  come  now  to  a  part  of  our  subject  exceedingly  impor- 
tant, 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. 

One  constituent  branch  of  the  great  councils  held  by  William 
the  Conqueror  and  all  his  successors  was  composed  of  the  bish- 
ops and  the  heads  of  religious  houses  holding  their  temporali- 
ties immediately  of  the  crown.  It  has  been  frequently  main- 
tained that  these  spiritual  lords  sat  in  parliament  only  by  virtue 
of  their  baronial  tenure.  And  certainly  they  did  all  hold  bar- 
onies, which,  according  to  the  analogy  of  lay  peerages,  were 
sufficient  to  give  them  such  a  share  in  the  legislature.  Never- 
theless, 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,  per- 
haps, 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  en- 
lightened counsellors  than  the  lay  nobility;  and  in  some  de- 
gree, no  doubt,  as  rich  proprietors  of  land.  It  will  be  remem- 
bered also  that  ecclesiastical  and  temporal  affairs  were  original- 
ly decided  in  the  same  assemblies,  both  upon  the  continent  and 
in  England.  The  Norman  Conquest,  which  destroyed  the 
Ango-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.*  Some  smaller 

the  manuscript  containing  it  (in  Corpus  of  the  king's  charter  at  Ghent.   But  at 

Christi  College,   Cambridge)   is  a  true  least,   as    one   exists   in   an   authentic 

copy  of  a  statute,  it  is  undoubtedly  a  form,  and  the  other  is  only  found  in  an 

copy  of  the  statute  of  the  a^th,  and  not  unauthorized    copy,   there  can   be   no 

of  a  statute  of  the  34th  of  Edward  I."  question  which  ought  to  be  quoted. 

P.  230.    It  seems  to  me  on  comparing  e  Hody  (Treatise  on  Convocations,  p. 

the  two,  that  the  supposed  statute  de  126)  states  the  matter  thus:  in  the  Saxon 

tallagio  is  but  an  imperfect  transcript  times  all  bishops  and  abbots  sat  and  vot- 


270  HALLAM 

arguments  might  be  urged  against  the  supposition  that  their 
legislative  rights  are  merely  baronial ;  such  as  that  the  guard- 
ian 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 ;  f  but  the 
former  reasoning  appears  less  technical  and  confined.^ 

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.fc  Every  earl  was  also  a  baron,  and  held  an  honor  or 
barony  of  the  crown,  for  which  he  paid  a  higher  reliei  than  an 
ordinary  baron,  probably  on  account  of  the  profits  of  his  earl- 
dom. I  will  not  pretend  to  say  whether  titular  earldoms,  ab- 
solutely distinct  from  the  lieutenancy  of  a  county,  were  as  an- 
cient 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  descrip- 
tion in  the  first  Norman  reigns ;  for  even  that  of  Clare  was 
connected  with  the  local  earldom  of  Hertford. 

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  con- 
sideration 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  opin- 
ions as  to  the  characteristics  and  attributes  of  this  tenure. 

According  to  the  first,  every  tenant  in  chief  by  knight-service 

cd  in  the  state  councils,  or  parliament,  earls,  with  grants  of  crown  lands  to  sup- 
as  such,  and  not  on  account  of  their  port  them;  but  his  successor  resumed 
tenures.  After  the  Conquest  the  abbots  the  grants,  and  deprived  them  of  their 
sat  there  not  as  such,  but  by  virtue  of  earldoms. 

their    tenures,    as    barons;     and    the  In  Rymer's  Foadera,  vol.  i.  p.  3,  we 

bishops  sat  in  a  double  capacity,  as  find  a  grant  of  Matilda,  creating  Mifo  of 

bishops  and  as  barons.  Gloucester  Earl  of  Hereford,  with  the 

/  Hody,  p   128.  moat  and  castle  of  that  city  in  fee  to  him 

£[NoTE  XVI.]  and  his  heirs,  the  third  penny  of  the 

h  Madox,    Baroma   An^lica,    p.    138.  rent  of  the  city,  and  of  the  pleas  in  the 

Dialogus  de  Scaccano.  1.  i.  c.  17.   Lyt-  county,  three  manors  and  a  forest,  and 

telton;s  Henry  II.  vol.  ii.  p.  217.   The  the  service  of  three  tenants  in  chief, 

last  of  these  writers  supposes,  contrary  with  all  their  fiefs;   to  be  held  with  all 

to  Selden,  that  the  earls  continued  to  privileges  and  liberties  as  fully  as  ever 

be  governors  of  their  counties  under  any    earl    in    England    had    possessed 

Henry  II.    Stephen  created  a  few  titular  them. 


THE  MIDDLE  AGES  271 

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  honors,  as  they  were  frequently 
called,  consisted  of  a  number  of  knight's  fees ;  that  is,  of  es- 
tates, 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  a  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.  r 

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  summoned  archiepisco- 
pos,  episcopos,  abbates,  comites  et  majores  barones  regni  sigil- 
latim  per  literas  nostras.  Et  prseterea  faciemus  summoned  in 
generali  per  vicecomites  et  ballivos  nostros  omnes  alios  que  in 
capite  tenent  de  nobis.  Thus  the  barons  are  distinguished  from 
other  tenants  in  chief,  as  if  the  former  name  were  only  appli- 
cable 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  ex- 
pression 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  honors,  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 


272      ,  HALLAM 

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.** 

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  Ba- 
ronia  Anglica,  laid  down  any  definition,  or  attempted  to  ex- 
plain 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.;  Nor  does  it  seem  to  have 
consisted  in  the  privilege  or  service  of  attending  parliament, 
since  all  tenants  in  chief  were  usually  summoned.  But  what- 
every  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  Northamp- 
ton in  1165,  in  that  held  at  the  same  town  in  1176,  and  upon 
other  occasions.^  Several  persons  appear  in  the  Liber  Niger 
Scaccarii,  a  roll  of  military  tenants  made  in  the  age  of  Henry 
IL,  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.*  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  par- 

t  Selden's  Works,  vol.  iii.  pp.  713-743-          k  Hody  an  Convocations,  pp,  222,  934. 
j  Lyttelton's  Henry  II.  vol.  ii.  p.  212.          I  Lib.  ii.  c.  9. 


THE  MIDDLE  AGES  2?3 

liament  of  Northampton,  were  in  all  probability  no  other  than 
the  knightly  tenants  of  the  crown.**  For  the  word  baro,  origi- 
nally 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.** 

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  par- 
ticular 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  at- 
tendance 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  barons11 
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^  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 ;  p  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 

m  Hody  and  Lord  Lyttelton  maintain  n  [NOTE  XVII.] 

these  «  barons  of  the  second  rank  "  to  oM.  Paris,  p.  785-    The  barons  even 

have  been  the  sub-vassals  of  the  crown;  tell  the  king  that  this  was  contrary  to 

tenants  of  the  great  barons  to  whom  the  his  charter,  in  which  nevertheless  the 

"P1??   ^   sometimes    improperly    ap-  clause  to  that  effect,  contained  in  his 

phed.    This   was  very  consistent  with  father's  charter,  had  been  omitted, 

their  opinion,  that  the  commons  were  p  Henry  II.,  in  1175,  forbade  any  of 

a  part  of  parliament  at  that  time.    But  those  who  had  been  concerned  in  the 

Hume,  assuming  at  once  the  truth  of  late  rebellion  to  come  to  his  court  with^ 

their  interpretation  in  this  instance,  and  out  a  particular  summons.    Carte,  vol. 

the  falsehood  of  their  system,  treats  it  ii.  p.  249 
as  a  deviation  from  the  established  rule, 
and  a  proof  of  the  unsettled  state  of  the 
constitution. 

TOL.  IL— 18 


274  HALLAM 

indispensable  condition;  in  times  when  the  prerogative  was 
high,  the  law  unsettled,  and  the  service  in  parliament  deemed 
by  many  still  more  burdensome  than  honorable.  Some  omis- 
sions 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  uni- 
versal consent  than  was  required  in  councils  held  for  state, 
or  even  for  advices 

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  par- 
ticular 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  i  Henry  III.  it  is  said:  Pro  hac 

donatione  et  concessione archiepiscopi,  episcopi,  com- 

ites,  barones,  milites,  et  libere  tenentes,  et  omnes  de  regno 
nostro,  dederunt  nobis  quintam  decimam  partem  omnium  bo- 
norum  suorum  tnobiliumr  So  in  a  record  of  19  Henry  III. : 
Comites,  et  barones,  et  omnes  alii  de  toto  regno  nostro  An- 
glise,  spontanea  voluntate  sua  concesserunt  nobis  efficax  aux- 
ilium.-y  The  largeness  of  these  words  is,  however,  controlled 
by  a  subsequent  passage,  which  declares  the  tax  to  be  im- 
posed ad  mandatum  omnium  comitum  et  baronum  et  omnium 
aliorum  gui  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  ranks  of  men  are  enu- 


flUpon  the  subject  of  tenure  by  bar-          rHody  on  Convocations,  p.  293. 
ony,  Besides  the  writers  already  quoted,          s  Brady,  Introduction  to   History  of 


see  West's  Inquiry  into  the  Method  of       England.   Appendix,  p.  43. 
-    -      Peers,  and  Carte's  History  of 
,  voL  ii.  p.  247. 


THE  MIDDLE  AGES  275 

merated  specifically ;  archiepiscopi,  episcopi,  abbates,  priores, 
et  clerici  terras  habentes  quae  ad  ecclesias  suas  non  pertinent, 
comites,  barones,  niilites,  et  liberi  homines,  pro  se  et  suis  vil- 
lanis,  nobis  concesserunt  in  auxilium  tricesimam  pattern  om- 
nium mobilium.f  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  Ire- 
land, in  which  an  aid  is  desired  of  them,  and  it  is  urged  that 
one  had  been  granted  by  his  fideles  Angliae.** 

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  in- 
convenient and  mischievous  a  scheme  could  not  long  subsist 
among  an  advancing  people,  and  fortunately  the  true  remedy 
was  discovered  with  little  difficulty. 

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  coun- 
cils, considered  as  organs  of  the  church,  rested  upon  the  prin- 
ciple of  a  virtual  or  an  express  representation,  and  had  a  ten- 
dency 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  Will- 
iam, 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  coun- 
cil This,  Sir  Matthew  Hale  asserts  to  be  "  as  sufficient  and 
effectual  a  parliament  as  ever  was  held  in  England."  v  But 
there  is  no  appearance  that  these  twelve  deputies  of  each  county 
were  invested  with  any  higher  authority  than  that  of  declaring 

t  Brady's  History  of  England,  vol.  i.          «  Brady's  Introduction,  p.  94-. 
Appendix,  p,  182.  v  Hist,  of  Common  Law,  voL,  i.  p.  202. 


276  HALL  AM 

their  ancient  usages.  No  stress  can  be  laid  at  least  on  this 
insulated  and  anomalous  assembly,  the  existence  of  which  is 
only  learned  from  a  historian  of  a  century  later .w 

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,  Prsecipi- 
mus  tibi  quod  omnes  milites  ballivse,  tuae  qui  summoniti  fue- 
runt  esse  apud  Oxonian  ad  Nos  a  die  Omnium  Sanctorum  in 
quindecim  dies  venire  facias  cum  armis  suis :  corpora  vero  ba- 
ronum  sine  armis  singulariter,  et  quatuor  discretos  milites  de 
comitatu  tuo,  illuc  venire  facias  ad  eundem  terminum,  ad  lo- 
quendum  nobiscum  de  negotiis  regni  nostri.  For  the  explana- 
tion of  this  obscure  writ  I  must  refer  to  what  Prynne  has  said ;  x 
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  discre- 
tion 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  jus- 
tices upon  their  circuits,  but  by  knights  freely  chosen  in  the 
county  court.  This  appears  by  two  writs,  one  of  the  fourth 

wThis  assembly  is  mentioned  in  the  fest  that  they  were  chosen  by  the 
preamble,  and,  afterwards,  of  the  spu-  people;  the  words  summoneri  fecit  are 
nous  laws  of  Edward  the  Confessor;  first  used;  and  afterwards,  electis  de 
and  I  have  been  accused  of  passing  it  (not  in)  smgulis  totms  patnse  comitati- 
over  too  slightly.  The  fact  certainly  bus.  This  might  be  construed  of  the 
does  not  rest  on  the  authority  of  Hove-  king's  selection;  but  perhaps  the  com- 
den,  who  transcribes  these  laws  verba-  mon  interpretation  is  rather  the  better. 
tim;  and  they  are  in  substance  an  an-  William,  the  compiler  informs  us, 
cient  document.  There  seems  to  me  having  heard  some  of  the  Danish  laws, 
somewhat  rather  suspicious  in  this  as-  was  disposed  to  confirm  them  in  pre- 
sembly  of  delegates;  it  looks  like  a  ference  to  those  of  England;  but  yield- 
pious  fraud  to  maintain  the  old  Saxon  ed  to  the  supplication  of  the  delegates, 
jurisprudence,  which  was  giving  way.  omnes  compatriotae,  qui  leges  narrave- 
But  even%  if  we  admit  the  fact  as  here  rant,  that  he  would  permit  them  to  re- 
told, I  still  adhere  to  the  assertion  that  tain  the  customs  of  their  ancestors,  im- 
there  is  no  appearance  that  these  twelve  ploring  him  by  the  soul  of  King  Ed- 
deputies  of  each  county  were  invested  ward,  cujus  erant  leges,  nee  aliorum 
with  any  higher  authority  than  that  of  exterorum.  The  king  at  length  gave 
declaring  their  ancient  usages.  Any  way,  by  the  advice  and  request  of  his 
supposition  of  a  real  legislative  parlia-  barons,  consilio  et  precatu  baronum. 
ment  would  be  inconsistent  with  all  These  of  course  iwere  Normans;  but 
that  we  know  of  the  state  of  England  what  inference  can  be  drawn  in  favor 
under  the  Conqueror.  And  what  an  of  parliamentary  representation  in  Eng- 
anomaly,  upon  every  constitutional  land  from  the  behavior  of  the  rest? 
principle,  Anglo-Saxon  or  Norman,  They  were  supplicants,  not  legislators, 
would  be  a  parliament  of  twelve  from  xz  Prynne's  Register*  p.  16". 
each  county!  Nor  is  it  perfectly  mani- 


THE  MIDDLE  AGES  277 

and  one  of  the  ninth  year  of  Henry  Illy  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  parliaments 

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  (cseteri  magnates)  were  to  meet  at  London  three 
weeks  after  Easter,  with  horses  and  arms,  for  the  purpose  of 
sailing  into  Gascony,  requires  the  sheriff  to  compel  all  within 
his  jurisdiction,  who  hold  twenty  pounds  a  year  of  the  king 
in  chief,  or  of  those  in  ward  of  the  king,  to  appear  at  the 
same  time  and  place.  And  that  besides  those  mentioned  he 
shall  cause  to  come  before  the  king's  council  at  Westminster, 
on  the  fifteenth  day  after  Easter,  two  good  and  discreet  knights 
of  his  county,  whom  the  men  of  the  county  shall  have  chosen 
for  this  purpose,  in  the  stead  of  all  and  each  of  them,  to  con- 
sider, along  with  the  knights  of  other  counties,  what  aid  they 
will  grant  the  king  in  such  an  emergency  .a  In  the  principle 
of  election,  and  in  the  object  of  the  assembly,  which  was  to 
grant  money,  this  certainly  resembles  a  summons  to  parlia- 
ment. There  are  indeed  anomalies  sufficiently  remarkable 
upon  the  face  of  the  writ  which  distinguish  this  meeting  from 
a  regular  parliament.  But  when  the  scheme  of  obtaining  money 
from  the  commons  of  shires  through  the  consent  of  their  rep- 


y  Brady's  Introduction,  Appendix,  and  the  measure  might  lead  to  con- 
pp  41  and  44.  "  The  language  of  these  ciliate  the  minds  of  those  who  would 
writs  implies  a  distinction  between  such  otherwise  have  had  no  voice  in  the  leg- 
as  were  styled  barons,  apparently  m-  islative  assembly."  Report  of  Lords' 
eluding  the  earls  and  the  four  knights  Committee,  p,  61, 
who  were  to  come  from  the  several  This  would  be  a  remarkable  fact,  and 
counties  ad  loquendum,  and  who  were  the  motive  is  by  no  means  improbable, 
also  distinguished  from  the  knights  being  perhaps  that  which  led  to  the 
summoned  to  attend  with  arms,  in  per-  large  provisions  for  summoning  ten- 
formance,  it  should  seem,  of  the  mil-  ants  in  chief,  contained  in  the  charter 
itary  service  due  by  their  respective  of  John,  and  afterwards  passed  over, 
tenures;  and  the  writs,  therefore,  ap-  But  this  parley  of  the  four  knights  from 
parently  distinguished  certain  tenants  each  county,  for  they  are  only  sum- 
Mi  chief  by  knight-service  from  barons,  moned  ad  loquendum,  may  not  amount 
if  the  knights  so  summoned  to  attend  to  bestowing  on  them  any  legislative 
with  arms  were  required  to  attend  by  power  It  is  nevertheless  to  be  re- 
reason  of  their  respective  tenures  in  membered  that  the  word  parliament 
chief  of  the  king.  How  the  four  meant,  by  its  etymology,  nothing  more; 
knights  of  each  county  who  were  thus  and  the  words,  ad  loquendum,  may 
summoned  to  confer  with  the  king  were  have  been  used  in  reference  to  that, 
to  be  chosen,  whether  by  the  county,  It  is  probable  that  these  writs  were  not 
or  according  to  the  mere  will  of  the  obeyed;  we  have  no  evidence  that  they 
sheriff,  does  not  appear,  but  it  seems  were,  and  it  was  a  season  of  great  con- 
most  probable  that  they  were  intended  fusion,  very  Isttle  before  the  granting 
by  the  king  as  representatives  of  the  of  the  charter  of  Henry  III.  m 
freeholders  of  each  county,  and  to  bat-  z  Brady's  Hist,  of  England,  vol.  i. 
ance  the  power  of  the  hostile  nofejes,  Appendix,  p.  227. 
who  were  then  Jeagued  against  him;  a s  Prynnet  p.  23, 


278  HALL  AM 

resentatives  had  once  been  entertained,  it  was  easily  applicable 
to  more  formal  councils  of  the  nation.^ 

A  few  years  later  there  appears  another  writ  analogous  to 
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,  se- 
curn  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. 
Albans,  that  they  should  repair  instead  to  the  king  at  Wind- 
sor, and  to  no  other  place,  nobiscum  super  praemissis  collo- 
quium habituros.c  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  represen- 
tation of  the  commons  becomes  indisputably  manifest ;  even 
should  we  reject  altogether  the  more  equivocal  instances  of  it 
which  have  just  been  enumerated. 

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  attend- 
ance, 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  re- 
strained 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 

b "  This  writ  tends  strongly  to  show  tempt     to     substitute     representatives 

that  there  then  existed  no  law  by  which  elected  by  bodies  of  men  for  the  attend- 

a  representation   either  of   the   king's  ance  of  the  individual  so  to  be  repre- 

tenants  in  capite  or  of  others,  for  the  sented,  personally  or  by  their  several 

purpose  of  constituting  a  legislative  as-  procurators,  in  an  assembly  convened 

sembly,   or  for  granting  an   aid,  was  for  the  purpose  of  obtaining  an  aid," 

specially   provided;     and   it   seems   to  Report,  p.  95. 

have  been  the  first  instance  appearing  c  2  Prynne,  p.  27. 
on  any  record  now  extant,  of  an  at- 


THE  MIDDLE  AGES  279 

all  suitors  to  the  county  court  on  an  equal  footing  as  to  the 
elective  franchise.  The  argument  on  this  side  might  be  plau- 
sibly 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  noth- 
ing at  his  hands.  They  were  included,  so  far  as  he  was  con- 
cerned, 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  repre- 
sentation 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  be- 
come, 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  es- 
cheated 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,  de- 
notes 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  sum- 
moning 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 


28o  HALLAM 

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  fran- 
chises and  without  (tarn  intra  libertates  quam  extra).  But 
the  tenants  of  lords  holding  by  barony  endeavored  to  exempt 
themselves  from  this  burden,  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.d  But,  if  these  mesne  tenants  had  pos- 
sessed equal  rights  of  voting  with  tenants  in  chief,  it  is  im- 
possible 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  sus- 
tained an  equal  burden,  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  neighboring 
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.* 
Such  is,  I  think,  a  fair  statement  of  the  arguments  that  might 

d  12  Rich.    II.    c   12.     Prynne's  4th       i.  pp.  120,  357.    But  this  Jaw  was  not  reg- 
Register.  ularly  acted  upon  till  1587.    P.  368, 

e  PiHkerton's  Hist,  of  Scotland,  vol. 


THE  MIDDLE  AGES  281 

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  dis- 
played 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  movables, 
from  which  no  class  of  men  was  exempted.  But  the  statute 
that  abolished  all  unparliamentary  taxation  led,  at  least  in  theo- 
retical 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  communi- 
tatem,"  and  "  de  assensu  totius  communitatis."  Nor  is  it  satis- 
factory 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/  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  pro- 
vision, 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."  g  It  will 

/What  can  one  who  adopts  this  runt.  Pat.  Rot.  i  E  II  in  Rot.  Par!, 
opinion  of  Dr.  Brady  say  to  the  follow-  vol.  i.  p.  442.  See  also  p.  24.1  and  p. 
ing  record  *  Rex  militibus,  hberis  ho-  269  If  the  word  communitas  is  here 
minibus,  et  toti  communttafa  comitatus  used  in  any  precise  sense,  which,  when 
Wygormae  tarn  intra  libertates  quam  possible,  we  are  to  suppose  in  constru- 
extra,  salutem.  Cum  comites,  barones,  ing  a  legal  instrument,  it  must  desig- 
milites,  hberi  homines,  et  communita-  nate,  not  the  tenants  in  chief,  but  the 
tes  comitatuum  regm  nostn  vicesimatn  inferior  class,  who,  though  neither  free- 
omnium  bonorum  suorum  mobilium,  holders  nor  free  burgesses,  were  yet 
civesque  et  burgenses  et  commumtates  contributable  to  the  subsidy  on  their 
omnium  civitatum  et  burgorum  ejus-  goods. 

dem  regni,  necnon  tenentes  de  antiquis  gMadox,  Firma  Burgi,  p.  99  and  p. 

domimcis   corona   quindecimam    bono-  102,  note  Z. 
rum  suorum  mol?ilmm  nobis  concesse- 


282  HALLAM 

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  fran- 
chises, 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  burdens. 

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./*  But  Brady 
and  Carte  are  of  a  different  opinion.*  Yet  their  disposition  to 
narrow  the  basis  of  the  constitution  is  so  strong,  that  it  creates 
a  sort  of  prejudice  against  their  authority.  And  if  I  might 
offer  an  opinion  on  so  obscure  a  subject,  I  should  be  much  in- 
clined to  believe  that,  even  from  the  reign  of  Henry  III.,  the 
election  of  knights  by  all  freeholders  in  the  county  court,  with- 
out regard  to  tenure,  was  little,  if  at  all,  different  from  what 
it  is  at  present./ 

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  coin- 
cident. Under  the  Anglo-Saxon  line  of  sovereigns  we  scarcely 

h  Prynne's  2d  Register,  p.  <fp.  cussed  with  much  ability  in  the  Edm- 

*  Carte's  Hist,  of  England,  n.  250  burgh  Review,  vol.  xxvi.  p.  341.    [Not* 

j  The  present  question  has  been  dis-       XvIILJ 


THE  MIDDLE  AGES  283 

can  discover  in  our  scanty  records  the  condition  of  their  inhabi- 
tants, 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.fe  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  foun- 
dation of  more  extensive  immunities.  It  is  probable,  at  least, 
that  the  English  towns  had  made  full  as  great  advances  to- 
wards 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  cus- 
toms. Sometimes  they  belonged  to  different  lords,  and  some- 
times the  same  burgess  paid  customs  to  one  master,  while  he 
was  under  the  jurisdiction  of  another.  They  frequently  en- 
joyed special  privileges  as  to  inheritance ;  and  in  two  or  three 
instances  they  seem  to  have  possessed  common  property,  be- 
longing to  a  sort  of  guild  or  corporation,  and  in  some  instances, 
perhaps,  had  a  municipal  administration  by  magistrates  of  their 
own  choice.^  Besides  the  regular  payments,  which  were  in 

AWilkins,  p.  71.  suspicion  of  the  author's  honesty,  will 
I  Burgensis  Exoniae  urbis  habent  ex-  convey  a  great  deal  of  knowledge, 
tra  civitatem  terram  duodecira  earn-  Since  the  former  part  of  this  note  was 
catarttm:  quse  nullain  consuetudinem  written,  I  have  met  with  a  charter 
reddunt  nisi  ad  ipsam  civitatern.  granted  by  Henry  II.  to  Lincoln,  which 
Domesday,  p.  100  At  Canterbury  the  seems  to  refer,  more  explicitly  than  any 
burgesses  had  forty-five  houses  without  similar  instrument,  to  municipal  prrvi- 
the  city,  de  quibus  ipsi  habebant  ga-  leges  of  jurisdiction  enjoyed  by  the  cit- 
blum  et  consuetudinem,  rex  autem  izens  under  Edward  the  Confessor, 
so  cam  et  sacam;  ipsi  quoque  burgenses  These  charters,  it  is  -well  known,  do 
habebant  de  rege  trigmta  tres  acras  not  always  recite  what  is  true;  yet  it  is 
prati  in  gildam,  suam.  P.  2.  In  Lin-  possible  that  the  citizens  of  Lincoln, 
coin  and  Stamford  some  resident  pro-  which  had  been  one  of  the  five  Danish 
pnetors,  called  Lagemanni,  had  juris-  towns,  sometimes  mentioned  with  a 
diction  (socam  et  sacam)  over  their  sort  of  distinction  by  writers  before  the 
tenants.  But  nowhere  have  I  been  able  Conquest,  might  be  in  a  more  advan- 
to  discover  any  trace  of  municipal  self-  tageous  situation  than  the  generality  of 
government;  unless  Chester  may  be  burgesses.  Sciatis  me  concessisse  civi- 
deemed  an  exception,  where  we  read  bus  meis  Lincoln,  omnes  libertates  et 
of  twelve  indices  civitatisj  but  by  whom  consuetudmes  et  leges  suas,  quas  habu- 
constituted  does  not  appear.  The  word  erunt  tempore  Ed^wardi  et  Will,  et 
lageman  seems  equivalent  to  judex.  Henr  regum  Anglise  et  glldam  suam 
The  guild  mentioned  above  at  Canter-  mercatonam  de  hominibus_  civitatis  et 
bury  was,  in  all  probability,  a  voluntary  de  ahis  mercatonbus  comitatus,  sicut 
association:  so  at  Dover  we  find  the  jllam  habuerunt  tempore  predictorum, 
burgesses'  guildhall,  gihalla  burgensi-  antecessorum  nostrorum,  regum  An- 
uxn.  P.  x.  gljse,  mehus  et  liberius.  Et  omnes  he- 
Many  of  the  passages  in  Domesday  mines  qui  infra  quatuor  divisas  ciyitates 
relative  to  the  state  of  burgesses  are  manent  et  mercatum  deductint,  sint  ad 
collected  in  Brady's  History  of  Bor-  gildas,  et  consuetudines  et  assisas  civi- 
oughs;  a  work  which,  if  read  with  due  ,  tatis,  sicut  melius  fueruat  temp.  Edw. 


284  HALLAM 

general  not  heavy,  they  were  liable  to  tallages  at  the  discretion 
of  their  lords.  This  burden  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.w  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. 

One  of  the  earliest  and  most  important  changes  in  the  con- 
dition 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  forever.**  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  a  fee-farm  he  only  kept 
the  superiority  and  the  inheritance  of  the  annual  rent,  which 
he  might  recover  by  distress.^  The  burgesses  held  their  lands 
by  burgage-tenure,  nearly  analogous  to,  or  rather  a  species  of, 
free  socage./>  Perhaps  before  the  grant  they  might  correspond 
to  modern  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. 

Under  such  a  system  of  arbitrary  taxation,  however,  it  was 


et  Will,  et  Hen.  regum  Anghae.    Rymer,  think  it  perfectly  clear  that  the  guilds 

t.  i.  p.  40  (edit    1816).              t  made  by-laws  for  the  regulation  of  their 

I    am   indebted   to   the   friendly   re-  members.    Yet   this   is   something   dif- 

marks  of  the  periodical  critic  whom  I  ferent  from  municipal  jurisdiction  over 

have  before   mentioned  for  reminding  all   the  inhabitants  of  a  town.     [Note 

me  of  other  charters  of  the  same  age,  XIX  ] 

expressed  in  a  similar  manner,  which  m  Madox,  Hist,  of  Exchequer,  c.  17. 

in  my  haste  I  have  overlooked,  though  f  n  Madox,  Firma  Burgi,  p    i.    There 

printed  in  common  books.  But  whether  is  one  instance,  I  know  not  if  any  more 

these  general  words  ought  to  outweigh  could  be  found,  of  a  firma  burgi  before 

the  silence  of  Domesday  Book  I  am  the  Conquest.    It  was  at  Huntingdon, 

not  prepared  to  decide.    I  have  admit-  Domesday,  p.  203, 

ted   below  that  the  possession  t  of  cor-  o  Id.,  p.  12,  13. 

porate  property  implies  an  elective  gov-  p  Id.,  p.  21. 
ernment  for  its  administration,  and  I 


THE  MIDDLE  AGES  285 

evident  to  the  most  selfish  tyrant  that  the  wealth  of  his  bur- 
gesses 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  q  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  jurisdictions  These  grants, 
however,  were  not  in  general  so  extensive  till  the  reign  of  John.-? 
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.*  At  the  time  of 

ql  have  read  somewhere  that  this  same  privileges  by  charter  to  Norwich 
charter  was  granted  in  noi.  But  the  in  1122  which  London  possessed.  Yet 
instrument  itself,  which  is  only  pre-  it  appears  that  the  king  named  the  port- 
served  by  an  Inspeximus  of  Edward  reeve  or  provost;  but  Blomefield  sug- 
IV.,  does  not  contain  any  date.  Rymer,  gests  that  he  was  probably  recommend- 
t.  i  p.  ii  (edit.  1816).  Could  it  be  ed  by  the  citizens,  the  office  being  au- 
traced  so  high,  the  circumstances  nual. 

would   be   remarkable,    as m  the   earliest  *Madox,  Firma  Burgi,  p.  23.    Hickes 

charters    granted    by    Louis    VI.,    sup-  has    given    us    a    bond    of    fellowship 

posed  to  be  the  father  of  these  institu-  among  the  thanes  of  Cambridgeshire, 

tions,  are  several  years  later.  containing   several   curious   particulars, 

It  is  said  by  Mr.  Thorpe  (Ancient  A  composition  of  eight  pounds,  ex- 
Laws  of  England,  p  267),  that,  though  elusive,  I  conceive,  of  the  usual 
there  are  ten  witnesses,  he  only  finds  weregild,  was  to  be  enforced  from  the 
one  who  throws  any  light  on  the  date:  slayer  of  any  fellow.  If  a  fellow  f 


namely,  Hugh  Bigod,  who  succeeded  killed  a  man  of  1,200  shillings  weregild, 
his  brother  William  in  1120.  But  Mr.  each  of  the  society  was  to  contribute 
Thorpe  does  not  mention  m  what  re-  half  a  marc;  for  a  ceorl,  two  orae  (per- 
spect  he  succeeded.  It  was  as  dapifer  haps  ten  shillings);  for  a  Welshman, 
regis;  but  he  is  not  so  named  in  the  one  If,  however,  this  act  was  corn- 
charter  Dugdale's  Baronage,  p.  132.  mitted  wantonly,  the  fellow  had  no 
The  date,  therefore,  still  seems  prob-  right  to  call  on  the  society  for  contribu- 
lematical.  tion.  If  one  fellow  killed  another,  he 

r  This  did  not,  however,  save  the  citi-  was  to  pay  the  legal  weregild  to  his  fcin- 

zens  from  paying  one  hundred  marks  dred,  and  also  eight  pounds  to  the  so- 

to  the  king  for  this  privilege.     Mas  ciety.    Harsh  words  used  by  one  fellow 

Rot.  5  Steph.  apud  Madox,  Hist.  Ex-  towards    another,    or    even    towards    a 

chequer,  t.  xi.    i  do  not  know  that  the  stranger,  incurred  a  fine.    No  one  was 

charter  of  Henry  I.  can  be  suspected;  to  eat  or  drink  in  the  company  of  one 

but  Brady,  in  his  treatise  of  Boroughs  who  had  killed  his  brother  fellow,  un- 

(p.  38,  edit.  1777),  does  not  think  proper  less  in  the  presence  of  the  king,  bishop, 

once  to  mention  it;  and  indeed  uses  or  alderman.    Dissertatio  Epistolaris,  p. 

many  expressions  incompatible  with  its  21. 
existence.  We   find    in   Wilkins's   Anglo-Saxon 

s  Blomefield,    Hist,    of   Norfolk,   vol.  Laws,  p.  65,  a  number  of  ordinances 

ii.  p.  16,  says  that  Henry  L  granted  the  sworn  to,  by  persons  "both  of  noble  and 


286  HALLAM 

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  reve- 
nue, and  of  other  business  incident  to  their  association.*  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  cor- 
porate towns,  that  of  the  Weavers  in  London  being  perhaps 
the  earliest ;«  and  these  were  successively  consolidated  and 
sanctioned  by  charters  from  the  crown.  In  towns  not  large 
enough  to  admit  of  distinct  companies,  one  merchant  guild 
comprehended  the  traders  in  general,  or  the  chief  of  them ;  and' 
this,  from  the  reign  of  Henry  II.  downwards,  became  the  sub- 
ject of  incorporating  charters.  The  management  of  their  in- 
ternal 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  magis- 
trates 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.*' 

From  the  middle  of  the  twelfth  century  to  that  of  the  thir- 
teenth the  traders  of  England  became  more  and  more  prosper- 

ignoble  rank  (ge  eorlisce  ge  ceorlisce),  induced  me  to  insert  this  note,  though 
and  confirmed  by  King  Athelstan.  not  greatly  to  the  present  purpose.  See 
These  are  in  the  nature  of  by-laws  for  more  of  the  Anglo-Saxon  guilds  in 
the  regulation  of  certain  societies  that  Turner's  History,  vol.  ii.  p  102.  Socie- 
had  been,  formed  for  the  preservation  ties  of  the  same  kind,  for  purposes  of 
of  public  order.  Their  remedy  was  religion,  chanty,  or  mutual  assistance, 
rather  violent:  to  kill  and  seize  the  ef-  rather  than  trade,  may  be  found  long 
fects  of  all  who  should  rob  any  member  afterwards.  Blomefield's  Hist,  of  Nor- 
of  the  association.  This  property,  after  folk,  vol.  iii.  p.  494- 
deducting  the  value  of  the  things  stolen,  t  See  a  grant  from  Turstin,  Arch- 
was  to  be  divided  into  two  parts;  one  bishop  of  York»  in  the  reign  of  Henry 
given  to  the  crimmars  wife  if  not  an  IM  to  the  burgesses  of  Beverly,  that  they 
accomplice,  the  other  shared  between  may  have  their  hanshus  (i.  e.  guildhall) 
the  king  and  the  society.  like  those  of  York,  et  ibi  sua  statuta 
In  another  fraternity  among  the  clergy  pertractent  ad  honorem  Dei,  &c.  Ry- 
and  laity  of  Exeter  every  fellow  was  en-  mer,  t.  i.  p.  TO  edit.  1816. 
titled  to  a  contribution  in  case  of  takine  «  Madox,  Firma  Burgi,  p.  189. 
a  journey,  or  if  his  house  was  burned.  vldem,  passim.  A  Few  of  an  earlier 
Thus  they  resembled,  in  some  degree,  date  may  be  found  in  the  new  edition  of 
our  friendly  societies;  and  display  an  in-  Rymer. 
teresting  picture  of  manners,  which  has 


THE  MIDDLE  AGES  287 

ous.  The  towns  on  the  southern  coast  exported  tin  and  other 
metals  in  exchange  for  the  wines  of  France ;  those  on  the  east- 
ern sent  corn  to  Norway — the  Cinque  Ports  bartered  wool 
against  the  stuffs  of  Flanders.^  Though  bearing  no  compari- 
son with  the  cities  of  Italy  or  the  Empire,  they  increased  suffi- 
ciently to  acquire  importance  at  home.  That  vigorous  pre- 
rogative 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.* 
It  paid  15,000?.  out  of  82,000?.,  raised  by  Canute  upon  the  king- 
doms 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  thrones  Harold  I.,  accord- 
ing to  better  authority,  the  Saxon  Chronicle  and  William  of 
Malmesbury,  was  elected  by  their  concurrence.^  Descending 
to  later  history,  we  find  them  active  in  the  civil  war  of  Stephen 
and  Matilda.  The  famous  Bishop  of  Winchester  tells  the  Lon- 
doners that  they  are  almost  accounted  as  noblemen  on  account 
of  the  greatness  of  their  city ;  into  the  community  of  which 
it  appears  that  some  barons  had  been  received.^  Indeed,  the 

wLyttelton's  History  of  Henry  II.,  place:  totius  civitatis  cives,  quos 

voL  iu  p.  170.  Macpherson's  Annals  of  parones  vocant.  p.  835.  Spelman  says 

Commerce,  vol.  i  p.  331.  that  the  magistrates  of  several  other 

x  Id.  p.  245.  towns    were    called   barons.     Glossary, 

y  Id.  p.  282.  Baron.es  de  London. 

z  Gives  Lundinenses,  et  pars  nobilitim  A  singular  proof  of  the  estimation  in 

qui  eo  tempore  consistebaut  Luudoxiige,  which  the  citizens  of  London  held  them- 

Clitonem  Eadmundum  imanimi  con-  selves  in  the  reign  of  Richard  I.  occurs 

sensu  in  regem  levavere.  p.  249.  In  the  Chronicle  of  Jocelyn  de  Brake- 

a  Chron.  Saxon,  p.  134.  Malmesbury,  londe  (p.  56— Camden  Society,  1840), 

p.  76,  He  says  the  people  of  London  They  claimed  to  be  free  from  toll  in 

were  become  almost  barbarians  through  every  part  of  England,  and  in  every  JU' 

their  intercourse  with  the  Danes;  prop-  nsdiction,  resting  their  immunity  on 

ter  frequentem  convictum.  the  antiquity  of  London  (which  was 

o  Londmenses,  qui  sunt  quasi  optt-  coeval,  they  said,  with  Rome),  and  on 

mates  pro  magnitudine  civitatis  in  An-  its  rank  as  metropolis  o£  the  kingdom. 

gha.  Malmsb,  p.  189.  Thus,  too,  Mat-  Et  dicebant  cives  Lundoniensesluisse 

thew  Paris:  cives  Londmenses,  quos  quietos  de  theloneo  in  omni  faro,  et 

propter  civitatis  dignitatem  et  civium  semper  et  ubique,  per  totam  Angliam, 

antiqttam  libertatem  Barones  consue-  a  tempore  quo  Roma  prime  fundata 

vimus  appellare,  p.  744-  And  in  another  fuit,  et  civitatem  Lundoniae,  eodem 


288 


HALLAM 


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  con- 
tained less  than  thirty  or  forty  thousand  souls  within  its  walls ; 
and  the  suburbs  were  very  populous.^  These  numbers,  the 
enjoyment  of  privileges,  and  the  consciousness  of  strength,  in- 
fused a  free  and  even  a  mutinous  spirit  into  their  conduct.^ 
The  Londoners  were  always  on  the  barons'  side  in  their  con- 
tests with  the  crown.  They  bore  a  part  in  deposing  William 
Longchamp,  the  chancellor  and  justiciary  of  Richard  L*  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 


terapore  fundatam,  talem  debere 
habere  libertatem  per  totam  Angham, 
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.  In- 
troduction 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  ob- 
scure 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  resi- 
dence of  our  kings.  But  London  was 
always  more  populous. 

c  Drake,  the  historian  of  York,  main- 
tains 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.  gi  York 
however  does  not  appear  to  have  con- 
tained more  than  10,000  inhabitants  at 
the  accession  of  the  Conqueror;  and  the 
very  exaggerations  as  to  the  populous- 
ness  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  transla- 
tor, Peg-ge,  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 
xmllia,  he  has  actually  proposed  to  read 


quadringenta.  Hist.  Henry  II ,  vol.  vi. 
ad  finem.  It  is  hardly  necessary  to  ob- 
serve that  the  condition  of  agriculture 
and  internal  communication  would  not 
have  allowed  half  that  number  to  sub- 
sist. 

The  subsidy-roll  of  1377,  published  in 
the  Archseologia,  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  num- 
ber two  or  three  centuries  earlier.  But 
the  numbers  given  m  that  document 
have  been  questioned  as  to  Norwich 
upon  very  plausible  grounds,  and  seem 
rather  suspicious  in  the  present  in- 
stance. [Note  XX,] 

d  This  seditious,  or  at  least  refractory, 
character  of  the  Londoners,  was  dis- 
played in  the  tumult  headed  by  William 
Longbeard  in  the  time  of  Richard  I., 
and  that  under  Constantme  in  1222,  the 
patriarchs  of  a  long  line  of  city  dema- 
gogues. Hoveden,  p.  765.  M.  Paris,  p. 
154 

fiHoveden's  expressions  are  very  pre- 
cise, and  show  that  the  share  taken  by 
the  citizens  of  London  (probably  the 
mayor  and  alderman)  in  this  measure 
was  no  tumultuary  acclamation,  but  a 
deliberate  concurrence  with  the  nobility. 
Comes  Johannes,  et  fere  omnes  episcopi, 
et  comites  Anglise  eadem  die  intraverunt 
Londomas;  et  in  crastino  praedictus  Jo- 
hannes frater  regis,  et  archiepiscopus 
Rothomagensis,  et  omnes  episcopi,  et 
comites  et  barones,  et  cives  Londoni- 
enses  cum  illis  convenerunt  in  atrio  ec- 
clesiae  S.  Pauli  .  .  .  Placuit  ergo  Jo- 
hanni  fratri  regis,  et  omnibus  episcopis, 
et  comitibus  et  baronibus  regni,  et  em- 
bus Londoniarum,  quod  cancellarius 
ille  deponeretur,  et  deposuerunt  eum, 
&c.,  p.  701. 


THE  MIDDLE  AGES  289 

much  dislike  and  jealousy  by  the  court,  and  sometimes  suf- 
fered pretty  severely  at  its  hands,  especially  after  the  battle 
of  Evesham/ 

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,  honorable,  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/  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  strength- 
en 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  a  usurper  should  have  been  drawn 
into  precedent,  though  it  might  perhaps  accelerate  what  the 
course  of  affairs  was  gradually  preparing. 

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  I2th  of 
December,  1264,  in  the  forty-ninth  year  of  Henry  IILJt  After 
a  long  controversy  almost  all  judicious  inquirers  seem  to  have 
acquiesced  in  admitting  this  origin  of  popular  representation.* 

f  The  reader  may  consult,  for  a  more  h  These  writs  are  not  extant,  having 

full  account  of  the  English  towns  before  perhaps  never  been  returned;  and  con- 

the   middle  of  the  thirteenth   century,  sequently  we  cannot  tell  to  what  par- 

Lyttelton's  History  of  Henry  II.,  vol.  ticular  places  they  were  addressed     It 

ii.  p.  174;  and  Macpherson's  Annals  of  appears,  however,  that  the  assembly  was 

Commerce.  intended  to  be  numerous;  for  the  entry 

g  Frequent    proofs    of    this    may    be  runs :  scribitur    civibus    Ebor,    civibus 

found  in  Madox,   Eist.   of  Exchequer,  Lincoln,  et  cseteris  burgis  Anglize.    It 

c.  17,  as  well  as  in  Matt.  Paris,  who  la-  is  singular  that  no  mention  is  made  of 

ments  it  with  indignation.    Gives  Lon-  London,   which   must  have  had  some 

dinenses,  contra  cousuetudmem  et  liber-  special  summons     Rymer,  t    i,  p.  803. 

tatem  civitatis,  quasi  servi  ultimse  con-  Dugdalc,  Summonitiones  ad  Parhamen- 

ditionis,  non  sub  nomine  aut  titulo  li-  turn,  pi. 

beri  adjutoni,  sed  tallagii,  quod  multum  *  It  would  ill  repay  any  reader's  dili- 

cos  angebat,  regi,  licet  inviti  et  reni-  gence  to  wade  through  the  vapid  and 

tentes,  nume  rare  sunt  coacti.  p.  492.  diluted  pages  of  Tyrrell;    but  whoever 

Heu  ubi  est  Londinensis,  toties  empta,  would  know  what  can  be  best  pleaded 

toties    concessa,    toties    scnpta,    toties  for  a  higher  antiquity  of  our  present 

jurata  libertas'  &c.,  p.  627.    The  king  parliamentary    constitution    may    have 

sometimes  suspended  their  market,  that  recourse  to  Body  on  Convocations,  and 

5s,  I  suppose,  their  right  of  toll,  till  his  Lord  Lyttelton's  History  of  Henry  II. 

demands  were  paid.  vol.  11.  p.  276,  and  vol.  iv.  pp.  79-106.    I 

VOL.  II.— 19 


290  HALLAM 

The  argument  may  be  very  concisely  stated.  We  find  from 
innumerable  records  that  the  king  imposed  tallages  upon  his 
demesne  towns  at  discretion.;  No  public  instrument  previous 
to  the  forty-ninth  of  Henry  III.  names  the  citizens  and  bur- 
gesses as  constituent  parts  of  parliament;  though  prelates, 
barons,  knights,  and  sometimes  freeholders,  are  enumerated ;  k 
while,  since  the  undoubted  admission  of  the  commons,  they 
are  almost  invariably  mentioned.  No  historian  speaks  of  rep- 
resentatives 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.*  Those  monkish  annalists  are  poor 
authorities  upon  any  point  where  their  language  is  to  be  deli- 
cately measured.  But  it  is  hardly  possible  that,  writing  cir- 
cumstantially, as  Roger  de  Hoveden  and  Matthew  Paris  some- 
times did,  concerning  proceedings  in  parliament,  they  could 
have  failed  to  mention  the  commons  in  unequivocal  expres- 
sions, if  any  representatives  from  that  order  had  actually 
formed  a  part  of  the  assembly. 

Two  authorities,  however,  which  had  been 'supposed  to  prove 
a  greater  antiquity  than  we  have  assigned  to  the  representa- 
tion 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  Ed- 
ward 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, 

do  not  conceive  it  possible  to  argue  the  uniyersus,  salutem.    Matt.  Paris,  p  696. 

question    more    ingeniously    than    has  It  is  plain,  I  thmk,  from  these  words, 

been    done   by   the   noble   writer   last  that  some  of  the  chief  inhabitants   of 

quoted.    Whitelocke,  in  his  commentary  the    Cinque    Ports,   at  that   time   very 

on  the  parliamentary  writ,  has  treated  flourishing  towns,  were  present  in  this 

it  very  much  at  length,  but  with  no  parliament.     But  whether  they   sat  as 

critical  discrimination.  representatives*  or  by  a   peculiar  writ 

;    Madox,  Hist  of  Exchequer,  c.  17.  of  summons,  is  not  so  evident;  and  the 

*  The  only  apparent  exception  to  this  latter  may  be  the  more  probable  hypoth- 

is  in  the  letter  addressed  to  the  pope  by  esis  of  the  two. 

the  parliament   of  1246;  the   salutation  /  Thus  Matthew  Paris  tells  us  that  in 

of  which  runs  thus:    Barones,  proceres,  1237  the  whole  kingdom,   regm   totius 

et  magnates,  ac  nobiles  portuum  mans  universitas,  repaired  to  a  parliament  of 

habitatores,  necnon  et  clerus  et  populus  Henry  III.  p.  367. 


THE  MIDDLE  AGES  291 

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  an- 
swered, "  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.^ 

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  a  usurper,  in  the  days  of  the  late  king's  father,  and  after- 
wards discontinued  till  about  twenty  years  before  the  date  of 
their  petition,  according  to  those  who  refer  the  regular  appear- 
ance of  the  commons  in  parliament  to  the  twenty-third  of 
Edward  L?  Brady,  who  obviously  felt  the  strength  of  this 
authority,  has  shown  little  of  his  usual  ardor  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,  in- 
stead 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  con- 
ceivable that,  in  1315,  the  council  would  have  received  a  peti- 

m  Brady's    Introduction    to    Hist,    of  England,  p.  $$ 


292  HALLAM 

tion,  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  communi- 
ties 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  con- 
temporary historian,  that  they  sat  in  the  parliament  of  1269, 
four  years  after  that  convened  by  Leicester .«  It  is  more  une- 
quivocally stated  by  another  annalist  that  they  were  present 
in  the  first  parliament  of  Edward  I.  held  in  1271.0  Nor  does 
a  similar  inference  want  some  degree  of  support  from  the  pre- 
ambles of  the  statute  of  Marlebridge  in  51  H.  III.,  of  West- 
minster I.  in  the  third,  and  of  Gloucester  in  the  sixth,  year 
of  Edward  I.P  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  there- 
of. 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 


n  Convocatis  universis  Angliae  prelatis  acted  as  such,  particularly  the  former, 

et  magnatibus,  necnon  cunctatum  regni  though    summoned    for    purposes    not 

sui  civitatum  et  burgorum  potention-  strictly  parliamentary 
bus.    Wykes,  m  Gale,  XV    Scriptores,          p  The  statute  of  Marlebridge  is  said 

t.  li.  p.  88.    I  am  indebted  to  Hody  on  to   be   made   convocatis   discretionbus, 

Convocations  for  this  reference,  which  tarn  majoribus  quam  mmonbus,    that 

seems  to  have  escaped  most  of  our  con-  of  Westminster  primer,  par  son  conseil, 

stitutional  writers.  et  par  Fassentements  des  archievesques, 

o  Hoc    anno  .     .  convenerunt    archi-  evesques,  abbes,  priors,  countes,  barons, 

episcopi,  episcopi,  comites  et  barones,  et  tout  le  comminahty  de  la  terre  il- 

abbates  et  pnores,  et  de  quohbet  comi-  lonques    summones      The    statute    of 

tatu    quatuor    mihtes,    et    de    quahbet  Gloucester  runs,  appelles  les  plus  dis- 

civitate  quatuor.  Annales  Waverleienses  cretes   de   son  royaume,   auxibien  des 

m  Gale  t   u.  p   227     I  was  led  to  this  grandes    come    des    meinders.      These 

passage  by  Atterbury,  Rights  of  Convo-  preambles  seem  to  have  satisfied  Mr. 

cations,  p.  310,  where  some  other  au-  Prynne  that  the   commons   were   then 

thonties    less    unquestionable    are    ad-  represented,  though  the  writs  are  want- 

duced  for  the  same  purpose.    Both  this  ing,   and  certainly  no  one  could  be  less 

assembly  and  that  mentioned  by  Wykes  disposed  to  exaggerate  their  antiquity, 

in  1269  were  certainly  parliaments,  and  2d  Register,  p.  30. 


THE  MIDDLE  AGES  293 

assembly  was  opened  by  the  king.g  This  anomalous  conven- 
tion was  nevertheless  one  means  of  establishing  the  represen- 
tative 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  con- 
siderable towns/  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  * 

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  bur- 
gesses to  parliament.  The  said  charter,  indeed,  was  unfort- 
unately mislaid ;  and  the  prayer  of  their  petition  was  to  obtain 

q  Brady's   Hist,   of  England,   vol.   ii.  in  the  name  of  the  kins  and  his  coun- 

Appendix,    Carte,  vol   n.  p   247  cil."     Carte,  n    195,  referring  to  Rot. 

r  This  is  commonly  denominated  the  Wall.  11  Edw.  I  m  2d. 
parliament  of  Acton  Burnell;  the  clergy  As  the  parliament  was  summoned  to 
and  commons  having  sat  in  that  town,  meet  at  Shrewsbury,  it  may  be  pre- 
while  the  barons  passed  judgment  upon  sumed  that  the  Commons  adjourned  to 
David  Prince  of  Wales  at  Shrewsbury.  Acton  Burnell  The  word  "  statute  " 
The  towns  which  were  honored  with  implies  that  some  consent  was  given, 
the  privilege  of  representation,  and  may  though  the  enactment  came  from  the 
consequently  be  supposed  to  have  been  king  and  council.  It  is  entitled  in  the 
at  that  time  the  most  considerable  in  Book  of  the  Exchequer— des  Estatus  de 
England,  were  York,  Carlisle,  Scar-  Slopbury  ke  sunt  appele  Actone  Bur- 
borough,  Nottingham,  Gnmsby,  Lin-  nel.  Ces  sunt  les  Estatus  fez  at  Salop- 
coin,  Northampton,  Lynn,  Yarmouth,  sebur,  al  parlement  prochem  apres  la 
Colchester,  Norwich,  Chester,  Shrews-  fete  Seint  Michel,  Tan  del  reigne  le  Rey 
bury,  Worcester,  Hereford,  Bristol,  Edward,  Fitz  le  Rev  Henry,  unzinie. 
Canterbury,  Winchester,  and  Exeter.  Report  of  Lords'  Committee,  p.  191. 
Rymer,  t.  n.  p.  247.  The  enactment  by  the  king  and  council 

*'  This    [the    trial    and    judgment    of  founded  on  the  consent  of  the  estates 

Llewellm]  seems  to  have  been  the  only  was  at  Acton  Burnell.    And  the  Statute 

business  transacted  at  Shrewsbury,  for  of  Merchants,  13  Edw.  I ,  refers  to  that 

the  bishops  and  abbots,  and  four  knights  of  the  nth,  as  made  by  the  king,  a  son 

of  each  shire,  and  two  representatives  parlement  que  il  tint  a  Acton  Burnell, 

of  London  and  nineteen  other  trading  and  again   mentions  1'avant  dit   statut 

towns,  summoned  to  meet  the  same  day  fait  i.  Acton  Burnell.    This  seems  to  af- 

m  parliament,  are  said  to  have  sat  at  ford  a  voucher  for  what  is  said  in  my 

Acton  Burnell,  and  thence  the  law  made  text,  which  has  been  controverted  by  a 

for  the  more  easy  recovery  of  the  debts  learned  antiquary.*    It  is  certain  that 

of   merchants  is  called  the   Statute   of  the  lords  were  at  Shrewsbury  in  their 

Acton  Burnell.    It  was  probably  made  judicial  character  condemning  Llewel- 

at  the  request  of  the  representatives  of  1m;  but  whether  they  proceeded  after- 

the  cities  and  boroughs  present  in  that  wards  to  Acton  Burnell,  and  Joined  in 

parliament,    authentic    copies    in    the  the  statute  Is  not  quite  so  clear, 

king's   name   being   sent  to   seven   of  s  [Note  XXL] 
those  trading  towns;    but  it  runs  only 

*  Archaeological  Journal,  vol.  ii.  p.  337*  by  the  R$v.  W-  Hartshorne, 


294  HALLAM 

one  of  the  like  import  in  its  stead.  Barnstaple,  it  must  be  ob- 
served, 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  cer- 
tainly 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  enu- 
merated, 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  busi- 
ness, we  shall  probably  be  induced  to  agree  with  Willis,  that 
it  was  but  an  attempt  of  the  inhabitants  of  Barnstaple  to  with- 
draw 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  privi- 
leges of  devising  their  tenements  and  electing  their  own  mayor. 
The  first  and  fairest  return  finds  only  that  they  were  accus- 
tomed to  send  members  to  parliament,  which  a  usage  of  fifty 
years  (from  23  E.  I.  to  18  E.  III.)  was  fully  sufficient  to  estab- 
lish, without  searching  into  more  remote  antiquity J 

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 

/  Willis,   Notitia  Parliamentary  vol.  ii.  p.  312;  Lyttelton's  Hist,  of  Hen   II., 
vol.  iv.  p  89. 


THE  MIDDLE  AGES  2gs 

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.w  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.5'  z>  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  prede- 
cessors, declared  that  they  could  find  no  signs  of  the  com- 
mons in  parliament  till  the  forty-ninth  of  Henry  III.  Prynne, 
some  years  afterwards,  with  much  vigor  and  learning,  main- 
tained 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  dis- 
pute the  lineal  descent  of  the  House  of  Commons  from  the 
witenagemot.w 

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  defi- 

u  sRic.  II  stat  2,  c.  iv.  pear  to  me  conclusive  to  prove  that  they 
v  Kot  Parl.  vol.  iv.  p.  22.  were  actually  present.  Hoc  anno  Rex 
w  Though  such  an  argument  would  Scotise  Willelmus  magnum  tenuit  con- 
not  be  conclusive?  it  might  afford  some  silium.  Ubi,  petito  ab  opttmatibus  au- 
ground  for  hesitation,  if  the  royal  burghs  xilio,  promiserunt  se  daturos  decem 
of  Scotland  were  actually  represented^  in  mille  marcas:  prater  burgenses  regni, 
their  parliament  more  than  half  a  cen-  qui  sex  mUUa  promiserunt  Those  who 
tury  before  the  date  assigned  to  the  first  know  the  brief  and  incorrect  style  of 
representation  of  English  towns.  Lord  chronicles  will  not  think  it  unlikely  that 
Hailes  concludes  from  a  passage  in  the  offer  of  6,000  marks  by  the  burgesses 
Fordun  "  that  as  early  as  1211  burgesses  was  not  made  in  parliament,  but  in  con- 
gave  suit  and  presence  in  the  great  sequence  of  separate  requisitions  from 
council  of  the  king's  vassals;  though  the  the  crown.  Pmkerton  is  of  opinion  that 
contrary  has  been  asserted  with  much  the  magistrates  of  royal  burghs  might 
confidence  by  various  authors."  Annals  -upon  this,  and  perhaps  other  occasions, 
of  Scotland,  vol.  i.  p.  139.  Fordun's  have  attended  at  the  bar  of  parliament 
words,  however,  so  far  from  importing  with  their  offers  of  money.  But  the 
''•hat  they  formed  a  member  of  the  leg-  deputies  of  towns  do  not  appear  as  a 
islature,  which  perhaps  Lord  Hailes  did  part  of  parliament  till  1526.  Hist,  of 
not  mean  by  the  quaint  expression  Scotland,  vol,  i.  pp*  352,  371. 
"gave  suit  and  presence,"  do  not  ap- 


296  H  ALLAH 

nite ;  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  Mirror  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  IL's  reign ;  an  imposture  which  was 
not  too  gross  to  deceive  Sir  Edward  Coke.* 

There  is  no  great  difficulty  in  answering  the  question  why 
the  deputies  of  boroughs  were  finally  and  permanently  in- 
grafted upon  parliament  by  Edward  I.y  The  government  was 
becoming  constantly  more  attentive  to  the  wealth  that  com- 
merce brought  into  the  kingdom,  and  the  towns  were  becom- 
ing more  flourishing  and  more  independent.  But  chiefly  there 
was  a  much  stronger  spirit  of  general  liberty  and  a  greater  dis- 
content 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  discre- 
tion 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  impo- 
sitions absolutely  unconstitutional,  they  might  perhaps  excite 
louder  murmurs  than  a  discreet  administration  would  risk. 
Though  the  necessities  of  the  king,  therefore,  and  his  imperious 

x  [Note  XXI1 1  a  chasm  in  place  of  their  names,  where 
y  These  expressions  cannot  appear  too  the  different  ranks  present  are  enumer- 
strong.  But  it  is  very  remarkable  that  ated.  Rot  Parl.  vol  ii.  p  146  A  sub- 
to  the  parliament  of  18  Edward  III  the  sidy  was  granted  at  this  parliament;  so 
writs  appear  to  have  summoned  none  of  that,  if  the  citizens  and  burgesses  were 
the  towns,  but  only  the  counties  Willis,  really  not  summoned,  it  is  by  far  the 
Notit  Parliament,  vol,  i.  Preface,  p.  13.  most  violent  stretch  of  power  during  the 
Prynne's  Register,  sd  part,  p.  144.  Yet  reign  of  Edward  III.  But  I  know  of 
the  citizens  and  burgesses  are  once,  but  no  collateral  evidence  to  illustrate  or 
only  once,  named  as  present  in  the  par-  disprove  it. 
liamentary  roll;  and  there  is,  in  general. 


THE  MIDDLE  AGES  297 

temper  often  led  him  to  this  course,*  it  was  a  more  prudent 
counsel  to  try  the  willingness  of  his  people  before  he  forced 
their  reluctance.  And  the  success  of  his  innovation  rendered* 
it  worth  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  ac- 
cessible, much  more  was  granted  in  subsidies  after  the  repre- 
sentation 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,  or 
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  prsedicti  ad  consulendum 
et  consentiendum  pro  se  et  communitate  ilia,  his  quae  comites, 
barones,  et  proceres  prsedicti  concorditer  ordinaverint  in  prse- 
missis.  That  of  the  next  year  runs,  ad  faciendum  tune  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  curn  plena  potestate  audiendi 
et  faciendi  quse  ibidem  ordinari  contigerint  pro  communi  com- 
modo.  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  enact- 
ing ;  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., 


sent 

p.  IT',,  „ _  „_  w_ _.     „  _  

of  Eng~vol    ii."  In  the  latter 'instance       tipnably  illegal, 
the  king  also  grave  leave  to  the  lay  and 


298  HALLAM 

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  con- 
sentiendum,  begin;  and  from  that  of  Edward  III.  this  form 
has  been  constantly  used.0  It  must  still,  however,  be  highly 
questionable  whether  the  commons,  who  had  so  recently  taken 
their  place  in  parliament,  gave  anything  more  than  a  construc- 
tive 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 .& 

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  in- 
termingled 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  twen- 
tieth, the  towns  a  fifteenth ;  in  the  sixth  of  Edward  III.  the 
rates  were  a  fifteenth  and  a  tenths  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 

aPrynne's  3d  Register     It  may  be  since  statutes  could  not  "be  passed  in 
remarked  that  writs  of  summons  to  great  such  assemblies.    Id.  p  92 
councils  never  ran  ad  faciendum,  "but  ad          d  28  E    Iy  in  Prynne's  4th  Register, 
tractandum,  consulendum  et  consentien-  p.  12;  o  E.  II.  (a  great  council),  p.  48. 
e  Brady's  Hist,  of  England,  vol.  iTp. 


dum;  from  which  some  would  infer  that 

40 "  TParL  tTf  p.  66, 


faciendum  had  the  sense  of  enacting;       40;  Parliamentary  History,  vol.  i.  p. 


THE   MIDDLE  AGES  299 

seventeenth  of  Edward  III.,  which  is  the  epoch  assigned  by 
Carte,^  or  even  the  sixth  of  that  king,  which  has  been  chosen 
by  some  other  writers.  Thus  the  commons  sat  at  Acton  Bur- 
nell  in  the  eleventh  of  Edward  L,  while  the  upper  house  was 
at  Shrewsbury.  In  the  eighth  of  Edward  II.  "  the  commons 
of  England  complain  to  the  king  and  his  council,  &c."  e  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/  The  roll  of  i  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.£  And  indeed  the  preamble  of  I  E.  IIL, 
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  HJfc  This 
appears,  however,  beyond  doubt  in  the  first  of  Edward  IIL* 
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.; 

The  proper  business  of  the  House  of  Commons  was  to  peti- 
tion for  redress  of  grievances,  as  much  as  to  provide  for  the  ne- 
cessities 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,  from  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 

d  Carte,  vol    ii.  p    451;  Parliamentary  *Id  vol.  ii.  p.  7. 

History,  vol.  i.  p.  234.  « Id   pp.  289,  35**  43°- 

e  Rot.  Par!,  vol.  i.  p.  28$.  i  Id.  p.  5 

/  Id.  p.  430.  3  Id.  p.  8$. 


300  HALLAM 

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  reme- 
dial 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."  &  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."  I  By  what  per- 
sons, and  under  what  limitations,  this  jurisdiction  in  parlia- 
ment was  exercised  will  come  under  our  future  consideration. 
The  efficacy  of  a  king's  personal  character  in  so  imperfect 
a  state  of  government  was  never  more  strongly  exemplified 
than  in  the  first  two  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  remon- 
strating, we  have  seen  cause  to  doubt  whether  they  were  ac- 
counted effectual  members  of  the  legislature  for  any  purpose 
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 

k  Rot.  Parl.  vol.  i.  p.  283  commons,  was  usually  convened  to  meet 
1 4  E.  IIL  c.  14.  Annual  sessions  of  the  king's  council  m  one  of  these  par- 
parliament  seem  fully  to  satisfy  the  haments."  p  171. 
words,  and  still  more  the  spirit,  of  this  Certainly  the  commons  could  not  de- 
act,  and  of  36  E.  III.  c.  10,  which,  how-  sire  to  have  an  annual  parliament  m 
ever,  are  repealed  by  implication  from  order  to  make  new  statutes,  much  less 
the  provisions  of  6  Will.  III.  c.  2.  But  to  grant  subsidies.  It  was,  however,  im- 
it  was  very  rare  under  the  Plantagenet  portant  to  present  their  petitions,  and  to 
dynasty  for  a  parliament  to  continue  set  forth  their  grievances  to  this  high 
more  than  a  year  court.  We  may  easily  reconcile  the 
It  has  been  observed  that  this  provi*  anxiety  so  often  expressed  by  the  com- 
sion  "  had  probably  in  view  the  admin*  mons  to  have  frequent  sessions  of  parlia- 
istration  of  justice  by  the  king's  court  ment,  with  the  individual  reluctance  of 
in  parliament/*  Report  of  L.  C  p.  301.  members  to  attend  A  few  active  men 
And  in  another  place:—"  It  is  clear  procured  these  petitions,  which  the  ma- 
that  the  word  parliament  in  the  reign  of  jority  could  not  with  decency  oppose, 
Edward  I.  was  not  used  only  to  describe  since  the  public  benefit-  was  generally 
a  legislative  assembly,  but  was  the  com-  admitted.  But  when  the  writs  came 
mon  appellation  of  the  ordinary  assem-  down,  every  pretext  was  commonly 
bly  of  the  kmg*s  great  court  or  council;  made  use  of  to  avoid  a  troublesome  and 
and  that  the  legislative  assembly  of  the  ill-remunerated  journey  to  Westminster 
realm,  composed  generally,  in  and  after  For  the  subject  of  annual  parliaments 
the  23d  of  Edward  I.,  of  lords  spiritual  see  a  valuable  article  by  Allen  in  the 
and  temporal,  and  representatives  of  the  s8th  volume  of  the  Edinburgh  Review. 


THE  MIDDLE  AGES  301 

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  ex- 
pense 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,  espe- 
cially 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: — 
i.  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  ;w  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;  n.  That  the  king's 
escheators  oust  men  of  lands  held  by  good  title,  under  pretence 
of  an  inquest  of  officer 

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  parlia- 
ment 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 

m  This  article  is  so  expressed  as  to  articles  relates  to  abuses  of  government, 

make  it  appear  that  the  grievance  was  I  think  it  must  have  meant  what  I  have 

the  high  price  of  commodities     But  as  said  in  the  text, 

this  was  the  natural  effect  of  a  degraded  «  Prynne's  z&  Register,  p.  68. 
currency,  and  the  whole  tenor  of  these 


302  HALLAM 

these  new  customs  again.  But  the  Lords  Ordainers  super- 
seded the  writs,  having  entirely  abrogated  all  illegal  imposi- 
tions.^ It  does  not  appear,  however,  that,  regard  had  to  the 
times,  there  was  anything  very  tyrannical  in  Edward's  govern- 
ment. He  set  tallages  sometimes,  like  his  father,  on  his  de- 
mesne towns,  without  assent  of  parliament^  In  the  nineteenth 
year  of  his  reign  the  commons  show  that,  "  whereas  we  and 
our  ancestors  have  given  many  tallages  to  the  king's  ancestors 
to  obtain  the  charter  of  the  forest,  which  charter  we  have  had 
confirmed  by  the  present  king,  paying  him  largely  on  our  part  ; 
yet  the  king's  officers  of  the  forest  seize  on  lands,  and  destroy 
ditches,  and  oppress  the  people,  for  which  they  pray  remedy, 
for  the  sake  of  God  and  his  father's  soul."  They  complain 
at  the  same  time  of  arbitrary  imprisonment,  against  the  law  of 
the  land.a  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/  appears  in  a  remarkable  and  revo- 
lutionary proceeding,  the  appointment  of  the  Lords  Ordainers 
in  1312.*  In  this  case  it  indicates  that  the  aristocratic  party 
then  combined  against  the  crown  were  desirous  of  conciliating 
popularity.  A  historian  relates  that  some  of  the  commons 
were  consulted  upon  the  ordinances  to  be  made  for  the  refor- 
mation of  government* 

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 

Register,  p.  75-  f   ^  were  issued,   and  that  the  parliament 


£ 

utes.  Though  often  wanting  the  testi-  1'honeur  de  Dieu  et  pour  le  Wen  de 
jnony  to  the  constitution  of  parliament  nous  et  de  nostre  roiaume,  eussions 
lSl*  ant*  de  notre  franche  ^olonte,  plr  nSs 


sp™'  e,  pr  ns 

Jw^^al0    i  P*  2Sl*  in.     T     j  >  lettres  ouv«rtes  aux  prelatz,  countes,  et 

™«     Jf    g«  I  '    ?     9J'      Th^i  Lor<K  Barons,    et   communes    de    dit    roiaiime 

committee     have  found  no  evidence  of  ou'ils  puissent   eshre   certain  persones 

any  writ  issued  for  election  of  knights,  3es  prelatz,  comtes,  et  barons,  its.    Rot 

citizens,   and  burgesses  to  attend   the  Par£  L  a8i    The  inference  therefore  of 

^  ***  seems 


THE  MIDDLE  AGES  303 

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  pro- 
gressive improvement  of  our  free  constitution,  which  was  prin- 
cipally consolidated  during  the  reigns  of  Edward  III.  and  his 
next  two  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. 

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  com- 
mons, 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  prizes,  nor  in  other  manner,  grant  to  him  the  fifteenth 
penny,  to  levy  of  the  commons,^  and  the  tenth  from  the  cities, 
towns,  and  royal  demesnes.  And  the  king,  at  the  request  of 
the  same,  in  ease  of  his  people,  grants  that  the  commissions 
lately  made  to  certain  persons  assigned  to  set  tallages  on  cities, 
towns,  and  demesnes  throughout  England  shall  be  immediately 
repealed ;  and  that  in  time  to  come  he  will  not  set  much  tallage, 
except  as  it  has  been  done  in  the  time  of  his  ancestors,  and 
as  he  may  reasonably  do."  v 

These  concluding  words  are  of  dangerous  implication ;  and 

«  "  La  cotnmonaltee  "  seems   in  this  consent?     The   silence  of  the  rolls  of 

place  to  mean  the  tenants  of  land,  or  parliament  would  furnish   but  a  poor 

commons  of  the  counties,  in  contradis-  argument.     But  in  fact  their  language 

tmction  to  citizens  and  burgesses  is  expressive  enough  The  several  ranks 

v  Rot   Parl   vol   ii   p.  66.    The  Lords*  of   lords   and   commons    grant  the  fif- 

committee  observe  on  this  passage  in  teenth  penny  from  the  commonalty,  and 

the  roll  of  parliament,  that  "  the  king's  the  tenth  from  the  cities,  boroughs,  and 

right  to  tallage  his  cities,  boroughs,  and  demesnes  of  the  king,  "  that  our  lord 

demesnes  seems  not  to  have  been  ques-  the  king  may  live  of  his  own,  and  pay 

tioned  by  the  parliament,  though  the  for  his  expenses,  and  not  aggrieve  his 

commissions  for  setting  the  tallage  were  people  by  excessive  (outraiouses)  prizes, 

objected  to.    p.  305.    But  how  can  we  or  otherwise  "    And  upon  this  the  king 

believe  that  after  the  representatives  of  revokes  the  commission  in  the  words  ol 

these  cities  and  boroughs  had  sat,  at  the  text.    Can  anything  be  clearer  than 

least  at  times,  for  two  reigns,  and  after  that  the  parliament,  though  in  a  much 

the  explicit  renunciation  of  all  right  of  gentler  tone  than  they  came  afterwards 

tallage  by  Edward  I    (for  it  was  never  to  assume,  intimate  the  illegality  of  the 

pretended  that  the  king-  could  lay  a  tall-  late  tallage?    As  to  any  other  objection 

age  on  any  towns  which  did  not  hold  of  to  the  commissions,  which  the  commit- 

himself),  there  could  have  been  a  parlia-  tee  suppose  to  have  been  taken,  nothing 

ment  which   **  did  not  question^'  the  appears  on  the  roll, 
legality  of  a  tallage  set  without  their 


304  HALLAM 

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  an- 
swer 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  enrollment 
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  an- 
swer 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  meantime  they  would  endeavor,  by  using  persuasion  with 
the  people  of  their  respective  counties,  to  procure  the  grant  of 
a  reasonable  aid  in  the  next  parliament.^  They  demanded  also 
that  the  imposition  on  wool  and  lead  should  be  taken  as  it 
used  to  be  in  former  times,  "  inasmuch  as  it  is  enhanced  with- 
out 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)."* 

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 

Pail,  vol   ii.  p.  104,  ,rld. 


THE  MIDDLE  AGES  305 

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."  y 

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  in- 
ternal 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  enter- 
tained 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  ex- 
cluded 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  three  pence  in  the  pound  upon  goods  imported  by 
merchant  strangers.  This  imposition  was  noticed  as  a  griev- 
ance 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.* 

Edward  was  led  by  the  necessities  of  his  unjust  and  ex- 
pensive war  into  another  arbitrary  encroachment,  of  which  we 

y  Rot.  Parl  p.  161.  the  wool  must  have  paid  a  tax,  he  had  a 

2  Case    of    impositions    in    Howell's  right   to    place   the  wrought   and   un- 

State  Trials,  vol.  ii.  pp.  371-519;  particu-  wrought  article   on  an   equality.     The 

larly   the   argument  of   Mr.    Hakewill.  commons    remonstrated    against    this; 

Hale's  Treatise  on  the  customs,  in  Har-  but  it  was  not  repealed.   This  took  place 

grave's  Tracts,  vol.  i.  about  22  E.  III.    Hale's  Treatise,  p, 

Edward  III,  imposed  another  duty  on  175, 
cloth  exported,  on  the  pretence  that,  as 

VOL.  II. — 20 


306  HALLAM 

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 ;  where- 
fore 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."  # 

The  commons  were  not  abashed  by  these  arbitrary  preten- 
sions ;  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  2ist  and  22d 
of  Edw.  III.,  is  full  of  the  same  complaints  on  one  side,  and 
the  same  allegations  of  necessity  on  the  other.  In  the  latter 
year  the  commons  grant  a  subsidy,  on  condition  that  no  illegal 
levying  of  money  should  take  place,  with  several  other  reme- 
dial 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  con- 
trary in  time  to  come."&  From  this  year  the  complaints  of 
extortion  became  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"  c  Yet,  even  in  the  last  year  of  Edward's 

a  Rot.  Parl.  p.  160.  b  Pp.  161,  166,  201.  c  23  E.  III.  Stat.  v.  c.  8. 


THE   MIDDLE  AGES  307 

reign,  when  the  boundaries  of  prerogative  and  the  rights  of  par- 
liament 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.^  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  re- 
markable 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  con- 
stitution and  the  recency  of  parliamentary  rights  than  mere 
encroachments  of  the  prerogative.  In  the  former  year  parlia- 
ment had  granted  a  subsidy  of  fifty  thousand  pounds,  to  be 
collected  by  an  assessment  of  twenty-two  shillings  and  three- 
pence 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.*  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  par- 
ishes ;  whereupon  they  increased  the  parochial  assessment,  by 
their  own  authority,  to  one  hundred  and  sixteen  shillings./  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."  s 

d  Rot   Parl.  vol.  ii.  p.  366  .  £Ibld-  R  3W.    Ift  the  mode.of  levy- 

e  Prynne's  4th  Register,  p.  289.  mg   subsidies   a   reraarkaWe   improve- 

/  Rot  ParL  p.  304.  ment  took  place  early  w  the  reign  of 


3oS  HALLAM 

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  subse- 
quent 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./*  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  com- 
mons. 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.*  But  there  is  no 
appearance  that  it  received  the  direct  assent  of  the  lower  house. 
In  the  next  reigns  we  shall  find  more  remarkable  instances  of 
assuming  a  consent  which  was  never  positively  given. 

The  statute  of  treasons,  however,  was  supposed  to  be  de- 
claratory of  the  ancient  law :  in  permanent  and  material  in- 

Edward  III.  Originally  two  chief  tax-  h  Laws  appear  to  have  been  drawn  up, 
ors  were  appointed  by  the  king  for  each  and  proposed  to  the  two  houses  by  the 
county,  who  named  twelve  persons  in  king,  down  to  the  time  of  Edward  I. 
every  hundred  to  assess  the  movable  Hale's  Hist,  of  Common  Law,  p.  16 
estate  of  all  inhabitants  according  to  its  Sometimes  the  representatives  of  par- 
real  value.  But  in  8  E.  Ill ,  on  com-  ticular  places  address  separate  petitions 
plaint  of  parliament  that  these  taxors  to  the  king  and  council;  as  the  citizens 
were  partial,  commissioners  were  sent  of  London,  the  commons  of  Devonshire, 
round  to  compound  with  every  town  and  &c.  These  are  intermingled  with  the 
parish  for  a  gross  sum,  which  was  from  general  petitions,  and  both  together  are 
thenceforth  the  fixed  quota  of  subsidy,  for  the  most  part  very  numerous.  In 
and  raised  by  the  inhabitants  them-  the  roll  of  50  Edw.  III.  they  amount  to 
selves.  Brady  on  Boroughs,  p.  81.  140. 

i  Rot.  Parl.  p.  239. 


THE   MIDDLE  AGES  309 

novations  a  more  direct  concurrence  of  all  the  estates  was 
probably  required.  A  new  statute,  to  be  perpetually  incor- 
porated with  the  law  of  England,  was  regarded  as  no  light 
matter.  It  was  a  very  common  answer  to  a  petition  of  the 
commons,  in  the  early  part  of  this  reign,  that  it  could  not  be 
granted  without  making  a  new  law.  After  the  parliament  of 
14  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./  This 
reluctance  to  innovate  without  necessity,  and  to  swell  the  num- 
ber 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  legisla- 
ture. In  the  37th  of  Edward  III.,  when  divers  sumptuary  regu- 
lations 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."  &  So  much  scruple  did  they  entertain 
about  tampering  with  the  statute  law  of  the  land. 

Ordinances  which,  if  it  were  not  for  their  partial  or  tem- 
porary operation,  could  not  well  be  distinguished  from  laws,* 
were  often  established  in  great  councils.  These  assemblies, 
which  frequently  occurred  in  Edward's  reign,  were  hardly  dis- 
tinguishable, except  in  name,  from  parliaments ;  being  con- 
stituted not  only  of  those  who  were  regularly  summoned  to 
the  house  of  lords,  but  of  deputies  from  counties,  cities,  and 

;  Rot.  Parl  p.  113.  confirmed  and  made  perpetual,  but  a 

k  Ibid  p  280.  statute  is  perpetual  at  first,  and  so  have 

/ "  If  there  be  any  difference  between  some  ordinances  also  been."  White- 

an  ordinance  and  a  statute,  as   some  locke  on  Parliamentary  Writ,  vol.  ii  p. 

have  collected,  it  is  but  only  this,  that  297,    See  Rot.  Parl,  vol.  lii.  p.  17;    vol. 

an    ordinance    is    but    temporary    till  iv.  p.  35. 


310 


HALLAM 


boroughs.  Several  places  that  never  returned  burgesses  to 
parliament  have  sent  deputies  to  some  of  these  councils.^ 
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.^  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  dep- 
uties of  the  commons  granted  a  subsidy  for  three  years,  com- 
plained of  grievances  and  received  answers,  as  if  in  a  regular 
parliament.  But  they  were  aware  that  these  proceedings  par- 
took of  some  irregularity,  and  endeavored,  as  was  their  con- 
stant 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  en- 
dure always."  o 

It  must  be  confessed  that  the  distinction  between  ordinances 
and  statutes  is  very  obscure,  and  perhaps  no  precise  and  uni- 
form 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  posi- 

m  These   may  be   found   in   Willis's  defend  the  king's  right  to  the  kingdom 

Notitia  Parliamentaria.   In  28  E.  I.  the  of  Scotland,    i  Prynne. 

universities    were    summoned   to    send  » Rot.  Parl.  u.  206. 

members  to  a  great  council  in  order  to  o  Ibid.  ii.  253,  257- 


THE   MIDDLE  AGES  3u 

tive  assent  of  both  houses  of  parliament,  duly  and  formally 
summoned. 

Before  we  leave  this  subject  it  will  be  proper  to  take  no- 
tice of  a  remarkable  stretch  of  prerogative,  which,  if  drawn 
into  precedent,  would  have  effectually  subverted  this  principle 
of  parliamentary  consent  in  legislation.  In  the  I5th  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  parliar- 
ment,  and  be  there  responsible  to  any  who  should  have  cause 
of  complaint  against  them.  The  chancellor,  treasurer,  and 
judges  entered  their  protestation  that  they  had  not  assented 
to  the  said  statutes,  nor  could  they  observe  them,  in  case  they 
should  prove  contrary  to  the  laws  and  customs  of  the  kingdom, 
which  they  were  sworn  to  maintain./'  This  is  the  first  instance 
of  a  protest  on  the  roll  of  parliament  against  the  passing  of 
an  act.  Nevertheless  they  were  compelled  to  swear  on  the 
cross  of  Canterbury  to  its  observances 

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  there- 
fore 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 

p  Rot,  Parl.  p.  131.  ?  Id.  ii.  p.  128, 


312  H  ALLAH 

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.r  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.^ 

Notwithstanding  the  king's  unwillingness  to  permit  this  con- 
trol 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  parlia- 
ment as  their  own  act,  though  none  could  have  been  com- 
menced more  selfishly  for  his  own  benefit,  or  less  for  the  ad- 
vantage of  the  people  of  England.  It  is  called  "  the  war  which 
our  lord  the  king  has  undertaken  against  his  adversary  of 
France  by  common  assent  of  all  the  lords  and  commons  of  his 
realm  in  divers  parliaments."  *  And  he  several  times  referred 
it  to  them  to  advise  upon  the  subject  of  peace.  But  the  com- 
mons 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  peaces  "  Most  dreaded  lord,"  they 
say  upon  one  occasion,  "  as  to  your  war,  and  the  equipment 

r  Rymer,   t.   v.   p.   282.    This   instru-  in  many  points,  he  had  repealed  it.  But 

ment  .betrays  in  its  language  Edward's  he  would  have  the  articles  of  the  said 

consciousness  of  the  violent  step  he  was  statute  examined,  and  what  should  be 

taking;  and  his  wish  to  excuse  it  as  found  honorable  and  profitable  to  the 

much  as  possible.  king  and  his  people  put   into   a  new 

T/The :  commons  in  the  i;th  of  Edw.  statute,  and  observed  in  future"    Rot. 

^•P^J'V^***.^^^^  Par1' >  W     But  though  this  is  in- 
years    before   be    maintained    in    their  serted  among  the  petitions,  it  appears 
force,  having  granted  for  them  the  sub-  from  the  roll  a  little  before  (p.  130   n 
sidies  which   they  enumerate,   "which  23),   that   the   statute  was   actually  re- 
was    a    great    spoiling    (rangon)    and  pealed  by  common  consent,  suchcon- 
gnevous  charge  for  them."  .But  the  sent   at   least   being   recited,    whether 
king   answered    that,    "  perceiving  the  truly  or  not 
said  statute  to  be  against  his  oath,  and  t  Rymer,  t.  v.  p   165. 
to  the  blemish  of  his  crown  and  roy-  it  p.  148. 
alty,  and  against  the  law  of  the  Ian4 


THE   MIDDLE  AGES 

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  manner,  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  honor  and  profit  of  your- 
self 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."  v  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  re- 
plied, 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."  w  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  kfog  and  his  heirs,  to  which  they  would  on  no 
account  assent;  and  so  departed  for  that  day."*  A  few 
years  before  they  had  made  a  similar  answer  to  some  other 
propositions  from  Scotland^  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. 

V2i  E  III  p.  165.  vol.  ii.  p.  518  I  can  find  no  mention 

w  28  E.  Ill  p.  261.  of  the  commons  doing  this  in  the  roll 

« Ibid.  p.  295.  Carte  says,  "  the  lords  of  parliament. 

and  commons,  giving  this  advice  sep-  y  Rymer,  p,  269. 

arately  declared,**  &c.  Hist  of  England, 


3 14  H  ALLAH 

A  third  important  acquisition  of  the  house  of  commons  dur- 
ing 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  lord's  house  had  been  ap- 
pointed to  examine  the  accounts  of  persons  responsible  for  the 
receipt  of  the  last  subsidy ;  but  it  does  not  appear  that  the  com- 
mons were  concerned  in  this.s  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,  un- 
less 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  councils 

It  will  be  remembered  by  everyone  who  has  read  our  history 
that  in  the  latter  years  of  Edward's  life  his  fame  was  tarnished 
by  the  ascendency  of  the  Duke  of  Lancaster  and  Alice  Ferrers. 
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.^  After  granting  a  sub- 
sidy, 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  as- 
sistance for  so  great  a  charge,  pray  that  the  council  be  strength- 
ened 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 

*  §7-mer'  II4<  °*  *^at  academical  point  of  honor  which 

?J?      P- 304-  makes  a  fellow  of  a  college  too  indis- 

o  Most  of  our  general  historians  have  criminate  an  encomiast  of  its  founder. 

slurred    over    this    important    session.  Another  modern  book  may  be  named 

The  best  view,  perhaps,  of  its  secret  with  some  commendation,  though  very 

history  will  be  found  in  Lowth's  Life  inferior  m  its  execution,  Godwin's  Life 

of  Wykeham;  an  instructive  and  ele-  of  Chaucer,  of  which  the  Duke  of  I*an- 

gant  work,  only  to  be  blamed  for  marks  caster  is  the  political  hero. 


THE  MIDDLE  AGES  3!5 

without  that  of  four  or  six."  c  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  fort- 
unes ;  but  that  it  seemed  to  them,  if  their  said  liege  lord  had 
always  possessed  about  him  faithful  counsellors  and  good  of- 
ficers, 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  impover- 
ished, 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  misdemeanors  the  commons  accused  and  im- 
peached the  lords  Latimer  and  Nevil,  with  four  merchants, 
Lyons,  Ellis,  Peachey,  and  Bury.d  Latimer  had  been  chamber- 
lain, and  Nevil  held  another  office.  The  former  was  the  friend 
and  creature  of  the  Duke  of  Lancaster.  Nor  was  this  parlia- 
ment 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  Ferrers,  to  do  so,  on  pain  of  the  said  Alice 

c  Rymer,  p  322  ports  and  towns  was  called  a  staple, 

dlbid.  This    duty   was   levied   principally   on 

*  An  export   duty  levied   in    certain      wool,  skins  and  leather, 


3i6  HALLAM 

forfeiting  all  her  goods,  and  suffering  banishment  from  the 
kingdom."  e 

The  part  which  the  Prince  of  Wales,  who  had  ever  been 
distinguished  for  his  respectful  demeanor  towards  Edward, 
bore  m  this  unprecedented  opposition,  is  strong  evidence  of 
the  jealousy  with  which  he  regarded  the  Duke  of  Lancaster; 
and  it  was  led  in  the  house  of  commons  by  Peter  de  la  Mare, 
a  servant  of  the  Earl  of  March,  who,  by  his  marriage  with 
Philippa,  heiress  of  Lionel  Duke  of  Clarence,  stood  next 
after  the  young  Prince  Richard  in  lineal  succession  to  the 
crown.  The  proceedings  of  this  session  were  indeed  highly 
popular.  But  no  house  of  commons  would  have  gone  such 
lengths  on  the  mere  support  of  popular  opinion,  unless  insti- 
gated and  encouraged  by  higher  authority.  Without  this  their 
petitions  might  perhaps  have  obtained,  for  the  sake  of  subsidy, 
an  immediate  consent;  but  those  who  took  the  lead  in  pre- 
paring them  must  have  remained  unsheltered  after  a  disso- 
lution, 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  favorites  returned  to 
court.  Peter  de  la  Mare  was  confined  at  Nottingham,  where 
he  remained  two  years.  The  citizens  indeed  attempted  an  in- 
surrection, and  threatened  to  burn  the  Savoy,  Lancaster's  resi- 
dence, if  de  la  Mare  was  not  released ;  but  the  Bishop  of  Lon- ' 
don  succeeded  in  appeasing  them/  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.g  So  little  security  will  popular  assemblies  ever 
afford^gainst  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, 

0Rymer,  p.  329.  gRot.  Parl   p.  374.    Not  more  than 

•f  Anonym   Hist.  Edw.  Ill  ad  calcem       six  or  seven  of  the  knights  who  had  sat 

Hemingford,  pp.  444,  448.    Walsingham       in  the  last  parliament  were  returned  to 

gives  a  different  reason,  p.  152.  this,  as  appears  by  the  writs  in  Prynne's 

4th  Register,  pp.  302,  311. 


THE  MIDDLE  AGES 


317 


and  indicates  a  sensible  change  in  the  characer  of  our  con- 
stitution. In  the  reign  of  Edward  II.  parliament  had  little 
share  in  resisting  the  government ;  much  more  was  effected 
by  the  barons  through  risings  of  their  feudal  tenantry.  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  in- 
creased 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. 

The  commons  had  sustained  with  equal  firmness  and  dis- 
cretion a  defensive  war  against  arbitrary  power  under  Edward 
III. ;  they  advanced  with  very  different  steps  towards  his  suc- 
cessor. Upon  the  king's  death,  though  Richard's  coronation 
took  place  without  delay,  and  no  proper  regency  was  consti- 
tuted, 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  re- 
turned.^ 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  Ed- 
ward III.  was  popularly  styled,  though  the  rolls  do  not  men- 
tion either  him  or  any  other  as  bearing  that  honorable  name 
before  Sir  Thomas  Hungerford  in  the  parliament  of  the  fol- 
lowing year  J  The  prosecution  against  Alice  Ferrers  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 

h  Walsingham,  p.  200,  says  pene  om-  and  all  the  lawyers  of  England;  yet  by 

nes;  but  the  list  published  in  Prynne's  the  perseverance  of  these  knights  she 

4th  Register  induces  me  to  qualify  this  was  convicted 

loose    expression.     Alice    Ferrers    had  i  Rot.  Parl.  vol.  ii.  p.  374. 
bribed,  he  tells  us,  many  of  the  lords 


3i8  H  ALLAH 

against  her  intermeddling  at  court ;  upon  which  she  received 
judgment  of  banishment  and  forfeiture.;  At  the  request  of  the 
lower  house,  the  lords,  in  the  king's  name,  appointed  nine 
persons  of  different  ranks — three  bishops,  two  earls,  two  ban- 
nerets, 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  com- 
pelled 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,  Ar- 
tois,  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  suffi- 
ciently 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  citi- 
zens of  London,  were  appointed  to  this  office,  and  sworn  in 
parliament  to  its  execution.^ 

But  whether  through  the  wastefulness  of  government,  or 
rather  because  Edward's  legacy,  the  French  war,  like  a  ruin- 
ous and  interminable  lawsuit,  exhausted  all  public  contribu- 
tions, 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 

;  Rot.  Parl.  ni.  p.  12.  k  Ibid, 


THE  MIDDLE  AGES  319 

again,  but  to  support  the  war  from  Ins  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  burden  anew  the  ex- 
hausted people.  To  this  Scrope,  lord  steward  of  the  house- 
hold, protesting  that  he  knew  not  of  any  such  promise,  made 
answer  by  order  of  the  king,  that,  "  saving  the  honor  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  parlia- 
ment, 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  com- 
mand." 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  re- 
sult of  their  discussion  appears  upon  the  roll. 
Upon  examining  the  accounts  submitted  to  them,  these 


320  HALLAM 

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  main- 
tained. They  lastly  insisted  that  the  king  ought  to  be  rich 
through  the  wealth  that  had  devolved  on  him  from  his  grand- 
father. 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.Z 
The  necessities  of  government,  however,  let  their  cause  be 
what  it  might,  were  by  no  means  feigned;  and  a  new  par- 
liament 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  ac- 
counts before  them.  This  was  a  signal  victory  after  the  re- 
luctant and  ungracious  concession  made  to  the  last  parlia- 
ment. 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  per- 
sonal estate.  They  ended  by  granting  a  poll-tax,  which  they 
pretended  to  think  adequate  to  the  supply  required.^  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.^ 
In  the  next  parliament  (3  Ric.  II.)  it  was  set  forth  that  only 
22,oooJ.  had  been  collected  by  the  poll-tax,  while  the  pay  of 
the  king's  troops  hired  for  the  expedition  to  Brittany,  the  pre- 
text of  the  grant,  had  amounted  for  but  half  a  year  to  50,000^. 
The  king,  in  short,  was  more  straitened  than  ever.  His  dis- 
tresses 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  com- 

l  Rot.  Parl.  pp.  35-38.  «  See  Book  vii.  Part  11.  pp.  175,  176. 

m  Id.  p.  57. 


THE  MIDDLE  AGES  321 

mons,  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  labors,  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  parlia- 
ment. They  required  also  a  general  commission  to  be  made 
out,  similar  to  that  in  the  last  session,  giving  powers  to  a  cer- 
tain number  of  peers  and  other  distinguished  persons  to  in- 
quire 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 ;  o  but  a  commission  as  re- 
quested was  made  out  to  three  prelates,  three  earls,  three  ban- 
nerets, three  knights,  and  three  citizens./'  After  guarding  thus, 
as  they  conceived,  against  malversation,  but  in  effect  rather 
protecting  their  posterity  than  themselves,  the  commons  pro- 
longed 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  endeavors  at  refor- 
mation 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  burdens  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  forever,  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  adminis- 
tration, as  well  about  the  king's  person  and  his  household  as 
in  his  courts  of  justice;  and  by  grievous  oppressions  in  the 

o  Nevertheless,  the  commons  repeated  p  P.  73-    In  Rymer,  t.  viii.  p.  250.  the 

it  in  their  schedule  of  petitions;  and  re-  archbishop    of    York's    name    appears 

ceived  an  evasive  answer,  referring  to  among     these     commissioners,     which 

an  ordinance  made  in  the  first  parlia-  makes  their  number  sixteen,    .But  it  is 

ment  of  the  king,  the  application  of  plain  by  the  instrument  that  only  fif- 

which  is  indefinite.   Rot  Parl.  p.  82.  teen  were  meant  to  be  appointed. 

VOL.  IL— 21 


322  HALLAM 

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  sub- 
sidies and  tallages  raised  upon  them,  and  besides  by  the  op- 
pressive behavior  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  honor  and  prosperity,  can 
no  longer  endure.    And  to  speak  the  real  truth,  these  injuries 
lately  done  to  the  poorer  commons,  more  than  they  ever  suf- 
fered 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  as- 
sembled in  this  parliament,  to  provide  such  remedy  and  amend- 
ment as  to  the  said  administration  that  the  state  and  dignity 
of  the  king  in  the  first  place,  and  of  the  lords,  may  be  pre- 
served, as  the  commons  have  always  desired,  and  the  com- 
mons 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 


THE   MIDDLE  AGES  323 

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  king- 
dom, 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  spar- 
ing any  degree."  q  A  considerable  number  of  commissioners 
were  accordingly  appointed,  whether  by  the  king  alone,  or  in 
parliament,  does  not  appear ;  the  latter,  however,  is  more  prob- 
able. 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  neces- 
sary to  restore  quiet  among  the  people ;  and  though  the  mem- 
bers 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  con- 
sider 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  leathers 

This  extraordinary  assumption  of  power  by  the  commons 
was  not  merely  owing  to  the  king's  poverty.  It  was  encour- 
aged 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 

q  Rot.  Par!.  5  R,  II.  p.  100  r  Id.  p,  104, 


324  HALLAM 

were  the  favorites  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  re- 
forming 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  favor 
of  the  commons,  whose  hatred  of  the  administration  abated 
their  former  hostility  towards  him.-* 

The  character  of  Richard  II.  was  now  developing  itself,  and 
the  hopes  excited  by  his  remarkable  presence  of  mind  in  con- 
fronting 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  seiz- 
ing the  critical  moment  for  action.  Of  this  quality,  besides 
his  celebrated  behavior  towards  the  insurgents,  he  gave  strik- 
ing 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  favorites,  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  Court- 
ney the  king  ordered  his  temporalities  to  be  seized,  the  execu- 
tion of  which,  Michael  de  la  Pole,  his  new  chancellor,  and  a 
favorite  of  his  own,  could  hardly  prevent.  This  was  accom- 
panied with  indecent  and  outrageous  expressions  of  anger, 
unworthy  of  his  station  and  of  those  whom  he  insulted.* 

s  The  commons  granted  a  subsidy,  7  of  1382  are  said  to  have  compelled  men 

R.  II.,  to  support  Lancaster's  war  in  to   swear  that  they  would  obey  King 

Castile.     R.   P.   p.  284.     Whether  the  Richard   and  the   commons,    and   that 

populace  changed  their  opinion  of  him  they  would  accept  no  king  named  John. 

I  know  not     He  was  still  disliked  by  Walsingham,  p.  248. 

them  two  years  before.    The  insurgents  /  Ibid.  j>p.  290,  315,  317. 


THE  MIDDLE  AGES  325 

Though  no  king  could  be  less  respectable  than  Richard, 
yet  the  constitution  invested  a  sovereign  with  such  ample  pre- 
rogative, 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  exceptions 
But  the  king,  in  granting  their  request,  reserved  his  right  of 
naming  any  others.*'  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  favorite  of  the  king.w  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.*  Yet  this  was  little  in  comparison  of  their  former 
proceedings. 

There  is  nothing,  however,  more  deceitful  to  a  monarch, 
unsupported  by  an  armed  force,  and  destitute  of  wary  ad- 
visers, than  this  submission  of  his  people.  A  single  effort  was 
enough  to  overturn  his  government.  Parliament  met  in  the 
tenth  year  of  his  reign,  steadily  determined  to  reform  the  ad- 
ministration, 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,^  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.  Rich- 
ard, 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  busi- 
ness until  the  king  should  appear  personally  in  parliament  and 

«Rot.  Parl   5  R   II.  p.  looj  6  R.  II.  that  nine  lords  had  been  appointed  in 

sess.  i,  p   134.  the  last  parliament,  viz   9  R.  II. ,  to  in- 

•v  Ibid,  p    145.  quire  into  the  state  of  the  household, 

w  Ibid  9  R.  II.  p.  209.  and  reform  whatever  was  amiss.    But 

x  Ibid.,  p.  213.    It  is  however  asserted  nothing  of  this  appears  m  the  roll, 

in  the  articles  of  impeachment  against  y  Knyghton,   in   Twysden  ?c.   Script 

Suffolk,  and  admitted  by  his  defence,  colr  s68of 


326  HALLAM 

displace  the  chancellor.  The  king  lequired  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,  as- 
serting 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  impeach- 
ment against  him  commenced.^ 

The  charges  against  this  minister,  without  being  wholly 
frivolous,  were  not  so  weighty  as  the  clamor  of  the  commons 
might  have  led  us  to  expect.  Besides  forfeiting  all  his  grants 
from  the  crown,  he  was  committed  to  prison,  there  to  remain 
till  he  should  have  paid  such  fine  as  the  king  might  impose ; 
a  sentence  that  would  have  been  outrageously  severe  in  many 
cases,  though  little  more  than  nugatory  in  the  present  a 

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 

rUpon  full  consideration,  I  am  much  Suffolk,  who  opened  the  session  as  chan- 

inclined  to  give  credit  to  this  passage  of  cellor,   is  styled  "  darrem   chancellor  " 

Knyghton,  as  to  the  main  facts;    and  in  the  articles  of  impeachment  against 

perhaps  even  the  speech  of  Gloucester  him;  so   that   he   must   have   been   re- 

and  the  Bishop  of  Ely  is  more  likely  to  moved    in   the   interval,    which   tallies 

have  been  mace  -public  by  them  than  in-  with  Knyghton's  story.     Besides,  it  is 

vented  by  so  jejune  a  historian.    Wai-  plain,  from  the  famous  questions  sub- 

singham,  indeed,   says  nothing  of  the  sequently  put  by  the  king-  to  his  judges 

matter;  but  he  is  so  unequally  informed  at  Nottingham,  that  both  the  right  of 

and  so  frequently  defective,  that  we  can  retiring  without  a  regular  dissolution, 

draw  no  strong  inference  from  his  si-  and  the  precedent  of  Edward  II.,  had 

lence.     What  most  weighs  with  me  is  been    discussed    in    parliament,    which 

that  parliament  met  on  Oct.  i,  1387,  and  does  not  appear  anywhere  else  than  in 

was  not  dissolved  till  Nov.  28,  a  longer  Knyghton. 

period   than   the   business   done  in   it  a  Rot.  Parl.  vol,  iii.  p.  219. 
seems  to  have  required,  and  also  that 


THE  MIDDLE  AGES  327 

Latimer  in  the  fiftieth  year  of  Edward  IIL&  The  commons 
were  content  to  waive  the  prosecution  of  any  other  ministers ; 
but  they  rather  chose  a  scheme  of  reforming  the  administra- 
tion, 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,  confirm- 
ing by  a  statute  a  commission  for  a  year,  and  forbidding,  under 
heavy  penalties,  anyone  from  opposing,  in  private  or  openly, 
what  they  should  advised  With  this  the  king  complied,  and 
a  commission  founded  upon  the  prayer  of  parliament  was  es- 
tablished 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  pre- 
rogatives 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  IIL,  and  Edward  II., 
which  yet  were  not  without  their  weight  as  constitutional  anal- 
ogies, 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  appoint- 
ed, by  the  penalties  imposed  on  any  who  should  endeavor  to 
obstruct  what  they  might  advise ;  the  design  as  well  as  ten- 
dency 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 

b  Articles  had  been  exhibited  by  the  the  antipope  Clement  in  the  schism, 
chancellor  before  the  peers,  in  the  This  crusade  had  been  exceedingly  pop- 
seventh  of  the  king,  against  Spencer,  ular,  but  its  ill  success  had  the  usual 
Bishop  of  Norwich,  who  had  led  a  con-  effect.  The  commons  were  not  parties 
siderable  army  in  a  disastrous  expedi-  in  this  proceeding.  Rot.  Parl.  p.  153. 
tion  against  the  Flemings,  adherents  to  c  Rot.  Parl.  p.  221. 


328  HALLAM 

down  with  unquestioned  respect,  or  those  high-spirited  repre- 
sentatives of  the  people  whose  patriot  firmness  has  been  hith- 
erto 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  re- 
newed. 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  waste- 
ful 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  ?"<*  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  Ill'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  inex- 
perience, and  the  misguided  suggestions  of  favorites.  This, 
however,  made  it  more  necessary  to  remove  those  false  ad- 
visers, 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  pub- 

rf  Rot.  Parl.  p.  a8tt 


THE  MIDDLE  AGES  329 

He  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  misap- 
plied 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  sym- 
metry 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  un- 
der such  a  government  as  our  own.  The  spirit  of  the  peo- 
ple, 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  reassumed  his  full  powers  two 
years  afterwards,  when  misconduct  had  rendered  his  circum- 
stances far  more  unfavorable,  gives  the  corroboration  of  ex- 
perience 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. 

Before  the  dissolution  of  parliament  Richard  made  a  verbal 
protestation  that  nothing  done  therein  should  be  in  prejudice 


330  HALLAM 

of  his  rights;  a  reservation  not  unusual  when  any  remark- 
able 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  re- 
stored him  to  his  favor,  procured  from  the  judges,  whom  he 
had  summoned  to  Nottingham,  a  most  convenient  set  of  an- 
swers to  questions  concerning  the  late  proceedings  in  parlia- 
ment. Tresilian  and  Belknap,  chief  justices  of  the  King's 
Bench  and  Common  Pleas,  with  several  other  judges,  gave  It 
under  their  seals  that  the  late  statute  and  commission  were 
derogatory  to  the  prerogative ;  that  all  who  procured  it  to  be 
passed,  or  persuaded  or  compelled  the  king  to  consent  to  it, 
were  guilty  of  treason ;  that  the  king's  business  must  be  pro- 
ceeded 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  par- 
liament 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  judg- 
ment against  the  Earl  of  Suffolk  might  be  revoked  as  alto- 
gether erroneous. 

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  in- 
dignation which  they  excited,  and  the  measures  successfully 
taken  to  withstand  the  king's  designs,  belong  to  general  his- 
tory ;  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  inter- 
ested motives  by  which  its  ostensible  advocates  have  frequently 
been  actuated.  The  parliament,  who  had  the  country  thor- 
oughly with  them,  acted  no  doubt  honestly,  but  with  an  inat- 
tention 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 
whpm  they  dealt  severely,  some  of  them  apparently  of  good 


THE   MIDDLE  AGES  33! 

previous  reputation,  merited  such  punishment,  is  more  than, 
upon  uncertain  evidence,  a  modern  writer  can  profess  to  de- 
cide.* 

Notwithstanding  the  death  or  exile  of  all  Richard's  favor- 
ites, 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  preten- 
sions, 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  coun- 
cil. The  Duke  of  Lancaster,  who  had  been  absent  during  the 
transactions  of  the  tenth  and  eleventh  years  of  the  king,  in 
prosecution  of  his  Castilian  war,  formed  a  link  between  the 
parties,  and  seems  to  have  maintained  some  share  of  public 
favor. 

There  was  now  a  more  apparent  harmony  between  the  court 
and  the  parliament.  It  seems  to  have  been  tacitly  agreed  that 
they  should  not  interfere  with  the  king's  household  expenses ; 
and  they  gratified  him  in  a  point  where  his  honor  had  been 
most  wounded,  declaring  his  prerogative  to  be  as  high  and 
unimpaired  as  that  of  his  predecessors,  and  repealing  the  pre- 
tended statute  by  virtue  of  which  Edward  II.  was  said  to  have 
been  deposed/  They  were  provident  enough,  however,  tot 
grant  conditional  subsidies,  to  be  levied  only  in  case  of  a 
royal  expedition  against  the  enemy ;  and  several  were  accord- 
ingly remitted  by  proclamation,  this  condition  not  being  ful- 
filled. Richard  never  ventured  to  recall  his  favorites,  though 
he  testified  his  unabated  affection  for  Vere  by  a  pompous 
funeral.  Few  complaints,  unequivocally  affecting  the  minis- 

e  The   judgment    against    Simon    de  IV. ;  a  fair  presumption  of  its  injustice, 

Burley,  one  of  those  who  were  executed  Rot  Pad.  vol.  iii.  p.  464. 
on  this  occasion,  upon  impeachment  of         f  Rot  Parl.  14  R.  II.  p.  279,  15  JR.  II. 

t}ie  commons,  was  reversed  under  Henry  p.  28$. 


332 


HALLAM 


try,  were  presented  by  the  commons.  In  one  parliament  the 
chancellor,  treasurer,  and  counsel  resigned  their  offices,  sub- 
mitting themselves  to  its  judgment  in  case  any  matter  of  ac- 
cusation should  be  alleged  against  them.  The  commons,  after 
a  day's  deliberation,  probably  to  make  their  approbation  ap- 
pear 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  pleasured 

But  this  summer  season  was  not  to  last  forever.  Richard 
had  but  dissembled  with  those  concerned  in  the  transactions 
of  1388,  none  of  whom  he  could  ever  forgive.  These  lords  in 
lapse  of  time  were  divided  among  each  other.  The  earls  of 
Derby  and  Nottingham  were  brought  into  the  king's  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.^  Gloucester's  ungov- 
erned  ambition,  elated  by  popularity,  could  not  brook  the  as- 
cendency of  his  brother  Lancaster,  who  was  much  less  odious 
to  the  king.  He  had  constantly  urged  and  defended  the  con- 
cession of  Guienne  to  this  prince  to  be  held  for  life,  reserving 
only  his  liege  homage  to  Richard  as  King  of  France ;  *  a  grant 
as  unpopular  among  the  natives  of  that  country  as  it  was  de- 
rogatory 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  mis- 
alliance 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 

g  Rot.  Parl  13  R.  II.  p  258.  i  Rymer,  t  vii.  pp.  583,  659. 

#  17  R.  II.  p.  313. 


THE  MIDDLE  AGES 


333 


from  political  confederacies  of  the  nobility.  The  circumstances 
are  thus  related  in  the  record. 

During  the  session  the  king  sent  for  the  lords  into  parlia- 
ment one  afternoon,  and  told  them  how  he  had  heard  of  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  ac- 
cordingly related  the  whole  matter,  which  consisted  of  four 
alleged  grievances ;  namely,  that  sheriffs  and  escheators,  not- 
withstanding a  statute,  are  continued  in  their  offices  beyond 
a  year ;  /  that  the  Scottish  marches  were  not  well  kept ;  that 
the  statute  against  wearing  great  men's  liveries  was  disre- 
garded; 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  peti- 
tion, that  sheriffs  should  never  remain  in  office  beyond  a  year, 
he  rejected ;  but,  passing  lightly  over  the  rest,  took  most  of- 
fence that  the  commpns,  who  are  his  lieges,  should  take  on 
themselves  to  make  any  ordinance  respecting  his  royal  per- 
son 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  ar- 
ticle in  the  lower  house. 

The  commons  were  in  no  state  to  resist  this  unexpected 
promptitude  of  action  in  the  king.  They  surrendered  the  ob- 
noxious 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 

/  Hume  has  represented  this  as  if  the  upon  which  it  is  unfortunate  that  Hume 

commons  had  petitioned  for  the  contin-  relied  so  much.    The  passage  from  Wal- 

uance  of  sheriffs  beyond  a  year,  and  singham  in  the  same  note  is  also  wholly 

grounds  upon  this  mistake  part  of  his  perverted;  as  the  reader  .will  discover 

defence  of  Richard  II.    (Note  to  vol.  ii.  without    further    observation.     A    his- 

p.  270,  4to.  edit.)     For  this  he  refers  to  torian  must  be  strangely  warped  who 

Cotton's  Abridgment;    whether  rightly  quotes   a  passage  explicitly  complain- 

or  not  I  cannot  say,  being  little  ac-  ing  of  illegal  acts  in  order  to  infer  that 

qnainted   with    that   inaccurate   book,  those  very  acts  were  legal. 


334  HALLAM 

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,fc  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  graced 

This  was  an  open  defiance  of  parliament,  and  a  declara- 
tion of  arbitrary  power.  For  it  would  "be  impossible  to  con- 
tend that,  after  the  repeated  instances  of  control  over  public 
expenditure  by  the  commons  since  the  soth  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  trans- 
gressions^* 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 

k  The  church  would  perhaps  have  in-  en  parlement  P  480.  There  can  be  no 

terfered  in  behalf  of  Haxey  if  he  had  doubt  with  any  man  who  looks  atten- 

only  received  the  tonsure  But  it  seems  tively  at  the  passages  relative  to  Haxey 

that  he  was  actually  in  orders,  for  the  that  he  was  a  member  of  parliament; 

record  calls  him  Sir  Thomas  Haxey,  a  though  this  was  questioned  a  few  years 

title  at  that  time  regularly  given  to  the  ago  by  the  committee  of  the  house  of 

parson  of  a  parish.  If  this  be  so,  it  is  a  commons,  who  made  a  report  on  the 

remarkable,  authority  for  the  clergy's  ca-  right  of  the  clergy  to  be  elected :  a  right 

pacrty  of  sitting  m  parliament.  which,  I  am  inclined  to  believe,  did 

t  Kot.  Far!  20  K  II.  p  339  In  exist  down  to  the  Reformation,  as  the 

Jienry  IV.  s  first  parliament  trie  com-  grounds  alleged  for  JsToweU's  expulsion 

mons  petitioned  for  Haxey's  restora-  in  the  first,  of  Mary,  besides  this  in- 

tion,  and  truly  say  that  his  sentence  was  stance  of  Haxey,  conspire  to  prove 

en  aneantissement  des  custumes  de  la  thoucrh  it  has  since  been  lost  by  disuse, 

commune  -P.  434  His  judgment  was  re-  wThis  assembly,  if  we  may  trust  the 

versed  by  both  houses,  as  havmg  passed  anonymous  author  of  the  Life  of  Rich- 

de  voiontS  du  roy  Richard  en  centre  ard  IIM  published  by  Hearne,  was  sur- 

droit  et  la  course  quel  avoit  este  devant  rounded  by  the  king's  troops.  P  133, 


THE   MIDDLE  AGES  335 

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  m  parliament  or  hold- 
ing place  in  council.  These  violent  ordinances,  as  if  the  prece- 
dent 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.^ 

In  the  fervor  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  turbu- 
lent, had  a  concern  for  the  public  interest;  and,  after  pun- 
ishing their  enemies,  left  the  government  upon  its  right  foun- 
dation. In  this  all  regard  for  liberty  was  extinct;  and  the 
commons  set  the  dangerous  precedent  of  granting  the  king  a 
subsidy  upon  wool  during  his  life.  Their  remarkable  act  of 
severity  was  accompanied  by  another,  less  unexampled,  but, 
as  it  proved,  of  more  ruinous  tendency.  The  petitions  of  the 
commons  not  having  been  answered  during  the  session,  which 
they  were  always  anxious  to  conclude,  a  commission  was  grant- 
ed for  twelve  peers  and  six  commoners  to  sit  after  the  dissolu- 
tion, 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."  o  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. 
1 6,  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 

n  Rot.  Parl.  21  R.  II.  p.  347  -       o  21  R.  II.  p.  369, 


336  HALLAM 

requested  that  the  same  might  be  done  in  future  parliaments./' 
But  it  is  obvious  what  a  latitude  this  gave  to  a  prevailing  fac- 
tion. These  eighteen  commissioners,  or  some  of  them  (for  there 
were  those  who  disliked  the  turn  of  affairs),  usurped  the  full 
rights  of  the  legislature,  which  undoubtedly  were  only  dele- 
gated in  respect  of  business  already  commenced.*/  They  im- 
posed 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/  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. 

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  cbn- 

p  13  R.  II  p.  256.  commodum  totius  regni  et  perniciosum 

gThis  proceeding  was  made  one  of  exemplttm.     Et  ut  super  factis  eonim 

the  articles  of  charge  against  Richard  hujusmodi  ahquem  colorem  et  auctori- 

m  the  following  terms:  Item,  in  parha-  tatem  vidcrentur  habcrc,  rex  fecit  rotu- 

mento  ultimo  celebrate  apud  Salopiam,  los  parliament!  pro  veto  suo  mutan  et 

idem  rex  proponens  oppnmere  populum  deleri,    contra    effectual     consensionis 

suum  procuravit  subtihter  et  fecit  con-  predicts.    Rot.  Parl,  i  JET.  IV   vol.  in, 

cedi,  quod  potestas  parliament!  de  con-  p.  418     Whether  the  last  accusation,  of 

sensu   omnium   statuum  regni   sui  re-  altering  the  parliamentary  roll,  be  true 

maneret  apttd  quasdam  certas  personas  or  not,  there  is  enough  left  in  it  to  prove 

ad  terminandum,  dissoluto  parlmmentOt  everything  I  have  asserted  in  the  text* 

certas  petitiones  in  eodem  parhamento  From  this  it  is  sufficiently  manifest  how 

porrectas    protunc    minimi    expeditas  unfairly  Carte  and  Hume  have  drawn, 

Cujus  concessionis  colore  persona  sic  a  parallel  between  this  self-deputed  le#- 

deputatae  processenmt  ad  alia  generali-  islative  commission  and  that  appointed 

ter  parliamentum  illud  tangentia;  et  hoc  by  parliament  to  reform  the  admimstra- 

de    voluntate    regis;  m    derogationem  tion  eleven  years  before, 

status  parliament!,  et  in  magnum  in-  r  Rot    Parl.    pp.  372,  385. 


THE  MIDDLE  AGES  337 

juncture,  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  Shrews- 
bury, 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 
coulcl  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.-*  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  parlia- 
ment, 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  obli- 
gations, which  his  officers  filled  up  with  large  sums.*  Upon 
the  death  of  the  Duke  of  Lancaster,  who  had  passively  com- 
plied throughout  all  these  transactions,  Richard  refused  livery 
of  his  inheritance  to  Hereford,  whose  exile  implied  no  crime, 

j  Besides  the  contemporary  historians,  can  discover.    It  is  strange  that  Carte 

we  may  read  a  full  narrative  of  these  should  express  surprise  at  the  sentence 

proceedings  in  the  Rolls-,  of  Parliament,  upon  the  Duke  of  Norfolk,  while  he 

vol.  Hi,  p.  382.    Tt  appears  that  Mowbray  seems  to  consider  that  upon  Hereford 

was  the  most  offending  party,  since,  m-  as  very  equitable.    But  he  viewed  the 

dependency   of  Hereford's  accusation,  whole  of  this  rei#n,  and  of  those  that 

he  is  charged  with  opcnlv  maintaining  ensued,  with  the  jaundiced  eye  of  Jaco- 

the  appeals  made  in  the  false  parliament  bitism 

of  the  eleventh  of  the  king.  But  the  *Rot.  "Part  t  K.  TV.  Dp.  420,  426;  Wai- 
banishment  of  his  accuser  was  wholly  stagnant,  PT>  353,  357;  Otterbttrn,  p.  199; 
•unjustifiable  by  any  motives  that  we  Vita  Ric.  TI.  p  147. 

VOL.  1L— 22 


338  HALLAM 

and  who  had  letters  patent  enabling  him  to  make  his  attorney 
for  that  purpose  during  its  continuance.  In  short,  his  govern- 
ment 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  Percys 
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,  dissem- 
bling, 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  diffi- 
culties in  the  way  of  understanding  it  at  all,  by  a  perusal  of 
the  rolls  of  parliament,  with  some  assistance  from  the  con- 
temporary 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  ac- 
quiesce in  their  opinions,  it  is  at  least  unwarrantable  in  modern 
writers  to  sprinkle  their  margins  with  references  to  such  au- 
thority in  support  of  positions  decidedly  opposite.!* 

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  con- 
dition 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  Lan- 

« It  is  fair  to  observe  that  Froissart's  gives   a   very   indifferent    character   of 

testimony  makes  most  in  favor  of  the  the  Duke  of  Gloucester.    In  general  this 

king1,    ert  rather   against   his   enemies,  writer  is  ill  informed  of  English  affairs, 

where  it  is  most  valuable;  that  is,  in  hi$  and  undeserving  to  be  quoted  as  an  au« 

account  of  what  he  heard  in  the  Eng-  thority 
Ksh  court  in  1395,  1   iv.  c,  62,  where  he 


THE  MIDDLE  AGES  339 

castrian  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  alto- 
gether to  account  for  the  exclusion  of  the  house  of  March, 
lie  devised  this  claim,  which  was  preferred  in  the  vacancy  of 
the  throne,  Richard's  cession  having  been  read  and  approved 
in  parliament,  and  the  sentence  of  deposition,  "  out  of  abun- 
dant caution,  and  to  remove  all  scruple,"  solemnly  passed  by 
seven  commissioners  appointed  out  of  the  several  estates. 
"  After  which  challenge  and  claim,"  says  the  record,  "  the  lords 
spiritual  and  temporal,  and  all  the  estates  there  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."  v  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  con- 
found 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  TIL  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 

v  Rot  Parl.  p.  423. 


340  HALLAM 

royal  stock,  descendants  of  Henry  VII,  and  earlier  kings, 
have  been  cut  off  from  their  hope  of  succession  by  the  re- 
striction to  the  heirs  of  the  Princess  Sophia. 

In  this  revolution  of  1399  there  was  as  remarkable  an  atten- 
tion shown  to  the  formalities  of  the  constitution,  allowance 
made  for  the  men  and  the  times,  as  in  that  of  1688.  The  parlia- 
ment was  not  opened  by  commission ;  no  one  took  the  office 
of  president;  the  commons  did  not  adjourn  to  their  own  cham- 
ber ;  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  circum- 
stances. 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  con- 
vention 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 
recognized  as  at  the  Restoration  and  Revolution.  Yet  Henry 
was  too  well  pleased  with  his  friends  to  part  with  them  so  read- 
ily ;  and  he  had  much  to  effect  before  the  fervor  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  reg- 
ularly opened  by  Henry's  commissioner  as  if  they  had  been 
duly  elected.**;  In  this  contrivance,  more  than  in  all  the  rest, 
we  may  trace  the  hand  of  lawyers. 

If  we  look  back  from  the  accession  of  Henry  IV.  to  that 
of  his  predecessor,  the  constitutional  authority  of  the  house 
of  commons  will  be  perceived  to  have  made  surprising  prog- 
ress during  the  course  of  twenty-two  years.  Of  the  three  cap- 
ital 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 

wit  proof  could  be  required  of  any-  persons,  it  may  be  found  in  their  writs 
thing  9  so  self-evident  as  that  these  as-  of  expenses,  as  published  by  Pryane,  4th 
semblies  consisted  of  exactly  the  same  Register,  p.  450. 


THE  MIDDLE  AGES  34I 

inspection  and  control,  the  first  was  absolutely  decided  in  their 
favor,  the  second  was  at  least  perfectly  admitted  in  principle, 
and  the  last  was  confirmed  by  frequent  exercise.  The  com- 
mons had  acquired  two  additional  engines  of  immense  effi- 
ciency; one,  the  right  of  directing  the  application  of  subsidies, 
and  calling  accountants  before  them ;  the  other,  that  of  im- 
peaching the  king's  ministers  for  misconduct.  All  these  vig- 
orous 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:  i.  in  maintaining  the 
exclusive  right  of  taxation ;  2.  in  directing  and  checking  the 
public  expenditure ;  3.  in  making  supplies  depend  on  the  re- 
dress 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. 

I.  The  pretence  of  levying  money  without  consent  of  par- 
liament 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.*  Nor  was  Rich- 
ard ever  accused  of  illegal  tallages,  the  frequent  theme  of  re- 
monstrance under  Edward,  unless  we  may  conjecture  that  this 
charge  is,  implied  in  an  act  (ir  R.  II.  c.  9)  which  annuls  all 
impositions  on  wool  and  leather,  without  consent  of  parlia- 
ment, if  any  there  be.y  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 

%  2  R,  II.  p.  $6.  Trials,  vol.  ii,  pp  443,  507),  that  no  preo 

ylt  is  positively  laid  down  by  the  edents   for   arbitrary   taxation   of    ex- 

asserters  of  civil^  liberty,  m  the  great  ports  or  imports  occur  from  the  acces- 

case    of    impositions    (Howell's    State  sion  of  Bichard  II*  to  the  reign  of  Mary, 


342 


HALLAM 


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  moneys  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  goodb 
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  forfeiting 
life,  limbs,  and  property,  held  out  against  such  as  should  not 
obey  these  commissioners. a  After  his  triumph  over  the  pop- 
ular 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  contri- 
bution.&  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  reigns  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 
favor  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.^  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 ;  not- 
withstanding any  conditions  in  the  grant  of  the  said  subsidy 

s  2  R.  II.  p.  62    This  did  not  find  its  illegal  impositions  tinder  the  Icinprs  of 

way  to  the  statute-book  the   house   of   Lancaster.     Hargrave's 

aRymer,  t  vii.  p.  544-            „  Tracts,  vol.  I  p.  184. 

o  Carte,  vol.  11    p.  640.    Sir  M    Hale  c  Rymer,  t.  viii    pp   412,  488. 

observes  that  he  finds  no  complaints  of  d  Rot.  Par!,  vol.  iv,  p.  316, 


THE  MIDDLE  AGES  343 

contained."  e  The  commons,  however,  in  making  the  grant 
of  a  fresh  subsidy  in  this  parliament,  renewed  their  former  con- 
ditions, 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."  f 

2.  The  right  of  granting  supplies  would  have  been  very  in- 
complete, had  it  not  been  accompanied  with  that  of  directing 
their  application.    The  principle  of  appropriating  public  mon- 
eys began,  as  we  have  seen,  in  the  minority  of  Richard ;  and 
was  among  the  best  fruits  of  that  period.    It  was  steadily  main- 
tained 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  par- 
liament, to  receive  the  saicl  subsidies,  shall  account  and  answer 
to  the  commons  at  the  next  parliament.    These  treasurers  were 
sworn  in  parliament  to  execute  their  trusts.^    A  similar  pre- 
caution was  adopted  in  the  next  session./* 

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  pro- 
ceedings.   It  was  usual  to  answer  their  petitions  on  the  last 
clay  of  the  session,  which  put  an  end  to  all  further  discussion 
upon  them,  and  prevented  their  making  the  redress  of  griev- 
ances 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  parlia- 
ment.   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  peti- 
tions answered  before  they  had  done  all  their  business  in  parlia- 
ment, whether  of  granting  money  or  any  other  concern ;  where- 
fore the  king  will  not  alter  the  good  customs  and  usages  of 
ancient  times."  * 

es  "Rot.  Parl  p.  301.  *  J&  JP-  568.... 

f  Id.  p.  30*.  t  Ited.  vol,  w*  p,  453< 

g  Id.  vol.  m.  p.  £4& 


344  HALLAM 

Notwithstanding  the  just  views  these  parliaments  appear 
generally  to  have  entertained  of  their  power  over  the  public 
purse,  that  of  the  third  of  Henry  V.  followed  a  precedent  from 
the  worst  times  of  Richard  II,  by  granting  the  king  a  subsidy 
on  wool  and  leather  during  his  life.;  This,  a  historian  tells 
us,  Henry  IV.  had  vainly  labored  to  obtain ;  k  but  the  taking 
of  Harfleur  intoxicated  the  English  with  new  dreams  of  con- 
quest in  France,  which  their  good  sense  and  constitutional 
jealousy  were  not  firm  enough  to  resist,  The  continued  ex- 
penses of  the  war,  however,  prevented  this  grant  from  becom- 
ing so  dangerous  as  it  might  have  been  in  a  season  of  tran- 
quillity. Henry  V.,  like  his  father,  convoked  parliament  al- 
most in  every  year  of  his  reign. 

4.  It  had  long  been  out  of  all  question  that  the  legislature 
consisted  of  the  king,  lords,  and  commons ;  or,  in  stricter  lan- 
guage, 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  sus- 
pending 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  parlia- 
ment, 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."  I  The  apprehension  of 
the  dispensing  prerogative  and  sense  of  its  illegality  are  man- 
ifested by  the  wary  terms  wherein  the  commons,  in  one  of 
Richard's  parliaments,  "  assent  that  the  king  make  such  suf- 
,  ferance  respecting  the  statute  of  provisors  as  shall  seem  rea- 
sonable 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  prot- 
estation may  be  entered  on  the  roll  of  parliament.^  A  peti- 
tion, in  one  of  Henry  IV.'s  parliaments,  to  limit  the  num- 

(S?*i  •Pa£  vo1*  iv>  P-  63-  c-  3,  that  it  is  repealed,  but  does  not 

k  Walsmgham,  p.  379,  take  notice  what  sort  of  repeal  it  had. 

Zlbid.  p.  210.    Kuffhead  observes  in         mis  R-  II.  p.  285.   See,  too,  16  K.  II. 

the  margin  upon  this  statute,  8  R,  II.      p.  301,  where  the  same  power  is  renewed 

in  JEf.  IV.'s  parliaments, 


THE  MIDDLE  AGES  345 

ber  of  attorneys,  and  forbid  filazers  and  prothonotaries  from 
practising,  having  been  answered  favorably  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." 

The  dispensing  power,  as  exercised  in  favor  of  individuals, 
is  quite  of  a  different  character  from  this  general  suspension 
of  statutes,  but  indirectly  weakens  the  sovereignty  of  the  legis- 
lature. This  power  was  exerted,  and  even  recognized,  through- 
out 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  preroga- 
tive 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  Welshmen  from  pur- 
chasing 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  anyone  in  con- 
travention of  the  statute  of  provisors,  saving  the  king's  prerog- 
ative. He  merely  answers,  "  Let  the  statutes  be  observed ; " 
evading  any  allusion  to  his  dispensing  powers 

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  suc- 
ceeding 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  con- 
ceive, had  been  rejected  by  them),  and  pray  that  this  statute 
be  annulled ;  for  it  was  never  their  intent  to  bind  themselves 

n  13  H.  IV.  p,  $43,  o  Rot.  ParL  v.  4.  H.  V.  pp.  6,  9- 


346  HALLAM 

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;/'  unrc- 
pealed,  except  by  desuetude,  and  by  inference  from  the  acts 
of  much  later  times. 

This  commendable  reluctance  of  the  commons  to  let  the 
clergy  forge  chains  for  them  produced,  as  there  is  much  ap- 
pearance, a  similar  violation  of  their  legislative  rights  in  the 
next  reign.  The  statute  against  heresy  in  the  second  of  Henry 
IV.  is  not  grounded  upon  any  petition  of  the  commons,  but 
only  upon  one  of  the  clergy.  It  is  said  to  be  enacted  by  con- 
sent 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.5  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  maj- 
esty's reign  at  the  request  of  the  prelates  and  clergy  of  your 
kingdom ; "  which  affords  a  presumption  that  it  had  no  reg- 
ular assent  of  parliaments  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  .^ 

These  infringements  of  their  most  essential  right  were  re- 
sisted by  the  commons  in  various  ways,  according  to  the  meas- 
ure of  their  power.  In  the  fifth  of  Richard  II.  they  request 
the  lords  to  let  them  see  a  certain  ordinance  before  it  is  en- 
grossed.* At  another  time  they  procured  some  of  their  own 

PS  R.  II.  stat  2,  c.  5,  Rot    Parl    6  r Rot.  Parl  6  R.  II.  p.  626. 

R.  II.  p,   141.     Some  other  instances  5  We  find  a  lemarkable  petition  in  8 

of  the  commons  attempting  to  prevent  H    IV.,  professedly  aimed  against  the 

these  unfair  practices  are  adduced  by  Lollards,  but  intended,  as   I   strongly 

Ruffhead,  in  his  preface  to  the  Statutes,  suspect,   m  their  favor.    It  condemns 

and   m   Prynne's  preface  to   Cotton's  persons  preaching  against  the  Catholic 

Abridgment  of  the  Records.    The  act  faith  or  sacraments  to  imprisonment  till 

13  R.  II.  stat  i,  c,  15,  that  the  Icing's  the  next  parliament,  where  they  were  to 

castles  and  gaols  which  had  been  sepa-  abide  such  judgment  as  should  be  ren- 

rated  from  the  body  of  the  adjoining  dered  by  the  king  and  peers  of  the 

counties  should  be  reunited  to  them,  is  realm.     This   seems  to   supersede  the 

not  founded  upon  any  petition  that  ap-  burning  statute  of  a  H.  IV ,  and  the 

pears    on   the   roll;  and   probably,    by  spiritual    cognizance    of   heresy      Rot. 

making  search,  other  instances  equally  Parl.  p.  583     See,  too,  p.  626.    The  pe« 

fiagrant  might  be  discovered.  tition  was   expressly  granted;  but  the 

q  There  had  been,  however,  a  petition  clergy,  I  suppose,  prevented  its  appea*- 

of  the  commons  on  the  same  subject,  ex-  ing  on  the  statute  roll, 

pressed  in  very  general  terms,  on  which  I  Rot,  Parl,  vpl,  iii.  p.  jo*t 
this  terrible  superstructure  might  art- 
fully be  raised.  P.  474. 


THE   MIDDLE  AGES  347 

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  com- 
mons adopted  the  English  language.  I  shall  present  its  ven- 
erable orthography  without  change. 

"  Oure  soverain  lord,  youre  humble  and  trewe  lieges  that 
ben  come  for  the  comtine  of  youre  loncl  bysechyn  onto  youre 
rizt  riztwesnesse,  That  so  as  hit  hath  ever  be  thair  Hbte  and 
fredom,  that  thar  sholdc  no  statut  no  lawc  be  made  offlasse 
than  theyc  yaf  thcrto  their  assent ;  considcringc  that  the  co- 
munc  of  youre  lond,  the  whichc  that  is,  and  ever  hath  be,  a 
mcmbrc  of  your  parlcmentc,  ben  as  well  asscntcrs  as  peti- 
cioners,  that  fro  this  tyme  foreward,  by  compleyntc  of  the 
comune  of  any  mischief  axkynge  remedie  by  mouthc  of  their 
spcker  for  the  comune,  other  ellys  by  petition  writen,  that 
thcr  never  be  no  lawc  made  theruppon,  and  engrossed  as  statut 
and  lawe,  nothcr  by  acldicions,  nother  by  diminttcions,  by  no 
manner  of  tcrme  ne  termcs,  the  whichc  that  sholdc  chaunge 
the  sentence,  and  the  entente  Sixkecl  by  the  speker  mouthc,  or 
the  petitions  beforesaid  yeven  up  yn  writyng  by  the  manere 
forsaid,  withoute  assentc  of  the  forsaid  comune.  Consider- 
inge,  otirc  soverain  lord,  that  it  is  not  in  no  wyse  the  entente 
of  youre  commies,  zif  yet  be  so  that  they  axke  you  by  spe- 
kyng,  or  by  writyng,  two  thynges  or  three,  or  as  tnanye  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 
wcrune  the  remanent. 

"  The  kyng  of  his  grace  especial  graunteth  that  fro  hens- 
forth  nothyng  be  enacted  to  the  peticions  of  his  comune  that 
be  contrarie  of  hir  askyng,  wharby  they  shuld  be  bounde  with- 
oute their  assent.  Savyng  alwey  to  our  liege  lord  his  real  pre- 
rogatif,  to  graunte  and  denye  what  him  lust  of  their  petitions 
and  askynges  aforesaid/' « 

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 

u  Rot  Par!,  vol.  iv.  T>.  22,    Tt  is  curt-  tition.    Instead  oft  which  they  give,  as 

<ous  that  the  authors  ot  the  Parliament-  their  fashion  is,  impertinent  speeches 

ary  History  say  that  the  roll  of  this  out  of  Hpllingshed,  which  are  certainly 

parliament   is   lost,   and   consequently  not  genuine,  »nd  'Would  h$  pf  no 

suppress  altogether  this  important  pe-  if  they  were  so, 


348  HALLAM 

of  the  statute-roll  were  able  to  keep  out  of  it  the  very  provi- 
sion that  was  intended  to  check  their  fraudulent  machinations, 
it  was  in  vain  to  hope  for  redress  without  altering  the  estab- 
lished practice  in  this  respect;  and  indeed,  where  there  was 
no  design  to  falsify  the  roll  it  was  impossible  to  draw  up  stat- 
utes 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  intro- 
duction of  complete  statutes  under  the  name  of  bills,  instead 
of  the  old  petitions;  and  these  containing  the  royal  assent 
and  the  whole  form  of  a  law,  it  became,  though  not  quite  im- 
mediately,^ a  constant  principle  that  the  king  must  admit  or 
reject  them  without  qualification.  This  alteration,  which 
wrought  an  extraordinary  effect  on  the  character  of  our  con- 
stitution, was  gradually  introduced  in  Henry  VI/s  reign.w 

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  find- 
ing remonstrances  ineffectual,  they  took  measures  for  prevent- 
ing such  usurpations  of  legislative  power  by  introducing  their 

77  Henry  VI.  and  Edward  IV.  in  some  statute  founded  upon  a  mere  petition,  he 

cases  passed  bills  with  sundry  provisions  was  himself  the  real  legislator,   so   I 

annexed  by  themselves.    Thus  the  act  thing  it  is  equally  fair  to  assert,  not- 

for  resumption  of  grants,  4  E.  IV.,  was  withstanding  the   former  preamble   of 

encumbered  with  289  clauses  in  favor  of  our   statutes,    that   laws   brought   into 

so  many  persons  whom  the  king  meant  either  house  of  parliament  in  a  perfect 

to  exempt  from  its  operation;  and  the  shape,  and  receiving  first  the  assent  of 

same  was  done  in  other  acts  of  the  same  lords  and  commons,  and  finally  that  of 

description.    Rot.  Parl  vol.  v.  p.  517  the  king,  who  has  no  power  to  modify 

wThe  variations  of  each  statute,  as  them,  must  be  deemed  to  proceed,  and 
now  printed,  from  the  parliamentary  derive  their  efficacy,  from  the  joint  con- 
roll,  whether  in  form  or  substance,  are  currence  of  all  the  three.  It  is  said,  in- 
noticed  in  Cotton's  Abridgment.  It  deed,  at  a  much  earlier  time,  that  le  Icy 
may  be  worth  while  to  consult  the  pref-  de  la  terre  est  fait  en  parlement  par  le 
ace  to  Ruffhead's  edition  of  the  Statutes,  roi,  et  les  seigneurs  espirituels  et  tem- 
where  this  subject  is  treated  at  some  porels,  et  tout  la  communaute"  du  royaw- 
length.  .,,...  ,  me.  Rot.  Parl.  vol.  iii.  p.  293.  But  this, 

Perhaps   the   triple   division   of   our  I  must  allow,  was  in  the  violent  session 
legislature  may  be  dated  from  this  in-  of  n  Ric.  II.,  the  constitutional  author- 
novation.     For  as  it  is  impossible  to  ity  of  which  is  not  to  be  highly  prized* 
deny  that,  while  the  king  promulgated  a 


THE  MIDDLE  AGES  349 

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 
endeavor  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.-*1 

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,?  chiefly 
contributed  to  this  alienation  of  their  attachment.  The  com- 
mons requested,  in  the  fifth  of  his  reign,  that  certain  persons 
might  be  removed  from  the  court ;  the  lords  concurred  in  dis- 
placing 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  there- 
fore anxious  to  conform  himself  to  their  wishes,  consented  to 
the  said  ordinance,  and  charged  the  persons  in  question  to  leave 
his  palace ;  adding,  that  lie  would  clo  as  much  by  any  other 
about  his  person  whom  he  should  find  to  have  incurred  the 
ill  affection  of  his  peoples  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 

f  8  H.  V,  vol  iv.  p.  127.  whom,  as  it  proved,  he  had  just  cause  to 

y  The  house  of  commons  thanked  the       suspect   5  H*  IV,  p,  525. 
king  for   pardoning   Northumberland,         slbid.  p.  595. 


350  HALLAM 

future  no  letters  of  signet  or  privy  seal  go  in  disturbance  of 
law,  beseeched  the  lords  to  put  his  household  in  order,  so  that 
everyone  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  com- 
mons 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  BL  IV.,  among  other  causes,  for  "  the  great 
trust  that  the  commons  have  in  the  lords  lately  chosen  and 
ordained  to  be  of  the  king's  continual  council,  that  there  shall 
be  better  management  than  heretofore."  a 

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  prohibi- 
tion of  alienating  the  ancient  inheritance  of  the  crown  with- 
out consent  of  parliament,  in  order  to  ease  the  commons  of 
taxes,  and  that  the  king  might  live  on  his  own,&  This  was  a 
favorite  though  rather  chimerical  project.  In  a  later  parlia- 
ment 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  powers 

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  lie  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 

a  Rot  Par!   yol   iii   pp   539,  568,  573.          c  13  H,  IV.  p.  624, 
b  Ibid.  vol.  in.  p  547, 


THE  MIDDLE  AGES  351 

himself  thereto,"  was  to  assign  two  days  in  the  week  for  peti- 
tions, "it  being  an  honorable  and  necessary  thing  that  his 
lieges,  who  desired  to  petition  him,  should  be  heard."  No 
judicial  officer,  nor  any  in  the  revenue  or  household,  to  enjoy 
Ins  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  af- 
firmed— 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.** 

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,  be- 
cause the  secret  politics  of  his  reign  are  very  imperfectly  un- 
derstood. Towards  its  close  he  manifested  more  vigor.  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  parlia- 
ment infringing  his  liberty  and  prerogative,  which  he  requested 
their  consent  to  repeal.  To  this  the  commons  agreed,  and  re- 
ceived 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  remon- 
strating- spirit  in  the  last  parliament  that  was  manifested  on 
preceding  occasions.  The  commons,  however,  for  reasons  we 
cannot  explain,  were  rather  dismayed,  Before  their  dissolu- 
tion 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 

d  Rot.  Parl.  8  H.  IV,  p.  585* 


352  HALLAM 

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.  e 

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  reign- 
ing king  they  poured  in  full  measure  upon  the  heir  of  this 
throne.  The  virtues  of  the  Prince  of  Wales  are  almost  invidi- 
ously eulogized  by  those  parliaments  who  treat  harshly  his 
father ;  /  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  un- 
derstand at  least  that  a  prince  who  was  three  years  engaged 
in  quelling  the  dangerous  insurrection  of  Glendowcr,  and  who 
in  the  latter  time  of  his  father's  reign  presided  at  the  coun- 
cil, was  so  lost  in  a  cloud  of  low  debauchery  as  common  fame 
represents.^  Loved  he  certainly  was  throughout  his  life,  as 
so  intrepid,  affable,  and  generous  a  temper  well  deserved ;  and 
this  sentiment  was  heightened  to  admiration  by  successes  still 
more  rapid  and  dazzling  than  those  of  Edward  III.  During 
his  reign  there  scarcely  appears  any  vestige  of  dissatisfaction 
in  parliament — a  circumstance  very  honorable,  whether  we  as- 
cribe 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 
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 ;  A 
the  second,  a  request  that  their  petitions  might  not  be  sent  to 
the  king  beyond  sea,  but  altogether  determined  "  within  this 
kingdom  of  England,  during  this  parliament,"  and  that  this 
ordinance  might  be  of  force  in  all  future  parliaments  to  be 
held  in  England.*  This  prayer,  to  which  the  guardian  de- 
clined 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 

e  13  H.  IV.  pp.  648,  658  been    elaborately    maintained    by    Mr. 

f  Rot.  Par!,  vol.  iii.  pp.  549,  368,  574,  Luders,  in  one  of  his  valuable  essays 

611.  upon  points  of  constitutional  history. 

g  This  passage  was  written,  before  I          &  Rot.  Par!.  8  H.  V.  vol.  iv.  p.  wg. 
was  aware  that  the  same  opinion  had          tp.  128* 


THE   MIDDLE  AGES 


353 


them  to  obtain  a  renewal  of  the  statute  of  Edward  III.,  de- 
claring the  independence  of  this  kingdom.; 

It  has  been  seen  already  that  even  Edward  III.  consulted 
his  parliament  upon  the  expediency  of  negotiations  for  peace, 
though  at  that  time  the  commons  had  not  acquired  boldness 
enough  to  tender  their  advice.  In  Richard  IL'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  honorable  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  con- 
quered country  .&  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./  Yet  a  few  years  afterwards,  on  a  similar  refer- 
ence, the  commons  rather  declined  to  give  any  opinion.^  They 
confirmed  the  league  of  Henry  V.  with  the  Emperor  Sigis- 
mund  ; n  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  parlia- 
ments 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  deni- 
zens, and  mediators  were  appointed  to  reconcile  the  dukes 
of  Gloucester  and  Burgundy,  by  authority  of  the  three  estates 
assembled  in  parliament/*  Leave  was  given  to  the  dukes  of 
Bedford  and  Gloucester,  and  others  in  the  king's  behalf,  to 
treat  of  peace  with  France,  by  both  houses  of  parliament,  in 
pursuance  of  an  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.^  This  article  was  afterwards  re- 
pealedr 

(Rot  £arl.  8  H.  V.  vol.  iv.  p.  130.             op*  TSS-      t       _   _y       ,    . 

>  7  ft,  TI.  vol.  tii,  p.  x;o.  p  Rot  PatI,  4  H.  V,  vot  iv.  pp.  air, 

I  7  R, ,11.  p.  ai$.  243,  277. 

m  *7  R«  H.  P;  3#-        ^  <?  P-  &?'  ,T<r       «                       -^ 

n  4  H.  V.  vol.  iv.  p.  o&  r  23  H.  VI.  vol  v.  p,  toa.    There  is 

VOL.  IL— 23 


354 


HALLAM 


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  sum- 
monses before  the  council  and  by  the  newly  invented  writ  of 
subpoena  out  of  chancery  .-*  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.  Waste- 
fulness indeed  might  justly  be  imputed  to  the  regency,  who 
had  scandalously  lavished  the  king's  revenue.*  This  ultimately 
led  to  an  act  for  resuming  all  grants  since  his  accession,  found- 
ed upon  a  public  declaration  of  the  great  officers  of  the  crown 
that  his  debts  amounted  to  372,000^.,  and  the  annual  expense 
of  the  household  to  24,ooo/.,  while  the  ordinary  revenue  was 
not  more  than  5,ooo/> 

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  favorite,  the  Duke  of  Gloucester.  This  provoked 
an  attack  upon  her  own  creature,  the  Duke  of  Suffolk.  Im- 
peachment 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.*'  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  ar- 

rather  a  curious  instance  in  3  H  VI.  of  found  a  singular  way  of  meddling,  by 
the  jealousy  with  which  the  commons  petitioning  the  king  to  confer  the  Duke- 
regarded  any  proceedings  in  parliament  dom  of  Norfolk  on  the  earl  marshal 
where  they  were  not  concerned  A  con-  vol.  iv  p  373 

troversy  arose  between  the  earls  marshal  s  Rot.  Parl   T  H.  VI  p.  189;  3  H  VI. 

and  of  Warwick  respecting  their  pre-  p.  292;  8  H.  VI  T>.  343. 

cedence;  founded  upon  the  royal  blood  *vol.  v.  18  H.  VT  p.  17. 

of  the  first,  and  long  possession  of  the  u  28  H  VI  p.  185. 

second.   In  this  the  commons  could  not  v  Rot.  Parl.  vol.  Hi.  pp.  430,  440. 
affect  to  Interfere  judicially;    but  they 


THE  MIDDLE  AGES  355 

tides  in  parliament  according  to  the  law  and  custom  of  Eng- 
land. These  articles  contained  charges  of  high  treason,  chiefly 
relating  to  his  conduct  in  France,  which,  whether  treasonable 
or  not,  seems  to  have  been  grossly  against  the  honor  and  ad- 
vantage 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  impeach- 
ment 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  con- 
viction upon  at  least  some  part  of  these  charges,  Henry  antici- 
pated 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  peer- 
age by  this  precedent.  It  was  justly  considered  as  an  arbitrary 
stretch  of  prerogative,  in  order  to  defeat  the  privileges  of  par- 
liament and  screen  a  favorite  minister  from  punishment.  But 
the  course  of  proceeding  by  bill  of  attainder,  instead  of  regular 
impeachment,  was  not  judiciously  chosen  by  the  commons.^ 
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  busi- 
ness in  his  national  councils  Several  authorities  may  be  found 
in  Mr.  Hatsell's  Precedents ;  of  which  one,  in  the  gth  of  Ed- 
ward IL,  is  conclusive.^  But  in  those  rude  times  members 

w  Rot.  Par!,  28  H.  VI.  vot  v.  p.  176.  "  If  the  Icing  call  his  people  to  him  (1.  c. 

x  If  this  were  to  rest  upon  antiquity  in  the  witenagemot)  ana  any  one  aoes 

of  precedent,   one  might  be  produced  an  injury  to  one  of  them,  let  him  pay  a 

that  would  challenge  all   competition,  fine,"   Wilkins,  Leges  Anglo-Saxon,  p. 

In  the  laws  of  Ethelbert,  the  first  Chris-  & 
tian  kingr  of  Kent,  at  the  end  of  the         y  Hatsell,  vol  i.  p.  12. 
sixth  century,  we  find  this  provision: 


356  HALLAM 

of  parliament  were  not  always  respected  by  the  officers  execut- 
ing legal  process,  and  still  less  by  the  violators  of  law.  After 
several  remonstrances,  which  the  crown  had  evaded,-  the  com- 
mons obtained  the  statute  II  Henry  VI.  c.  n,  for  the  punish- 
ment of  such  as  assault  any  on  their  way  to  the  parliament, 
giving  double  damages  to  the  party.a  They  had  more  diili- 
culty  in  establishing,  notwithstanding  the  old  precedents  in 
their  favor,  an  immunity  from  all  criminal  process  except 
in  charges  of  treason,  felony,  and  breach  of  the  peace,  which 
is  their  present  measure  of  privilege.  The  truth  was,  that,  with 
a  right  pretty  clearly  recognized,  as  is  admitted  by  the  judges 
in  Thorp's  case,  the  house  of  commons  had  no  regular  com- 
pulsory process  at  their  command.  In  the  cases  of  Lark,  ser- 
vant of  a  member,  in  the  8th  of  Henry  VL,&  and  of  Clerkc,  him- 
self a  burgess,  in  the  thirty-ninth  of  the  same  king,*  it  was 
thought  necessary  to  effect  their  release  from  a  civil  execution 
by  special  acts  of  parliament.  The  commons,  in  a  former  in- 
stance, endeavored  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  privi- 
lege 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  determi- 
nation and  knowledge  of  that  privilege  belongeth  to  the  lords 


wu1*5  ?'/V*  ?  S4iTUi  themselves  and  servants  on  their  way  to 

clergy  had  got  a  little  Tjrece-  convocation                                      ' 

dence  in  this.    An  act  passed  8  H  VI.  &  Rot   Parl.  vol   iv.  p.  357. 

C.  i,  granting  privilege  from  arrest  for  eld.  vol.  v.  p.  374. 


THE  MIDDLE  AGES 


357 


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  re- 
garding 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  ob- 
serve 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.d 

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  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  favor  of  one  Atwell,  a  member,  who 
had  been  sued.  The  present  law  of  privilege  seems  not  to  have 
been  fully  established,  or  at  least  effectually  maintained,  before 
the  reign  of  Henry  VIIL* 

No  privilege  of  the  commons  can  be  so  fundamental  as  lib- 
erty of  speech.  This  is  claimed  at  the  opening  of  every  parlia- 
ment 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  33d 
year  of  Henry  VI.,  when  Thomas  Young,  member  for  Bristol, 

d  Rot.  Parl  vol.  v.  p.  339*  EatselTs  e  Upon  this  subject  the  reader  should 
Precedents,  p.  ap.  have  recourse  to  Hatsell's  Precedents, 

vol.  i,  chap.  x. 


358  HALLAM 

complained  to  the  commons,  that,  "  for  matters  by  him  showed 
in  the  house  accustomed  for  the  commons  in  the  said  parlia- 
ments, 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  lib- 
erty;" 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  sup- 
pliant as  in  their  discretions  shall  be  thought  convenient  and 
reasonable."  This  imprisonment  of  Young,  however,  had  hap- 
pened 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/ 

There  is  a  remarkable  precedent  in  the  gth  of  Henry  IV., 
and  perhaps  the  earliest  authority  for  two  eminent  maxims 
of  parliamentary  law — that  the  commons  possess  an  exclu- 
sive right  of  originating  money  bills,  and  that  the  king  ought 
not  to  take  notice  of  matters  pending  in  parliament.  A  quar- 
rel 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  addi- 
tional 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  2ist  day  of  November,  the  king  our  sovereign 
lord  being  in  the  council  chamber  in  the  abbey  of  Gloucester^ 
the  lords  spiritual  and  temporal  for  this  present  parliament 
assembled  being  then  in  his  presence,  a  debate  took  place 
among  them  about  the  state  of  the  kingdom,  and  its  defence 

f  Rot.  Parl.  vol.  v.  p   337;  W.  Wor-  est  instance  of  the  crown's  interference 

cester,  p  475.  Mr.  Hatsell  seems  to  have  with  freedom  of  speech  in  parliament, 

overlooked  this  case,  for  he  mentions  vol   i.  p.  8$. 
that  of  Strickland,  in  1571,  as  the  earli-         g  This  parliament  sat  at  Gloucester. 


THE  MIDDLE  AGES  359 

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,  wool-fells,  and  leather,  and  of  three  shillings 
on  the  tun  (of  wine),  and  twelve  pence  on  the  pound  (of  other 
merchandise),  from  Michaelmas  next  ensuing  for  two  years 
thenceforth.  Whereupon,  by  command  of  our  said  lord  the 
king,  a  message  was  sent  to  the  commons  of  this  parliament 
to  cause  a  certain  number  of  their  body  to  come  before  our  said 
lord  the  king  and  the  lords,  in  order  to  hear  and  report  to  their 
companions  what  they  should  be  commanded  by  our  said  lord 
the  king.  And  upon  this  the  said  commons  sent  into  the  pres- 
ence 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  saicl  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  saicl  lord  the  king  had  heard  this,  not  willing  that  anything 
should  be  done  at  present,  or  in  time  to  come,  that  might  any- 
wise 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. 


360  HALLAM 

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  puis- 
sent  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  him- 
self 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  com- 
mons, 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."  h 

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  tl^ose  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 

ft  Rot.  Parl.  vol.  iii,  p.  6n. 


THE  MIDDLE  AGES 


361 


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.* 

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./ 

It  was  not  only  in  money  bills  that  the  originating  power 
was  supposed  to  reside  in  the  commons.  The  course  of  pro- 
ceedings in  parliament,  as  has  been  seen,  from  the  commence- 


»A  notion  is  entertained  by  many 
people,  and  not  without  the  authority  of 
some  very  xebpectable  names,  that  the 
king  is  one  of  the  three  estates  of  the 
realm,  the  lords  spiritual  and  temporal 
forming  together  the  second,  as  the  con- 
mons  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  govern- 
ments 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  es- 
tates 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,  savs  the  Chancellor  Still- 
mgton,  in  7th  Kdward  IV.,  by  three 
states,  and  4  above  that  one  principal, 
that  is  to  wit,  lords  spiritual,  lords  tem- 
poral, and  commons,  and  over  that, 
state  royal,  as  our  sovereign  lord  the 
kmg.4  Rot  Par!,  vol.  v.  p.  622.  Thus, 
too,  it  is  declared  that  the  treaty  of 
Staples  in  1432  was  to  be  confirmed  per 
tres  status  rep:ni  Anghae  tit£  et  debit& 
convocatos,  videlicet  per  prelatos  ct 
clerum,  nobiles  ct  commumtates  ejus- 
dcm  rctfni.  Rymcr,  t,  xn.  p,  508, 

t  •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 
amonff  the  three  estates.  The  commons 
say,  m  the  ad  of  Henry  IV.,  that  the 
stales  pi  the  realm  may  be  compared  to 
a  trinity,  that  is,  the  king,  the  lords 
spiritual  and  temporal,  and  the  com- 
mons.. Rot  Parl.  vol.  iii  p.  459.  In 
this  expression,  however,  the  sense 
snows  that  by  estates  of  the  realm  they 
meant  members,  or  necessary  parts,  of 
the  -parliament. 

wmtelocfce,    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  pop- 
ular lawyers  of  the  seventeenth  century. 

His  reasoning  is  chiefly  grounded  on 
the  baronial  tenure  of  bishops,  the  va- 
lidity of  acts  passed  against  their  con- 
sent, 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  their  error  is  an  inatten- 
tion 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  appli- 
cation, 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  com- 
mons is  not,  strictly  speaking,  the  estate 
of  commonalty,  to  which  its  members 
belong,  and  from  which  they  are  de- 
puted. So  the  whole  body  of  the  clergy 
are  properly  speaking  one  of  the  estates, 
and  are  described  as  such  in  the  older 
attthonties,  21  Ric.  II  Rot.  Part  vol. 
in.  p.  348,  though  latterly  the  lords 
spiritual  in  parliament  acquired,  with 
less  correctness,  that  appellation.  Hody 
on  Convocations,  p.  420.  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. 

3  Rot  Parl  vol.  Hi.  p*  623, 


362  HALLAM 

ment  at  least  of  Edward  IIL's  reign,  was  that  the  commons 
presented  petitions,  which  the  lords,  by  themselves,  or  with 
the  assistance  of  the  council,  having  duly  considered,  the  sanc- 
tion 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  main- 
tained.* 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  indis- 
criminately 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.*  But  there  is  one  manifest  instance  in  the  i8th  of 
Henry  VI.,  where  the  king  requested  the  commons  to  give 
their  authority  to  such  regulations  w  as  his  council  might  pro- 
vide for  redressing  the  abuse  of  purveyance ;  to  which  they 
assented. 

k  Rot.  Parl.  5  R.  II.  p.  100  mons,  come  si  les  commons  grauntc 
JStat.  2  H.  V.  c.  6,  7,  8,  9;  4  H  VI.  poundage,  pur  quatuor  ans,  et  les  #ran- 
c,  7.  tent  nisi  par  deux  ans,  ceo  ne  serra  re- 
m  Rot.  Parl.  vol.  v.  p.  7.  It  appears  bayle  al  commons ,  mes  si  les  commons 
by  a  case  in  the  Year  Book  of  the  33d  grauntent  msi  pur  deux,  ans,  et  les  sei#- 
of  Henry  VI ,  thatz  where  the  lords  neurs  pur  quatre  ans,  la  ceo  serrn,  re- 
made only  some  minor  alterations  in  liver  al  commons  et  en  ccst  case  les 
a  bill  sent  up  to  them  from  the  com-  seigniors  doyent  faire  un  seclule  de  lour 
mons,  even  if  it  related  to  a  grant  of  intent,  ou  d'endorser  le  btl  en  ceste 
money,  the  custom  was  not  to  remand  forme,  Les  seigneurs  ceo  asscntcnt  pur 
it  for  their  assent  to  the  amendment.  durer  par  qualuor  an&;  et  quant  les 
Brooke's  Abridgment:  Parliament  4.  commons  ount  le  bil  arrcrc,  et  ne  volent 
The  passage  is  worth  extracting,  in  assenter  a  ceo,  ceo  ne  poet  estre  un 
order  to  illustrate  the  course  of  pro-  actre;  mes  si  les  commons  volent  as- 
ceedmg  in  parliament  at  that  time.  senter,  donques  ils  indorse  leur  respons 
Case  fuit  que  Sir  J.  P.  fuit  attaint  de  sur  le  mergent  ne  basse  dems  le  ml  en 
certeyn  trespas  par  acte  de  parliament,  tiel  forme,  Les  commons  sont  assentans 
dont  les  commons  furent  assentus,  que  al  scdul  des  seigniors,  a  mcksme  cesty 
sil  ne  vient  ems  per  tiel  jour  que  il  bil  annexe,  et  donques  sera  bayle  ad 
forfeytera  tiel  summe,  et  les  seigneurs  clerke  del  parliament,  ut  supra  Et  si 
done  plus  longe  jour,  et  le  bil  ment  re-  un  bil  soit  primes  liver  al  seigniors,  ct 
baile  al  commons  arrere;  et  per  Kirby,  le  oil  passe  eux,  ils  ne  ttsont  de  fayrc 
clerk  des  roles  del  parliament,  1'use  del  ascun  endorsement,  mess  de  mitter  le 
parliament  est,  que  si  bil  vient  primes  bil  as  commons;  et  donques,  si  le  bil 
a  les  commons,  et  ils  passent  ceo,  il  est  passe  les  commons;  il  est  use  destre  is- 
use  d  endorser  ceo  en  tiel  forme,  Soit  smt  endorce*  Les  commons  sont  as- 
bayle  as  seigniors;  et  si  les  seigniors  sentants;  et  ceo  prove  que  il  ad  passe 
ne  le  roy  ne  alteront  le  bil,  donques  est  les  seigniors  devant,  et  lour  assent  est 
use  a  hverer  ceo  al  clerke  del  parlia-  a  cest  passer  del  seigniors;  et  ideo  cest 
mente  destre  enrol  saunz  endorser  ceo.  ad*  supra  nest  bon,  pur  ceo  que  ne 
.  .  .  Et  si  les  seigniors  volent  alter  un  fuit  rebaile  as  commons. 
bil  m  ceo  que  poet  estoyet  ore  le  bil,  A  singular  assertion  is  made  in  the 
jls  poyent  ?aunz  remandre  ceo  al  com-  Year  Book  z\  E.  IV.  p.  48  (Maynard's 


THE  MIDDLE  AGES  363 

If  we  arc  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  parlia- 
mentary law  in  the  nth  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  al- 
lowed and  granted  them  in  full  parliament."  «  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  pro- 
ceedings against  the  opposite  party,  and  taking  away  the  re- 
straint 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  es- 
sence 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  parlia- 
ment ;0  the  spirit  of  which  exaggerations  might  not  be  ill 
adapted  to  the  times  wherein  Sir  R  Coke  lived,  though  I  think 
they  produced  at  several  later  periods  no  slight  mischief,  some 
consequences  of  which  we  may  still  have  to  experience. 

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  con- 


.     that  t  a  subsidy  granted  by  the         «  Rot  Part  rot  5ii.  p.  244. 
commons  without  assent  of  the  peers  is          o  Coke's  4th  Institute,  p.  15. 
good  enott&h*   This  cannot  surely  have 
been  law  at  that  time, 


364  HALLAM 

sidered  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  in- 
stances only,  I  believe,  occur,  during  the  reigns  of  the  Plan- 
tagenet  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  I2th  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.*  The  next  occurs  in  the  36th  of  Ed- 
ward III.,  when  a  writ  was  directed  to  the  sheriff  of  Lan- 
cashire, 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  pretences 
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  T  In  the  same  year 
the  town  of  Shaftesbtiry  petitioned  the  king,  lords,  and  com- 
mons against  a  false  return  of  the  sheriff  to  Dorset,  and  prayed 
them  to  order  remedy.  Nothing  further  appears  respecting- 
this  petition.*  This  is  the  first  instance  of  the  commons  being 
noticed  in  matters  of  election.  But  the  next  case  is  more 
material  ;  in  the  Sth  of  Henry  IV.  the  commons  prayed  the 
king  and  lords  in  parliament,  that,  because  the  writ  of  sum- 
mons 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  One- 
by,  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 


«  Elections'  *<&•        J  glaiwjl'8  Reports,  ibid,  from  Prynne. 

04  P?£5?e       %i  Glanvil's  Reports,  ibid.  from  £rynn<s. 


THE  MIDDLE  AGES  365 

a  fine  at  the  king's  pleasures  The  last  passage  that  I  can  pro- 
duce 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,57  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  com- 
mons are  not  so  much  as  named  in  this  entry.*  But  several 
provisions  were  made  by  statute  under  the  Lancastrian  kings, 
when  seats  in  parliament  became  much  more  an  object  of  com- 
petition than  before,  to  check  the  partiality  of  the  sheriffs  in 
making  undue  returns.  One  act  (n  H.  IV.  c.  i)  gives  the 
justices  of  assize  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  rigor  of  the  former,  so  far  as  to  per- 
mit 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.  An- 
other (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  gentle- 
men of  landed  estates  (whatever  might  be  the  case  in  petty 
boroughs)  sought  for  a  share  in  the  national  representation. 

Whoever  may  have  been  the  original  voters  for  county  rep- 
resentatives, 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."  «  And  this  acquires  some  degree  of  confirmation 


Reports,   ibid,    and   Rot.  living  writer  treats  such  an  mterpreta- 

jParl.  vol.  Hi.  p.  530.  tion  of  the  statute  7  H.  IV.  as  chimen- 

t  Rot.  Parl.  vol.  v.  p.  7,  cal.    The  words  cited  in  the  text,  "  aa 

W3  Prynne's  Register,  p«  187.    This  others/'  mean  only,  accordmgrto  mm, 

hypothesis,      though      embraced      by  suitors  not  duly  summoned,    Heywoort 

Prynne,  is,  I  confess,  much  opposed  to  on  Klections,  vol.  i.  p.  20.    But,  as  i 

general  opinion;  and  a  very  respectable  presume,  the  summons  to  freeholders 


366  HALLAM 

from  the  later  statute,  8  H.  VL  c.  7,  which,  reciting  that  "  elec- 
tions 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  fran- 
chise to  freeholders  of  lands  or  tenements  to  the  value  of  forty 
shillings. 

The  representation  of  towns  in  parliament  was  founded  upon 
two  principles — of  consent  to  public  burdens,  and  of  advice 
in  public  measures,  especially  such  as  related  to  trade  and  ship- 
ping. 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  numer- 
ous, and  summon  members  from  every  town  of  consideration 
in  the  kingdom.  Thus  the  writ  of  23  E.  L  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  char- 
tered boroughs,  nor  had  apparently  any  other  claim  than  their 
populousness  or  commerce.  These  are  now  called  boroughs 
by  prescription.*' 

Besides  these  respectable  towns,  there  were  some  of  a  less 

was  by  general  proclamation;  so  that  it  selves  the  attorneys  of  some  peers  and 

is  not  easy  to  peceive  what  difference  ladies,  who,  as  far  as  appears,  had  solely 

there  could  be  between  summoned  and  returned  the  knights  of  that  shire.     3 

unsummoned  suitors.    And  if  the  words  Prynne,  p.  152.    What  degree  of  weight 

are  supposed  to  glance  at  the  private  these  anomalous  returns  ought  to  pos* 

summonses  to  a  few  friends,  by  means  sess  I  leave  to  the  reader, 
of  which  the  sheriffs  were  accustomed          vThe   majority   of   prescriptive   bor- 

to  procure  a  clandestine  election,  one  oughs    have    prescriptive    corporations, 

can  hardly  imagine  that  such  persons  which  carry  the  legal,  which  is  not  al- 

would  be  styled  "  duly  summoned."    It  ways  the  moral,  presumption  of  an  orig- 

is    not    unlikely,    however,    that    these  inal  charter.    But  "  many  boroughs  and 

large    expressions    were    inadvertently  towns  t  m  England  have  burgesses  by 

used,  and  that  they  led  to  that  mun-  prescription,  that  never  were  mcorpo- 

dation  of  voters  without  property  which  rated."    Ch    }•  Hobart  in  Dungannon 

rendered  the  subsequent  act  of  Henry  Case,  Hobart's  Reports,  p.  15.    And  Mr. 

VI.  necessary.    That  of  Henry  IV.  had  Luders  thinks,  I  know  not  how  justly, 

itself  been  occasioned  by  an  opposite  that  m  the  age  of  Edward  I.»  which  is 

evil,  the  close  election  of  knights  by  a  most  to  our  immediate  purpose,  **  there 

few  persons  in  the  name  of  the  county.  were  not  perhaps  thirty  corporations  in 

Yet  the  consequence  of  the  statute  of  the  kingdom."     Reports  of  Elections, 

Henry  IV.  was  not  to  let  in  too  many  vol.  i,  p  98.    But  I  must  allow  that,  in 

voters,  or  to  render  elections  tumultu-  the  opinion  of  many  sound  lawyers,  the 

ous,  in  the  largest  of  English  counties,  representation    of   unchartered,    or    at 

whatever  it  might  be  in  others.    Prynne  least    unincorporated,    boroughs    was 

has  published  some  singular  sheriffs  in-  rather   a   real   privilege,    and    founded 

dentures  for  the  county  of  York,  all  upon  tenure,  than  one  arising  out  of 

during  the  interval  between  the  acts  of  their  share  m  public  contributions.    Ch. 

Henry  IV.  and  Henry  VI ,  which  are  J.  Holt  in  Ashby,  v.  White,  2,  Ld.  Ray- 

sealed  by  a  few  persons  calling  them-  xnond,  951.    Hey  wood  on  Borough  EJcc* 


THE  MIDDLE  AGES  367 

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  be- 
came 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  com- 
mons. 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  be- 
ginning of  the  third's  reign,  they  were  confounded  with  ordinary 
burgesses.w  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.-*' 

The  proper  constituents  therefore  of  the  citizens  and  bur- 
gesses in  parliament  appear  to  have  been — i.  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;  y  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  ex- 
penses 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  ex- 
ecuting this  trust,  Though  parliaments  met  almost  every  year, 
and  there  could  be  no  mistake  in  so  notorious  a  fact,  it  was  thre 
continual  practice  of  sheriffs  to  omit  boroughs  that  had  been  in 
recent  habit  of  electing  members,  and  to  return  upon  the  writ 

tions,  p.  xi.    This  inquiry  is  very  ob-  cd     elections;   particularly    those    of 

scure;  and  perhaps  the  more  so,   be-  Tewksbury  and  Liskeard,  in  PeckweU's 

cause  the  learning  directed  towards  it  Reports,  vol.  i. 

has  more  frequently  been  that  of  advo-  w  Brady  on  Boroughs,  pp.  73,  80,  ana 

cates  pleading  for  their  clients  than  o£  163.    Case  of  Tewksbury,  in  Peckwclrs 

unbiassed  antiquaries.    If  this  be  kept  Reports,  vol.  i.  p,  178. 

in  view,  the  lover  of  constitutional  his-  x  Littleton,  s.  ifa,  163. 

tory  will  find  much  information  in  sev-  y  Brady,  p,  97- 

era!  of  the  reported  cases  on  controvert- 


368  HALLAM 

that  there  were  no  more  within  their  county.  Thus  in  the  I2th 
of  Edward  III.  the  sheriff  of  Wiltshire,  after  returning  two  citi- 
zens 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,  Agmondes- 
ham,  and  Marlow  had  twice  made  returns  since  that  king's 
accession.^  And  from  this  cause  alone  it  has  happened  that 
many  towns  called  boroughs,  and  having  a  charter  and  constitu- 
tion as  such,  have  never  returned  members  to  parliament;  some 
of  which  are  now  among  the  most  considerable  in  England,  as 
Leeds,  Birmingham,  and  Macclesfield.0 

It  has  been  suggested,  indeed,  by  Brady ,&  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  fre- 
quently 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-ser- 
vice, within  the  county,*:  Those  of  burgesses  were  half  that 
sum;d  but  even  this  pittance  was  raised  with  reluctance  and  diffi- 

s  Brady  on  Boroughs,  p  no.  3  the  question  as  to  their  right  of  suffrage. 
Prynne,  p.  231  The  latter  even  argues  See  p  241  of  this  volume.  Kiccholdcrs 
that  this  power  of  omitting  ancient  within  franchises  made  repeated  endeav- 
boroughs  was  legally  vested  m  the  sher-  ors  to  exempt  themselves  from  payment 
iff  before  the  5th  of  Richard  II, ;  and  of  wages.  Thu&  in  p  ET.  IV.  it  was  set- 
though  the  language  of  that  act  implies  tied  by  parliament  lhat,  to  put  an  end 
the  contrary  of  this  position,  yet  it  is  to  the  disputes  on  this  subject  between 
more  than  probable  that  most  of  our  the  people  of  Cambudgeshire  and  those 
parliamentary  boroughs  by  prescription,  of  the  Isle  of  Ely,  the  latter  should  pay 
especially  such  as  were  then  unmcorpo-  soo/  and  be  quit  in  future  of  all  charges 
rated,  are  indebted  for  their  privileges  on  that  account  Rot  Part  vol.  iv.  p. 
to  the  exercise  of  the  sheriff's  discretion;  383.  By  this  means  the  inhabitants  of 
not  founded  on  partiality,  which  would  that  franchise  seem  to  have  purchased 
rather  have  led  him  to  omit  them,  but  the  right  of  suffrage,  which  they  still 
on  the  broad  principle  that  they  were  enjoy,  though  not,  I  suppose,  suitors  to 
sufficiently  opulent  and  important  to  the  county  court.  In  most  other  fran- 
send  representatives  to  parliament.  chises,  and  in  many  cities  erected  into 

a  Willis,  Notitia  Parhamentana,  vol.  distinct  counties,  tnfe  same  privilege  of 

i.  preface,  p.  35  voting  for  knights  of  the  shire  is  practi- 

*  P.  "7-  cally   exercised;  but   whether  this   has 

c  It  is  a  perplexing  question  whether  not  proceeded  as  much  from  the  ten* 

freeholders  in  socage  were  liable  to  con-  dency  of  returning  officers  and  of  par* 

tribute  towards  the  wages  of  knights;  liament  to  favor  the  right  of  election  in 

and  authorities  might  be  produced  on  doubtful  cases,  as  from  the  merits  ol 

both  sides.   The  more  probable  supposi-  their  pretensions,  may  be  a  question 

tion  is,  that  they  were  not  exempted  d  The  wages  of  knights  and  burgesses 

See  the  various  petitions  relating  to  the  were  first  reduced  to  this  certain  sum 

payment  of  wages  in  Prynne's  fourth  by  the  writs  De  levandis  ejcpensis,  16  E. 

Register.   This  is  not  unconnected  with  II.     Prynne's  fourth  Register,  p.   S3* 


THE  MIDDLE  AGES  369 

culty  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  Northumber- 
land 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  mem- 
bers to  parliaments  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  Vl.f 

The  elective  franchise  was  deemed  by  the  boroughs  no  priv- 
ilege 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  punish- 
ment upon  them,  they  were  left  in  quiet  enjoyment  of  their  in- 
significance. The  town  of  Torrington,  in  Devonshire,  went 
further,  and  obtained  a  charter  of  exemption  from  sending  bur- 
gesses, grounded  upon  what  the  charter  asserts  to  appear  on  the 
rolls  of  chancery,  that  it  had  never  been  represented  before  the 
2ist  of  E.  TIL  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  forever.g*  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.fc  But  this  immunity,  from 

These  were  issued  at  the  request  of  495-  Without  the  formality  of  this  writ 
those  who  had  served,  after  the  dissolu-  a  very  few  instances  of  towns  remuner- 
tion  of  parliament,  and  included  a  cer-  atingr  their  burgesses  for  attendance  in 
tarn  number  of  days,  according1  to  the  parliament  are  known  to  have  occurred 
distance  of  the  county  whence  they  in  later  times  Andrew  Marvel  Is  corn- 
came,  for  going  and  returning.  It  ap-  monly  said  to  have  been  the  last  who 
pears  by  these  that  thirty-five  or  forty  received  this  honorable  salary.  A  mod- 
miles  were  reckoned  a  day's  journey;  ern  book  asserts  that  wages  were  paid 
which  may  correct  the  exaggerated  no-  in  some  Cornish  boroughs  as  late  as  the 
tions  of  bad  roads  and  tardy  locomotion  eighteenth  century.  Lysons  s  Cornwall, 
that  are  sometimes  entertained.  See  preface,  p,  xxxu.;  but  the  passage 
PrynnVs  fourth  Register,  and  Willis's  quoted  in  proof  of  this  is  not  precise 
Notitia  Parliamentary,  passim.  enough  to  support  so  unlikely  an  act 

The  latest  entries  of  writs  for  expenses  *  3  Prynne,  p.  165. 

in  the  close  rolls  are  of  2  H.  v  ;  but  /4  Jbid.  p.  3*7- 

they  may  be  proved  to  have  issued  *4  Jbid*  p,  3*0- 

much  longer;  and  Prynne  traces  them  #3  Ibid*  p.  241. 
to  the  end  of  Henry  VIIL's  reign  « 

VOL,,  II,*— £14 


370  H  ALLAH 

whatever  reason,  was  not  regarded,  Colchester  having  con- 
tinued to  make  returns  as  before. 

The  partiality  of  sheriffs  in  leaving  out  boroughs,  which  were 
accustomed  in  old  time  to  corne  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.*  But 
it  is,  I  think,  highly  probable  that  a  great  part  of  those  who  were 
elected  from  the  boroughs  did  not  trouble  themselves  with  at- 
tendance in  parliament.  The  sheriff  even  found  It  necessary  to 
take  sureties  for  their  execution  of  so  burdensome  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./  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  defec- 
tive. This  statute  of  Richard  II.  produced  no  sensible  effect. 

By  what  persons  the  election  of  burgesses  was  usually  made 
is  a  question  of  great  obscurity,  which  is  still  occasionally  de- 
bated 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./*  But  we  cannot  surely  be  wanantcd  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  com- 
munity; J  by  which  word,  in  an  ancient  corporate  borough,  it 
seems  natural  to  understand  the  freemen  participating  in  its  gen- 
eral franchises,  rather  than  the  ruling  body  which,  in  many  in- 
stances 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 

*5,R.  II  stat  ii.  c.  4.  k  Ibid.  p.  252, 

/Luders's    Reports,    vol.    ii.    p.    15,  /Ibid.  p.  257,  de  assensu  totius  com- 

Sometimes  an  elected  burgess  absolutely  mtmitatis  prsedictse  elegrerunt   R.   W. ; 

refused  to  go  to  parliament,  and  drove  so  an  several  other  instances  quoted  in 

his  constituents  to  a  fresh  choice.    3  the  ensuing  pages. 
Prynne,  p.  277. 


THE  MIDDLE  AGES  371 

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  m  local  admin- 
istration. This,  at  least,  appears  to  me  a  more  probable  hypothe- 
sis than  that  of  Dr.  Brady,  who  limits  the  original  right  of  elec- 
tion in  all  corporate  boroughs  to  the  aldermen  or  other  capital 
burgesses.^ 

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  par- 
liament held  by  Edward  L  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  .«  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  them- 
selves, and  consequently  acquainted  with  their  necessities  and 
grievances.*3  It  would  be  very  interesting  to  discover  at  what 


i                 °,n    Boro«£hs»    p.    132,    &c,  house  of  commons  to  extend  the  right 

Mr.  Allen,  than  whom  no  one  of  equal  of  suffrage  in  boroughb,  and  m  many 

learning  was  ever  less  inclined  to  dc-  instances   these    efforts    were   crowned 

prcciatc  popular  rights,  inclines  more  with  success"    Edin    Rev   xxviii.  145 

than  we  should  expect  to  the  school  of  But  an  election  by  delegates  chosen  for 

Brady  in  this  point    '*  There  is  reason  that  purpose  by  the  burgesses  at  large 

to  believe  that  originally  the  right  of  is  very  different  from  one  by  the  gov- 

election  m  boroughs  was  vested  m  the  ernmg  part  of  the  community      Even 

governing;  part  of  these  communities,  or  in  the  latter  case,  however,  this  part 

in  a  select  portion  of  the  burgesses;  and  had  generally  been  chosen,  at  a  greater 

that,  in  the  progress  of  the  house  of  or  less  interval  of  time,  by  the  entire 

commons  to  power  and  importance,  the  body     Sometimes,  indeed,  corporations 

tendency  has  been  in  general  to  render  fell  into  self-election  and  became  close. 

the  elections  more  popular.    It  is  certain  n  Willis,  Notitia  Parhamentaria,  vol. 

that   for   many   years   burgesses   were  in*  p.  96,  &c,  ;  3  Prynne,  p.  224.  &c. 

elected  m  the  county  courts,  and  appar-  o  In  4  Edw.  II.  the  sheriff  of  Rutland 

ently  by  delegates  from  the  boroughs,  made  this  return:    Ehgi  feci  in  pleno 

who  were  authorized  by  their  fellow-  cormtatu,  loco  duorum  militum,  eo  quod 

burgesses   to   elect   representatives   for  nnlites  tion  sunt  in  hoc  coimtatu  com- 

them  in  parliament.    In  the  reigns  of  morantes,   duos   homines  de  comitatu 

James  L  and  Charles  I.,  -when  popular  Rutland,  de  discretiorbus  et  ad  labor- 

principles  were  in  their  greatest  vigor,  andum  potentiorbus,  &c.  3  Prynne,  p, 

there  was  a  strong  disposition  in  the  170,     But    this    deficiency   of    actual 


372  HALLAM 

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  practis- 
ing in  the  king's  court,  nor  sheriff  during  his  shrievalty,  be  re- 
turned knight  for  a  county ;  because  these  lawyers  put  forward 
many  petitions  in  the  name  of  the  commons  which  only  con- 
cerned their  clients./*  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.g  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  ap- 
posite 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  Eng- 
land 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^  Even  at  the  time  when  it  was  enacted,  the  Jaw  had 
probably,  as  such,  very  little  effect.  But  still  the  plurality  of  elec- 
tions were  made  acording  to  ancient  usage,  as  well  as  statute,  out 

knights  soon  became  very  common.    In  p  Rot.  Parl*  vol.  ii.  p.  310 

19  E.  II.  there  were  twenty-eight  inexn-  a  Ibid,  i  H.  V  c  t 

bers  returned  from  shires  who  were  not  r  See  the  case  of  Dublin  university  in 

•Knignts*  anci  out  twenty-seven  who  were  the  first  volume  o^  "P«AI«'«HI»II*«  "D..—^.-*.., 

SUCH.    J.  tie  termer  held  at  this  time  only  of  contested  elect 

two^  shillings  or  three  shillings  a  day  for  The  statute  itself  ' 

four  shillings.  4  Prynne,  pp.  53,  74^  But  *  °*  S  ' 

in  the  next  reign  their  wages  were  put 
on  a  level. 


THE   MIDDLE  AGES  373 

of  the  constituent  body.  The  contrary  instances  were  excep- 
tions 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 
much  interchanged;  the  names  of  the  former  belonging  to  the 
most  ancient  families,  while  those  of  the  latter  have  a  more 
plebeian  cast.s  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,* 

Even  county  elections  seem  in  general,  at  least  in  the  four- 
teenth 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  T2th  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."  In  several  indentures  of  a  much  later 
date  a  few  persons  only  seem  to  have  been  concerned  in  the  elec- 
tion, though  the  assent  of  the  community  be  expressed.^  These 
irregularities,  which  it  would  be  exceedingly  erroneous  to  con- 
vert, 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  Ed- 
ward II/s  reign  the  prerogative  of  naming  the  sheriffs,  sur- 
rendered by  an  act  of  his  father ,w  filled  that  office  with  its  crea- 
tures, and  constantly  disregarded  the  statute  forbidding  their 

s  By  23  TI,  VT.  c.  15,  none  but  gen-  my  lord  chamberlam  will,  ye  may  be  in 

tlemen  born,  ffonerosi  a  nativitate,  are  another  place;  there  he  a  dozen  towns 

'capable    of    sitting    in    parliament    as  in  .England  that   choose   no   burgess, 

knights  of  counties;    an  election  was  which  ought  to  do  it;    ye  may  be  set 

set  aside  39  H.  VI.  because  the  person  in  for  one  of  those  towns  an*  ye  be* 

returned    was    not    of    gentle    birth.  friended."    This  was  in  1472.  vol.  ii.  p. 

Prynne's  third  Register,  p.  161.  107. 

*  Willis,       Notitia       rarliamentaria,  «  Glanvil's  Reports  of  Elections,  edit. 
Prynnc's  fourth   Register,  p«   1184.     A  1774  Jntioduction,  p.  xri. 
letter  in  that  authentic  and  interesting  v  Prynne's  third  Kepister,  p.  171. 
accession  to  our  knowledge  of  ancient  wa8  E.  I.  c  8,  9  E.  II.   It  is  said  that 
times,  the  Paston  collection,  shows  that  the  sheriff  was  elected  by  the  people  of 
eager  canvass  was  sometimes  made  by  his  county  in  the  Anglo-Saxon  period; 
country   gentlemen    in    Edward    IV.'s  no  instance  of  this,  however,  according 
reign  to  represent  boroughs*    This  let-  to  Lord  Lyttelton,  occurs  after  the  Cen- 
ter throws  light  at  the  same  time  on  quest.      Shrievalties    were    commonly 
the   creation   or  revival   of  boroughs.  sold  by  the  Norman  kings.    Hist,  of 
Th*  writer  tells  Sir  John  Paston,     if  Henry  II.  vol.  ii.  p.  jm. 
ye  miss  to  be  burgess  of  Maiden,  and 


374 


HALLAM 


continuance  beyond  a  year.    Without  searching  for  every  pas- 

sage that  might  illustrate  the  interference  of  the  crown  in  elec- 

tions, 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.*   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  influences  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.-   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,  in- 

somuche  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<*   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  high- 

est nobility.^ 

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  parliaments  Tenure 


r:                        P-  ^              ,  .  \  Yo1  ;-  PP-  &  $;  vol.  ii.  pp,  99,  105; 

y  Otterbourne,  p.  191.    He  says  of  the  vol  ii.  p.  243. 

knights  returned  on  this  occasion,  that  c  Upon  this  dry  and  obscure  subject 

they  were  not  elected  per  communita-  of  inquiry,  the  nature  and  constitution 

tern  ut  mos  exigit,  sed  per  regiam  volun-  of  the  house  of  lords  dunngr  this  period, 

tatem.  I  have  been  much  indebted  to  the  first 

-srPrynne's  second  Reg    p.   141;  Rot.  part  of  Prynne's  Register,  and  to  West's 

rarl.  vol.  v.  p.  367.  Inquiry  into  the  Manner   of  creating 

aPrynna's  second  Reg:,  p.  450,  Peers;    which,  though  written  with  a 


THE  MIDDLE  AGES  375 

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  Ill'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  inconsider- 
able 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/i  may 
be  dimly  traced  to  the  latter  years  of  Edward  IIL*  But  many  of 
them  were  successively  summoned  to  parliament,  and  thus  re- 
covered the  former  lustre  of  their  rank,  while  the  rest  fell  grad- 
ually into  the  station  of  commoners,  as  tenants  by  simple  knight- 
service. 

As  tenure  without  summons  did  not  entitle  any  one  to  the 
privileges  of  a  lord  of  parliament,  so  no  spiritual  person  at  least 
ought  to  have  been  summoned  without  baronial  tenure.  The 
prior  of  St.  James  at  Northampton,  having  been  summoned  in 
the  twelfth  of  Edward  II.,  was  discharged  upon  his  petition,  be- 
cause he  held  nothing  of  the  king  by  barony,  but  only  in  f rankal- 
moign.  The  prior  of  Bridlington, after  frequent  summonses,  was 
finally  left  out,  with  an  entry  made  in  the  roll  that  he  held  noth- 
ing of  the  king.  The  Abbot  of  Leicester  had  been  called  to  fifty 
parliaments;  yet,  in  the  2$th  of  Edward  III.,  he  obtained  a  char- 
ter of  perpetual  exemption,  reciting  that  he  held  no  lands  or  tene- 
ments of  the  crown  by  barony  or  any  such  service  as  bound  him 

party  motive,  to  serve  the  ministry  of  mer  in  Ins  treasons,  they  declared  with 

wo,  m  the.  peerage  bill,  deserves,  for  one  voice  that  he  was  not  their  peer, 

the  perspicuity  of  the  method  and  style,  wherefore  they  were  not  bound  to 

to  be  reckoned  among  the  best  of  our  judge  him  as  a  peer  of  the  land:  but 

constitutional  dissertations  inasmuch  as  it  was  notorious  that  he 

a  Baronies  were  often  divided  by  de-  had  been  concerned  in  -usurpation  of 

scent  among  females  into  many  parts,  royal  powers  and  murder  of  the  liege 

each  retaining  its  character  as  a  frac-  lord  (as  they  styled  Edward  II),  the 

tional  member  of  a  barony  The  tenants  lords,  as  judges  of  parliament,  by  as* 

m  such  case  were  «,md  to  hold  of  the  sent  of  the  king  in  Parliament,  awarded 

king  by  the  third,  fourth,  or  twentieth  and  adjudged  him  to  be  hanged.  A 

part  of  a  barony,  and  did  service  or  paid  like  sentence  with  a  like  protestation 

relief  in  such  proportion.  was  passed  on  Mautravers  and  Gournay. 

c  Madox,  ttaronta  Anghca,  p.  42  and  There  is  a  very  remarkable  anomaly  in 

p.  5$;  West's  Inquiry,  pp.  38,  33.  That  a  the  case  of  Lord  Berkley,  who,  though 

baron  could  only  be  tried  by  his  fellow  undoubtedly  a  baron,  his  ancestors  hav- 

barons  was  probably  a  rule  as  old  as  ing  been  summoned  from  the  earliest 

the  trial  per  pais  of  a  commoner.  In  4  date  of  writs,  put  himself  on  his  trial 

k  III.  Sir  Simon  "Hereford  having  in  parliament,  by  twelve  knights  of  the 

been  accused  before  the  lords  in  par-  county  of  Gloucester.  Rot.  Parl.  vol, 

aament  of  aiding  and  advising  Morti-  ii,  p.  53;  Ryrner,  t  iv.  p,  734, 


376  H  ALLAH 

to  attend  parliaments  or  councils.^  But  great  irregularities  pre- 
vailed 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  sum- 
moned at  times  and  subsequently  omitted,  of  whose  actual  ex- 
emption 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  g  Their 
want  of  baronial  tenure,  in  all  probability,  prevented  the  repeti- 
tion of  writs  which  accident  or  occasion  had  caused  to  issue./* 

The  ancient  temporal  peers  are  supposed  to  have  been  inter- 
mingled with  persons  who  held  nothing  of  the  crown  by  barony, 
but  attended  in  parliament  solely  by  virtue  of  the  king's  preroga- 
tive exercised  in  the  writ  of  summons.*  These  have  been  called 
barons  by  writ;  and  it  seems  to  be  denied  by  no  one  that,  at  least 
under  the  first  three  Edwards,  there  were  some  of  this  descrip- 
tion in  parliament.  But  after  all  the  labors  of  Dugdale  and 
others  in  tracing  the  genealogies  of  our  ancient  aristrocracy,  it  is 
a  problem  of  much  difficulty  to  distinguish  these  from  the  ter- 
ritorial barons.  As  the  latter  honors  descended  to  female  heirs, 
they  passed  into  new  families  and  new  names,  so  that  we  can 
hardly  decide  of  one  summoned  for  the  first  time  to  parliament 
that  he  did  not  inherit  the  possession  of  a  feudal  barony.  Hus- 
bands 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.;  Again,  as  lands, 
though  not  the  subject  of  frequent  transfer,  were,  especially  be- 

/  Prynne,  p  142,  &c.,  West's  Inquiry.  party  summoned,  not  being  a  tenant  by 
g  Prynne,  p  141,  barony,  to  take  his  seat  But  though 
h  It  is  worthy  of  observation  that  the  several  spiritual  persons  appear  to  have 
spiritual  peers  summoned  to  parliament  been  discharged  from  attendance  on  ac- 
were  in  general  considerably  more  nu-  count  of  their  holding  nothing  by  bar- 
xnerous  than  the  temporal.  Prynne,  p.  ony,  as  has  been  justly  observed,  yet 
114.  This  appears,  among  other  causes,  there  is,  I  believe,  no  instance  of  any 
to  have  saved  the  church  from  that  layman's  making  such  an  application, 
sweeping  reformation  of  its  wealth,  and  The  terms  of  the  ancient  writ  of  sum- 
perhaps  of  its  doctrines,  which  the  com-  mons,  however,  in  fide  et  homagio  qtubus 
mons  were  thoroughly  inclined  to  make  nobis  tenemini,  afford  a  presumption 
under  Richard  II.  and  Henry  IV.  Thus  that  a  feudal  tenure  was,  in  construe- 
the  reduction  of  the  spiritual  lords  by  tion  of  law,  the  basis  of  every  lord's 
the  dissolution  of  monasteries  was  in-  attendance  in  parliament.  This  form 
dtspensably  required  to  bring  the  eccle-  was  not  finally  changed  to  the  present, 
siastical  order  into  due  subjection  to  in  fide  et  li$eanti&,  till  the  46th  of  Kdw. 
the  state.  IIT  Prynne*s  first  Register,  p  206 

*  Perhaps  it  can  hardly  be  said  that  /  Collinses  Proceedings  on.  Claims  of 

the   king  s   prerogative   compelled   the  Baronies,  pp.  24  and  73. 


THE  MIDDLE  AGES  377- 

fore  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.^  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  thei 
regular  barons  by  tenure  were  all  along  very  far  more  numer- 
ous than  those  called  by  writ ;  and  that  from  the  end  of  Edward 
lll.'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.J 

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  cither  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  parlia- 
ment in  order  to  give  his  advice  on  the  public  business,  but  by 
no  means  implies  that  this  advice  will  be  required  of  his  heirs, 
or  even  of  himself  on  any  other  occasion.  The  strongest  expres- 
sion is  "  vobiscum  et  catcris  prselatis,  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  an- 
cient language,  and,  down  to  the  time  of  Edward  IIL,  compre- 
hend 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  re- 
quire express  words  of  limitation.  In  a  single  instance,  the  writ 
of  summons  to  Sir  Henry  cle  Bromflete  (27  H.  VI.),  we  find  these 
remarkable  words;  Volumus  enim  vos  et  haeredes  vestros 
raasculos  de  corpore  vestro  legitime  exeuntes  barones  de  Vescy 

k  Prynne  speaks  of  *'  the  alienation  heirs  malc)  the  heirs,  general  have  been 
of  baronies  by  sale,  gift,  or  marriage,  excluded  from  inheriting  the  dignity, 
after  which  the  new  purchases  were  I  Prynne's  first  Register,  p.  237*  This 
summoned  instead,"  as  if  it  frequently  must  be  understood  to  mean  that  no  new 
happened.  Fust  Register,  p.  z$g.  And  families  were  summoned;  for  the  de- 
several  instances  are  mentioned  in  the  scendants  of  some  who  arew  not  supposed 
Bergavenny  case  (Colltn^'s  Proceedings,  to  have  held  land-baronies  may  con-* 
p.  113)  where*  land-baronies  having  stantly  be  found  in  later  lists.  [Note 
been  entailed  by  the  OY/ners  on  their  XXI Yr] 


37$  HALLAM 

existere.  But  this  Sir  Henry  de  Bromflete  was  the  lineal  heir  of 
the  ancient  barony  de  Vesci.»»  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  re- 
vival 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  none  is  ennobled  by  the  mere  summons  unless  he  has  ren- 
dered it  operative  by  taking  his  seat  in  parliament ,  distinguish- 
ing it  in  this  from  a  patent  of  peerage,  which  requires  no  act  of 
the  party  for  its  completion.**  But  this  distinction  could  be  sup- 
ported by  nothing  except  long  usage.  If,  however,  we  recur  to 
the  practice  of  former  times,  we  shall  find  that  no  less  than  nine- 
ty-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  honors 
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,/>  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  occa- 
sional counsellors  into  the  house  of  lords. 2 
It  is  manifest  by  many  passages  in  these  records  that  ban- 

m  West's  Inquiry.    Prynne,  who  takes  sition  is  stated  by  Selden  upon  better 

rather  lower  ground  than  West,  and  was  grounds. 

not  aware  of  Sir  Henry  de  Bromflete's  q  It  seems  to  have  been  admitted  by 

descent,  admits  that  a  writ  of  summons  Lord    Redesdale,    in   the    case    of    the 

to  any  one,  naming;  him  baron,  or  domi-  barony  of  L'Isle,  that  a  writ  of  sum- 

nus,  as  Baroni  de  Greystoke,  domino  de  mons,   with   sufficient   proof  of  having 

Furnival,  did  give  an  inheritable  peer-  sat  by  virtue  of  it  m  the  house  of  lords, 

age;    not  so  a  writ  generally  worded,  did  in  fact  create  an  hereditary  peerage 

naming  the  party  knight  or  esquire,  un-  from    the    fifth    year    of    Richard    II,, 

less  he  held  by  barony  though  he  resisted  this  with  respect  to 

n  Lord  Abergavenny's  case,  12  Coke  s  claimants  who  could  only  deduce  their 

Reports;    and  Collins's  Proceedings  on  pedigree   from  an  ancestor  summoned 

Claims  of  Baronies  by  Writ,  p   61  by  one  of  the  three  Edwards     Nicolas's 

a  Prynne's  first  Register,  p.  232.  El-  Case  of  Barony  of  L'Isle,  p.  200.  The 
synge,  who  strenuously  contends  theory,  therefore,  of  West,  which  denies 
against  the  writ  of  summons  conferring  peerage  by  writ  even  to  those  sum- 
a  hereditary  nobility,  is  of  opinion  moned  m  several  later  reigns,  must  be 
that  the  party  summoned  was  never  taken  with  limitation.  ^'  I  am  in- 
omitted  in  subsequent  parliaments,  and  formed,"  it  is  said  by  Mr.  Hart, 
consequently  was  a  jpeer  for  life  P  43.  arguendo,  "  that  every  person  whose 
But  more  regard  is  due  to  Prynne's  name  appears  in  the  writ  of  summons 
later  inquiries.  of  5  Ric  II.  was  again  summoned  to 

p  Case  of  Willoughby,   Collins,  p.  8;  the  following  parliament,  and  their  pos- 

of  Dacres,  p.  41;  of  Abergavenny,  p.  119.  tenty  have  sat  in  parliament  as  peers," 

But  see  the  case  of  Grey  de  Ruthin,  J*T  5233. 
pp.  222  and  230,  where  the  contrary  pot 


THE   MIDDLE  AGES  379 

nerets  were  frequently  summoned  to  the  upper  house  of  par- 
liament, constituting  a  distinct  class  inferior  to  barons,  though 
generally  named  together,  and  ultimately  confounded,  with 
them.r  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  Rich- 
ard Stafford.  In  the  7th  of  Richard  II.  Thomas  Camoys  hav- 
ing been  elected  knight  of  the  shire  of  Surrey,  the  king  ad- 
dresses a  writ  to  the  sheriff,  directing  him  to  proceed  to  a  new 
election,  cum  hujusmodi  banneretti  ante  haec  ternpora  in  milites 
comitatus  ratione  alicujus  parliament  i  eligi  minime  consueve- 
runt,  Camoys  was  summoned  by  writ  to  the  same  parlia- 
ment. It  has  been  inferred  from  hence  by  Selclen  that  he  was 
a  baron,  and  that  the  word  banneret  is  merely  synonymous.^ 
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.*  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  2d  of  Henry  VI.«  Scrop  of  Bolton 
is  called  le  Sire  de  Scrop ;  a  proof  that  he  was  then  reckoned 
among  the  barons.  The  bannerets  do  not  often  appear  after- 
wards 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,^  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  de- 
scendants; since  we  may  conceive  that  bannerets,  being  oft 
a  dignity  much  inferior  to  that  of  barons,  had  no  such  inherit- 
able nobility  in  their  blood  as  rendered  their  parliamentary 

r  Rot  Parl.  vol.  ii.  pp.  147,  309;  vol.  on  Parliamentary  Writ,  vol.  i.  p  314; 
iil.  pp.  100,  386,  424;  vol.  iv.  p.  374  Ry-  and  Elsynge's  Method  of  holding  Par- 
mer,  t,  vii.  p,  161.  liaments,  p  65.  „  , 

*  Selden's  Works,  vol.  iii.  p.  764.  *  P"18  un  fut  chalengfi  puree  qu'il  rut 
Selden's  opinion  that  bannerets  in  the  a  banmere,  et  non  allocatur;  car  s'tl  sort 
lords*  house  were  the  same  as  barons  a  banmere,  et  ne  tient  pas  par  baronie, 
may  seem  to  call  on  me  for  some  con-  il  sera  en  1'assise.  Year-book  22  Edw. 
trary  authorities,  in  order  lo  support  my  III.  fol.  18  a.  apud  West's  Inquiry,  p. 
own  assertion,  besides  the  passages 
above  quoted  from  the  rolls,  of  which 
he  would  i  •  "  ' 
competent 
Spel:  ' 


>ted  from  the  rolls,  of  which          M  Rot.  Parl.  vol  iv.  p.  201. 

naturally  be  supposed  a  more      t  v  Pinfcertoti's  Hist,  of  Scotland,  vol. 

;  judge.    I  refer,  therefore,  to       i.  pp.  357  and  36*5, 


Ipelman's  Glossary,  p    74;  Whitelocke 


380  HALLAM 

privileges  a  matter  of  right.  But  whether  all  those  who  with- 
out 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.1^ 

The  second  question  relates  to  the  right  of  suffrage  pos- 
sessed by  these  temporary  members  of  the  upper  house.  It 
might  seem  plausible  certainly  to  conceive  that  the  real  and 
ancient  aristocracy  would  not  permit  their  powers  to  be  im- 
paired by  numbering  the  votes  of  such  as  the  king  might  please 
to  send  among  them,  however  they  might  allow  them  to  assist 
in  their  debates.  But  I  am  much  more  inclined  to  suppose 
that  they  were  in  all  respects  on  an  equality  with  other  peers 
during  their  actual  attendance  in  parliament.  For, — I.  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  cseteris  de  consilio  nostro,  and  their  names  are  entered  after 
those  of  the  peers.^  2.  Some,  who  do  not  appear  to  have 
held  land-baronies,  were  constantly  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  honor.?  3.  It  is  very  difficult  to  obtain  any  direct 

wThe  lords*  committee  do  not  like,  to  them  rather  disingenuously,  as  if  it 
apparently,  to  admit  that  bannerets  ran  vobiscum  et  cum  prelntis,  rnagnati- 
were  summoned  to  the  house  of  lords  bus  ac  proceribus,  omitting  the  impor- 
ts a  distinct  class  of  peers.  It  is  ob-  tant  word  carteris  P.  35  Prynne,  how 
servable,"  they  say,  "  that  this  statute  ever,  from  whom  West  has  borrowed  a 
(5  Ric.  II.  c.  4)  speaks  of  bannerets,  as  great  part  of  his  arguments,  does  not 
well  as  of  dukes,  earls,  and  barons,  as  seem  to  go  the  length  of  denying  the 
persons  bound  to  attend  the  parliament;  right  of  suffrage  to  persons  so  sum- 
but  it  does  not  follow  that  banneret  moned.  First  Register,  p.  237. 
was  then  considered  as  a  name  of  dig-  y  These  descended  from  two  persons, 
nity  distinct  from  that  honorable  knight-  each  named  Geoffrey  le  Scrope,  chief 
hood  under  the  king's  banner  m  the  justices  of  K  B  and  C  R  at  the  begin- 
field  of  battle,  to  which  precedence  of  mng  of  Edward  TII.'s  reign.  The  name 
all  other  knights  was  attributed."  P.  342.  of  one  of  them  is  once  found  among  the 
But  did  the  committee  really  believe  barons,  but  I  presume  this  to  have  been 
that  all  the  bannerets  of  whom  we  read  an  accident,  or  mistake  in  the  roll;  as 
in  the  reigns  of  Richard  II.  and  after-  he  is  frequently  mentioned  afterwards 
wards  had  been  knighted  at  Crecy  and  among  the  judges.  Scrope,  chief  justice 
Poitiers?  The  name  is  only  found  m  of  K.  B.,  was  made  a  banneret  m  14  E. 
parliamentary  proceedings  during  com-  ITT.  He  was  the  father  of  ITenry  Scrope 
paratively  pacific  times.  of  Masham,  a  considerable  person  in 

a:  West,  whose  business  it  was  to  rep-  Edward  III.  and  Richard  TT  *s  govern- 

assent  the  barons  by  writ  as  mere  as-  ment,  whose  grandson.  Lord  Scrope  of 

without  anfljrfge,  cites  the  writ  Masham,  was  beheaded  for  a  conspiracy 


THE   MIDDLE  AGES  381 

proof  as  to  the  right  of  voting,  because  the  rolls  of  parliament 
do  not  take  notice  of  any  debater ;  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  cus- 
tody ;  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  Arch- 
bishop of  Canterbury  and  fourteen  other  bishops ;  seven  ab- 
bots ;  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  Eerge- 
veny,  le  Sire  de  Lomley,  le  Baron  de  Greystock,  le  Baron  de 
Hilton,  Monsieur  Thomas  Erpyngham,  chamberlayn,  Mon- 
sieur 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  sus- 
picion 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 ;  - 
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  pos- 

against  Henry  V,  There  was  a  familv  of  Masham,  though  certainly  a  baron,  and! 

Scrnpe  as  old  as  the  reign  of  Henry  II  ,  tried  next  year  by  the  peers*  is  called 

but  it  is  not  clear,  notwithstanding  DUR-  chevalier  in  an  m&trument  of  i  H.  V. 

dale's  assertion,  that  the  Scropes   de-  Kymer,  t.  ix.  p.  13     So  in  the  indict- 

scended  from  them,  or  at  least  that  they  merit  against  Sir  John  Oldcastle,  he  is 

held   the    same    lands:   nor   were    the  constantly  styled  knight,  though  he  had 

Scrupea  barons,  as  appears  by  their  pay-  been  summoned  several  times  as  lord 

ing  a  relief  of  only  sixty  marks  for  three  Cobhnm,  in  right  of  his  wife,  who  in- 

kmght's  fees.    Dugdale*s  Baronage,  p.  hented  that  barony.    Rot,  Parl.  vol  iv. 

<5S<i  p   107 

The  want  of  consistency  in  old  records  3  Blomen>ld's  Hist,  of  Norfolk,  vol. 

throws  much  additional  difficulty  over  iii.  p.  645  (folio  edit.)* 
this  intricate  subject.    Thus  Scrope  of 


382  HALLAM 

sess  of  votes  actually  given  in  the  house  of  lords  they  appear 
to  have  been  reckoned  among  the  rest.a 

The  next  method  of  conferring  an  honor  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  parlia- 
ment must  be  taken  to  have  proceeded  from  the  whole  legis- 
lature. 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  com- 
mons 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.& 
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  jurisdic- 
tion and  authority  over  Ireland.^  In  the  same  reign  Lancas- 
ter was  made  Duke  of  Guienne,  and  the  Duke  of  York's  son 
created  Earl  of  Rutland,  to  hold  during  his  father's  life.  The 
consent  of  the  lords  and  commons  is  expressed  in  their  patents, 
and  they  are  entered  upon  the  roll  of  parliament.^  Henry  V. 
created  his  brothers  dukes  of  Bedford  and  Gloucester  by  re- 
quest of  the  lords  and  commons.*  But  the  patent  of  Sir  John 
Cornwall,  in  the  tenth  of  Henry  VI ,  declares  him  to  be  made 
Lord  Fanhope,  "  by  consent  of  the  lords,  in  the  presence  of  the 
three  estates  of  parliament ; "  as  if  it  were  designed  to  show 
that  the  commons  had  not  a  legislative  voice  in  the  creation 
of  peers/ 

The  mention  I  have  made  of  creating  peers  by  act  of  par- 
liament has  partly  anticipated  the  modern  form  of  letters  pat- 
ent, with  which  the  other  was  nearly  allied.  The  first  instance 

a  Rot.  Parl.  vol.  iii.  p.  427.  d  Id,,  pp.  263,  264. 

&  Ibid.  vol.  ii.  p.  290.  e  Vol.  iv.  p.  17, 

c  Vol  iii.  p.  209.  /  Id.,  p,  401, 


THE   MIDDLE  AGES  383 

of  a  barony  conferred  by  patent  was  in  the  tenth  year  of  Rich- 
ard II.,  when  Sir  John  Holt,  a  judge  of  the  Common  Pleas, 
was  created  Lord  Bcauchamp  of  Kidderminster.  Holt's  patent, 
however,  passed  while  Richard  was  endeavoring  to  act  in  an 
arbitrary  manner ;  and  in  fact  he  never  sat  in  parliament,  hav- 
ing 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.^ 

It  is  now  perhaps  scarcely  known  by  many  persons  not  un- 
versed 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  de- 
nominated praemumcntcs  (from  its  first  word)  in  the  writ  to 
each  bishop  proceeds  from  the  crown,  and  enjoins  the  attend- 
ance of  the  clergy  at  the  national  council  of  parliament^ 

The  first  unequivocal  instance  of  representatives  appearing 
for  the  lower  clergy  is  in  the  year  1255,  when  they  are  ex- 
pressly named  by  the  author  of  the  Annals  of  Burton,*  They 
preceded,  therefore,  by  a  few  years  the  house  of  commons; 
but  the  introduction  of  each  was  founded  upon  the  same  prin- 

#  West's  Inquiry,  p    6s.    This  writer  12,    Dissertatio  de  antiqua  et  moderna 

does  not  allow  that  the  km*  possessed  Synod*    Anglican!    Constitutione,    ore- 

the  prerogative  of  creating  new  peers,  fixed  to  Wilkin's  Concilia,  t.  i. 
without    consent    of   parliament      But         is  Gale,  Scriptores  Rer.  Anglic,  t  ii. 

Prynne  (nt  Kegmter,  p.  325),  who  sen-  p  MS,  Tlody,  p  345.   Atterbury  (Rights 

era  ly  adopts  the  same  theory  of  peerage  of  Convocations,  pp  205,  sis)  endeavors 

as  West,  strongly  asserts  the  contrary;  to  show  that  the  clercry  had  been  repre- 

and  the  .party  views  of  the  tetter's ,  trear  Mnted  in  parliament  from  the  Conquest 

tise.  which  I  mentioned  above,  should  as  well  as  before  it.    Many  of  the  pas- 

fce  kept  m  sight.    Tt  was  Ins  object  to  sages  he  quotes  are  very  inconclusive; 

KStft**  pending  bill  to  limit  the  but  poaaibly  there  may  be  some  weight 

S3?  *JV*  tv-  pf  ra*e  J?*5  C0nforn>  in  one  from  Matthew  Paris,  ad  ann. 

A  W*c  rr1?1™1  <???tltut10;:  M47,  and  two  or  three  writs  of  the  reign 

h  Hody's  History  of  Convocations,  p.  of  Henry  III. 


384  HALLAM 

ciple.  The  king  required  the  clergy's  money,  but  dared  not 
take  it  without  their  consent/  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  pne- 
munientes  clause  in  the  22d,  23d,  24th,  28th,  and  35th  years 
of  the  same  king ;  but  in  some  other  parliaments  of  his  reign 
the  prsemunientes  clause  is  omitted,/'  The  same  irregularity 
continued  under  his  successor;  and  the  constant  usage  of 
inserting  this  clause  in  the  bishop's  writ  is  dated  from  the 
twenty-eighth  of  Edward  IIU 

It  is  highly  probable  that  Edward  L,  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  de- 
feated the  accomplishment  of  this  intention. m  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  pnemu- 
nientes  clause;  since  the  province  of  Canterbury  could  not 
have  been  present  in  convocation  at  a  city  beyond  its  limits.** 
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,*?  They  are  summoned 
in  the  earliest  year  extant  (23  E.  L)  ad  tractandurn,  ordman- 

jHody,  p.  281;  Atterbury's  Rights  of  present  parliament,  as  members  of  the 

Convocations,  p   221  commonwealth    and    the    Jang's    most 

k  Hody,  p.  386;  Atterbury,  p   222.  humble   spbject<?  "     Btirnet's   Hist    of 

I  Hody,  p  3Qi  Reformation,  vol.  ii  ;  Appendix.  No.  17. 

m  Gilbert's  Hist,  of  Exchequer,  p  47,  This  assertion  that  the  clergy  had  ever 

«Rot.  Part,  vol.  i   p.  189;  Atterbury,  been  associated  as  one  body  with  the 

P'  220  commons  is  not  borne  out  by  anything 

c  The  lower  house  of  convocation,  in  that  appears  on  our  records,  and  is  con- 

1547,  terrified  at  the  progress  of  reforma-  traclicted  by  many  passages.    But  it  is 

tion,  petitioned  that,  "  according  to  the  said  that  the  clergy  were  actually  so 

tenor  of  the  king's  writ,  and  the  ancient  united  with  the  common*!  in  the  Irish 

customs  of  the  realm,  they  mis;ht  have  parliament  till  the  Refermation.     Gil- 

room  and  place  and  be  associated  with  bert's  Hist  of  the  Exchequer,  p,  <?. 

the  commons  in  the  nether  house  of  this 


THE  MIDDLE  AGES  385 

dum  et  faciendum  nobiscum,  et  cum  caeteris  praelatis,  proceri- 
bus,  ac  aliis  incolis  regm  nostn ;  in  that  of  the  next  year,  ad 
ordmandum  de  quantitate  et  modo  subsidn;  m  that  of  the 
twenty-eighth,  ad  faciendum  et  consentiendum  his,  quae  tune 
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./*  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 
tews,  even  while  they  continued  to  attend,  were  passed  without 
their  concurrence,  and  that,  after  some  time,  they  ceased  alto- 
gether to  comply  with  the  writ.2 

The  solution  of  this  difficulty  can  only  be  found  in  that 
estrangement  from  the  common  law  and  the  temporal  courts 
which  the  clergy  throughout  Europe  were  disposed  to  effect. 
In  this  country  their  ambition  defeated  its  own  ends;  and 
while  they  endeavored  by  privileges  and  immunities  to  sepa- 
rate 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  con- 
temned 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  estab- 
lish the  inherent  supremacy  of  the  common  law.  From  this 
time  an  inveterate  animosity  subsisted  between  the  two  courts, 

p  Hody,  p,  393.  clergy  never  attended  from  the  begin- 

</The  prsemutrientes  clause  in  a  bish-  nin#  of  the  fifteenth  century,  and  Jfave 

op's  writ  of  summons  was  so  far  re-  their  money  only  in  convocation.  Since 

prarded  down  to  the  Reformation,  that  the  Reformation  the  clause  has  been 

proctors  were  elected,  and  their  names  preserved  for  form  merely  in  the  writ 

returned    upon    the    writ;  though    the  Wilkins,  Disertatio,  ubi  supra. 

VOL.  Il.-as 


HALLAM 

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  influ- 
ence, 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  offi- 
cers 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 
mandates  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  intendeds  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  can- 
ons, without  deliberation,  in  compliance  with  the  example  of 
Canterbury ;  *  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  praemtini- 


THE  MIDDLE  AGES  387 

entes  clause  or  otherwise,  deserve  some  notice  in  a  constitu- 
tional 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  prel- 
ates, to  consult  together  upon  the  business  submitted  to  their 
deliberation.  They  proposed  accordingly  a  sentence  of  ex- 
communication against  disturbers  of  the  peace,  which  was 
assented  to  by  the  lords  and  commons.  The  clergy  are  said 
afterwards  to  have  had  leave,  as  well  as  the  knights,  citizens, 
and  burgesses,  to  return  to  their  homes ;  the  prelates  and  peers 
continuing  with  the  king.**  This  appearance  of  the  clergy  in 
full  parliament  is  not,  perhaps,  so  decisively  proved  by  any 
later  record.  But  in  the  eighteenth  of  the  same  reign  several 
petitions  of  the  clergy  are  granted  by  the  king  and  his  council, 
entered  on  the  roll  of  parliament,  and  even  the  statute  roll, 
and  in  some  respects  are  still  part  of  our  law.f  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.^ 

A  series  of  petitions  from  the  clergy,  in  the  twenty-fifth 
of  Edward  III.,  had  not  probably  any  real  assent  of  the  com- 
mons, though  it  is  once  mentioned  in  the  enacting  words,  when 
they  were  drawn  into  a  statute.*  Indeed  the  petitions  corre- 
spond so  little  with  the  general  sentiment  of  hostility  towards 
ecclesiastical  privileges  manifested  by  the  lower  house  of  par- 
liament, that  they  would  not  easily  have  obtained  its  acquies- 
cence. The  convocation  of  the  province  of  Canterbury  pre- 
sented 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  fol- 
lowing remonstrance  from  the  commons  at  the  next  parlia- 
ment :  "  Also  the  commons  beseech  their  lord  the  king,  that 
no  statute  nor  ordinance  be  made  at  the  petition  of  the  clergy, 

«  Hot.  Part   vol.  ij.  pt>.  64,  65.  The  pretended  statutes  were  therefore 

VT8  E.  TTT.  stat   3.    Hot.  Par1,  vol.  ii.  every  way  null;    beinsr  falsely  imputed 

t>.  151.    This  is  the  parliament  in  which  to  an  incomplete  parliament. 

it  i*  very  doubtful  whether  anv  deputies  w  Rot.  Part,  vol*  IK  p.  151. 

from  cities  and  boroughs  had  a  place.  x  25  E.  Ill*  stat*  3, 


388  HALLAM 

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  then- 
assent."  y  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  au- 
thority.* 

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.fl  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.fc  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  constitu- 
tion; and,  indeed,  even  from  those  already  cited  we  cannot 
draw  any  positive  inferences  But  whether  in  convocation  or 

y  25  E.  III.  stat.  3,  p  368.  The  word  Thomas  Percy,  and  gave  him  a  PTOO 
they  is  ambiguous;  Wmtelocke  <on  Par-  uration  commencing  m  the  following 
hamentary  writ,  vol  ii  p.  346)  interprets  words-  Nos  Thomas  Cantuar'  et  Rob- 
it  of  the  commons'  I  should  rather  ertus  Ebor'  archiepiscopi,  ac  pnelati  ct 
suppose  it  to  mean  the  clergy.  dents  vtrtwquc  provwcice  Cantuar  ft 
s  so  E.  Ill  c  4  &  s-  Bbor*  iure  ccclcfiaruw  nostrarum  ct  tcm- 
cRot.  Parl.  vol.  iii  p.  25.  A  nostre  porahum  carwtdftn  habmtos  j»«  «if me- 
tres excellent  seigneur  le  toy  supphent  send*  in  swguhi  fiarhamcntis  domini 
humblement  ses  devotes  oratours,  les  nostri  regis  et  rcgm  Anghae  pro  tern- 
prelats  et  la  clergie  de  la  province  de  pore  celebrandis,  necnon  tractantli  et 
Canterbirs  et  d'Everwvk  Stat.  i  Rich-  expediendi  in  eisdem  quantum  ad  sing- 
ard  II.  c.  13,  14,  13,  But  see  Hody,  p,  ula  m  mstanti  parhamento  pro  statu  ct 
425;  Atterbury,  p  329..  honore  dommi  nostn  regis,  necnon  re- 
ft Rot.  Parl.  vol.  in.  t>.  37,  gahae  suae,  ac  quiete,  pace,  et  tranquilli* 
c  It  might  be  argued,  from  a  passage  tate  regni  judiciahter  ju&tificandia,  vene- 
in  the  parliament  roll  of  21  R  II ,  that  rabih  viro  domino  Thomas  de  Percy 
the  clergy  of  both  provinces  were  not  mihti,  noatram  plenarie  committimus 
only  present,  but  that  they  were  ac-  potestatem."  It  may  be  perceived  by 
counted  an  essential  part  of  parliament  these  expressions,  and  more  unequiv- 
in  temporal  matters,  which  is  contrary  to  ocally  by  the  nature  of  the  case,  that  it 
the  whole  tenor  of  our  laws  The  com-  was  the  judicial  power  of  parliament 
raons  are  there  said  to  have  prayed  that  which  the  spiritual  lords  delegated  to 
whereas  many  judgments  and  ordi-  their  proxy.  Many  impeachments  for 
nances  formerly  made  m  parliament  had  capjtal  offence?  were  coming  on,  at 
been  annulled  because  the  estate  of  which,  by  their  canons,  the  bishops 
clergy  had  not  been  present  thereat,  the  could  not  assist.  But  it  can  never  be 
prelates  and  clergy  might  make  a  proxy  conceived  that  the  inferior  clergy  had 
with  sufficient  power  to  consent  in  their  any  share  m  this  high  judicature.  And, 
name  to  all  things  done  in  this  parlia-  upon  looking  attentively  at  the  words 
meat."  Whereupon  the  spiritual  lords  above  printed  in  italics,  it  will  be  evi« 
agreed  to  intrust  their  powers  to  Sir  dent  that  the  spiritual  lords  holding  by 


THE  MIDDLE  AGES  389 

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  con- 
spicuous instance  of  this  assumed  prerogative;  namely,  the 
memorable  statute  against  heresy  m  the  second  of  Henry  IV. ; 
which  can  hardly  be  deemed  anything  else  than  an  infringe- 
ment of  the  rights  of  parliament,  more  clearly  established  at 
that  time  than  at  the  accession  of  Richard  II.  Petitions  of  the 
commons  relative  to  spiritual  matters,  however  frequently  pro- 
posed, in  few  or  no  instances  obtained  the  king's  assent  so  as 
to  pass  into  statutes,  unless  approved  by  the  convocation.^ 
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 ; "  e 
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/  Both  these  were  stronger  exertions 
of  legislative  authority  than  ordinary  acts  of  parliament,  and 
were  very  likely  to  be  questioned  in  succeeding  times. 

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.?  These  became  the  regular  fountains  of  jus- 
tice, which  soon  almost  absorbed  the  provincial  jurisdiction  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  pre- 
served 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 

barony  are  the  only  persons  designated;  f  Rot.  Parl.  vol.  hi.  p.  582.   Atterbury, 

•whatever  may  have  been  meant  by  the  p.  6t, 

singular   phrase,   as   applied   to   them,  f>  The  ensuing  sketch  of  the  Jurisdic- 

clerus^  utnusque  provmciae.    Rot.  Parl.  tion  exercised  by  the  king's  council  has 

vol.  iii,  p,  348.  b<*en  chiVfly  derived  from  Sir  Matthew 

<f  Atterbtiry,  p,  346  Kale's  Treatise  of  the  jurisdiction  of 

en  K.  II.  c,  12.  Burnet's  Hist,  of  the  Lords'  House  in  Parliament,  pub- 

"Reformation  (vol.  ii.  p    47)  led  me  to  Hshed.  by  Mr.  Hargrave. 

this  act,  which  I  had  overlooked. 


390  HALLAM 

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,  treas- 
urer, and  comptroller  of  the  household,  the  chancellor  of  the 
exchequer,  the  master  of  the  wardrobe;  and  of  the  judges, 
king's  sergeant,  and  attorney-general,  the  master  of  the  rolls, 
and  justices  in  eyre,  who  at  that  time  were  not  the  same  as 
the  judges  at  Westminster.  When  all  these  were  called  to- 
gether, 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./* 

The  business  of  this  council,  out  of  parliament,  may  be  re- 
duced to  two  heads ;  its  deliberative  office  as  a  council  of  ad- 
vice, and  its  decisive  power  of  jurisdiction.  With  respect  to 
the  first,  it  obviously  comprehended  all  subjects  of  political  de- 
liberation, 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  peti- 
tions continually  presented  to  the  council,  upon  which  they 
proceeded  no  further  than  to  sort,  as  it  were,  and  forward  them 
by  indorsement  to  the  proper  courts,  or  advise  the  suitor  what 
remedy  he  had  to  seek.  Thus  some  petitions  are  answered, 
"  this  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  ordi- 

h  The  words  "  privy  council "  are  said  council  of  government,  though  always 

not  to  be  used  till  after  the  reign  of  members   of  the  concilium  ordinarium; 

Henry  VI. :  the  former  style  was     ordi-  and,  in  the  former  capacity^  began  to 

nary "  or    '  continual  council."    But  a  keep  formal  records  of  their  proceed- 

distinction  had  always  been  made,  ac-  ings.    The  acts  of  this  council,  though, 

cording  to  the  nature  of  the  business;  as  I  have  just  said,  it  bore  as  yet  no 

the  great  officers  of  state,   or,  as  we  distinguishing  name,   are  extant  from 

might  now  say,  the  ministers,  had  no  the  year  1380,   and  for   seventy  years 

occasion  for  the  presence  of  judges  or  afterwards  are  known  through  the  valu- 

any  lawyers  in  the  secret  councils  of  able  publication  of  Sir  Harris  Nicolas, 
the  crown.    They  become,  therefore,  a 


THE  MIDDLE  AGES  39i 

nances  were  made  in  council ;  sometimes  upon  request  of  the 
commons  in  parliament,  who  felt  themselves  better  qualified 
to  state  a  grievance  than  a  remedy;  sometimes  without  any 
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  jus- 
tices 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.*  But  they  frequently  so  much 
exceeded  what  the  growing  spirit  of  public  liberty  would  per- 
mit, that  it  gave  rise  to  complaint  in  parliament.  The  com- 
mons 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."  i  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  like- 
wise were  referred  to  it  from  parliament,  especially  where  they 
were  left  unanswered  by  reason  of  a  dissolution.  But,  inde- 
pendently 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  tb^  charter 

(Rot,  Park  vol.  vL  p.  84,  /Ibid,  p,  ^ 


392  HALLAM 

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  at- 
tached, 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."  k  This  was  repeated  in  a 
short  act  of  the  twenty-eighth  of  his  reign ;  J  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  rec- 
ord, 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.^  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  remon- 
strated against  by  the  commons.  The  right  of  every  freeman 
in  that  cardinal  point  was  as  indubitable,  legally  speaking,  as 
at  this  day ;  but  the  courts  of  law  were  afraid  to  exercise  their 
remedial  functions  in  defiance  of  so  powerful  a  tribunal.  After 
the  accession  of  the  Lancastrian  family,  these,  like  other  griev- 
ances, became  rather  less  frequent,  but  the  commons  rcmon- 

feas  E.  III.  stat.  5,  c,  4     Probably  these  transgressions  of  their  lawful  au- 

this  fifth  statute  of  the  2Slh  of  Edward  thority,  when  we  find  a  similar  jnnsdio 

III    is  the  most  extensively  beneficial  tion  usurped  by  the  officers  of  inferior 

act  in  the  whole  body  of  our  laws.    It  persons    Complaint  is  made  in  the  tBth 

established  certainty  in  treasons,  regu-  of  Richard  II  that  men  were  compelled 

lated  purveyance,   prohibited  arbitrary  to  answer  before  the  council  of  clivers 

imprisonment  and  the  determination  of  lords  and  ladies,  for  their  £reehold»s  and 

pleas  of  freehold  before  the  council,  took  other   matters   cognizable   at   common 

away  the  compulsory  finding  of  men-at-  law,  and  a  remedy  for  this  abuse  is 

arms  and  other  troops,  confirmed  the  given  by  petition  in  chancery,  stat,  r<5 

reasonable   aid   of   the  king's   tenants  K.  II.  c.  12.    This  act  is  confirmed  with 

fixed  by  3  E.  L,  and  provided  that  the  a  penalty  on  its  contravenes  the  next 

king's  protection  should  not  hinder  civil  year,  16  R.  IL  c.  2.    The  private  Jails 

process  or  execution  which   some  lords   were  permitted   by 

1  28  E  III  c.  3.         .  „      „   ,       ,  law  to  possess,  and  for  which  there  wns 

W42  E.  III.  c.  3,  and  Rot.  Parl,  vol.  always  a  provision  in  their  castles,  en* 

ii.  p.  295.    It  is  not  surprising  that  the  abled  them  to  render  this  oppressive 

king's  council  should  have  persisted  in  jurisdiction  effectual. 


THE  MIDDLE  AGES  393 

strate  several  times,  even  in  the  minority  of  Henry  VL,  against 
the  council's  interference  in  matters  cognizable  at  common 
law.w  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  com- 
plaint. 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  de- 
pending 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  func- 
tion, cannot  be  traced  beyond  the  time  of  Richard  IL,  when, 
the  practice  of  feoffrnents  to  uses  having  been  introduced,  with- 
out any  legal  remedy  to  secure  the  cestui  que  use,  or  usu- 
fructuary, against  his  feoffees,  the  court  of  chancery  undertook 
to  enforce  this  species  of  contract  by  process  of  its  own.o 

Such  was  the  nature  of  the  king's  ordinary  council  in  itself, 
as  the  organ  of  his  executive  sovereignty,  and  such  the  juris- 
diction which  it  habitually  exercised.  But  it  is  also  to  be 
considered  in  its  relation  to  the  parliament,  during  whose  ses- 
sion, either  singly  or  in  conjunction  with  the  lords'  house,  it 
was  particularly  conspicuous.  The  great  officers  of  state, 
whether  peers  or  not,  the  judges,  the  king's  sergeant,  and  at- 
torney-general, 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 

n  TCot  Par!,  vj  K  IT  vol.  iii*  p.  319;  4  trust  for  their  grantors  and  f  coffers 

H  IV  p  507;  i  H  VT.  vol  iv  p  180;  alienate  or  charge  the  tenements 

3  TL  VI.  p,  292;  8  H,  VI.  p.  343;  10  H  granted,  in  which  case  there  is  no 

VI.  p,  403,  is  H,  VI,  p  501  To  one  of  remedy  unless  one  is  ordered  by  par- 

these  (10  H  VT.)»  "that  none  should  be  liament,  that  the  kinsr  and  lords  would 

put  to  answer  for  his  freehold  m  parha-  provide  a  remedy.  This  petition  i*  re- 

ment,  nor  before  any  court  or  council  ferred  to  the  king's  council  to  advise 

where  such  things  are  not  cognizable  by  of  a  remedy  against  the  ensuing  parlia- 

the  law  of  the  land,"  the  king  gave  a  inent.  It  may  perhaps  fee  inferred  from 

dema].  As  it  was  less  usual  to  refuse  hence  that  the  writ  of  subpoena  out  of 

promises  of  this  kind  than  to  forget  chancery  had  not  yet  been  anplied  to 

Iheni  afterwardsj  I  do  not  understand  protect  the  cestui  que  use  But  it  is 

the  motive  of  this.  equally  possible  that  the  commons,  be- 

o  Kale's  Jurisdiction  of  Lords*  House,  ing  disinclined  to  what  they  would 
p.  46.  Coke,  2  Tnst  p  $$$.  The  last  deem  an  illegal  innovation,  were  en- 
author  places  this  a  little  later.  There  deavorinpr.  to  reduce  these  fiduciary 
is  a  petition  of  the  common*;,  in  the  roll  estates  within  the  pale  of  the  common 
of  the  4th  of  Henry  IV  p,  SIT,  that,  law,  as  was  afterwards  done  by  the 
whereas  many  grantees  and  feoffees  in  statute  of  uses.  [NOTE  XXV.] 


394  HALLAM 

cseteris  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,  ab- 
bots, 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  ad- 
dressed to  the  council  by  both  houses  of  parliament.  In  the 
eighth  of  Edward  II.  there  are  four  petitions  from  the  commons 
to  the  king  and  his  council,  one  from  the  lords  alone,  and  one 
in  which  both  appear  to  have  joined.  Later  parliaments  of  the 
same  reign  present  us  with  several  more  instances  of  the  like 
nature.  Thus  in  18  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.p 

But  from  the  beginning  of  Edward  III.'s  reign  it  seems  that 
the  council  and  the  lords'  house  in  parliament  were  often  blend- 
ed 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  hered- 
itary 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  mem- 
bers of  the  parliament  or  legislative  assembly  and  of  the  de- 
liberative 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  parlia- 
ment 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 

p  Rot.  Fail.  vol.  i.  P-  416. 


THE  MIDDLE  AGES 


395 


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."  g  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  Eng- 
land, 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  bish- 
ops or  peers,  partly  of  judges  and  other  members  of  the  coun- 
cil ;  and  they  seem  to  have  been  instituted  in  order  to  disburden 
the  council  by  giving  answers  to  some  petitions.  But  about  the 
middle  of  Edward  IIL's  time  they  ceased  to  act  juridically 
in  this  respect,  and  confined  themselves  to  transmitting  peti- 
tions 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  recol- 
lect that  the  council  by  themselves,  both  in  and  out  of  parlia- 
ment, 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  sup- 
ported. But  in  the  time  of  Richard  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/ 

Those  statutes  which  restrain  the  king's  ordinary  council 
from  disturbing  men  in  their  freehold  rights,  or  questioning 

4 1*  8.43,  f  CNoTE  XXVL] 


HALLAM 


them  for  misdemeanors,  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  sea- 
son by  rapine  and  oppression,  afforded  no  small  number  of 
cases  that  called  for  this  interposition  of  a  paramount  author- 
ity .•*  Another  indubitable  branch  of  this  jurisdiction  was  iu 
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 


j  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  compre- 
hend matters  terminable  atte  the  com- 
mon lawe  shall  be  remitted  ther  to  be 
determined;  but  if  so  be  that  the  dis- 
cresion  of  the  counseill  fele  to  grete 
myght  on  that  o  syde,  and  unmyght  on 
that  other,  or  elles  other  cause  reson- 
able  yat  shal  move  him."  Rot.  Parl 
vol.  iv.  p.  343.  Mr.  Bruce  has  well  ob- 
served of  the  articles  agreed  upon  zn 
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  op- 
pressors was  most  especially  needful. 
Law  charges  also  were  considerable; 
and  this,  '  the  poor  man's  court,  in 
which  he  might  have  right  without  pay- 
ing any  money  *  (Sir  T.  Smith's  Com- 
monwealth,  book  ni.  ch.  7),  was  an  in- 
stitution apparently  calculated  to  be  of 
unquestionable  utility  It  was  the  com- 
prehensiveness of  the  last  clause— the 
other  cause  resonable  '—which  was  its 
rum.  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  au- 
thority to  the  council,  by  writs  under 
the  great  seal,  and  by  writs  of  proclama- 
tion 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  Ins  estate, 
and  name  of  lord,  and  his  place  m  par- 
liament," 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  dclermmable  by 
the  law  of  the  realm  should  be  deter- 
mined in  other  form  than  after  the 
course  of  law  in  the  king's  courts.  Sir 
Francis  Palgrave  (Essay  on  the  Kmw\s 
Council,  p  84)  observes  that  this  nioviso 
would  in  no  way  interfere  with  the 
effective  jurisdiction  of  the  council,  in- 
asmuch as  it  could  always  be  allotted 
in  the  bills  which  were  preferred  before 
it  that  the  oppressive  and  grievous  of- 
fences of  which  they  complained  were 
not  determinate  by  the  ordinary  course 
of  the  common  law  "  P  86  But  this 
takes  the  word  "  detcrminabtc "  to 
mean  in  fact,  whereas  I  apprehend  that 
the  pioviso  must  he  understood  to  mean 
cases  legally  delerminable;  the  words,  1 
think,  will  bear  no  other  construction. 
But  as  all  the  offences  enumerated  were 
indictable,  we  must  either  hold  the  pro- 
viso to  be  utterly  inconsistent  with  the 
rest  of  the  statute,  or  suppose  that  the 
words  "  other  form,"  were  intended  to 
prohibit  the  irregular  process  mual  with 
the  council;  secret  examination  of  wit- 
nesses, torture,  neglect  of  technical 
formality  m  specifying  charges,  punish- 
ments not  according1  to  the  course  of 
law,  and  other  violations  of  fair  and 
free  trial,  which  constituted  the  greatest 
grievance  m  the  proceedings  of  the 
council. 


THE  MIDDLE  AGES  397 

assent  of  the  commons  as  well  as  the  rest  of  the  legislature.* 
But  these  were  attainders  of  treason,  which  it  seemed  gracious 
and  solemn  to  reverse  in  the  most  authentic  manner.  Cer- 
tainly the  commons  had  neither  by  the  nature  of  our  consti- 
tution 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  au- 
thority of  that  kind  was  particularly  reserved  to  both  houses. 
This  is  fully  acknowledged  by  themselves  in  the  first  year  of 
Henry  IV>  But  their  influence  upon  the  balance  of  govern- 
ment became  so  commanding  in  a  few  years  afterwards,  that 
they  contrived,  as  has  been  mentioned  already,  to  have  peti- 
tions 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  lord's  juris- 
diction, who  would  rather  relinquish  their  ancient  and  honor- 
able but  laborious  function  than  share  it  with  such  bold 
usurpers. 

Although  the  restraining  hand  of  parliament  was  continually 
growing  more  effectual,  and  the  notions  of  legal  right  acquir- 
ing 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  labor 
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  bar- 
riers which  were  then  daily  pushed  aside  with  impunity. 

There  is  a  material  distinction  to  be  taken  between  the  exer- 
cise of  the  king's  undeniable  prerogative,  however  repugnant 
to  our  improved  principles  of  freedom,  and  the  abuse  or  ex- 
tension of  it  to  oppressive  purposes.  For  we  cannot  fairly 

t  The  judgment  against  Mortimer  was  which  had  passed  in  i  E  s  III.,  when 
reversed  at  the  suit  of  Ins  son,  $8  E.  III.,  Mortimer  was  at  the  height  of  his 
because  he  had  not  been  put  on  his  power.  These  precedents  taken  to- 
trial.  The  peers  had  adjudged  him  to  Aether  seem  to  have  resulted  from  no 
death  in  his  absence,  upon  common  no-  partiality,  but  a  true  sense  of  justice  m 
tonety  of  his  guilt.  4  E,  III,  p.  53.  In  respect  of  treasons,  animated ,  by  the 
the  same  session  of  *8  E.  III.  the  Earl  recent  statute.  Rot.  Parl,  vol.  11.  p.  s$6. 
of  ArundeVs  attainder  was  also  reversed,  «  Ibid.  vol.  ni.  p.  427. 


398  HALLAM 

consider  as  part  of  our  ancient  constitution  what  the  parlia- 
ment was  perpetually  remonstrating  against,  and  the  statute- 
book  is  full  of  enactments  to  repress.  Doubtless  the  continual 
acquiescence  of  a  nation  m  arbitrary  government  may  ulti- 
mately 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  peti- 
tions 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  subjects  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  consti- 
tution. 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  Pre- 
rogative, in  its  old  sense,  might  be  defined  an  advantage  ob- 
tained by  the  crown  over  the  subject,  in  cases  where  their  in- 
terests 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  pre- 
rogatives has  been  by  the  more  liberal  tone  which  now  per- 
vades our  course  of  government,  whoever  attends  to  the  com- 

v  Blackstone's  Comment,  from  Finch*  vol.  i.  c.  7, 


THE  MIDDLE  AGES  399 

mon  practice  of  courts  of  justice,  and,  still  more,  whoever  con- 
sults the  law-books,  will  not  only  be  astonished  at  their  extent 
and  multiplicity,  but  very  frequently  at  their  injustice  and 
severity. 

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  purvey- 
ance, 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  pur- 
chasing 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  through- 
out Europe.  But  the  royal  purveyors  had  the  utmost  tempta- 
tion, 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 .w  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  labor.  Thus 
Edward  III,  announces  to  all  sheriffs  that  William  of  Wal- 

a  #/  Letters  are  greeted  to  all  the  sher-  cies  of  his  French  war,  went  still  greater 

iffs,  2  E.  I.,  enjoining  them  to  send  tip  lengths,  and  seized  larger  quantities  of 

a   certain    number   of   beeves,    sheep,  wool,  which  he  sold  beyond  sea,  as  well 

capons,  &c.,  for  the  king's  coronation.  as  provisions  for  the  supply  of  his  array. 

Rymer,  vol  ii.  p.  21.    By  the  statute  21  In  1)oth  cases  the  proprietors  had  tallies, 

E.  III.  c.  w,  goods  taken  by  the  pur-  or  other  securities;  but  their  despair  or 

yeyors  were  to  be  paid  for  on  the  spot  obtaining  payment  gave  rise,  in  1338,  to 

if    under   twenty    shillings'    value,    or  an  insurrection.     There  is  a  singular 

within  three  months*  time  if  above  that  apologetical   letter  of  Edward  to   the 

value.     But  it  is  not  to  be  imagined  archbishops  on  this  occasion.    Kymer, 

that  this  law  was  or  could  be  observed.  t.  v.  p.  10;  see  also  p»  73,  and  Knygh* 

Edward  III.,  impelled  by  the  exigen-  ton,  col.  2570. 


400  HALLAM 

singharn  had  a  commission  to  collect  as  many  painters  as 
might  suffice  for  "  our  works  in  St.  Stephen's  chapel,  West- 
minster, to  be  at  our  wages  as  long  as  shall  be  necessary,"  and 
to  arrest  and  keep  in  prison  all  who  should  refuse  or  be  re- 
fractory ;  and  enjoins  them  to  lend  their  assistances  Windsor 
Castle  owes  its  massive  magnificence  to  laborers  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  trap- 
pings of  himself  and  his  households 

Another  class  of  abuses  intimately  connected  with  unques- 
tionable 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  ten- 
ants 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  favor.  Even 
where  justice  was  finally  rendered  to  him  he  had  no  recom- 
pense for  his  damages ;  and  the  escheators  were  not  less  likely 
to  repeat  an  iniquity  by  which  they  could  not  personally  stiff cr. 

The  charter  of  the  forests,  granted  by  Henry  III.  along 
with  Magna  Charta,s  had  been  designed  to  crush  the  flagitious 
system  of  oppression  which  prevailed  in  those  favorite  haunts 
of  the  Norman  kings.  They  had  still,  however,  their  peculiar 
jurisdiction,  though,  from  the  time  at  least  of  Edward  III., 
subject  in  some  measure  to  the  control  of  the  King's  Bench.0 
The  foresters,  I  suppose,  might  find  a  compensation  for  their 

x  Rymer,  t  vi,  p  417.  a  Coke,  fourth  Inst.  p.  294.    The  for- 

y  Ibid.  t.  xi   p   852.  est  domain  of  the  king,  says  the  author 

z  Matthew    Paris   asserts    that    John  of  the  dialogue  on  the  Exchequer  under 

granted  a  separate  forest  charter,  and  Henry  II.,  is  governed  by  its  own  laws, 

supports  his  "position  by  asserting  that  not  founded  on  the  common  law  of  the 

of  Henry  III.  at  full  length.    In  fact,  land,  but  the  voluntary  enactment  of 

the  clauses  relating  to  the  forest  were  princes:  so  that  whatever  is  done  by 

incorporated    with    the    great    charter  that  law  is  reckoned  not  legal  in  itself, 

of  John.    Such  an  error  as  this  shows  but  legal  according  to  forest  law,  p»  29, 

the   precariousness   of  historical   testi-  non  jus  turn  absolute,  sed  jus  turn  secun- 

mony,  even  where  it  seems  to  be  best  dum  legem  forestae  dicatur.    I  believe 

grounded.  my  translation  of  justwn  is  right;  for  he 

is  not  writing  satirically. 


THE  MIDDLE  AGES  401 

want  of  the  common  law  in  that  easy  and  licentious  way  of 
life  which  they  affected ;  but  the  neighboring  cultivators  fre- 
quently suffered  from  the  king's  officers  who  attempted  to  re- 
cover 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  re- 
late to  this  grievance. 

The  constable  and  marshal  of  England  possessed  a  juris- 
diction, the  proper  limits  whereof  were  sufficiently  narrow,  as 
it  seems,  to  have  extended  only  to  appeals  of  treason  commit- 
ted beyond  sea,  which  were  determined  by  combat,  and  to  mili- 
tary offences  within  the  realm.  But  these  high  officers  fre- 
quently took  upon  them  to  inquire  of  treasons  and  felonies 
cognizable  at  common  law,  and  even  of  civil  contracts  and 
trespasses.  This  is  no  bad  illustration  of  the  state  in  which 
our  constitution  stood  under  the  Plantagenets.  No  color  of 
right  or  of  supreme  prerogative  was  set  up  to  justify  a  pro- 
cedure 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.*  It  could  not  be  denied,  therefore,  that 
all  infringements  of  these  acknowledged  limits  were  illegal, 
even  if  they  had  a  hundredfold  more  actual  precedents  in  their 
favor  than  can  be  supposed.  But  the  abuse  by  no  means  ceased 
after  the  passing  of  this  statute,  as  several  subsequent  petitions 
that  it  might  be  better  regarded  will  evince.  One,  as  it  con- 
tains 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  de- 
tained in  prison,  and  put  to  answer  before  the  constable  and 
marshal,  against  the  statutes  and  the  common  law  of  England, 
our  saicl  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,  not- 
withstanding 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 

*  12  JR.  n,  c.  A 

VOL. 


402  HALLAM 

proceed  as  they  shall  see  fit  according  to  the  laws  and  customs 
of  England.^ 

It  must  appear  remarkable  that,  in  a  case  so  manifestly 
within  their  competence,  the  court  of  King's  Bench  should  not 
have  issued  a  writ  of  habeas  corpus,  without  waiting  for  what 
may  be  considered  as  a  particular  act  of  parliament.  But  it  is  a 
natural  effect  of  an  arbitrary  administration  of  government 
to  intimidate  courts  of  justice.^  A  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  favor,  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.*? 

If  I  have  faithfully  represented  thus  far  the  history  of  our 
constitution,  its  essential  character  will  appear  to  be  a  mon- 
archy 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  re- 
straint adequate  to  correct.  But  of  all  the  notions  that  have 

cRot.  Parl   vol.  iii.  p.  530-  ,.  thority  was  in  direct  contradiction  to 

a  The  apprehension  of  this  compliant  Magna  Charta;  and  it  is  evident  that 

spirit  in  the  ministers  of  justice  led  to  no  regular  liberty  could  subsist  with  it. 

an  excellent  act  in  2  E  III.  c.  8,  that  the  It  involved  a  full  dictatorial  power,  eon- 

judges  shall  not  omit  to  do  right  for  any  tinually  subsisting  in  the  state  "*    Hist 

command  under  the  great  or  privy  seal.  of  England,  c.   22.     But  by  the  very 

And  the  conduct  of  Richard  II ,  who  words  of  this  patent  the  jurisdiction 

sought  absolute  power  by  corrupting  or  given  was  only  over  such  causes  qua? 

intimidating    them,    produced    another  in  curia  constabulani  Anfflias  ab  antique*, 

statute  m  the  eleventh  year  of  his  reign  viz.    tempore    dicti   Gulielmi    conquies- 

(c   10),  providing  that  neither  letters  of  toris,  seu  aliquo  tempore  citra,  tractan, 

the  king  s  signet  nor  of  the  privy  seal  audiri,  exarmnan,  aut  decidi  CtmsuevcT- 

should  from  thenceforth  be  sent  in  dis-  unt  aut  jure  dcbucrant  aut  dcbenL    These 

turbance  of  the  law.    An  ordinance  of  are   expressed,   though    not   very    per- 

Charles  V.,  King  of  France,  in  1360,  spicuously,  in  the  statute  13  K.  IT    c. 

directs  the  parliament  of  Pans  to  pay  no  2,   that  declares  the   constable's  juns- 

regard  to  any  letters  under  his  seal  sus-  diction.    And  the  chief  criminal  matter 

pending  the  course  of  legal  procedure,  reserved  by  law  to  the  court  of  this 

but  to  consider  them  as  surreptitiously  officer  was  treason  committed  out  of 

obtained.    Villaret,  t.  x.  p.  175.    This  the  kingdom.     In  violent  and  revolu- 

ordmance   which   was    sedulously    ob-  tionary  seasons,  such  as  the  commence- 

served,  tended  very  much  to  confirm  ment  of  Edward  IV.'s  reign,  some  per- 

the  independence  and  integrity  of  that  sons  were  tried  by  martial  law  before 

tribunal  the  constable.    But,  in  general,  the  ex- 

c,LCoS0-n  s  Po;%ma»  P-  »?•   Howeirs  ercise  of  criminal  justice  by  this  tri- 

btate  Trials,  vol.  in,  pi.    Hume  quotes  bunal,  though  one  of  the  abuses  of  the 

a  fqrant  of  the  office  of  constable  to  the  times,  cannot  be  said  to  warrant  the 

Eail  of  Rivers  m  7  E  IV.,  and.  infers,  strong  language  adopted  by  Hume. 
unwarrantably  enough,    that   "  its   au* 


THE  MIDDLE  AGES  403 

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  noth- 
ing in  this,  absolutely  nothing,  of  a  republican  appearance. 
All  seemed  to  grow  out  of  the  monarchy,  and  was  referred  to 
its  advantage  and  honor.  The  voice  of  supplication,  even  in 
the  stoutest  disposition  of  the  commons,  was  always  humble ; 
the  prerogative  was  always  named  in  large  and  pompous  ex- 
pressions. 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  cer- 
tainly 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  mod- 
ern aspect  of  the  constitution  and  the  liberty  of  printing  have 
produced,  fell  hastily  into  the  error  of  believing  that  all  limita- 
tions of  royal  power  during  the  fourteenth  and  fifteenth  cen- 
turies 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  pro- 
duced, yet  there  is  a  passage  in  Sir  John  Fortescue's  treatise 
De  Laudibus  Legum  Anglise,  so  explicit  and  weighty,  that  no 
writer  on  the  English  constitution  can  be  excused  from  in- 
serting 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  gov- 
ernment are  enforced  as  strenuously  by  Fortescue,  as  some 
succeeding  lawyers  have  inculcated  the  doctrines  of  arbitrary* 
prerogative. 

"  A  king  of  England  cannot  at  his  pleasure  make  any  alter- 
ations in  the  laws  of  the  land,  for  the  nature  of  his  government 


404  HALLAM 

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  tallag'es  and 
other  hardships  upon  the  people  whether  they  would  or  noT 
without  their  consent,  which  sort  of  government  the  civil  laws 
point  out  when  they  declare  Quod  principi  placuit,  legis  habct 
vigorem.  But  it  is  much  otherwise  with  a  king  whose  govern- 
ment is  political,  because  he  can  neither  make  any  alteration 
or  change  in  the  laws  of  the  realm  without  the  consent  of  the 
subjects,  nor  burden  them  against  their  wills  with  strange  im- 
positions, so  that  a  people  governed  by  such  laws  as  are  made 
by  their  own  consent  and  approbation  enjoy  their  properties  se- 
curely, 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  Cy- 
prus, 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,  be- 
cause it  will  afford,  both  to  yourself  and  subjects,  the  greatest 
security  and  satisfaction."/ 

The  two  great  divisions  of  civil  rule,  the  absolute,  or  regal 
as  he  calls  it,  and  the  political,  Fortcscue  proceeds  to  deduce 
from  the  several  originals  of  conquest  and  compact.  Con- 
cerning 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  pro- 
'  portion  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 

f  Fortescue,  DC  Laudibtts  Leguni  Anglfc,  c.  9. 


THE  MIDDLE  AGES 


405 


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  ques- 
tion 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  Tro- 
jans, who  attended  him  from  Italy  and  Greece,  and  became  a 
mixed  kind  of  government,  compounded  of  the  regal  and  po- 
litical.^ 

It  would  occupy  too  much  space  to  quote  every  other  pas- 
sage of  the  same  nature  in  this  treatise  of  Fortescue,  and  in  that 
entitled,  Of  the  Difference  between  an  Absolute  and  Limited 
Monarchy,  which,  so  far  as  these  points  are  concerned,  is  nearly 
a  translation  from  the  former.^  But  these,  corroborated  as  they 
are  by  the  statute-book  and  by  the  rolls  of  parliament,  are  surely 
conclusive  against  the  notions  which  pervade  Mr.  Hume's  His- 
tory. 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  cer- 
tain 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  publica- 
tion, he  was  prone  to  seize  hold  of,  and  even  exaggerate,  every 
circumstance  that  indicated  immature  civilization,  and  law  per- 
verted or  infringed,*  To  this  his  ignorance  of  English  juris- 

De    Laudibus    Legum         t'The   following  Is   one   example  of 


Anprlw,  c.  13.  these  prejudices:   In  the  oth  of  Richard 

h  The    latter    treatise    having    been  TT  a  tax  on  wool  granted  till  the  ensu- 

written  tinder  Edward  TV  ,  whom  For-  inj?  feast  of  St.  John  Baptist  was  to  be 

tescue,  as  a  restored  Lancastrian,  would  intermitted  from  thence  to  that  of  St. 

be  anxious  not  to  offend,  and  whom  in  Peter,  and  then  to  recommence;  that  it 

fact  he  took  some  pains  to  conciliate  might  not  be  claimed  as  a  right     Rot. 

both  in  this  and  other  writings.   it  is  Parl.  vol.  in.  p.  214.    Mr,  Hume  has  no- 

evident  that  the  principles  of  limited  ticed  this  provision,  as  "  showing  an 

monarchy  were  as  fully  rero#ni7ed  in  accuracy  beyond  what  was  to  be  ex- 

his  reign,  whatever  particular  acts  of  peeted  m  those  rude  times."    In  this 

violence  might  occur,  as  they  had  been  epithet  we  eee  tho  foundation  of  his 

under  Jho  Lancastrian  princes,  mistakes,  The  age  of  Richard  XX.  might 


4o6  HALLAM 

prudence,  which  certainly  in  some  measure  disqualified  him 
from  writing  our  history,  did  not  a  little  contribute ;  misrepre- 
sentations frequently  occurring  in  his  work,  which  a  moderate 
acquaintance  with  the  law  of  the  land  would  have  prevented.; 
It  is  an  honorable  circumstance  to  England  that  the  history 
of  no  other  country  presents  so  few  instances  of  illegal  con- 
demnation upon  political  charges.  The  judicial  torture  was 
hardly  known  and  never  recognized  by  law./"'  The  sentence 
in  capital  crimes,  fixed  unalterably  by  custom,  allowed  nothing 
to  vindictiveness  and  indignation.  There  hardly  occurs  an  ex- 
ample of  anyone  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  pri- 
mary right  of  every  freeman,  handed  down  from  his  Saxon  fore- 
fathers, 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  pre- 
vented at  least  those  stretches  of  vindictive  tyranny  which  dis- 
grace the  annals  of  other  countries.  The  praise,  however,  must 

perhaps  be  called  rude  in  some  respects.  doubts  which  he  propounded  to  several 
But  assuredly  in  prudent  and  circum-  monabteries  and  divines.  Most  of  these 
spect  perception  of  consequences,  and  relate  to  the  main  subject.  But  one 
an  accurate  use  of  language,  there  question,  fitter  indeed  for  lawyers  than 
could  be  no  reason  why  it  should  be  theologians,  was,  whereas  many  would 
deemed  inferior  to  our  own.  If  Mr  not  confess  without  torture,  whether  he 
Hume  had  ever  deigned  to  glance  at  might  make  use  of  this  means,  licet  hoc 
the  legal  decisions  reported  in  the  Year-  w  rcgno  Angha  nunquam  visum  fuerit 
books  of  those  times,  he  would  have  vel  (inditumf  Et  si  torquentli  sunt, 
been  surprised,  not  only  at  the  utmost  utrum  per  clencos  vel  laicos?  Et  dato, 
accuracy,  but  at  a  subtle  refinement  m  ciuod  nulius  omnino  torhr  wveniri  valcat 
verbal  logic,  which  none  of  his  own  in  Angjlia,  utrum  pro  tortoribus  mitten- 
metaphysical  treatises  could  surpass  dum  sit  ad  partes  transmarmas*  Walt. 
3  [Note  XXVII.]  Hemmgford,  p.  256,  Instances,  how- 
k  During  the  famous  process  against  ever,  of  its  use  are  said  to  have  oc- 
the  knights  templars  in  the  reign  of  curred  in  the  itfh  century.  Sec  u 
Edward  II ,  the  Archbishop  of  York,  learned  "  Heading  on  the  Use  of  Tor- 
having  taken  the  examination  of  certain  ture  m  the  Criminal  Law  of  .England, 
templars  in  his  province,  felt  some  by  David  Jardine,  Esq.,  1837." 


THE  MIDDLE  AGES  407 

be  understood  as  comparative.  Some  cases  of  harsh  if  not  ille- 
gal convictions  could  hardly  fail  to  occur  m  times  of  violence 
and  during  changes  of  the  reigning  family.  Perhaps  the  cir- 
cumstances 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  141 5,  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  I 
is  perhaps  open  to  question.  There  seems  at  least  to  have 
been  no  sufficient  motive  for  such  an  irregularity ;  their  par- 
ticipation in  a  treasonable  conspiracy  being  manifest  from  their 
own  confession.  The  proceedings  against  Sir  John  Mortimer 
in  the  2d  of  Henry  VI.  w  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  con- 
sisted 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  opin- 
ion, which  since  the  Revolution,  and  indeed  since  the  reign  of 
James  I.,  had  been  flowing  so  strongly  in  favor  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  wite- 
nagcmot,  it  is  far  more  usual  to  find  sensible  and  liberal  men 
who  look  on  Magna  Charta  itself  as  the  result  of  an  uninter- 
esting 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  lib- 
erties, and  forget  that  our  superior  security  is  far  less  owing 
to  positive  law  than  to  the  control  which  is  exercised  over  gov- 

JRot.  Parl.  vol  iv.  P-  6$,  m  Ibid.  vol.  iv*  p.  202. 


408  HALLAM 

eminent  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  nat- 
ural rights  against  James  I.,  was  at  best  but  a  mockery  of  pop- 
ular privileges,  hardly  recognized  in  theory,  and  never  icgarded 
in  effect" 

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.  (Joel 
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  gener- 
ations. 

By  what  means  the  English  acquired  and  preserved  this  po- 
litical liberty,  which,  even  in  the  fifteenth  century,  was  the 
admiration  of  judicious  foreigners^  is  a  very  rational  and  in- 
teresting 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  burdens,  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 

wThis  was  written  in  1811  or  1812;          o  "Philip  de  Comines  talces  several  op- 
and  is  among  many  passages  which  the      portnniticfi  of  tMtifying  hia  esteem  for 
of  time  has  somewhat  fatei*     the  English  government.    So«  particu* 

teriy  J»  Iv.  c,  i,  and  1,  v,  c.  xix, 


THE  MIDDLE  AGES  409 

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  flour- 
ished remarkably,  not  only  in  commercial  towns,  but  among 
the  cultivators  of  the  soil.  "  There  is  scarce  a  small  village," 
says  Sir  J.  Fortescue,  "  in  which  you  may  not  find  a  knight, 
an  esquire,  or  some  substantial  householder  (paterfamilias), 
commonly  called  a  frankleyn,/>  possessed  of  considerable  es- 
tate; 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  man- 
ner in  which  feudal  principles  of  insubordination  and  resist- 
ance were  modified  by  the  prerogatives  of  the  early  Norman 
kings. 

i.  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  Cape- 
tian  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  re- 
sources 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  connection  between  the  English  nobility  and  the  continent; 

*  By  a  frankleyn  in  this  place  we  are  add  that  the  prologue  to  his  Canterbury 

to  understand  what  we  call  a  country  Tales  it  of  itself  a  continual  testimony  to 

squire,  hke  the  franklevn  of  Chaufer;  the  plenteous  and  comfortable  situation 

for  the  word  esquire  in  Forte<*cue*<?  time  of  the  middle  ranks  in  England,  as  well 

was  only  used  m  its  limited  sense,  for  as  to  that  fearless  independence  and  fre- 
sons  of 


, 

the  sons  of  peers  and  knights,  or  such  quent  originality  of  character  amongst 

us  had  obtnined  the  title  by  creation  or  them,   which   liberty   and   competence 

«ome  other  leffal  means.  have  conspired  to  proaWCfl* 

The  mention  of  Chaucer  leads  me  to 


4io  HALLAM 

they  had  no  longer  estates  to  defend,  and  took  not  sufficient 
interest  in  the  concerns  of  Guiennc  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.  Tallagcs  of  royal  towns  and  de- 
mesne lands,  extortion  of  money  from  the  Jews,  every  feu- 
dal 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  land- 
holders, in  any  cases  but  those  prescribed  by  the  feudal  law, 
had  not  been  ventured;  and  the  standing  bulwark  of  Magna 
Charta,  as  well  as  the  feebleness  and  unpopularity  of  Henry 
III,  made  it  more  dangerous  to  violate  an  established  prin- 
ciple. Subsidies  were  therefore  constantly  required ;  but  for 
these  it  was  necessary  for  the  king  to  meet  parliament,  to  hear 
their  complaints,  and,  if  he  could  not  elude,  to  acquiesce  in 
their  petitions.  These  necessities  came  still  more  urgently 
upon  Edward  I.,  whose  ambitious  spirit  could  not  patiently 
endure  the  encroachments  of  Philip  the  Fair,  a  rival  not  less 
ambitious,  but  certainly  less  distinguished  by  personal  prow- 
ess, than  himself.  What  advantage  the  friends  of  liberty  reaped 
from  this  ardor  for  continental  warfare  is  strongly  seen  in  the 
circumstances  attending  the  Confirmation  of  the  Charters. 

But  after  this  statute  had  rendered  all  tallages  without  con- 
sent of  parliament  illegal,  though  it  did  not  for  some  time 
prevent  their  being  occasionally  imposed^  it  was  still  more  diffi- 
cult 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  afJected,  without  perpetual  recur- 
rence to  the  house  of  commons.  Edward  ITI.  very  little  con- 
sulted the  interests  of  his  prerogative  v/hcn  he  stretched  forth 
his  hand  to  seize  the  phantom  of  a  crowa  in  France.  3C  com- 
pelled him  to  assemble  parliament  almosi  annually,  and  often 
to  hold  more  than  one  session  within  the  year.  Here  the  repre- 
sentatives of  England  learned  the  habit  of  remonstrance  and 
conditional  supply;  and  though,  in  the  meridian  of  Edward's 
age  and  vigor,  they  often  failed  oT  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, 


THE  MIDDLE  AGES  41  r 

before  the  end  of  Edward's  reign,  and  still  more  in  that  of  his 
grandson,  to  control,  prevent,  and  punish  the  abuses  of  ad* 
ministration.  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  posses- 
sion of  Guienne,  and  afterwards  by  their  pretensions  upon  the 
crown  of  France,  it  would  have  been  easy  to  suppress  remon- 
strances by  avoiding  to  assemble  parliament.  For  it  must  be 
confessed  that  an  authority  was  given  to  the  king's  proclama- 
tions, 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  con- 
firmed by  Henry  IIL,  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  pos- 
terity 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  re- 
nunciation 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  ter- 


4X2  HALLAM 

minated  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  in  I  end 
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  profits  of  feudal  tenures  without  sub- 
mitting to  their  reciprocal  obligations.  They  counteracted,  if 
I  may  so  say,  the  centrifugal  force  of  that  system  by  the  appli- 
cation 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  expressed  recognition  of  such  a  right  as  that  of  in- 
surrection has  been  justly  deemed  inconsistent  with  the  majesty 
of  law.  But  ruder  ages  had  ruder  sentiments.  Force  was  nec- 
essary to  repel  force;  and  men  accustomed  to  sec  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, 
or  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  "a  It  is  amusing  to  see  the  common 
law  of  distress  introduced  upon  this  gigantic  scale ;  and  tlte 
capture  of  the  king's  castles  treated  as  analogous  to  impound- 
ing a  neighbor's  horse  for  breaking  fences. 

q  Brady's  Hist  vol.  J,j  Appetite,  p.  148, 


THE   MIDDLE  AGES  413 

A  very  curious  illustration  of  this  feudal  principle  is  found 
in  the  conduct  of  William  Earl  of  Pembroke,  one  of  the  great- 
est 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  malig- 
nity of  the  royal  advisers.  u  Nor  would  it  be  for  the  king's 
honor,"  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  dis- 
puted only  the  application  of  this  maxim  to  the  Earl  of  Pem- 
broker 

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  favorable  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  endeavored  only  to  light- 
en its  burden,  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  suc- 
cession, of  the  crown,  without  the  smallest  tendency  to  separa- 
tion, they  did  not  impair  the  national  strength  nor  destroy  the 
character  of  the  constitution.  In  all  these  contentions  it  is  re- 
markable 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, 

fMatt.  Paris,  p.  330;  Lyttelton's  Hist,  oi  Henry  II.  vol.  iv.  p.  41. 


HALLAM 

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  favor,  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  preci- 
pices 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  com- 
moners are  radically  interwoven ;  each  in  a  certain  sense  dis- 
tinguishable, but  not  balanced  like  opposite  weights,  not  sep- 
arated like  discordant  fluids,  not  to  be  secured  by  insolence 
or  jealousy,  but  by  mutual  adherence  and  reciprocal  influences. 
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.  Gentle- 
men of  large  estates  and  good  families  who  had  attached  them- 
selves 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  feel  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  them- 
selves rendered  so  formidable.  Such  was  the  maintenance  of 
suits,  or  confederacies  for  the  purpose  of  supporting  each  oth- 
er's claims  in  litigation,  which  was  the  subject  of  frequent  com- 
plaints 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  discourager  Even  pro- 

slf.a  man  was  disseized  of  his  land,       reinstate  himself  without  course  of  law. 
he  might  enter  upon  the  disseizor  and       In  what  case  this  right  of  entry  was 


THE  MIDDLE  AGES  4!S 

cecdings  in  courts  of  justice  were  often  liable  to  intimidation 
and  influence.*  A  practice  much  allied  to  confederacies  of  main- 
tenance, 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  ani- 
mosities which  it  is  the  general  policy  of  a  wise  government 
to  dissipate^  From  the  first  year  of  Richard  II.  we  find  con- 
tinual mention  of  this  custom,  with  many  legal  provisions 
against  it,  but  it  was  never  abolished  till  the  reign  of  Henry 

These  associations  under  powerful  chiefs  were  only  inci- 
dentally 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,**  more  often  attested  by  records  during  the 

taken   away,   or  tolled,  as  it  was   ex-  from  these  acts  being  regarded,  it  was 

pressed,  by  the  death  or  alienation  of  considered  as  a  mark  of  respect  to  the 

the    disseizor,    is   a    subject    extensive  king,  when  he  came  into  a  county,  for 

enough  to  occupy  two  chapters  of  Lit-  the  noblemen  and  gentry  to  meet  him 

telton    What  pertains  to  our  inquiry  is,  with  as  many  attendants  m  livery  as 

that  by  an  entry  in  the  old  law-books  they  could  muster.     Sir  John  Paston 

we  must   understand  an  actual  repos-  was  to  provide  twenty  men  m  their  liv- 

session  of  the  disseizee,  not  a  suit  m  cry-gowns,   and  the   Duke  of  Norfolk 

ejectment,  as  it  is  now  interpreted,  but  two  hundred.    This  illustrates  the  well- 

which  is  a  comparatively  modern  pro-  known  story  of  Henry  VII    and  the 

cecdinpr     The  first  remedy,  says  Brit-  Earl  of  Oxford,  and  shows  the  mean  and 

ton,  of  the  disseizee  is  to  collect  a  body  oppressive  conduct  of  the  king  in  that 

of  his  mends  (rccoiller  amys  et  force),  affair,  which  Hume  has  pretended  to 

and  without  delay  to  cast  out  the  dis-  justify. 

scissors,  or  at  least  to  maintain  himself  In  the  first  of  Edward  IV.  it  is  said 

in  possession  alon&  with  them     c.  4*-  in  the  roll  of  parliament  (vol.  v.  p  407). 

This  entry  ou^ht  indeed,  by  3  R.  II.  stat  that,  "  by  yevmg  of  liveries  and  signets, 

3.  c.  8,  to  be  made  peaceably;  and  the  contrary  to  the  statutes  and  ordinances 

justices  might  assemble  the  posse  com-  made  aforetyme,  maintenaunce  of  quar- 

itatus  to  imprison  persons  entering  on  rels,     extortions,     robberies,     murders 

lands  by  violence  Us  K   II.  c.  2),  but  been  multiplied  and  continued  within 

these  laws  imply  the  facts  that  made  this  rearne,  to  the  grete  disturbaunce 

them  necessary,  and  mquietation  of  the  same  " 

t  No  lord,  or  other  person,  by  20  R.  II.  v  Thus  to  select  one  passage  out  of 
C.  3,  was  permitted  to  sit  on  the  bench  many:  Eodem  anno  (1332)  quidam  ma- 
with  the  justices  of  assize.  Trials  were  Hgni,  fulti  quorundani  rnagnatum  pne- 
sometxmes  overawed  by  armed  parties  sidio,  regis  adolescentiatn  spernentes,  et 
•who  endeavored  to  prevent  their  adver-  regnum  perturbare  intendentes,  in  tan- 
sane^  from  appearing.  Paston  Letters,  tarn  turbam  creverunt,  nemora  et  saltus 
vol.  m.  p.  np.  occupaverunt,  ita  quod  toti  regno  terror! 

«  From  a  passage  in  the  Paston  Let-  essent    Walsmgham,  p.  132. 
ters  (vol,  ii,  p*  23)  it  appears  that,  far 


4i  6  HALL  AM 

three  centuries  that  the  house  of  Plantagenet  sat  on  the  throne. 
Disseizin,  or  forcible  dispossession  of  freeholds,  makes  one  ot 
the  most  considerable  articles  in  our  law-books.^  Highway 
robbery  was  from  the  earliest  times  a  sort  of  national  crime. 
Capital  punishments,  though  very  frequent,  made  little  im- 
pression 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  out- 
laws 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,  in- 
deed, 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,"  x  it  may  be  perceived  how  thoroughly  these  sentiments 
had  pervaded  the  public  mind. 

Such  robbers,  I  have  said,  had  flattering  prospects  of  im- 
punity. Besides  the  general  want  of  communication,  which 
made  one  who  had  fled  from  his  own  neighborhood  tolerably 
secure,  they  had  the  advantage  of  extensive  forests  to  facilitate 
their  depredations  and  prevent  detection.  When  outlawed  or 
brought  to  trial,  the  worst  offenders  could  frequently  purchase 

iv  I  am  aware  that  in  many,  probably  necessary  to  render  the  dimefein  com- 
a  great  majority  of  reported  cases,  this  ptete;  a  condition  which  I  have  not 
•word  was  technically  used,  where  some  found  hinted  in  any  law-book.  See  But- 
unwarranted  conveyance,  such  as  a  feoff-  let's  note  on  Co.  Litt  p  330 ;  wlu>i  c- 
nient  by  the  tenant  for  life,  was  held  that  eminent  lawyer  expresses  similar 
to  have  wrought  a  disseizin;  or  where  doubts  as  to  Lord  Mansfield's  re.Tw>mmr. 
the  plaintiff  was  allowed,  for  the  purpose  It  may,  however,  be  remarked,  that  con- 
of  a  more  convenient  remedy,  to  fei$n  structive  or  elective  disseizins,  being  of 
himself  disseized,  which  was  called  dis-  a  technical  nature,  were  mure  likely  to 
seizin  by  election.  But  several  proofs  produce  cases  in  the  Yonr-hoi&M  than 
might  be  brought  from  the  parliament-  those  accompanied  with  actual  vio- 
ary  petitions,  and  I  doubt  not,  i{  nearly  lence,  which  would  commonly  turn  only 
looked  at,  from  the  Year-books,  that  in  on  matters  of  fact,  and  be  determined 
other  cases  there  was  an  actual  and  vio-  by  a  jury. 

lent  expulsion,  And  the  definition  of  A  remarkable  instance  of  violent  dis- 
disseizm  in  all  the  old  writers,  such  as  seizin,  amounting  in  effect  to  a  private 
Entton  and  Littleton,  is  obviously  war,  may  be  found  in  the  Pastern  Let- 
framed  upon  its  primary  meaning  of  ters,  occupying  most  of  the  fourth  vol- 
yiolent  dispossession,  which  the  word  time  One  of  the  Paston  family,  claim- 
had  probably  acquired  long  before  the  ing  a  right  to  Caistor  Castle,  kept  pos- 
more  peaceable  disseizins,  if  I  may  use  session  against  the  Duke  of  Noi'falk, 
the  expression,  became  the  subject  of  who  brought  a  large  force,  and  laid  a 
the  remedy  by  assize  regular  seige  to  the  place,  till  it  sur- 

I  would  speak  with  deference  of  Lord  rendered  for  want  of  provisions     Two 

Mansfield's  elaborate  judgment  in  Tay-  of  the  besiegers  were  killed.    It  does 

lor  dem.    Atkins  v.  Horde,  x  Burrow  not  appear  that  any  legal  measures  were 

107,  &c.;   but  some  positions  m  it  ap-  taken  to  prevent  or  punish  this  outrage, 

pear  to  me  rather  too  strongly  stated;  *  Difference  between  an  Absolute  and 

and  particularly  that  the  acceptance  of  Limited  Monarchy,  p.  09. 
the  disseizor  as  tenant  by  the  lord  was 


THE  MIDDLE  AGES 


417 


charters  of  pardon,  which  defeated  justice  in  the  moment  of  her 
blow.y  Nor  were  the  nobility  ashamed  to  patronize  men  guilty 
of  every  crime.  Several  proofs  of  this  occur  in  the  rolls.  Thus, 
for  example,  in  the  22d  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."  2 

It  is  perhaps  the  most  meritorious  part  of  Edward  I/s  gov- 
ernment that  he  bent  all  his  power  to  restrain  these  breaches 
of  tranquillity.  One  of  his  salutary  provisions  is  still  in  con- 
stant use,  the  statute  of  coroners.  Another,  more  extensive, 
and,  though  partly  obsolete,  the  foundation  of  modern  laws, 
is  the  statute  of  Winton,  which,  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 


y  The  manner  in  which  these  were  ob- 
tained, in  bpite  of  law,  may  be  noticed 
among  the  violent  courses  of  preroga- 
tive Hy  statute  2  E.  III.  c.  2,  con- 
firmed by  10  E.  III.  c.  a,  the  king's 
power  of  granting  pardons  was  taken 
away,  except  in  cases  of  homicide  per 
infortumum  Another  act,  14  E.  III. 
c.  15,  reciting  that  the  former  laws  in 
this  respect  have  not  been  kept,  de- 
clares 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  endeavored  to  compromise 
the  question  with  the  crown.  By  27  E. 
III.  stat,  x,  c.  2,  without  adverting  to 
the  existing  provisions,  which  may 
therefore  seem  to  be  repealed  by  im- 
plication, it  is  enacted  that  in  every 
charter  of  pardon,  granted  at  anyone'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.  TI.  stat.  2,  c.  i,  we  are  surprised  to 
find  the  commons  requesting  that  par- 
dons 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  al- 
ready by  the  27th  of  Edward  II.  Par- 
dons make  a  pretty  large  head  in 
urooke's  Abridgment,  and  were  un- 
doubtedly granted  without  scruple  by 
every  one  of  our  kings.  A  pardon  ob- 
tained in  a  case  of  peculiar  atrocity  is 
the  subject  of  a  specific  remonstrance 
in  33  H.  VI.  Rot.  Parl.  vol.  v.  p.  m 

#  Ibid.  vol.  ii.  p.  20,1.  A  strange 
policy,  for  which  no  rational  cause  can 
be  alleged,  kept  Wales  and  even  Che- 

VOL.  II.— -27 


shire  distinct  from  the  rest  of  the  king- 
dom Nothing  could  be  more  injurious 
to  the  adjacent  counties  Upon  the 
credit  of  their  immunity  from  the  juris- 
diction of  the  king's  courts,  the  people 
of  Cheshire  broke  with  armed  bands  into 
the  neighboring  counties,  and  perpe- 
trated all  the  crimes  in  their  power. 
•Rot  ?ari-  v°l  »u.  PP-  81,  201,  440;  Stat. 
i  H  _IV  c  18.  As  to  the  Welsh  fron- 
tier, 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  leofal  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  vi  pp.  104,  154,  that  *his 
exclusion  may  be  kept  in  force*  Com- 
plaints of  tlie  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  isE.  II., 
a  writ  was  addressed  to  the  Earl  of 
Ajrundel,  justiciary  of  Wales,  directing 
him  to  cause  twenty-four  discreet  per- 
sons to  be  chosen  from  the  north,  and 
as  many  from  the  south  of  that  princi- 
'  to  serve  in  parliament.  Rot. 


Parl.  vol.  i.  p.  456.  And  we  find  a  simi- 
lar writ  in  the  aoth  of  the  same  king. 
Prynne's  Register,  4th  part,  p  60.  Wil- 
lis 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  Parliamentana,  vol. 
i  preface,  p,  15. 


HALLAM 

strangers  to  pass  without  punishment  than  indite  the  offend- 
ers, 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  re- 
main answerable  for  the  damage  unless  the  felons  be  brought 
to  justice.  It  may  be  inferred  from  this  provision  that  the 
ancient  law  of  frankpledge,  though  retained  longer  in  form, 
had  lost  its  efficiency.  By  the  same  act,  no  stranger  or  sus- 
picious 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  readi- 
ness to  follow  the  sheriff  on  hue  and  cry  raised  after  felons.* 
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  orig- 
inally 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.fc  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  stat- 
utes, and  their  titles  changed  to  that  of  justices.  They  were 
empowered  to  imprison  and  punish  all  rioters  and  other  of- 
fenders, and  such  as  they  should  find  by  indictment  or  suspi- 
cion to  be  reputed  thieves  or  vagabonds,  and  to  take  sureties 
for  good  behavior  from  persons  of  evil  fame.e  Such  a  juris- 
diction 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 

a i  The  statute  of  Winton  was  confirmed,       34  R  HI.  c.  u  7  "R.  II.  c   e     The  in- 
gid  proclazmed  afresh  by  the  sheriffs,  #      Stxttion  excitei  I  £od I  difa  «&8. 

ftw-i^^^LTaS*cSS^S       even-be*°-rc   thc8-e"  8tr0x^  acts    wer« 


llL  stat.  *,  c.  *;  4  EL  HI.  c.  „ 


THE  MIDDLE  AGES  419 

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  magis- 
trates to  commit  the  ringleaders  of  tumultuary  assemblies  with- 
out waiting  for  legal  process  till  the  next  arrival  of  justices 
of  jail  delivery,  the  commons  petitioned  next  year  against  this 
"  horrible  grievous  ordinance/'  by  which  "  every  freeman  in 
the  kingdom  would  be  in  bondage  to  these  justices,"  contrary 
to  the  great  charter,  and  to  many  statutes,  which  forbid  any 
many  to  be  taken  without  due  course  of  law.d  So  sensitive 
was  their  jealousy  of  arbitrary  imprisonment,  that  they  pre- 
ferred 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  considera- 
tion for  the  present* 

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  desti- 
tute of  property,  not  only  in  the  land  he  held  for  his  mainte- 
nance, but  in  his  own  acquisitions.*  If  a  villein  purchased  or 
inherited  land,  the  lord  might  seize  it ;  if  he  accumulated  stock, 
its  possession  was  equally  precarious.  Against  his  lord  he  had 
no  right  of  action ;  because  his  indemnity  in  damages,  if  he 
could  have  recovered  any,  might  have  been  immediately  taken 

d  Rot.  3?arl.  vol.  Hi.  p*  65.    It  may  be  ingly  call  it  an  ordinance  in  their  pres- 
observed  that  this  act,  a  E.  II.  c.  16,  ent  petition.    This  naturally  increased 
was  not  founded  on  a  petition,  but  on  their  animosity  in  treating  it  as  an  wi- 
the king's  answer;  so  that  the  commons  fnngement  of  the  subject's  right* 
were  not  real  parties  to  it,  and  accord-  e  Glanvil,  1.  v.  c.  5. 


420  HALLAM 

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/ 

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  zgth  article  of  Magna 
Charta :  "  No  freeman  shall  be  disseized  nor  imprisoned/1  s 
For  murder,  rape,  or  mutilation  of  his  villein,  the  lord  was 
indictable  at  the  king's  suit;  though  not  for  assault  or  im- 
prisonment, which  were  within  the  sphere  of  his  seignorial 
authority./* 

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  man- 


f  According  to  Bracton,  the  bastard  herself  by  such  a  marriage  became  free 

of  a  nief,  or  female  villein,  was  born  in  during   the   coverture,     c.   31.     [Note 

servitude;  and  where  the  parents  lived  XXVIII.] 

on  a  villein  tenement,  the  children  of  a  g  I  must  confess  that  I  have  some 

nief,  even  though  married  to  a  freeman,  doubts  how  for  this  was  law  at  the  epoch 

were   villems,    1.    iv.    c.    ai;  and    see  of  Magna  Charta.    Glanvil  and  Bracton 

Beames's  translation  of  Glanvil,  p.  109.  both   speak  of  the  status  villcnaRii  as 

But   Littleton  lays  down  an  opposite  opposed  to  that  of  liberty,  and  seem  to 

doctrine,  that  a  bastard  was  necessarily  consider  it  as  a  civil  condition,  not  a 

free,  because,   being   the   child   of   no  merely  personal  relation.    The  civil  law 

father  m  the  contemplation  of  law,  he  and  the  French  treatise  of  Beaumanoir 

could  not  be  presumed  to  inherit  servi-  hold  the  same  language.    And  Sir  Rob- 

tude  from  any  one,  and  makes  no  dis-  ert  Cotton  maintains  without  hesitation 

tinction  as  to  the  parent's  residence.  that  villeins  are  not  withm  the  39th  sec- 

Sect.  188     I  merely  take  notice  of  this  tion  of  Magna  Charta,  4I  being  excluded 

change  in  the  law  between  the  reigns  of  by  the  word  liber."    Cotton's  Posthuma, 

Henry  III.  and  Edward  IV.  as  an  in-  p   223.    Bntton,  however,  a  little  after 

stance  of  the  bias  which  the  judges  Bracton,  says  that  m  an  action  the  vil- 

showed  in  favor  of  personal  freedom.  lein  is  answerable  to  all  men,  find  all 

Another,  if  we  can  rely  upon  it,  is  more  men  to  him.    P.  79.    And  later  Judges, 

important,    In  the  reign  of  Henry  II.  in   favorem  libertatis.   gave   this  con- 

a  freeman  marrying  a  nief,  and  settling  struction  to  the  villein  s  situation,  which 

on  a  villein  tenement,  lost  the  pnvi-  must  therefore  be  considered  as   the 

leges  of  freedom  during  the  time  of  his  clear  law  of  England  in  the  fourteenth 

occupation;   legem  terras  quasi  nativus  and  fifteenth  centuries, 

amittit     Glanvil,  1,  v.  c.  6.    This  was  h  Littleton,  sect.  189,  190,  speaks  only 

consonant  to  the  customs  of  some  other  of  an  appeal  m  the  two  former  cases ; 

countries,  some  of  which  went  further,  but  an  indictment  is  a,  fortiori:  and  he 

and  treated  such  a  person  forever  as  a  says,    sect.    194,   that    an    indictment, 

villein.    But,  on  the  contrary,  we  find  though  not  an  appeal,  lies  against  th« 

in  Britton,  a  century  later,  that  the  nief  lord  tor  maiming  his  villein. 


THE  MIDDLE  AGES  421 

ner  of  difference;  the  distinction  was  merely  technical,  and 
affected  only  the  mode  of  pleading.*  The  term  in  gross  is 
appropriated  in  our  legal  language  to  property  held  absolutely 
and  without  reference  to  any  other.  Thus  it  is  applied  to 
rights  of  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  posses- 
sion of  a  villein./  But  there  was  a  class  of  persons,  some- 
times 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  vil- 
leins, 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  burdens  of  territorial  servitude.  He  was  bound  to 
arbitrary  service  at  the  will  of  the  lord,  and  he  might  by  the 
same  will  be  at  any  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.^ 

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  insurmount- 
able 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 

*  Gurdon,   on  Courts  Baron,  p.   59*>  Trials,  vol.  xx.  p.  42) ;  drawing  tins  m- 

supposes  the  villein  in  gross  to  have  ference  from  the  few  cases  relative  to 

been  the  Lazzus  or  Servus  of  early  times,  them   that   occur    m   the    Year-books. 

a  domestic  serf,  and  of  an  inferior  spe-  And  certainly  the  form  of  a  writ  de 

cies  to  the  cultivator,  or  villein  regard-  nativitate  probanda,   and  the  peculiar 

ant.    Unluckily  Bracton  and  Littleton  evidence   it   required,   which   may   be 

do  not  confirm  this  notion,  which  would  found  in  Fitzherbert's  Natura  Brevmm, 

be  convenient  enough;    for  m  Domes-  or  m  Mr.  H.'s  argument,  are  only  ap- 

day  Book  there  is  a  marked  distinction  plicable   to   the   other   species.     It   is 

between  the  Servi  and  Villani     Black-  a   doubtful  point  whether  a  freeman 

stone    expresses    himself    inaccurately  could,  m  contemplation  of  law,  become 

when  he  says  the  villein  in  gross  was  a  villein  in  gross;  though  his  confes- 

annexed  to  the  person  of  the  lord,  and  sion  m  a  court  of  record,  upon  a  suit 

transferable  by  deed  from  one  owner  to  already  commenced  (for  this  was  req- 

another.    By  this  means  indeed  a  villein  uisite),  would   estop  him  from  claim- 

regardant  would  become  a  villem  m  ing    his    liberty;  and    hence    Bracton 

gross,  but  all  villeins  were  alike  liable  speaks  of  this  proceeding  as  a  mode  by 

to  be  sold  by  their  owners.    Littleton,  which  a  freeman  might  fall  jnto  servi- 

sect  *8x.    Blomefield's  Norfolk,  vol.  ui.  tude.         xr,yv^, 

p.   860.     Mr.   Hargrave  supposes  that  i  [Not*  XXIX.] 

vullems  in  gross  were  never  numerous  k  Bracton,  1  11.  c.  o;  L  iv.  c.  20;  LAV 

(Case    of    Somerset,    Howell's    State  tleton,  sect  173. 


422 


HALLAM 


would  already  belong  to  his  lord.*  And  even  in  the  case  o* 
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  can- 
not 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  sub- 
ject, 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  occu- 
pation 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  labor;  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  dwell- 
ings who  were  to  give  the  strength  of  their  arms  for  his  ad- 
vantage. 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  re- 
duced to  a  smaller  extent  through  sttbinfeudations,  sales,  or 
demises  for  valuable  rent.  The  purchasers  under  these  aliena- 
tions had  occasion  for  laborers ;  and  these  would  be  free  ser- 
vants in  respect  of  such  employers,  though  in  villenage  to  their 
original  lord.  As  he  demanded  less  of  their  labor,  through  the 
diminution  of  his  domain,  they  had  more  to  spare  for  other 

I  Glanvil,  1.  iv*  c.  5, 


THE  MIDDLE  AGES 


423 


masters ;  and  retaining  the  character  of  villeins  and  the  lands 
they  held  by  that  tenure,  became  hired  laborers  in  husbandry 
for  the  greater  part  of  the  year.  It  is  true  that  all  their  earn- 
ings were  at  the  lord's  disposal,  and  that  he  might  have  made 
a  profit  of  their  labor  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  oner- 
ous 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  L,  we  find  the  tenants  in  some  manors 
bound  only  to  stated  services,  as  recorded  in  the  lord's  book.w 
Some  of  these,  perhaps,  might  be  villeins  by  blood;  but  free 
tenants  in  villenage  were  still  more  likely  to  obtain  this  pre- 
cision 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 ,»  Proofs  of  this  remarkable  transformation  from  ten- 
ants in  villenage  to  copyholders  are  found  in  the  reign  of  Henry 
IIL  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  42d  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  for- 
feited/' o  It  seems  implied  herein,  that,  so  long  as  the  copy- 
holder did  continue  to  perform  the  regular  stipulations  of  his 
tenure,  the  lord  was  not  at  liberty  to  divest  him  of  his  estate  ,* 

wDuffdale's      Warwickshire,      apud  field.    Blomefield's  Norfolk,  vol.  i.  p. 

Eden's  state  of  the  Poor,  vol.  i.  p.  13.  114. 

A  passage  in  another  local  history  rather  n  Gtirdon  on  Courts  Baron,  p  574. 

seems  to  indicate  that  some  kind  of  de-  o  Brooke's  Abridgm     Tenant  par  co- 

Hnquency  was  usually  alleged,  and  some  pie,  i.    By  the  extent-roll  of  the  manor 

ceremony    employed,    before   the   lord  of  Bnsmgham  in  Norfolk,  m  1254,  it 

entered  on  the  villein's  land.    In  Gis-  appears  that  there  were  then  ninety-four 

sing  manor,  30  E.  III.,  the  jury  present,  copyholders  and  six  cottagers  in  villen- 

that  W.  G,,  a  villein  by  blood,  was  a  age;   the  former  performing  many,  but 

rebel  and  ungrateful  toward  his  lord,  determinate   services  of  labor  for.  the 

for  which  all  hts  tenements  were  seized  lord.     Blomefield's  Norfolk,  vol.  i.  p. 

His  offence  was  the  having  said  that  34, 
the  lord  kept  four  stolen  sheep  in  his 


424  HALLAM 

and  this  is  said  to  be  confirmed  by  a  passage  in  Britton,  which 
has  escaped  my  search ;  though  Littleton  intimates  that  copy- 
holders could  have  no  remedy  against  their  lord./'  However, 
in  the  reign  of  Edward  IV.  this  was  put  out  of  doubt  by  the 
judges,  who  permitted  the  copyholder  to  bring  his  action  to 
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  man- 
ner. 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  labor  to  a  dis- 
tant 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  favor  him ;  and  so  many  obstacles  were  thrown 
in  the  way  of  these  suits  to  reclaim  fugitive  villeins,  that  they 
could  not  have  operated  materially  to  retard  their  general  en- 
franchisements In  one  case,  indeed,  that  of  unmolested  resi- 
dence 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  Hoveclen,  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 

p  Littl.  sect   77.    A  copyholder  with-  in  acting  tinder  his  command  contrary 

out  legal  remedy  may  seem  little  better  to  law,     I  wish  this  note  to  be  con- 

than  a  tenant  m  mere  villenage,  except  sidered  as  correcting  one  in  my  first 

in  name     But  though,  from  the  relation  volume,  p.  198,  where  I  have  said  that 

between  the  lord  and  copyholder,  the  a  similar  law  in  France  tendered  the 

latter  might  not  be  permitted  to  sue  his  distinction  between  a  serf  and  a  homme 

superior,  yet  ^it  does  not  follow,  that  he  de  poote  little  more  than  theoretical, 
might  not  bring  his  action  against  any          q  See  the  rules  of  pleading  and  evi- 

person  acting  under  the  lord's  direc-  dence  in   questions  of  villcnage  fully 

tion,  in  which  the  defendant  could  not  slated  in  Mr.  Hargrave's  argument  in 

set  up  an  illegal  authority;   just  as,  al-  the  case  of  Somerset,    Howett's  State 

though  .no  wnt  runs  against  the  king.  Trials,  vol.  acac.  p.  38. 
his  ministers  or  officers  are  not  justified 


THE  MIDDLE  AGES  425 

for  garrisons.  This  law,  whether  of  William  or  not,  is  unequiv- 
ocally mentioned  by  Glanvil.r  Nor  was  it  a  mere  letter.  Ac- 
cording to  a  record  in  the  sixth  of  Edward  IL,  Sir  John 
Clavcring  sued  eighteen  villeins  of  his  manor  of  Cossey,  for 
withdrawing  themselves  therefrom  with  their  chattels ;  where- 
upon 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.* 

By  such  means  a  large  proportion  of  the  peasantry  before 
the  middle  of  the  fourteenth  century  had  become  hired  la- 
borers instead  of  villeins.  We  first  hear  of  them  on  a  grand 
scale  in  an  ordinance  made  by  Edward  III.  in  the  twenty- 
third  year  of  his  reign.  This  was  just  after  the  dreadful  pes- 
tilence 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  labor,  though  founded 
exactly  on  the  same  principles  as  regulate  the  value  of  any 
other  commodity,  is  too  frequently  treated  as  a  sort  of  crime 
by  lawgivers,  who  seem  to  grudge  the  poor  that  transient 
melioration  of  their  lot  which  the  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  labor,  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  color  of  charity,  to  give  alms  to  a  beg- 
gar. And,  to  make  some  compensation  to  the  inferior  classes 
for  these  severities,  a  clause  is  inserted,  as  wise,  just,  and  prac- 
ticable as  the  rest,  for  the  sale  of  provisions  at  reasonable 
prices,* 

rL»  v*  c,  v*  34  E.  HT.  c.  n;  which,  however,  might, 

s  Blom«fi«ld*f  Norfolk,  voK  I  p,  657-  I  should  conceive,  very  well  stanfl  along 

I  know  not  how  far  this  privity  wns  with  it. 

supposed  to  be  impaired  by  the  btutute          t  btjit.  33  E.  III. 


426  HALLAM 

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  sea- 
son of  their  labor.  From  this  time  it  became  a  frequent  com- 
plaint of  the  commons  that  the  statute  of  laborers  was  not 
kept  The  king  had  in  this  case,  probably,  no  other  reason 
for  leaving  their  grievance  unredressecl  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  in- 
creased 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  ancl  igno- 
rance. It  was  natural  that  the  country  people,  or  ttplanclish 
folk,  as  they  were  called,  should  repine  at  the  exclusion  from 
that  enjoyment  of  competence,  and  security  for  the  fruits  of 
their  labor,  which  the  inhabitants  of  towns  so  fully  possessed. 
The  fourteenth  century  was,  in  many  parts  of  Europe,  the  age 
when  a  sense  of  political  servitude  was  most  keenly  felt.  Thus 
the  insurrection  of  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  clemocratical  tone 
of  the  French  and  Flemish  cities,  and  for  the  prevalence  of 
a  spirit  of  liberty  in  Germany  and  Switzerland.^ 

I  do  not  know  whether  we  should  attribute  part  of  this  revo- 
lutionary concussion  to  the  preaching  of  Wicliflfe's  disciples, 
or  look  upon  both  one  and  the  other  as  phenomena  belonging; 
to  that  particular  epoch  in  the  progress  of  society.  New  prin- 
ciples, both  as  to  civil  rule  ancl  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  nottr- 
ished  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  exhib- 

wCNote  XXX.] 


THE  MIDDLE  AGES  427 

ited,  and  which  became  the  foundation  ol  our  theatre,  afforded 
fuel  to  the  spirit  of  sedition.  The  common  origin  and  com- 
mon destination  of  mankind,  with  every  other  lesson  of  equal- 
ity which  religion  supplies  to  humble  or  to  console,  were  dis- 
played 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  as- 
tonished at  the  intoxication  of  mind  they  produced.^ 

Though  I  believe  that,  compared  at  least  with  the  aris- 
tocracy 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  cen- 
tury was  an  age  of  greater  magnificence  than  those  which  had 
preceded,  in  dress,  in  ceremonies,  in  buildings ;  foreign  lux- 
uries 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  con- 
jecture that  those  whose  tenure  obliged  them  to  unlimited  ser- 
vices 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  villenagc 
rendered  their  due  services ;  w  and  the  exigencies  of  govern- 
ment led  to  the  fatal  poll-tax  of  a  groat,  which  was  the  proxi- 

tf  I  have  been  more  influenced  by  nat-  comprehends  the  essence  of  religious 

wral  probabilities  than  testimony  in  as-  democracy;        .,  ,    ^      *  *. 

crlbittg  thi»  effect  to  WicUffe's  innova-  u  WJien  Adam  delved  and  Eve  span, 
lions, because  the  historians  are  preju-          Where  was  then  the  gentleman?" 
diced  witnesses  against  him*   Several  of         The  sermon  of  this  priest,  at  related 

them  depose  to  the  connection  between  by  Walajnghwn.  p.  27$,  derives  its  argu- 

his  opinions  and  the  rebellion  of  xa&r,  tnent  for  equality  from  the  common 

especially  WaUfngham,  p.  *88.  This  im-  origin  of  the  species.   He  is  said  to  have 

plies  no Reflection  upon  Wicliffe,  any  been  a  disciple  of  Wicliffe.    Turner* 

more  than  the  crimes  of  the  anabaptists  Hat  of  En$md,  vol.  tt.  p,  4*. 
in  Munster  do  upon  Luther.   Every  one         w  Stat.  I.  R.  II,  c.  tf ;  Rot  Par!,  vol. 

knows  th«  diatish  of  John  Ball*  which  iii.  p.  ax* 


4a8  HALLAM 

mate  cause  of  the  insurrection.  By  the  demands  of  these  riot- 
ers we  perceive  that  territorial  servitude  was  far  from  extinct ; 
but  it  should  not  be  hastily  concluded  that  they  were  all  per- 
sonal 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* 

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  an- 
nulled by  proclamation  to  the  sheriffs,^  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."  -  Riots 
were  turned  into  treason  by  a  law  of  the  same  parliaments 
By  a  very  harsh  statute  in  the  I2th  of  Richard  II.  no  servant 
or  laborer  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  hus- 
bandry till  twelve  years  old  exercise  any  other  calling.^  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  honor  of  all  the  freemen  of  the 
kingdom."  In  the  same  parliament  they  complained  that  vil- 
leins 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  negatives 

x  30  E   I.,  in  Fitzherbert.    Villenage,  a  R.   II.  c.  7.    The  words  arc,  riot 

apud  Lambard's  Perambulation  of  Kent,  et  rumour  n'autres  sembtables;  rather  a 

p.  632     Somner  on  Gavelkmd,  p»  72.  general  way  of  creating  a  new  treason; 

y  Rymer,  t.  vii.  p.  316,  &c    The  king  but  panic  puts  an  end  to  jealousy, 

holds  this  bitter  language  to  the  villems  b  12  R.  IT  c.  3. 

of  Essex,  after  the  death  of  Tyler  and  c  Rot.  Parl.  15  R.  II.  vol  iii.  pp.  394, 

execution  of  the  other  leaders  had  dis-  206.    The  statute  7  H.  IV.  c.  17,  enacts 

concerted  them:    Rustici  quidem  fuistis  that  no  one  shall  put  his  son  or  daugh* 

et  estis,  m  bondagio  permanebitis,  non  ter  apprentice  to  any  trade  in  a  borough, 

ut     hactenus.      aed     mcomparabiliter  unless?  he  have  land  or  rent  to  the  value 

viliori,  &c.    Walsmgham,  p.  269.  of  twenty  shillings  a  year,  but  that  any 

z  Rot  Parl.  vol.  in.  p.  100,  one  may  put  his  children  to  school.  The 


THE  MIDDLE  AGES  429 

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  Js  time  had  converted  a  large 
portion  of  the  peasantry  into  free  laborers  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  con- 
tributed to  the  abolition  of  villenage.  Charters  of  enfranchise- 
ment were  very  common  upon  the  continent.  They  may  per- 
haps have  been  less  so  in  England.  Indeed  the  statute  dedonis 
must  have  operated  very  injuriously  to  prevent  the  enfranchise- 
ment 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.rf  So  in  the  twelfth  of  Edward 
III.  certain  of  the  king's  villeins  are  enfranchised  on  payment 
of  a  fine,e  In  strictness  of  law,  a  fine  from  the  villein  for  the 
sake  of  enfranchisement  was  nugatory,  since  all  he  could  pos- 
sess 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  exer- 
tions of  their  industry  by  availing  himself  of  an  extreme  right, 
Deeds  of  enfranchisement  occur  in  the  reigns  of  Mary  and 
Elizabeth ;  f  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 

reason  assigned  Is  the  scarcity  of  labor-  It  is  said  in  a  modern  book  that  villen- 

ers  in  husbandry,  in  consequence  of  neo-  age  was  very  rare  in  Scotland,  and  even 

pie  living  in  Upland  apprenticing  tneir  that  no  instance  exists  m  records  of  an 

children,  estate  sold  with  the  laborers  and  their 

d  Blomefield's  Norfolk,  vol.  iii  p.  571.  families  attached  to  the  soil.  m  Pinker- 

e  Rymer,  t.  v.  p.  44.  ton's  Hist,  of  Scotland,  vol  i.  p.  147- 

/  Gurdon  on   Courts  Baron,  p.  $96;  But  Mr,  Chalmers,  in  his  Caledonia,  has 

Madox,  Formulare  AngHcanurn,  p.  43*0;  brought  several  proofs  that  this  asser- 

Barrington  on  Ancient  Statutes,  p.  378.  tion  is  too  general. 


430  HALLAM 

last  unequivocal  testimony  to  the  existence  of  villenage;g 
though  it  is  highly  probable  that  it  existed  in  remote  parts  of 
the  country  some  time  longer ./« 

From  this  general  view  of  the  English  constitution,  as  it 
stood  about  the  time  of  Henry  VL,  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  under- 
standing, 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  cer- 
tain 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  proceed- 
ings of  1788  and  1810  are  undoubtedly  precedents  of  far  more 
authority  than  any  that  can  be  derived  from  our  ancient  his- 
tory, 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  unin- 
teresting to  look  back  on  those  parallel  or  analogous  cases 
by  which  the  deliberations  of  parliament  upon  the  question  of 
regency  were  guided. 

While  the  kings  of  England  retained  their  continental  do- 
minions, and  were  engaged  in  the  wars  to  which  those  gave 
birth,  they  were  of  course  frequently  absent  from  this  country. 

£  Barrington,  ubi  supra,  from  Rymer.  was  in  no  case  given  in  favor  of  the  plea; 

A  There,  are  several  later  cases  report-  so  that  we  can  infer  nothing  as  to  the 

ed  wherein  villenage  was  pleaded,  and  actual  continuance  of  villenage. 

one  of  them  as  late  as  the  i$th  of  James  It  is  remarkable,  and  may  be  deemed 

I.    (Noy,  p.  27.)    See  Hargrave's  argu-  by  some  persons  a  proof  of  legal  pedan- 

ment,  State  Trials,  vol.  *x.  p.  41.    But  try,  that  bit  E.  Coke,  while  he  dilates  on 

these  are  so  briefly  stated,  that  it  is  the  law  of  villenage,   never  intimates 

difficult  in  general  to  understand  them.  that  it  was  bectme  antiquated. 
It  is  obvious,  however,  that  judgment 


THE  MIDDLE  AGES 


431 


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  lieu- 
tenants, 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  exer- 
cising all  the  prerogatives  of  the  crown.  It  was  of  course  deter- 
mined by  the  king's  return ;  and  a  distinct  statute  was  neces- 
sary 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.*  The  most  remarkable  cir- 
cum{btance  attending  those  lieutenancies  was  that  they  were 
sometimes  conferred  on  the  heir  apparent  during  his  infancy. 
The  Black  Prince,  then  Duke  of  Cornwall,  was  left  guardian 
of  the  realm  in  1339,  when  he  was  but  ten  years  old;;  and 
Richard  his  son,  when  still  younger,  in  1372,  during  Edward 
III  ys  last  expedition  into  France.^ 

These  do  not  however  bear  a  very  close  analogy  to  regen- 
cies 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,  I.  At  the  death  of  John, 
William  Earl  of  Pembroke  assumed  the  title  of  rector  regis 
ct  regni,  with  the  consent  of  the  loyal  barons  who  had  just 
proclaimed  the  young  king,  and  probably  conducted  the  gov- 
ernment in  a  great  measure  by  their  advice.*  But  the  circum- 
stances 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.^  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 

*  8  H*  V.  c.  x.  *  Rymer,  t  vl  p.  ?& 

j  This  prince  having  been  sent  to  Ant-  I  Matt.  Paris,  p,  243- 

werp,  six  commissioners  were  appointed  m  Matt  Weatraonast  ap.  Brady's  His- 

tn  open  parliament    Rot.  Pan.  13  E.  tory  o!  England,  vol.  ii.  p.  i. 
1X1.  vol.  H,  p.  107. 


HALLAM 

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  111.,  then  fourteen 
years  old,  the  parliament,  which  was  immediately  summoned, 
nominated  four  bishops,  four  earls,  and  six  barons  as  a  stand- 
ing council,  at  the  head  of  which  the  Earl  of  Lancaster  seems 
to  have  been  placed,  to  advise  the  king  in  all  business  of  gov- 
ernment. 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  councils  They  may  be  deemed  therefore  a  sort  of  par- 
liamentary regency,  though  the  duration  of  their  functions 
does  not  seem  to  be  defined.  4.  The  proceedings  at  the  com- 
mencement 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  patents  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  prac- 
tice 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  over- 
looked 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  par- 
liament, which  might  itself  be  deemed  a  great  council  of  re- 
gency during  the  first  years  of  Richard. 
5.  The  next  instance  is  at  the  accession  of  Henry  VI.  This 

«  Rot.  Parl.  vol.  ii.  p.  52.  0  Rynwr,  t,  vii,  p.  171. 


THE  MIDDLE  AGES  433 

prince  was  but  nine  months  old  at  his  father's  death;  and 
whether  irom  a  more  evident  incapacity  for  the  conduct  of 
government  in  Ins  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  execu- 
tive authority.  Upon  the  news  arriving  that  Henry  V.  was 
dead,  several  lords  spiritual  and  temporal  assembled,  on  ac- 
count 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, 
eschcators,  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  tested  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  par- 
liament, 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  coun- 
cillors 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  in- 
ferior patronage  specifically  reserved  to  the  protector.  In  all 
important  business  that  should  pass  by  order  of  council,  the 
whole,  or  major  part,  were  to  be  present  ;  "  but  if  it  were  such 
matter  that  the  king  hath  been  accustomed  to  be  counselled 
of,  that  then  the  said  lords  proceed  not  therein  without  the 
advice  of  my  lords  of  Bedford  or  Gloucester/'  «  A  few  more 
councillors  were  added  by  the  next  parliament,  and  divers 
regulations  established  for  their  observance/ 

This  arrangement  was  in  contravention  of  the  late  king's 
testament,  which  had  conferred  the  regency  on  the  Duke  of 


p  Rot  Parl  rot  to  p.  169.  q  Ibid,,  pp.  174,  *7&        -        *  EWd-i  P-  aox* 

VOL*  IL—  aS 


434 


HALLAM 


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$  "  ye  desired  to 
have  had  ye  governaunce  of  yis  land ;  affermyng  yat  hit  be- 
longed unto  you  of  rygzt,  as  well  by  ye  mene  of  your  birth 
as  by  ye  laste  wylle  of  ye  kyng  yat  was  your  broyer,  whomc 
God  assoile ;  alleggyng  for  you  such  groundes  and  moty ves 
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  lordcs  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  de- 
sire 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  tranquil- 
lity, 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 

$  I  follow  the  orthography  of  the  roll,  conjecture.  The  usual  irregularity  of 
which  I  hope  will  not  be  inconvenient  ancient  spelling  is  hardly  sufficient  to 
to  the  reader.  Why  this  orthography,  account  for  such  variations;  but  if  there 
from  obsolete  and  difficult,  so  frequently  be  any  error,  it  belongs  to  the  super- 
becomes  almost  modern,  as  will  appear  intendents  of  that  publication  and  in  not 
in  the  course  of  these  extracts,  X  cannot  mine. 


THE   MIDDLE  AGES  435 

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  appoint- 
ment, ordinance,  and  act,  ye  then  agreed  you  as  for  your  per- 
son, making  nevertheless  protestation  that  it  was  not  your 
intent  in  any  wise  to  deroge  or  do  prejudice  unto  rny  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  de- 
clared in  the  said  act  and  articles,  subscribed  by  my  said  lord 
of  Bedford,  by  yourself,  and  the  other  lords  of  the  council 
I  Jut  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,  considering1 
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  yott  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 


436 


HALLAM 


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."  * 

It  is  evident  that  this  plain,  or  rather  rude  address  to  the 
Duke  of  Gloucester,  was  dictated  by  the  prevalence  of  Car- 
dinal Beaufort's  party  in  council  and  parliament.  But  the 
transactions  in  the  former  parliament  are  not  unfairly  repre- 
sented ;  and,  comparing  them  with  the  passage  extracted  above, 
we  may  perhaps  be  entitled  to  infer:  I.  That  the  king  does 
not  possess  any  constitutional  prerogative  of  appointing  a  re- 
gent during  the  minority  of  his  successor ;  and  2.  That  neither 
the  heir  presumptive,  nor  any  other  person,  is  entitled  to  exer- 
cise 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  Glouces- 
ter's influence  had  gained  ground  enough  to  abrogate  his  of- 
fice of  protector,  leaving  only  the  honorary  title  of  chief  coun- 
sellors 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  coun- 
cil ;  but  the  king's  name  was  sufficient  to  legalize  their  meas- 
ures, nor  does  any  objection  appear  to  have  been  made  in  par- 
liament to  such  a  mockery  of  the  name  of  monarchy. 

In  the  year  1454,  the  thirty-second  of  Henry's  reign,  his 
unhappy  malady,  transmitted  perhaps  from  his  maternal  grand- 
father, assumed  so  decided  a  character  of  derangement  or  im- 

*  Rot.  Parl.  6  H.  VI.  vol.  iv.  p.  326.  u  Ibid.  8  H.  vol.  iv.  p.  336. 


THE  MIDDLE  AGES  437 

becility,  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  I4th  of  February,  when  the 
session  was  opened  by  the  Duke  of  York,  as  king's  commis- 
sioner. Kent,  Archbishop  of  Canterbury  and  chancellor  of 
England,  dying  soon  afterwards,  it  was  judged  proper  to  ac- 
quaint 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  endeavors 
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  sover- 
eign'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  otfey  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  protesta- 
tion 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  neces- 
sity again  to  choose  and  name  a  protector  and  defender.  And 
to  the  Duke  of  York's  request  to  be  informed  how  far  thfc  power 
and  authority  of  his  charge  should  extend,  they  replied  that  he 
should  be  chief  of  the  king's  council,  and  "  devised  therefore 


438  HALLAM 

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  deiensor ; "  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  pat- 
ronage of  certain  spiritual  benefices  was  reserved  to  the  pro- 
tector according  to  the  precedent  of  the  king's  minority,  which 
parliament  was  resolved  to  follow  in  every  particulars 

It  may  be  conjectured,  by  the  provision  made  in  favor  of 
the  Prince  of  Wales,  then  only  two  years  old,  that  the  king's 
condition  was  supposed  to  be  beyond  hope  of  restoration.  But 
in  about  nine  months  he  recovered  sufficient  speech  and  recol- 
lection to  supersede  the  Duke  of  York's  protectorate.^  The 
succeeding  transactions  are  matter  of  familiar,  though  not,  per- 
haps, very  perspicuous  history.  The  king  was  a  prisoner  in 
his  enemies'  hands  after  the  affair  at  St.  Albans,*  when  parlia- 
ment met  in  July,  1455.  ^n  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  par- 
liament, it  was  thought  by  the  commons  that,  if  the  king  here- 
after 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  dis- 

v  Rot  Parl.  vol.  v.  p.  241.  And  the  nature  of  the  action,  which  was 
w  Paston  Letters,  vol.  i.  p.  81  The  a  sudden  attack  on  the  town  of  St  Al- 
proofs  of  sound  mind  given  in  this  let-  bans,  without  any  pitched  combat,  ren- 
ter are  very  decisive,  but  the  wits  of  ders  the  larger  number  improbable, 
sovereigns  are  never  weighed  in  golden  Whethamstede,  himself  Abbot  of  St.  Al- 
scales.  bans  at  the  time,  makes  the  Duke  of 
t  x  This  may  seem  an  improper  appella-  York's  army  but  3,000  fighting  men,  p 
tion  for  what  is  usually  termed  a  battle,  352.  This  account  of  the  trifling  loss  of 
wherein  5,000  men  are  said  to  have  life  in  the  battle  of  St.  Albans  is  con- 
fallen.  But  I  rely  here  upon  my  faith-  firmed  by  a  contemporary  letter,  pub- 
ful  guide,  the  Paston  Letters,  p.  TOO,  lished  in  the  Archaeologia  (xx.  519) 
one  of  which,  written  immediately  after  The  whole  number  of  the  slain  was  but 
the  engagement,  says  that  only  six  score  forty-eight,  including,  however,  several 
were  killed.  Surely  this  testimony  out-  lords, 
weighs  a  thousand  ordinary  chroniclers* 


THE  MIDDLE  AGES  439 

turbances  had  lately  arisen  in  the  west  through  the  feuds  of 
the  Earl  of  Devonshire  and  Lord  Bonvile."  y  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  conse- 
quence 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  transac- 
tion, 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,  ex- 
cepting 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."  * 

This  extraordinary  clause,  and  the  slight  allegations  on 
which  it  was  thought  fit  to  substitute  a  vicegerent  for  the  reign- 
ing monarch,  are  sufficient  to  prove,  even  if  the  common  his- 
torians were  silent,  that  whatever  passed  as  to  this  second 
protectorate  of  the  Duke  of  York  was  altogether  of  a  revolu- 
tionary 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  prece- 
dents 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 

y  Sr *  $ome  *ccot«rt  of  tbw  in  Pwtpn        *  Rot  Part,  M  v,  pp.  384*299, 
Letters,  vol.  I  p,  XX4» 


44o  HALLAM 

been  faithfully  attached  to  the  house  of  Lancaster.  The  parti- 
sans of  Richard  were  found  in  the  commons  and  among  the 
populace.  Several  months  elapsed  after  the  victory  of  St.  Al- 
bans  before  an  attempt  was  thus  made  to  set  aside  a  sovereign, 
not  laboring,  so  far  as  we  know,  under  any  more  notorious 
infirmity  than  before.  It  then  originated  in  the  commons,  and 
seems  to  have  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. 
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  Mort- 
timer  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  awhile  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  honored  by  Henry  VL  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  perpe- 
trated by  Margaret  and  her  counsellors  in  the  death  of  the 
Duke  of  Gloucester  was  the  destruction  of  the  house  of  Lancas- 
ter^ From  this  time  the  Duke  of  York,  next  heir  in  presump- 
tion while  the  king  was  childless,  might  innocently  contem- 
plate the  prospect  of  royalty ;  and  when  such  ideas  had  long 
been  passing  through  his  mind,  we  may  judge  how  reluctantly 

a  Hall,  p.  aw. 


THE  MIDDLE  AGES  441 

the  birth  of  Prince  Edward,  nine  years  after  Henry's  marriage, 
would  be  admitted  to  disturb  them.  The  queen's  administra- 
tion unpopular,  careless  of  national  interests,  and  partial  to  his 
inveterate  enemy  the  Duke  of  Somerset ;  &  the  king  incapable 
of  exciting  fear  or  respect ;  himself  conscious  of  powerful  al- 
liances and  universal  favor — 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  favor  of  his  own  pretensions  to  which  he 
became  himself  a  victim.  Margaret  perhaps,  by  her  sangui- 
nary 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,  in- 
deed, 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  parlia- 
ment, if  oaths  of  allegiance  from  the  whole  kingdom,  and  more 
particularly  from  those  who  now  advanced  a  contrary  preten- 
sion, if  undisturbed,  unquestioned  possession  during  sixty 
years,  could  not  secure  the  reigning  family  against  a  mere  de- 
fect in  their  genealogy,  when  were  the  people  to  expect  tran- 
quillity? Sceptres  were  committed,  and  governments  were 
instituted,  for  public  protection  and  public  happiness,  not  cer- 
tainly for  the  benefit  of  rulers,  or  for  the  security  of  particular 
dynasties.  No  prejudice  has  less  in  its  favor,  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  b^ets  a 
fond  hope  of  restoration,  a  sense  of  injury  and  of  imprescript- 
ible rights,  which  give  the  show  of  justice  to  fresh  disturbances 

&The  ill-will  of  York  and  the  queen       that  date  in  the  Paston  collection,  vol. 
began  as  earty  as  1449,  as  we  learn  from       i.  p.  26. 
unequivocal  testimony,  a  letter  of 


an 


442  HALLAM 

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  gov- 
ernment, 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  recog- 
nition of  a  government  by  the  people  is  the  binding  pledge  of 
their  allegiance  so  long  as  its  corresponding  duties  are  ful- 
filled.c  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.**  But  the  statute  of  nth  of  Henry  VIL  c.  i,  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  of- 
fences, by  act  of  parliament  or  otherwise." 

Though  all  classes  of  men  and  all  parts  of  England  were 
divided  into  factions  by  this  unhappy  conquest,  yet  the  strength 
of  the  Yorkists  lay  in  London  and  the  neighboring  counties, 
and  generally  among  the  middling  and  lower  people.  And 
this  is  what  might  naturally  be  expected.  For  notions  of 
hereditary  right  take  easy  hold  of  the  populace,  who  feel  an 
honest  sympathy  for  those  whom  they  consider  as  injured; 
while  men  of  noble  birth  and  high  station  have  a  keener  sense 
of  personal  duty  to  their  sovereign,  and  of  the  baseness  of 
deserting  their  allegiance.  Notwithstanding  the  wide-spread- 
ing influence  of  the  Nevils,  most  of  the  nobility  were  well  af- 
fected 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 

c  Upon  this  great  question  the  fourth          d  Hale's  Pleas  of  the  Crown,  vol.  ii, 
discourse  m  Sir  Michael  Foster's  Re-       pp.  to,  xox  (edit,  1736), 
ports  ought  particularly  to  be  read. 


THE  MIDDLE  AGES  443 

an  oath  of  fealty  to  Henry  and  his  issue  in  the  Coventry  par- 
liament of  1460,  which  attainted  the  Duke  of  York  and  the 
earls  of  Warwick  and  Salisbury.*  And  in  the  memorable  cir- 
cumstances of  the  duke's  claim  personally  made  in  parliament, 
it  seems  manifest  that  the  lords  complied  not  only  with  hesita- 
tion but  unwillingness,  and  in  fact  testified  their  respect  and 
duty  for  Henry  by  confirming  the  crown  to  him  during  his  life/ 
The  rose  of  Lancaster  blushed  upon  the  banners  of  the  Staf- 
fords,  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  ab- 
horrence, though  it  did  not  prevent  imitation.  And  the  bar- 
barities of  her  northern  army,  whom  she  led  towards  London 
after  the  battle  of  Wakefield,  lost  the  Lancastrian  cause  its 
former  friends,£  and  might  justly  convince  reflecting  men  that 
it  were  better  to  risk  the  chances  of  a  new  dynasty  than  trust* 
the  kingdom  to  an  exasperated  faction. 

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  cor- 
rect, a  single  petition  of  this  nature  upon  the  roll  Whether  it 
were  that  the  commons  had  lost  too  much  of  their  ancient 

*  Rot  Parl.  vol,  v.  p.  351.  only  doubt,  and  not,  reject,  unless  upon 

/  Id.,  p,  375    This  entry  in  the  roll  is  real  grounds  of  suspicion,  the  assertions 

Highly   interesting   and    important.    It  of  secondary  waters. 

ouffht  to  be  read  in  preference  to  any  of  g  The  abbey  of  St.  Albans  wa$  stripped 

SSrhistorians.    Hume,  who  drew  from  by"  the  queen  and  her  «JK  ***  «« 

inferior  sources,  is  not  altogether  accu-  second  battle  fought  at  ;  that  place,  Feb. 

Sir  Yet  one  remarkable  ciWstance,  »,  1461;  which  £™C^  W|g*^* 

told  by  Hall  and  other  chroniclers,  that  the  abbot  and  histonogfapfeen  from  a 

the  Duke  of  York  stood  by  the  throne,  violent  Lancastrian  mto>  Yorkist.   His 


e     u     o        r  , 

as  if  to  claim  it,  though  omitted  entire-  change  of  party  is  qajte  swdden*  ana 
ly  in  the  rtfL  is  confirmed  by  Whetham-  amusing  enough.  See,  too,  the  Paston 
stede,  Abbot  of  St.  Albans,  who  was  Letters,  vol.  v  $>  ^  Yet  tfte  Paston 

- 


see,         o  .  ,  ,       .        > 

probably  <fe  Present.     (P,  4*4,  edit        family  were  oHgWly  -Lancastrian,  and 

Stan*)    ttoif  «frows  that  we  should      returned  to  tfcat  *di  in  x#o. 


444  HALLAM 

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*  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  gov- 
ernment, or  just  punishment  of  rebellion  against  a  legitimate 
heir,  there  are  several  reputed  instances  of  violence  and  bar- 
barity in  the  reign  of  Edward  IV.  which  have  not  such  plaus- 
ible excuses.  Everyone  knows  the  common  stories  of  the 
citizen  who  was  attainted  for  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  frivo- 
lous words ;  which  indeed  do  not  appear  in  his  indictment,* 
or  in  a  passage  relative  to  his  conviction  in  the  roll  of  parlia- 

h  There  are  several  instances  of  vio-  late  his  nativity  and  his  son's,  ad  scien- 

lence  and  oppression  apparent  on  the  dtim  quando  lidem  rex  et  Edwardus 

rolls  during-  this  reign,  but  not  proceed-  ejus  films  morientur-  Also  for  the  same 

ing  from  the  crown.  One  of  a  remark-  end  dispersing  divers  rhymes  and  ^al- 

able  nature  (vol.  v.  p  173)  was  brought  lads  de  murmurationibus,  seditiorubus 

forward  to  throw  an  odium  on  the  Duke  et  tjroditoriis  excitationibus,  factas  et 

of  Clarence,  who  had  been  concerned  in  fabricatas  apud  Holbourn,  to  the  intent 

it.  Several  passages  indicate  the  char-  that  the  people  might  withdraw  their 

acter  of  the  Duke  of  Gloucester.  love  from  the  king  and  desert  him,  ac 

t  See  in  Cro.  Car,  120,  the  indictment  erga  ipsum  regem  insurgerent,  et  guer- 

against  Burdett  for  compassing  the  ram  erga  ipsum  regem  levarent,  ad 

king's  death,  and  for  that  purpose  con-  finalern  destructionem  ipsorum  regis  ac 

spiring  with  Stacie  and  Blake  to  calcu-  domini  prmcipis,  &c. 


THE  MIDDLE  AGES  445 

ment.  Burdett  was  a  servant  and  friend  of  the  Duke  of  Clar- 
ence, 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  law- 
fully and  truly  attainted  of  treason,  was  wrongfully  put  to 
death.";  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  tyran- 
nical age,  if,  as  it  seems,  his  offence  toward  Edward  was  but 
levity  and  rashness. 

But  whatever  acts  of  injustice  we  may  attribute,  from  au- 
thority or  conjecture,  to  Edward's  government,  it  was  very  far 
from  being  unpopular.  His  love  of  pleasure,  his  affability,  his 
courage  and  beauty,  gave  him  a  credit  with  his  subjects  which 
he  had  no  real  virtue  to  challenge.  This  restored  him  to  the 
throne,  even  against  the  prodigious  influence  of  Warwick,  and 
compelled  Henry  VII.  to  treat  his  memory  with  respect,  and 
acknowledged  him  as  a  lawful  king.fe  The  latter  years  of  his 
reign  were  passed  in  repose  at  home  after  scenes  of  unparal- 
leled convulsions,  and  in  peace  abroad  after  more  than  a  century 
of  expensive  warfare.  His  demands  of  subsidy  were  therefore 

/  Rot.  Parl.  vol.  vi.  p.  103.  late  called  Edward  V,"  (P.  336.)  Who 
k  The  rolls  of  Henry  Vil.'s  first  p%ar-  then  was  king  after  the  death  of  Edward 
liament  are  full  of  an  absurd  confusion  IV.?  And  was  his  son  really  illegiti- 
in  thought  and  language,  which  is  ren-  mate,  as  a  usurping  uncle  pretended? 
dered  odious  by  the  purposes  to  which  it  Or  did  the  crime  of  Richard,  though 
is  applied.  Both  Henry  VI.  and  Ed-  punished  in  him,  enure  to  the  benefit  of 
ward  IV.  are  considered  as  lawful  kings;  Henry?  These  were  points  which,  like 
except  in  one  instance,  where  Alan  the  fate  of  the  young  princes  in  the 
Cotterell,  petitioning  for  the  reversal  of  tower,  he  chose  to  wrap  in  discreet  si- 
his  attainder,  speaks  of  Edward,  '*  late  lence  But  the  first  question  he  seems 
called  Edward  IV,"  (vol  iv.  p.  390.)  to  have  answered  in  his  own  favor.  For 
But  this  is  only  the  language  ot  a  pri-  Richard  himself,  Howard  Duke  of  Nor- 
vate  Lancastrian,  And  Henry  VI.  folk,  Lord  Lovel,  and  some  others,  are 
passes  for  having  been  king  during  his  attainted  (p,  276)  for  *  traiterously  in- 
short  restoration  in  1470,  when  Edward  tending,  compassing,  and  imagining" 
had  been  nine  years  upon  the  throne.  the  death  of  Henry;  of  course  before  or 
For  the  Earl  of  Oxford  is  said  to  have  at  the  battle  of  Bosworth;  and  while  his 
been  attainted  "  for  the  true  allegiance  right,  unsupported  by  possession,  could 
and  service  he  owed  and  did  to  Henry  have  rested  only  on  an  hereditary  title 
VI.  at  Karnet  field  and  otherwise."  (P.  which  it  was  an  insult  to  the  nation  to 
281.)  This  might  be  reasonable  enough  prefer.  These  monstrous  proceedings 
on  the  true  principle  that  allegiance  is  explain  the  necessity  of  that  conserva- 
due  to  a  king  de  facto;  if  indeed  we  tive  statute  to  which  I  have  already  al- 
could  determine  who  was  the  king  de  luded,  which  passed  in  the  eleventh  year 
facto  on  the  morning  of  the  battle  of  of  his  reign,  and  afforded  as  much  ae* 
Barnet.  But  this  principle  was  not  fairly  cunty  for  men  following  the  plain  line 
recognized.  Richard  III.  is  always  of  rallying  round  the  standard  of  their 
"  "  in  deed  and  not  in  right  King  country  as  mere  law  can  offer.  There  is 
"  .nd."  Nor  was  this  merely  some  extraordinary  reasoning  upon  this 


. 

founded  on  his  usurpation  as  against  his       act  in  Carte's  History  (vol.  u.  p.  844), 
nephew,    For  that  unfortunate  boy  is       for  the  purpose  of  proving  that  the  ad- 
little  better  treated,  and  in  the  act  of  re-       herents  of  George  II.  would  not  be 
sumption  t  H.  VlL  while  Edward  IV. 
is  styled  *  late  king/'  appears  only  with 
the  denomination  of  "  Edward  his  son, 


, 

t  H.  VlL  while  Edward  IV.       protected  by  it  on  the  restoration  of  the 
'  appears  only  with       true  blood. 


446  HALLAM 

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./  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,  un- 
der 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  com- 
plaint 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  as- 
sume 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  aven- 
ture  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  extor- 
tions 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."  i»  Accordingly,  in  Richard 
IIL's  only  parliament  an  act  was  passed  which,  after  reciting 
in  the  strongest  terms  the  grievances  lately  endured,  abrogates 
and  annuls  forever  all  exactions  under  the  name  of  benevo- 
lences 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  testi- 
mony to  his  ambitious  usurpations  It  would  therefore  be 

/  Difference  of  Absolute  and  Limited  really  perpetrated  by  the  orders  of  Rich- 
Monarchy,  p.  83.  ard,  than  on  that  of  Walpole,   Carte, 
m  Rot.  Parl.  vol.  vi.  p.  241.  Henry,  and  Lamg,  who  maintain  that 
n  i  R.  III.  c.  2.  the  Duke  of  York,  at  least,  was  in  some 
o  The  long-debated  question  as  to  the  way  released  from  the  Tower,  and  re- 
murder   of    Edward    and    his    brother  appeared  as  Perkin  Warbeck.     But  a 
seems  to  me  more  probably  solved  on  very  strong  conviction  either  way  is  not 
the  common   supposition  that  it  was  readily  attainable. 


THE  MIDDLE  AGES  447 

foreign  to  the  purpose  of  this  chapter  to  dwell  upon  his  assump- 
tion 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. 

At  this  epoch  I  terminate  these  inquiries  into  the  English 
constitution :  a  sketch  very  imperfect,  I  fear,  and  unsatisfac- 
tory, 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  pre- 
ceding, but  less  distinguished  by  the  spirit  of  freedom  and 
jealousy  of  tyrannical  power.  We  have  seen,  through  the  twi- 
light of  our  Anglo-Saxon  records,  a  form  of  civil  policy  estab- 
lished 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  ca- 
pable 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  insti- 
tution, which  none  but  a  free  and  simple  people  could  have 
conceived,  trial  by  peers — an  institution  common  in  some  de- 
gree to  other  nations,  but  which,  more  widely  extended,  more 
strictly  retained,  and  better  modified  among  ourselves,  has  be- 
come perhaps  the  first,  certainly  among  the  first,  of  our  secur- 
ities 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  rigor,  and  establish  a  large  revenue  by 
continual  precedents  upon  a  system  of  universal  and  prescrip- 
tive extortion.  But  the  Norman  and  English  races,  each  unfit 
to  endure  oppression,  forgetting  their  animosities  in  a  common 
interest,  enforce  by  arms  the  concession  of  a  great  charter  of 
liberties*  Privileges  wrested  from  one  faithless  monarch  are 
preserved  with  continual  vigilance  against  the  machinations 
of  another ;  the  rights  of  the  people  become  more  precise,  and 
their  spirit  more  magnanimous,  during  the  long  reign  of  Henry 
III.  With  greater  ambition  and  greater  abilities  than  his 


448  HALLAM 

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  per- 
fect state  in  the  fifteenth  century ;  but  I  know  not  whether  here 
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. 


THE  MIDDLE  AGES  449 

NOTES  TO  BOOK  VIII. 

PARTS  I.  AND  II. 

NOTE  I. 

These  seven  princes  enumerated  by  Bede  have  been  called  Bret- 
waldas,  and  they  have,  by  late  historians,  been  advanced  to  higher  im- 
portance and  to  a  different  kind  of  power  than,  as  it  appears  to  me,  there 
is  any  sufficient  ground  to  bestow  on  them  But  as  I  have  gone  more 
fully  into  this  subject  m  a  paper  published  in  the  32d  volume  of  the 
"  Archaeologia,"  I  shall  content  myself  with  giving  the  most  material 
parts  of  what  will  there  be  found. 

Bede  is  the  original  witness  for  the  seven  monarchs  who  before  his 
time  had  enjoyed  a  preponderance  over  the  Anglo-Saxons  south  of 
the  Humber: — "  Qui  cunctis  austrahbus  gentis  Anglorum  provmciis, 
qtue  Humbrse  fluvio  et  contiguis  ei  termmis  sequestrantur  a  Borealibus, 
imperarunt "  (Hist.  Eccl  lib  n  c.  5  )  Tiie  four  first-named  had  no 
authority  over  Northumbria,  but  the  last  three  being  sovereigns  of  that 
kingdom,  their  sway  would  include  the  whole  of  England. 

The  Saxon  Chronicle,  under  the  reign  of  Egbert,  says  that  he  was  the 
eighth  who  had  a  dominion  over  Britain;  using  the  remarkable  word 
Bretwalda,  which  is  found  nowhere  else.  This,  by  its  root  waldan,  a 
Saxon  verb,  to  rule  (whence  our  woid  wield),  implies  a  ruler  of  Britain 
or  the  Britons.  The  Chronicle  then  copies  the  enumeration  of  the  other 
seven  m  Bede,  with  a  little  abridgment.  The  kings  mentioned  by  Bede 
are  JElli  or  Ella,  founder  of  the  kingdom  of  the  South-Saxons,  about 
477 ;  Ceaulin,  of  Wessex.  after  the  interval  of  nearly  a  century;  Ethel- 
bert,  of  Kent,  the  first  Christian  king;  Redwald,  of  East  Anglia;  after 
him  three  Northumbrian  kings  in  succession,  Edwin,  Oswald,  Oswin. 
We  have,  therefore,  sufficient  testimony  that  before  the  middle  of  the 
seventh  century  four  kings,  from  four  Anglo-Saxon  kingdoms,  had,  at 
intervals  of  time,  become  superior  to  the  rest;  excepting,  however,  the 
Northumbrians,  whom  Bede  distinguishes,  and  whose  subjection  to  a 
southern  prince  does  not  appear  at  all  probable.  None,  therefore,  of 
these  could  well  have  been  called  Bretwalda,  or  ruler  of  the  Britons, 
while  not  even  his  own  countrymen  were  wholly  under  his  sway. 

We  now  come  to  three  Northumbrian  kings,  Edwin,  Oswald,  and  Os- 
win, who  ruled,  in  Bede's  language,  with  greater  power  than  the  preced- 
ing, over  all  the  inhabitants  of  Britain,  both  English  and  British,  with 
the  sole  exception  of  the  men  of  Kent  This  he  reports  in  another  place 
with  respect  to  Edwin,  the  first  Northumbrian  convert  to  Christianity; 
whose  worldly  power,  he  says,  increased  so  much  that,  what  no  English 
sovereign  had  clone  before,  he  extended  his  dominion  to  the  furthest 
bounds  of  Britain,  whether  inhabited  by  English  or  by  Britons.  (Hist. 
Eccl.  lib.  ii  c.  9.)  Dr.  Lmgard  has  pointed  out  a  remarkable  confirma- 
tion of  this  testimony  of  Bede  in  a  Life  of  St.  Columba,  published  by 
the  Bollandists.  He  names  Curninius,  a  contemporary  writer,  as  the 
author  of  this  Life;  but  I  find  that  these  writers  give  several  reasons  for 
doubting  whether  it  be  his.  The  words  are  as  follows:—"  Oswaldum 
regem,  in  procinctu  belli  castra  metatum,  et  in  papilione  supra  pulvillum 
dormientem  allocutus  est,  et  ad  bellum  procedere  jussit  ^Processit 
et  secuta  est  victoria;  reyersusque  postea  totius  Britannia  imperator 
ordinatus  a  Deo,  et  tota  incredula  gens  baptizata  est"  (Acta  Sanc- 
torum, Jun.  23  )  This  passage,  on  account  of  the  uncertainty  of  the  au- 
thor's age,  might  not  appear  sufficient.  But  this  anonymous  Life  of  Co- 
lumba is  chiefly  taken  from  that  by  Adamnan,  written  about  700;  and 
in  that  Life  we  find  the  important  expression  about  Oswald — "  totius 
VOL.  II.— 29 


4go  HALLAM 

Britannise  imperator  ordmatus  a  Deo  "  We  have,  therefore,  here  prob- 
ably a  distinct  recognition  of  the  Saxon  word  Bretwalda;  for  what  else 
could  answer  to  Emperor  of  Britain?  And,  as  far  as  I  know,  it  is  the 
only  one  that  exists.  It  seems  more  likely  that  Adamnan  refers  to  a 
distinct  title  bestowed  on  Oswald  by  his  subjects,  than  that  he  means 
to  assert  as  a  fact  that  he  truly  ruled  over  all  Britain.  This  is  not  very 
credible,  notwithstanding  the  language  of  Bede,  who  loves  to  amplify 
the  power  of  favorite  monarchs.  For  though  it  may  be  admitted  that 
these  Northumbrian  kings  enjoyed  at  times  a  preponderance  over  the 
other  Anglo-Saxon  principalities,  we  know  that  both  Edwin  and  Os- 
wald lost  their  lives  in  great  defeats  by  Penda  of  Mercia.  Nor  were  the 
Strathcluyd  Britons  in  any  permanent  subjection.  The  name  of  Bret- 
walda, as  applied  to  these  three  kings,  though  not  so  absurd  as  to  make 
it  incredible  that  they  assumed  it,  asserts  an  untruth. 

It  is,  however,  at  all  events  plain  from  history  that  they  obtained  iheir 
superiority  by  force;  and  we  may  probably  believe  the  same  of  the  four 
earlier  kings  enumerated  by  Bede.  An  elective  dignity,  such  as  is  now 
sometimes  supposed,  cannot  be  presumed  in  the  absence  of  every 
semblance  of  evidence,  and  against  manifest  probability.  What  ap- 
pearance do  we  find  of  a  federal  union  among  the  kites  and  crows,  as 
Milton  calls  them,  of  the  Heptarchy?  What  but  the  law  of  the  strong- 
est could  have  kept  these  rapacious  and  restless  warriors  from  tearing 
the  vitals  of  their  common  country?  The  influence  of  Christianity  in 
effecting  a  comparative  civilization,  and  producing  a  sense  of  political 
as  well  as  religious  unity,  had  not  yet  been  felt. 

Mercia  took  the  place  of  Northumberland  as  the  leading  kingdom 
of  the  Heptarchy  in  the  eighth  century.  Even  before  Bede  brought  his 
Ecclesiastical  History  to  a  close,  in  731,  Ethelbald  of  Mercia  had  be- 
come paramount  over  the  southern  kingdoms;  certainly  more  so  than 
any  of  the  first  four  who  are  called  by  the  Saxon  Chronicler  Bretwaldas. 
"  Et  hse  omnes  provmcise  caeterseque  australes  ad  confiniuni  usque 
Hymbrae  flummis  cum  suis  quaeque  regibus,  Merciorutn  regi  Ethel- 
baldo  subjectse  sunt"  (Hist.  Eccl.  v.  23.)  In  a  charter  of  Ethelbald  he 
styles  himself — "  non  solum  Mercensiutn  sed  et  universarum  provm- 
ciarum  quae  communi  vocabulo  dicuntur  Suthangli  diyina  largiente 
gratia  rex."  (Codex  Ang.-Sax.  Diplom  i.  96;  vide  etiam  100,  107.) 


)ffa,  his  successor,  retained  great  part  of  this  ascendency,  and  in  his 
charters  sometimes  styles  himself  "  rex  Anglorum,"  sometimes  4<  rex 
Merciorum  sirnulque  aliarum  circumquaque  nationum^"  (Ib.  162,  166, 
167,  et  alibi.)  It  is  impossible  to  define  the  subordination  of  the  south- 
ern kingdoms,  but  we  cannot  reasonably  imagine  it  to  have  been  less 
than  they  paid  in  the  sixth  century  to  Ceauhn  and  Ethelbert.  Yet  to 
these  potent  sovereigns  the  Saxon  Chronicle  does  not  give  the  name 
Bretwalda,  nor  a  place  in  the  list  of  British  rulers.  It  copies  Bede  in 
this  passage  servilely,  without  regard  to  events  which  had  occurred 
since  the  termination  of  his  history. 

I  am,  however,  inclined  to  believe,  combining  the  passage  Adamnan 
with  this  less  explicitly  worded  of  the  Saxon  Chronicle,  that  the  three 
Northumbrian  kings,  having  been  victorious  in  war  and  paramount 
over  the  minor  kingdoms,  were  really  designated,  at  least  among  their 
own  subjects,  by  the  name  Bretwalda,  or  ruler  of  Britain,  and  totius 
Britannise  imperator.  The  assumption  of  so  pompous  a  title  is  char- 
acteristic of  the  vaunting  tone  which  continued  to  increase  down  to  the 
Conquest  We  may,  therefore,  admit  as  probable  that  Oswald  of  North- 
umbria  in  the  seventh  century,  as  well  as  his  father  Edwin  and  his  son 
Oswin,  took  the  appellation  of  Bretwalda  to  indicate  the  supremacy 
they  had  obtained,  not  only  over  Mercia  and  the  other  kingdoms  of 
their  countrymen,  but,  by  dint  of  successful  invasions,  over  the  Strath- 
cluyd  Britons  and  the  Scots  beyond  the  Forth.  I  still  entertain  the 


THE   MIDDLE  AGES 


45* 


greatest  doubts,  to  say  no  more,  whether  this  title  was  ever  applied  to 
any  but  these  Northumbrian  kings  It  would  have  been  manifestly 
ridiculous,  too  ridiculous,  one  would  think,  even  for  Anglo-Saxon 
grandiloquence,  to  confer  it  on  the  first  four  in  Bede's  list;  and  if  it  ex- 
pressed an  acknowledged  supremacy  over  the  whole  nation,  why  was 
it  never  assumed  m  the  eighth  century? 

We  do  not  derive  much  additional  information  from  later  historians. 
Florence  of  Worcester,  who  usually  copies  the  Saxon  Chronicle,  merely 
in  this  instance  transcribes  the  text  of  Bede  with  more  exactness  than 
that  had  done;  he  neither  repeats  nor  translates  the  word  Bretwalda. 
Henry  of  Huntingdon,  after  repeating  the  passage  in  Bede,  adds  Eg- 
bert to  the  seven  kings  therein  mentioned,  calling  him  "  rex  et  mon- 
archa  totius  Britannia,"  doubtless  as  a  translation  of  the  word  Bret- 
walda in  the  Saxon  Chronicle,  subjoining  the  names  of  Alfred  and  Ed- 
gar ns  ninth  and  tenth  in  the  list  Egbert,  he  says,  was  eighth  of  ten 
kings  remarkable  for  their  bravery  and  power  (fortissimorum)  who 
have  reigned  m  England.  It  is  strange  that  Edward  the  Elder,  Athel- 
stan,  and  Edrecl  are  passed  over 

Kapin  was  the  first  who  broached  the  theory  of  an  elective  Bretwalda, 
possessing  a  sort  of  monarchical  supremacy  m  the  constitution  of  the 
Heptarchy;  something  like,  as  he  says,  the  dignity  of  stadtholder  of  the 
Netherlands.  It  was  taken  up  in  later  times  by  Turner,  Lmgard,  Pal- 
grave,  and  Lappenberg.  But  for  this  there  is  certainly  no  evidence 
whatever;  nor  do  I  perceive  in  it  anything  but  the  very  reverse  of  prob- 
ability, especially  m  the  earlier  instances.  With  what  we  read  m  Bede 
we  may  be  content,  confirmed  as  with  respect  to  a  Northumbrian  sov- 
ereign it  appears  to  be  by  the  Life  of  Columba;  and  the  plain  history 
will  be  no  more  than  this — that  four  princes  from  among  the  southern 
Anglo-Saxon  kingdoms  at  different  times  obtained,  probably  by  force, 
a  superiority  over  the  rest;  that  afterwards  three  Northumbrian  kings 
united  a  similar  supremacy  with  the  government  of  their  own  domin- 
ions; and  that,  having  been  successful  in  reducing  the  Britons  of  the 
north  and  also  the  Scots  into  subjection,  they  assumed  the  title  of  Bret- 
walda, or  ruler  of  Britain.  This  title  was  not  taken  by  any  later  kings, 
though  some  in  the  eighth  century  were  very  powerful  in  England;  nor 
did  it  attract  much  attention,  since  we  find  the  word  only  once  em- 
ployed by  a  historian,  and  never  in  a  charter  The  consequence  I 
should  draw  is,  that  too  great  prominence  has  been  given  to  the  appella- 
tion, and  undue  inferences  sometimes  derived  from  it,  by  the  eminent 
writers  above  mentioned. 

NOTE  II. 

The  reduction  of  all  England  under  a  single  sovereign  was  accom- 
plished by  Edward  the  Elder,  who  may,  therefore,  be  reckoned  the 
founder  of  our  monarchy  more  justly  than  Egbert.  The  five  Danish 
towns,  as  they  were  called,  Leicester,  Lincoln,  Stamford,  Derby,  and 
Nottingham,  had  been  brought  under  the  obedience  of  his  gallant  sister 
JEthelfleda,  to  whom  Alfred  had  intrusted  the  viceroyalty  of  Mercia. 
Edward  himself  subdued  the  Danes  of  East  Anglia  and  Northumber- 
land. In  922  "  the  kings  of  the  North  Welsh  sought  him  to  be  their 
lord."  And  in  924  "  chose  him  for  father  and  lord,  the  king  of  the 
Scots  and  the  whole  nation  of  the  Scots,  and  Regnald,  and  the  son  of 
Eadulf,  and  all  those  who  dwell  in  Northumberland,  as  well  English  as 
Danes  and  Northmen  and  others,  and  also  the  king  of  the  Strathcluyd 
Britons,  and  all  the  Strathcluyd  Britons/'  (Sax.  Chronicle.) 

Edward  died  next  year;  of  his  son  JEthelstan  it  is  said  that  he  ruled 
all  the  kings  who  were  in  this  island;  first,  Howel  Hag  of  West  Welsh, 
and  Constantine  king  of  the  Scots,  and  Uwen  king  of  the  Gwentian 


452  HALLAM 

(Silurian)  people,  and  Ealdrad  son  of  Ealdalf  of  Bamborough,  and  they 
confirmed  the  peace  by  pledge  and  by  oaths  at  the  place  which  is  called 
Earnot,  on  the  fourth  of  the  Ides  of  July;  and  they  renounced  all  idol- 
atry, and  after^that  submitted  to  him  in  peace  "  (Id.  A.D.  926.) 

From  this  time  a  striking  change  is  remarkable  in  the  style  of  our 
kings.  Edward,  of  whom  we  have  no  extant  charters  after  these  great 
submissions  of  the  native  princes  calls  himself  only  Angul-Saxonum 
rex.  But  in  those  of  Athelstan,  such  as  are  reputed  genuine  (for  the 
tone  is  still  more  pompous  in  some  marked  by  Mr.  Kemble  with  an 
asterisk),  we  meet,  as  early  as  927,  with  "  totius  Britanmas  monarchus, 
rex,  rector,  or  basileus;"  "totius  Bntannise  solio  subhmatus,  "  and 
other  phrases  of  insular  sovereignty.  (Codex  Diplom  vol  u.  passim; 
vol.  v,  198  )  What  has  been  attributed  to  the  imaginary  Brctwaldas 
belonged  truly  to  the  kings  of  the  tenth  century  And  the  grandilo- 
quence of  their  titles  is  sometimes  almost  ridiculous.  They  affected 
particularly  that  of  Basileus  as  something  more  imperial  than  king,  and 
less  easily  understood.  Edwy  and  Edgar  are  remarkable  for  this  pomp, 
which  shows  itself  also  in  the  spurious  charters  of  older  kings.  But 
Edmund  and  Edred  with  more  truth  and  simplicity  had  generally  de- 
nominated themselves  "  rex  Anglorum,  caeterorumque  in  circuitu  per- 
sistentium  gubernator  et  rector "  (Codex  Diplom  vol  n.  passim ) 
An  expression  which  was  retained  sometimes  by  Edgar.  And  though 
these  exceedingly  pompous  phrases  seem  to  have  become  less  frequent 
in  the  next  century,  we  find  "  totius  Albionis  rex/'  and  equivalent  terms, 
in  all  the  charters  of  Edward  the  Confessor.^ 

But  looking  from  these  charters,  where  our  kings  asserted  what  they 
pleased,  to  the  actual  truth,  it  may  be  inquired  whether  Wales  and  Scot- 
land were  really  subject,  and  in  what  degree,  to  the  self-styled  Basileus 
at  Winchester.  This  is  a  debatable  land,  which,  as  merely  historical 
antiquities  are  far  from^being  the  object  of  this  work,  I  shall  leave  to 
national  prejudice  or  philosophical  impartiality.  Edgar,  it  may  be  men- 
tioned, m  a  celebrated  charter,  dated  in  9643  asserts  his  conquest  of 
Dublin  and  great  part  of  Ireland :— "  Mini  autem  concessit  propitia 
diyinitas  cum  Anglorum  imperio  omnia  regna  msularum  oceani  cum 
suis  ferocissirnis  regibus  usque  Norwegian^  maximamque  partem  Hi- 
bernise  cum  sua  nobilissima  ciyitate  Dublmia  Anglorum  regno  sub- 
jugare;  quos  etiam  omnes  meis  imperils  colla  subdere,  Dei  favente 
gratia,  coegi."  (Codex  Diplom.  ii.  404.)  No  historian  mentions  any 
conquest  or  even  expedition  of  this  kind.  Sir  Francis  Palgrave  (ii.  258) 
thinks  the  charter  "  does  not  contain  any  expression  which  can  give  rise 
to  suspicion;  and  its  tenor  is  entirely  consistent  with  history:  "  mean- 
ing, I  presume,  that  the  silence  of  history  is  no  contradiction.  Mr. 
Kemble,  however,  marks  it  with  an  asterisk.  I  will  mention  here  that 
an  excellent  summary  of  Anglo-Saxon  history,  from  the  earliest  times 
to  the  Conquest,  has  been  drawn  up  by  Sir,  F.  Palgrave,  in  the  second 
volume  of  the  Rise  and  Progress  of  the  English  Commonwealth. 

NOTE  III. 

The  proper  division  of  freemen  was  into  eorls  and  ceorls:  ge  eorle— 
ge  ceorj?»  §e  eorlische— ge  ceorlische:  occur  in  several  Anglo-Saxon 
texts.  The  division  corresponds  to  the  phrase  "  gentle  and  simple  "  of 
later  times.  Palgrsve  (p.  n.)  agrees  with  this.  Yet  in  another  place 
(vol  n.  p  352)  he  says,  "  It  certainly  designated  a  person  of  noble  race. 

e"As  a  general  rule  it  may  be  ob-  from   the   latter   half  of  that   century 

served  that  before  the  tenth  century  the  pedantry  and  absurdity  struggle  for  the 

p£oe?«.18*  Comparatively  simple:    that  mastery."    Kemble's    Introduction    to 

about  that  time  the  influence  of  the  tty-  vol.  ii,  p.  x. 
zantme  court  began  to  be  felt;  and  that 


THE  MIDDLE  AGES 


453 


This  is  the  form  in  which  it  is  employed  in  the  laws  of  Ethelbert  The 
earl  and  the  churl  are  put  in  opposition  to  each  other  as  the  two  ex- 
tremes of  society."  I  cannot  assent  to  this,  the  second  thoughts  of 
my  learned  friend  I  like  less  than  the  first.  It  seems  like  saying  men 
and  women  are  the  extremes  of  humanity,  or  odd  and  even  of  number. 
What  was  m  the  middle  ?«  Mr.  Kemble,  m  his  Glossary  to  Beowulf, 
explains  eorl  by  vir  fortis,  pugil  vir;  and  proceeds  thus:— "  Eorl  is  not 
a  title,  as  with  us,  any  more  than  beorn  .  .  .  We  may  safely  look  upon 
the  origin  of  earl,  as  a  title  of  rank,  to  be  the  same  as  that  of  the  comites, 
who,  according  to  Tacitus,  especially  attached  themselves  to  any  dis- 
tinguished chief.  That  these  fideles  became  under  a  warlike  prince 
something  more  important  than  the  early  constitution  of  our  tribes 
contemplated,  is  natural,  and  is  moreover  proved  by  history,  and  they 
laid  the  foundation  of  that  system  which  recognizes  the  king  as  the 
fountain  of  honor.  In  the  later  Anglo-Saxon  constitution,  ealdorman 
was  a  prince,  a  governor  of  a  country  or  small  kingdom,  sub-regulus; 
he  was  a  constitutional  officer;  the  earl  was  not  an  officer  at  all,  though 
afterwards  the  government  of  counties  came  to  be  intrusted  to  him;  at 
first,  if  he  had  a  benefictum  or  feud  at  all,  it  was  a  horse,  or  rings,  or  arms; 
afterwards  lands.  This  appears  constantly  in  Beowulf,  and  requires  no 
further  remark."  A  speech  indeed  ascribed  to  Withred  King  of  Kent, 
in  696,  by  the  Saxon  Chronicle,  would  prove  earls  to  have  been  superior 
to  aldermen  in  that  early  age  But  the  forgery  seems  too  gross  to  im- 
pose on  any  one.  Ceorl,  in  Beowulf,  is  a  man,  vir;  it  is  sometimes  a 
husband,  a  woman  is  said  ceorlian,  i.  e.  viro  se  adjungere. 

Dr.  Lingard  has  clearly  apprehended,  and  that  long  before  Mr  Kem- 
ble's  publication,  the  distribiitive  character  of  the  words  eorl  and  ceorl. 
**  Among  the  Anglo-Saxons  the  free  population  was  divided  into  the 
eorl  and  ceorl,  the  man  of  noble  and  ignoble  descent, "  and  he  well 
observes  that  u  by  not  attending  to  this  meaning  of  the  word  eorl,  and 
rendering  it  earl,  or  rather  comes,  the  translators  of  the  Saxon  laws  have 
made  several  passages  unintelligible."  (Hist,  of  England,  i.  468.)  Mr. 
Thorpe  has  not,  as  I  conceive,  explained  the  word  as  accurately  or  per- 
spicuously as  Mr.  Kemble.  He  says,  in  his  Glossary  to  Ancient  Eng- 
lish Laws, — u  Eorl  comes,  satelles  prmcipis.  This  is  the  prose  definition 
of  the  word;  m  Anglo-Saxon  and  Old  Saxon  poetry  it  signifies  man, 
though  generally  applied  to  one  of  consideration  on  account  of  his  rank 
or  valor.  Its  etymon  is  unknown,  one  deriving  it  from  Old  Norse,  ar, 
minister,  satelles;  another  from  jara,  proehum.  (See  B.  Hald.  voc. 
Jarl,  and  the  Gloss,  to  Scemund,  by  Edda,  t.  i  p  597-)  This  title,  which 
seems  introduced  by  the  Jutes  of  Kent,  occurs  frequently  in  the  laws 
of  the  kings  of  that  district,  the  first  mention  of  it  being  in  Ethelbert, 
13.  Its  more  general  use  among  us  dates  from  the  later  Scandinavian 
invasions;  and  though  originally  only  a  title  of  honor,  it  became  in  later 
times  one  of  office,  nearly  supplanting  the  older  and  more  Saxon  one 
of  ealdorman."  The  editor  does  not  here  particularly  advert  to  the  use 
of  the  word  in  opposition  to  ceorl  That  a  word  merely  expressing  man 
may  become  appropriate  to  men  of  dignity  appears  from  bar  and  baro; 
and  something  analogous  is  seen  in  the  Latin  vir.  Lappenberg  (vol.  ii. 
p.  13)  says,— "  The  title  of  eorl  occurs  in  early  times  among  the  laws  of 
the  Kentish  kings,  but  became  more  general  only  in  the  Danish  times, 
and  is  probably  of  old  Jutish  origin/*  This  is  a  confusion  of  words:  in 
the  laws  of  the  Kentish  kings,  eorl  means  only  ingenuus,  or,  if  we  please, 
nobilis;  in  the  Danish  times  it  was  comes,  as  has  just  been  pointed  out. 

a  An  earlier  writer  has  fallen  into  the  opposed,  as  the  lowest  description  of 

same  mistake,  which  should  be  correct-  freemen,  to  eorls,  as  the  highest  of  the 

ed,   as   the  equivocal  meaning  of  the  nobility  '  Heywood     On  Ranks  among 

word    eorl    rmght    easily    deceive    the  the  Anglo-Saxons,    p.  278, 
reader.    "  Ceorls,  or  cyrlise  men,  are 


454  HALLAM 

Such  was  the  eorl,  and  such  the  ceorl,  of  our  forefathers — one  a  gen- 
tlemen, the  other  a  yeoman,  but  both  freemen  We  are  liable  to  be 
misled  by  the  new  meaning  which  from  the  tenth  century  was  attached 
to  the  former  word,  as  well  as  by  the  inveterate  prejudice  that  nobility 
of  birth  must  carry  with  it  something  of  privilege  above  the  most  per- 
fect freedom.  But  we  do  not  appreciate  highly  enough  the  value  of  the 
latter  in  a  semi-barbarous  society.  The  eorlcundman  was  generally, 
though  not  necessarily,  a  freeholder;  he  might,  unless  restrained  by 
special  tenure,  depart  from  or  alienate  his  land;  he  was,  if  a  freeholder, 
a  judge  in  the  county  court;  he  might  marry,  or  become  a  priest,  at  his 
discretion;  his  oath  vyeighed  heavily  in  compurgation,  above  all,  his 
life  was  valued  at  a  high  composition,  we  add,  of  course,  the  general 
respect  which  attaches  itself  to  the  birth  and  position  of  a  gentlemen. 
Two  classes  indeed  there  were,  both  "  eorlcund,"  or  of  gentle  birth,  and 
so  called  in  opposition  to  ceorls,  but  in  a  relative  subordination.  Sir 
F.  Palgrave  has  pointed  out  the  distinction  in  a  passage  which  I  shall 
extract: — 

44  The  whole  scheme  of  the  Anglo-Saxon  law  is  founded  upon  the  pre- 
sumption  that  every  freeman,  not  being  a  l  hlaford,'  was  attached  to  a 
superior,  to  whom  he  was  bound  by  fealty,  and  from  whom  he  could 
claim  a  legal  protection  or  warranty,  when  accused  of  any  transgres- 
sion or  crime.  If,  therefore,  the  *  eorlcund '  individual  did  not  possess 
the  real  property  which,  either  from  its  tenure  or  its  extent,  was  such 
as  to  constitute  a  lordship,  he  was  then  ranked  in  the  very  numerous 
class  whose  members,  in  Wessex  and  its  dependent  states,  were  origi- 
nally known  by  the  name  of '  sithctindmen/  an  appellation  which  we  may 
paraphrase  by  the  heraldic  expression,  '  gentle  by  birth  and  blood.'* 
This  term  of  sithcundman,  however,  was  only  in  use  in  the  earlier  peri- 
ods. After  the  reign  of  Alfred  it  is  lost;  and  the  most  comprehensive 
and  significant  denomination  given  to  this  class  is  that  of  4  sixhcend- 
men/  indicating  their  position  between  the  highest  and  lowest  law- 
worthy  classes  of  society.  Other  designations  were  derived  from  their 
services  and  tenures.  Radechnights,  and  lesser  thanes,  seem  to  be  in- 
cluded in  this  rank,  and  to  which,  in  many  instances,  the  general  name 
of  sokemen  was  applied.  But,  however  designated,  the  sithcundman,  or 
sixhcendman,  appears  in  every  instance  in  the  same  relative  position  in 
the  community—classed  amongst  the  nobility,  whenever  the  eorl  and 
the  ceorl  are  placed  in  direct  ^opposition  to  each  other;  always  con- 
sidered below  the  territorial  aristocracy,  and  yet  distinguished  from  the 
villenage  by  the  important  right  of  selecting  his  hlaford  at  his  will  and 
pleasure.  By  common  right  the  '  sixhoendman '  was  not  to  be  annexed 
to  the  glebe.  To  use  the  ^expressions  employed  by  the  compilers  of 
Domesday,  he  could  '  go  with  his  land  wheresoever  he  chose/  or,  leav- 
ing his  land,  he  might '  commend '  himself  to  any  hlaford  who  would 
accept  of  his  fealty."  (Vol  i  p.  14  > 

It  may  be  pointed  out,  however,  which  Sir  F.  P.  has  here  forgotten 
to  observe,  that  the  distinction  of  weregild  between  the  twelfhynd  and 
syxhynd  was  abolished  by  a  treaty  between  Alfred  and  Guthrum. 
(Thorpe's  Ancient  Laws,  p.  66  )  This  indeed  affects  only  the  reciproc- 
ity of  law  between  English  and  Danes.  Yet  it  is  certain  that  from  that 
time  we  rarely  find  mention  of  the  intermediate  rank  between  the  twelf- 
hynd, or  superior  thane,  and  the  twyhynd  or  ceorl.  The  sithcundraan, 
it  would  seem,  was  from  henceforth  rated  at  the  same  composition  as 

&  Is  not  the  word  sithcundman  prop-  disputable  enough  to  warrant  so  gener- 
erly  descriptive  of  his  dependence  on  a  al  a  proposition.  The  conditions  of  ten- 
i°fi  >  lrotn  e  Saxon  ver°  »*tow»»  to  ure  in  the  eleventh  century,  whatever 

*OIISu-      -  t.*     «     ^      -  ,     ,  they  may  once  have  been>  kad  become 

c  This  right   of  choosing  a  lord  at       exceedingly  various, 
pleasure,  so  little  feudal,  seems  not  in- 


THE  MIDDLE  AGES 


4SS 


his  lord,  yet  there  is  one  apparent  exception  (I  have  not  observed  any 
other)  in  the  laws  of  Henry  I.  It  is  said  here  (C.  76),—"  Liberi  alii 
twyhyndi,  alu  syxhyndi,  alii  twelfhyndi  Twyhyndus  homo  dicitur, 
cujus  wera  est^23  solidorura,  qui  facmnt  4  libras,  Twelfhyndus  est  homo 
plene  nobilis,  id  est,  thainus,  cujus  wera  est  1,200  solidorum,  qui  faciunt 
hbras  25  "  It  is  remarkable  that,  though  the  syxhyndman  is  named  at 
first,  nothing  more  is  said  of  him,  and  the  twelfhyndman  is  defined  to  be 
a  thane.  It  appears  from  several  passages  that  the  laws  recorded  in  this 
treatise  are  chiefly  those  of  the  West  Saxons,  which  differed  in  some 
respects  from  those  of  Mercia,  Kent,  and  the  Danish  counties.  With 
regard  to  the  word  sithcund,  it  does  occur  once  or  twice  in  the  laws  of 
Edward  the  Elder.  It  might  be  supposed  that  the  Danes  had  retained 
the  principle  of  equality  among  all  of  gentle  birth,  common,  as  we  read 
in  Grimm,  to  the  northern  nations,  which  the  distinction  brought  in  by 
the  kings  of  Kent  between  two  classes  of  eorls  or  thanes  seemed  to  con- 
travene We  shall  have  occasion,  however,  to  quote  a  passage  from  the 
laws  of  Canute,  which  indicates  a  similar  distinction  of  rank  among  the 
Danes  themselves,  whatever  might  be  the  rule  as  to  composition  for  life. 
The  influence  of  Danish  connections  produced  another  great  change 
in  the  nomenclature  of  ranks.  Eorl  lost  its  general  sense  of  good  birth 
and  became  an  official  title,  for  the  most  part  equivalent  to  alderman, 
the  governor  of  a  shire  or  district.  It  is  used  in  this  sense,  for  the  first 
time,  in  the  laws  of  Edward  the  Elder.  Yet  it  had  not  wholly  lost  its 
primary  meaningr>  since  we  find  eorhsh  and  ceorhsh  opposed,  as  distribu- 
tive appellations,  in  one  of  Athelstan.  (Id  p.  96.)  It  is  said  in  a  sort  of 
compilation,  entitled,  "  On  Oaths,  Weregilds,  and  Ranks,"  subjoined 
to  the  laws  of  Edward  the  Elder,  but  bearing  no  date,  that  "  It  was 
whilom  in  the  laws  of  the  English  ,  .  .  .  that,  if  a  thane  thrived  so 
that  he  became  an  eorl,  then  was  he  henceforth  of  eorl-right  worthy*" 
(Ancient  Laws,  p,  Bi).d  But  this  passage  is  wanting  in  one  manuscript, 
though  not  in  the  oldest,  and  we  find,  just  before  it,  the  old  distributive 
opposition  of  eorl  and  ceorl.  It  is  certainly  a  remarkable  exception  to 
the  common  use  of  the  word  eorl  in  any  age,  and  has  led  Mr.  Thorpe 
to  suppose  that  the  rank  of  earl  could  be  obtained  by  landed  wealth. 
The  learned  editor  thinks  that  "  these  pieces  cannot  have  had  a  later 
origin  than  the  period  in  which  they  here  stand.  Some  of  them  are 
probably  much  earlier  "  (p.  76).  But  the  mention  of  the  "  Danish  law," 
in  p.  79,  seems  much  against  an  earlier  date;  and  this  is  so  mentioned 
as  to  make  us  think  that  the  Danes  were  then  in  subjection.  In  the  time 
of  Edgar  eorl  had  fully  acquired  its  secondary  meaning;  in  its  original 
sense  it  seems  to  have  been  replaced  by  thane.  Certain  it  is  that  we  find 
thane  opposed  to  ceorl  in  the  later  period  of  Anglo-Saxon  monuments, 
as  eorl  is  in  the  earlier — as  if  the  law  knew  no  other  broad  line  of  demar- 
cation among  laymen,  saving  always  the  official  dignities  and  the  royal 
family.*  And  the  distinction  between  the  greater  and  the  lesser  thanes 
was  not  lost,  though  they  were  put  on  a  level  as  to  composition.  Thus, 
in  the  Forest  Laws  of  Canute : — "  Sint  jam  deinceps  quattuor  ex  liber- 
alioribus  hominibus  qui  habent  salvas  stias  consuetudines,  quos  Angli 
thegnes  appellant,  in  qualibet  regni  mei  provincia  constituti.  Sint  sub 
quolibet  eorurn  quattuor  ex  mediocribus  hominibus,  quos  Angli  lesthe- 

d  The  references  are  to  the  folio  edi-  been  enjoyed  by  all  great  landholders, 
tion  of  "  Ancient  Laws  and  Institutes  of  as  the  natural  concomitant  of  posses- 
England,"  1840,  as  published  by  the  Rec-  sion  to  a  certain  value.  By  Mercian 
ord  Commission.  I  fear  this  may  cause  law,  he  appears  as  a  '  twelfhynde  '  man, 
some  trouble  to  those  who  possess  the  his  *  wer '  being  1,200  shillings.  That 
octavo  edition,  which  is  much  more  this  dignity  ceased  prom  being  excmsive- 
common.  ly  of  a  military  character  is  evident  from 

e  "  That  the  thane,  at  least  originally,  numerous  passages  in  the  laws,  ^where 

was  a  military  follower,  a  holder  by  thanes  are  mentioned  in  a  judicial  ca- 

military  service,  seems  certain;  though  pacity,  and  as  civil  omcers,  Thorpe's 

in  later  time*  the.  rank  seems  to  hav<s  Glossary  to  Ancient  Laws,  voc.  Thegen. 


456  HALLAM 

genes  nuncupant,  Dani  vero  yoongrnen  vocant,  locati."  (Ancient 
Laws,  p.  183  )  Meantime  the  composition  for  an  earl,  whether  we  con- 
fine that  word  to  office  or  suppose  that  it  extended  to  the  wealthiest 
landholders,  was  far  higher  in  the  later  period  than  that  for  a  thane,  as 
was  also  his  henot  when  that  came  into  use.  The  henot  of  the  king's 
thane  was  above  that  of  what  was  called  a  medial  thane,  or  mesne  vassal, 
the  sithcundman,  or  syxhynder,  as  I  apprehend,  of  an  earlier  style. 

In  the  laws  of  the  continental  Saxons  we  find  the  rank  corresponding: 
to  the  eorlcunde  of  our  own  country,  denominated  edclmgi  or  noble,  as 
opposed  to  the  Mhngi  or  ordinary  freemen,  This  appellation  was  not 
lost  in  England,  and  was  perhaps  sometimes  applied  to  nobles,  but  we 
find  it  generally  reserved  for  the  royal  family.*1  Ethel  or  noble,  some- 
times contracted,  forms,  as  is  well  knovvrn,  the  peculiar  prefix  to  the 
names  of  oiir  Anglo-Saxon  royal  house.  And  the  word  athehng  was 
used  not  as  in  Germany  for  a  noble,  but  a  prince;  and  his  composition 
was  not  only  above  that  of  a  thane,  but  of  an  alderman.  He  ranked  as 
an  archbishop  m  this  respect,  the  alderman  as  a  bishop.  (Leges  Ethel- 
redi,  p.  141 )  It  is  necessary  to  mention  this,  lest,  m  speaking  of  the 
words  eorl  and  ceorl  as  originally  distributive,  I  should  seem  to  have  for- 
gotten the  distinctive  superiority  of  the  royal  family.  But  whether  this 
had  always  *been  the  case  I  am  not  prepared  to  determine.  The  aim 
of  the  later  kings,  I  mean  after  Alfred,  was  to  carry  the  monarchical  prin- 
ciple as  high  as  the  temper  of  the  nation  would  permit  Hence  they  pre- 
fer to  the  name  of  king,  which  was  associated  in  all  the  Germanic  na- 
tions with  a  limited  power,  the  more  indefinite  appellations  of  imperator 
and  basileus.  And  the  latter  of  these  they  borrowed  from  the  Byzantine 
court,  liking  it  rather  better  than  the  other,  not  merely  out  of  the 
pompous  affectation  characteristic  of  their  style  in  that  period,  but  be- 
cause, being  less  intelligible,  it  served  to  strike  more  awe,  and  also 
probably  because  the  title  of  western  emperor  seemed  to  be  already  ap- 
propriated in  Germany.  It  was  natural  that  they  would  endeavor  to 
enhance  the  superiority  of  all  athehngs  above  the  surrounding  nobihty 

A  learned^  German  writer,  who  distributes  freemen  into  but  two 
classes,  considers  the  ceorl  of  the  Anglo-Saxon  laws  as  corresponding  to 
the  mgenms,  and  the  thrall  or  esne,  that  is,  slave,  to  the  kdus  of  the  con- 
tinent. "  Adelingus  und  hber,  nobilis  und  ingenuus,  edehngus  und  fri- 
hngus,  jarl  und  karl,  stehen  hier  immer  als  Stand  der  freien  dem  der  un- 
freien,  dem  servus,  litus,  lazsus,  thrall  entgegen,"  (Grimm,  Deutsche 
Rechts-AIterthiimer,  Gottingen,  1828,  p,  226  et  ahbi )  Ceorl,  however,  he 
owns  to  have  "  etwas  befremdendes,"  something  peculiar.  "  Der  Sinn 
ist^bald  way,  bald  liber;  allein  colonus,  rusticus,  ignohlis;  die  Mitte 
zwischen  nobilis  und  servus" 

It  does  not  appear  from  the  continental  laws  that  the  litos,  or  Kdus, 
was  strictly  a  slave,  but  rather  a  cultivator  of  the  earth  for  a  master, 
something  like  the  Roman  colonus,  though  of  inferior  estimation.^  No 
slave  had  a  composition  due  to  his  kindred  by  law;  the  price  of  his  life 

/  Thorpe's  Glossary  their  institutions  to  those  of  the  Ro- 
*Mr.  Spence  remarks  (Equitable  Ju-  mans?  Do  we  not  rather  see  here  an 
risdiction,  p.  51)—*'  In  the  condition  of  illustration  of  what  appears  to  me  the 
the  ceorls  we  observe  one  of  the  many  true  theory,  that,  similarity  of  laws  and 
striking  examples  of  the  adaptation  of  customs  may  often  be  traced  to  natural 
the  German  to  the  Roman  institutions  causes  in  the  state  of  society  rather  than 
-•the  ceorls  and  servile  cultivators  or  to  imitation?  My  notion  is,  that  the 
adscnptitu  in  England,  as  well  as  in  the  Germans,  through  principles  of  com- 
continental  states,  exactly  corresponded  mon  sympathy  among  the  same  tribe, 
with  the  colon*  and wquihnt  of  the  Ro-  the  Romans,  through  memory  of  re- 
man provinces.  Yet  ^e  immediately  publican  institutions  carried  on  into  the 
subjoins—  The  condition  of  the  rural  empire,  repudiated  the  personal  servi- 
slaves  of  the  Germans  nearly  resembled  tude  of  citizens,  while  they  maintained 
that  of  the  Roman  colon*  and  Anglo-  very  strict  obligations  of  prsdial  tenure; 
Saxon  ceorls^'  quoting:  Tacitus,  c.  21,  and  thus  the  colom  of  the  lower  empire 
But  did  the  Germans  at  that  time  adapt  on  the  one  hand,  the  hdi  and  ceorls  cm 


THE  MIDDLE  AGES  457 

was  paid  to  his  lord  By  some  of  the  barbaric  laws,  one-third  of  the 
composition  for  a  lidus  went  to  the  kindred;  the  remainder  was  the 
lord's  share.  This  indicates  something  above  the  Anglo-Saxon  theow 
or  slave,  and  yet  considerably  below  the  ceorl.  The  word,  indeed,  has 
been  puzzling  to  continental  antiquaries;  and  if,  in  deference  to  the 
authorities  of  Gothofred  and  Grimm,  we  find  the  hdi  m  the  barbaric 
lati  of  the  Roman  empire,  we  cannot  think  these  at  least  to  have  been 
slaves,  though  they  may  have  become  colom.  But  I  am  not  quite  con- 
vinced of  the  identity  resting  on  a  slight  resemblance  of  name. 

The  ceorl,  or  mllamis,  as  we  find  him  afterwards  called  in  Domesday, 
was  not  generally  an  independent  freeholder;  but  his  condition  was 
not  always  alike  He  might  acquire  land,  and  if  he  did  this  to  the 
extent  of  five  hydes,  he  became  a  thane  ft  He  required  no  enfranchise- 
ment for  this ;  his  own  industry  rriight  make  him  a  gentleman.  This  was 
not  the  case,  at  least  not  so  easily,  in  France  It  appears  by  the  will  of 
Alfred,  published  in  1788,  that  certain  ceorls  might  choose  their  own 
lord,  and  the  text  of  his  law  above  quoted  furnishes  some  ground  for 
supposing  that  he  extended  the  privilege  to  all.  The  editor  of  his  will 
says — u  All  ceorls  by  the  Saxon  constitution  might  choose  such  man 
for  their  landlord  as  they  would  "  (p.  26).  But  even  though  we  should 
think  that  so  high  a  privilege  was  conferred  by  Alfred  on  the  whole 
class,  it  is  almost  certain  that  they  did  not  continue  to  enjoy  it 

In  the  Anglo-Saxon  charters  ^the  Latin  words  for  the  cultivators  are 
"  manentes  "  or  "  casati."  Their  number  is  generally  mentioned;  and 
sometimes  it  is  the  sole  description  of  land,  except  its  title.  The  French 
word  mamant  is  evidently  derived  from  mammies.  There  seems  more 
difficulty  about  casati,  which  is  sometimes  used  for  persons  in  a  state 
of  servitude,  sometimes  even  for  vassals  (Du  Cange).  In  pur  charters 
it  does  not  bear  the  latter  meaning.  (See  Codex  Diplomaticus,  passim. 
Spence  on  Equitable  Jurisdiction,  p.  50  ) 

But  when  we  turn  over  the  pages  of  Domesday  Book,  a  record  of  the 
state  of  Anglo-Saxon  orders  of  society  under  Edward  the  Confessor, 
we  find  another  kind  of  difficulty.  New  denominations  spring  up,  evi- 
dently distinguishable,  yet  such  as  no  information  communicated  either 
in  that  survey  or  in  any  other  document  enables  us  definitely  and  cer- 
tainly to  distinguish.  Nothing  runs  more  uniformly  through  the  legal 
documents  antecedent  to  the  Conquest  than  the  broad  division  of  free- 
men into  eorls,  afterwards  called  thanes,  and  ceorls.  In  Domesday, 
which  enumerates,  as  I  need  hardly  say,  the  inhabitants  of  every  manor, 
specifying  their  ranks,  not  only  at  the  epoch  of  the  survey  itself,  about 
1085,  but  as  they  were  in  the  time  of  King  Edward,  we  find  abundant 
mention  of  the  thanes,  generally  indeed,  but  not  always  in  reference  to 
the  last-named  period.  But  the  word  ceorl  never  occurs.  This  is  im- 

the  other,  were  neither  absolutely  free  Francis  Palgraye  treats  this  too  slightly 

nor  merely  slaves.  when  he  calls  it  a  "  traditionary  notice 

"  In  the  Lex  Fnsiorum,"  says  Sir  F.  of  an  unknown  writer,  who  says. 
Palgrave,  m  one  of  his  excellent  contri-  '  Whilom  it  was  the  law  of  England; 
buttons  to  the  Edinburgh  Review  (xxxii,  leaving  it  doubtful  whether  it  were  so 
16),  we  find  the  usual  distinctions  of  still,  or  had  been  at  any  definite  time." 
nobilis,  liber,  and  hto$.  The  rank  of  the  (Edinb  Rev.  xxxiv.  263 )  Though  this 
Teutonic  htus  has  been  much  discussed;  phrase  is  once  used,  it  is  said  also  ex- 
he  appears  to  have  been  a  villem,  owing  pressly:—"  If  a  ceorl  be  enriched  to  that 
many  services  to  his  lord,  but  above  the  degree  that  he  have  five  hydes  of  land, 
class  of  slaves."  The  word  villein,  it  and  any  one  slay  him,  let  him  be  paid 
should  be  remembered,  bore  several  for  with  2,000  thrymsas."  Thorpe,  p, 
senses:  the  Htus  was  below  a  Saxon  79.  This,  a  few  sentences  before,  is 
ceorl,  but  he  was  also  above  the  villein  named  as  the  composition  for  a  thane  an 
of  Bracton  and  Littleton,  the  Danelage.  And,  indeed,  though  no 

h  This  is  not  in  the  laws  of  Athelstan,  king's  name  appears,  I  have  little  doubt 

to  which  I  have  referred  m  p.  363,  nor  that  these  are  real  statutes,  collected 

in  any  regular  statute,  but  in  a  kind  of  probably  by  some  one  who  has  inserted 

brief  summary  of  law,  printed  by  Wil-  a  little  of  his  own. 
kins  and  Thorpe,    But  I  think  that  Sir 


458  HALLAM 

material,  for  by  the  name  villam  we  have  upwards  of  108,000,  And  this 
word  is  frequently  used  in  the  first  Anglo-Norman  reigns  as  the  equiva- 
lent of  ceorl.  No  one  ought  to  doubt  that  they  expressed  the  same 
persons.  But  we  find  also  a  very  numerous  class,  above  82,000,  styled 
bordarn;  a  word  unknown,  I  apprehend,  to  any  other  public  document, 
certainly  not  used  in  the  laws  anterior  to  the  Conquest.  They  must, 
however,  have  been  also  ceorls,  distinguished  by  some  legal  difference, 
some  peculiarity  of  service  or  tenure,  well  understood  at  the  time.  A 
small  number  are  denominated  coscetz,  or  cosceti;  a  word  which  does 
mjact  appear  in  one  Anglo-Saxon  document.  There  are  also  several 
minor  denominations  in  Domesday,  all  of  which,  as  they  do  not  denote 
slaves,  and  certainly  not  thanes,  must  have  been  varieties  of  the  ceorl 
kind.  The  most  frequent  of  these  appellations  is  "  cotaru."  t 

But,  besides  these  peasants,  there  are  two  appellations  which  it  is  less 
easy,  though  it  would  be  more  important,  to  define.  There  are  the 
liberi  homines  ^and  the  socmannt.  Of  the  former  Sir  Henry  Ellis,  to 
whose  indefatigable  diligence  we  owe  the  only  real  analysis  of  Domes- 
day Book  that  has  been  given,  has  counted  up  about  12,300;  of  the  lat- 
ter, about  23,000;  forming  together  about  one-eighth  of  the  whole 
population,  that  is,  of  male  adults.  This,  it  must  be  understood,  was 
at  the  time  of  the  survey,  but  there  is  no  appearance,  as  far  as  I  have 
observed,  that  any  material  difference  m  the  proportion  of  these  re- 
spective classes,  or  of  those  below  them,  had  taken  place.  The  con- 
fiscation fell  on  the  principal  tenants.  It  is  remarkable  that  in  Norfolk 
alone  we  have  4,487  liberi  homines  and  4,588  socmen—  the  whole  enumer- 
ated population  being  27,087.  But  m  Suffolk,  out  of  a  population  of 
20,491,  we  find  7,470  hberi  homines,  with  1,060  socmen.  Thus  these  two 
counties  contained  almost  all  the  hberi  homines  of  the  kingdom.  In 
Lincolnshire,  on  the  other  hand,  where  11,504  are  returned  as  socmen, 
the  word  liber  homo  does  not  occur  These  Lincolnshire  socmen  are 
not,  as  usual  in  other  counties,  mentioned  among  occupiers  of  the 
demesne  lands,  but  mingled  with  the  villeins  and  bordars;  sometimes 
not  standing  first  in  the  enumeration,  so  as  to  show  that,  in  one  country, 
they  were  both  a  numerous  and  more  subordinate  class  than  in  the  rest 
of  the  realm,* 

The  concise  distinction  between  what  we  should  call  freehold  and 
copyhold  is  made  by  the  forms  of  entering  each  manor  throughout 
Domesday  Book,  Liberi  homines  invariably,  and  socmen  I  believe,  ex- 
cept in  Lincolnshire,  occupied  the  one,  vilhni  and  bordarii  the  other. 
Hence  hberum  tenementum  and  villenagiiim  What  then,  in  Anglo-Saxon 
language,  was  the  kind  of  the  two  former  classes?  They  belong,  it  will 
be  observed,  almost  wholly  to  the  Danish  counties;  not  one  of  either 
denomination  appears  in  Wessex,  as  will  be  seen  by  reference  to  Sir  H, 
ElhVs  abstract  Were  they  thanes  or  ceorls,  or  a  class  distinct  from 
both?  What  was  their  were?  We  cannot  think  that  a  poor  cultivator 
of  a  few  acres,  though  of  his  own  land,  was  estimated  at  1,200  shillings, 
like  a  royal  thane.  The  intermediate  composition  of  the  sixhyndman 
would  be  a  convenient  guess;  but  unfortunately  this  seems  not  to  have 
existed  in  the  Danelage,  We  gain  no  great  light  from  the  laws  of  Ed- 
ward the  Confessor,  which  fix  the  manboie,  or  fine,  to  the  lord  for  a  man 
slam,  regulated  according  to  the  were  due  to  his  children.  Manbote,  in 
Danelage,  de  villano  et  de  sokemanno  12  eras;  de  liberis  homimbus, 
tres  raarcas  (c  12).  Thus,  in  the  Danish  counties,  of  which  Lincoln- 

*  Socmen  are  returned  in  not  a  few  sioners;  for  the  counties  in  which  WA 
instances  as  sub-tenants  .of  whole  man-  find  soimen  so  «SS  i  e^ed  &d  n*t 
?£ly  •  m  Cam£"d£esh  ire  and  belonged  to 


shire- 


THE  MIDDLE  AGES  459 

shire  was  one,  the  socman  was  estimated  like  a  mllanus,  and  much  lower 
than  a  hbet  honio  Ihe  ora  is  said  to  have  been  one-eighth  of  a  mark, 
consequently  tkt  liber  homo's  manbote  was  double  that  of  the  villein  or 
socman.  11  this  boie  a  fixed  ratio  to  the  ume,  we  have  a  new  and  un- 
heard-of rank  who  might  be  called  fourhyndmen.  But  such  a  distinc- 
tion is  never  met  with  It  would  not  in  itself  be  improbable  that  the 
hbcn  homines  who  occupied  freehold  lands,  and  owed  no  prsedial  service, 
should  be  miscd  in  the  composition  for  their  lives  above  common  ceorls 
But  m  these  inquiries  new  difficulties  are  always  springing  forth. 

We  must  upon  the  whole,  I  conceive,  take  the  socmen  for  twyhyndi, 
for  ceorls  more  fortunate  than  the  rest,  who  had  acquired  some  free- 
hold land,  or  to  whose  ancestors  possibly  it  had  been  allotted  in  the 
oiigmal  settlement  It  indicates  a  remarkable  variety  in  the  condition 
of  these  East-Anglian  counties,  Norfolk  and  Suffolk,  and  a  more  dif- 
fused freedom  in  their  inhabitants  The  population,  it  must  strike  us, 
was  greatly  higher,  relatively  to  their  size,  than  in  any  other  part  of 
England,  and  the  multitude  of  small  manors  and  of  parish  churches 
which  still  continue,  bespeaks  this  progress  The  socmen,  as  well  as 
the  hbcn  homines,  in  whose  condition  there  may  have  been  little  differ- 
ence, except  in  Lincolnshire,  where  we  have  seen  that,  for  whatever 
cause,  those  denominated  socmen  were  little,  if  at  all,  better  than  the 
vtllam,  were  all  commended,  they  had  all  some  lord,  though  bearing 
to  him  a  relation  neither  of  fief  nor  of  villenage;  they  could  in  general, 
though  with  some  exceptions,  alienate  their  lands  at  pleasure;  it  has 
been  thought  that  they  might  pay  some  small  rent  in  acknowledgment 
of  commendation;  but  the  one  class  undoubtedly,  and  probably  the 
other,  were  freeholders  in  every  legal  sense  of  the  word,  holding  by 
that  ancient  and  respectable  tenure,  free  and  common  socage,  or  in  a 
manner  at  least  analogous  to  it.  Though  socmen  are  chiefly  mentioned 
in  the  Danclage,  other  obscure  denominations  of  occupiers  occur  m 
Wessex  and  Mercia,  which  seem  to  have  denoted  a  similar  class.  But 
the  style  of  Domesday  is  so  concise,  and  so  far  from  uniform,  that  we 
are  very  liable  to  be  deceived  in  our  conjectural  inferences  from  it. 

It  may  be  remarked  here  that  many  of  our  modern  writers  draw  too 
unfavorable  a  picture  of  the  condition  of  the  Anglo-Saxon  ceorl.  Few 
indeed  fall  into  the  capital  mistake  of  Mr.  Sharon  Turner,  by  speaking 
of  him  as  legally  m  servitude,  like  the  villein  of  Bracton's  age.  But  we 
often  find  a  tendency  to  consider  him  as  in  a  very  uncomfortable  con- 
dition, little  caring  "  to  what  lion's  paw  be  might  fall,"  as  Bolingbroke 
said  in  1745,  and  treated  by  his  lord  as  a  miserable  dependant  Half  a 
century  since,  in  the  days  of  Sir  William  Jones,  Granville  Sharp,  and 
Major  Cartwright,  the  Anglo-Saxon  constitution  was  built  on  universal 
suffrage;  every  man  in  his  tything  a  partaker  of  sovereignty,  and  send- 
ing from  his  rood  of  land  an  annual  representative  to  the  witenagemot. 
Such  a  theory  could  not  stand  the  first  glimmerings  of  historical  knowl- 
edge m  a  mind  tolerably  sound.  But  while  we  absolutely  deny  political 
privileges  of  this  kind  to  the  ceorl,  we  need  not  assert  his  life  to  have 
been  miserable.  He  had  very  definite  legal  rights,  and  acknowledged 
capacities  of  acquiring  more;  that  he  was  sometimes  exposed  to  op- 
pression is  probable  enough;  but,  in  reality,  the  records  of  all  kinds 
that  have  descended  to  us  do  not  speak  in  such  strong  language  of  this 
as  we  may  read  in  those  of  the  continent.  We  have  no  insurrection 
of  the  ceorls,  no  outrages  by  themselves,  no  atrocious  punishment  by 
their  masters,  as  in  Normandy.  Perhaps  we  are  a  little  too  much  struck 
by  their  obligation  to  reside  on  the  lands  which  they  cultivated;  the 
term  ascriptus  gkb<z  denotes,  in  our  apprehension,  an  ignoble  servitude. 
It  is,  of  course,  inconsistent  with  our  modern  equality  of  rights;  but  we 
are  to  remember  that  he  who  deserted  his  land,  and  consequently  his 
lord,  did  so  in  order  to  become  a  thief.  Hlaforfles  nien,  of  whom  we 


460  HALLAM 

read  so  much,  were  invariably  of  this  character.  What  else,  indeed, 
could  he  become?  Children  have  an  idle  play,  to  count  buttons,  and 
say, — Gentleman,  apothecary,  ploughman,  thief.  Now  this,  if  we  con- 
sider the  second  as  representative  of  burgesses  in  towns,  is  actually  a 
distributive  enumeration,  setting  aside  the  clergy  of  the  Anglo-Saxon 
population;  a  thane,  a  burgess,  a  ceorl,  a  hlafordles  man;  that  is,  a  man 
without  land,  lord,  or  law,  who  lived  upon  what  he  could  take.  For  the 
sake  of  protecting  the  honest  ceorl  from  such  men,  as  well  as  of  pro- 
tecting the  lord  m  what,  if  property  be  regarded  at  all,  must  be  pro- 
tected, his  rights  to  services  legally  due,  it  was  necessary  to  restrain  the 
cultivator  from  quitting  his  land.  Exceptions  to  this  might  occur,  as 
we  find  among  the  hben  homines  and  others  in  Domesday;  but  it  was  the 
general  rule.  We  might  also  ask  whether  a  lessee  for  years  at  present 
is  not  in  one  sense  ascnptus  glebes?  It  is  true  that  he  may  go  wherever 
he  will,  and,  if  he  continue  to  pay  his  rent  and  perform  his  covenants,  no 
more  can  be  said.  But  if  he  does  not  this,  the  law  will  follow  his  per- 
son, and,  though  it  cannot  force  him  to  return,  will  make  it  by  no  means 
his  interest  to  desert  the  premises  Such  remedies  as  the  law  now  fur- 
nishes were  not  in  the  power  of  the  Saxon  landlord;  but  all  that  any 
lord  could  desire  was  to  have  the  services  performed,  or  to  receive  a 
compensation  for  them. 

NOTE  IV. 

Those  who  treat  this  opinion  as  chimerical,  and  seem  to  suppose  that 
a  very  large  portion  of  the  people  of  England,  during  the  Anglo-Saxon 
period,  must  have  been  of  British  descent,  do  not,  I  think,  sufficiently 
consider — first,  the  exterminating  character  of  barbarous  warfare,  not 
here  confined,  as  in  Gaul,  to  a  single  and  easy  conquest,  but  protracted 
for  two  centuries  with  the  most  obstinate  resistance  of  the  natives;  sec- 
ondly, the  facilities  which  the  possessions  of  the  Welsh  and  Cumbrian 
Britons  gave  to  their  countrymen  for  retreat,  and  thirdly,  the  natural 
increase  of  population  among  the  Saxons,  especially  when  settled  in  a 
country  already  reduced  into  a  state  of  culture.  Nor  can  the  successive 
migrations  from  Germany  and  Norway  be  shown  to  have  been  in- 
significant Nothing  can  be  scantier  than  our  historical  materials  for 
the  fifth  and  sixth  centuries.  We  cannot  also  but  observe  that  the 
silence  of  the  Anglo-Saxon  records,  at  a  later  time,  as  to  Welsh  in- 
habitants, except  in  a  few  passages,  affords  a  presumption  that  they 
were  not  very  considerable.  Yet  these  passages,  three  or  four  in  num- 
ber (I  do  not  include  those  which  obviously  relate  to  the  independent 
Welsh,  whether  Cambrian  or  Cumbrian),  repel  the  hypothesis  that  they 
may  have  been  wholly  overlooked  and  confounded  with  the  ceorls. 
Their  composition  was  less  than  that  of  the  ceorl  in  Wessex  and  North- 
umbria;  would  not  this  have  been  mentioned  in  Kent  if  they  had  been 
found  there? 

It  is  by  no  means  unimportant  in  this  question  that  we  find  no  men- 
tion of  bishops  or  churches  remaining  m  the  parts  of  England  occupied 
by  the  Saxons  before  their  conversion.  If  a  large  part  of  the  popula- 
tion was  British,  though  in  subjection,  what  religion  did  they  profess? 
If  it  is  said  that  the  worshippers  of  Thor  persecuted  the  Christian 
priesthood,  why  have  we  no  records  of  it  in  hagiology?  Is  it  conceiv- 
able that  all  alike,  priests  and  people,  of  that  ancient  church,  pusil- 
lammously  relinquished  their  faith?  Sir  F.  Palgrave  indeed  meets  this 
difficulty  by  supposing  that  the  doctrines  of  Christianity  were  never 
cordially  embraced  by  the  British  tribes,  nor  had  become  the  national 
religion.  (EngI  Commonwealth,  i.  154  )  Perhaps  this  was  in  some 
measure  the  case,  though  it  must  be  received  with  much  limitation; 
for  the  retention  of  heathen  superstitions  was  not  incompatible  in  that 


THE  MIDDLE  AGES  461 

age  with  a  cordial  faith;  but  it  will  not  account  for  the  disappearance 
of  the  oiigmal  clergy  in  the  English  kingdoms.  Their  persecution, 
which  I  do  not  deny,  though  we  have  no  evidence  of  it,  would  be  part 
of  the  exterminating  system;  they  fled  before  it  into  the  safe  quarters 
of  Wales  And  to  obtain  the  free  exercise  of  their  religion  was  prob- 
ably an  additional  motive  with  the  nation  to  seek  liberty  where  it  was 
to  be  found 

It  must  have  struck  every  one  who  has  looked  into  Domesday  Book 
that  we  find  for  the  most  part  the  same  manors,  the  same  parishes,  and 
known  by  the  same  names,  as  in  the  present  age.  England  had  been 
as  completely  appropriated  by  Anglo-Saxon  thanes  as  it  was  by  the 
Normans  who  supplanted  them.  This,  indeed,  only  carries  us  back  to 
the  eleventh  century.  But  in  all  charters  with  which  the  excellent 
Codex  Diplomatics  supplies  us  we  find  the  boundaries  assigned;  and 
these,  if  they  do  not  establish  the  identity  of  manors  as  well  as  Domes- 
day Book,  give  us  at  least  a  great  number  of  local  names,  which  sub- 
sist, of  course  with  the  usual  changes  of  language,  to  this  day.  If 
British  names  of  places  occur,  it  is  rarely,  and  in  the  border  counties, 
or  in  Cornwall.  No  one  travelling  through  England  would  discover 
that  any  people  had  ever  inhabited  it  before  the  Saxons,  save  so  far  as 
the  mighty  Rome  has  left  traces  of  her  empire  in  some  enduring  walls, 
and  a  few  names  that  betray  the  colonial  city,  the  Londimum,  the 
Camalodunum,  the  Linduna.  And  these  names  show  that  the  Saxons 
did  not  systematically  innovate,  but  often  left  the  appellations  of  places 
where  they  found  them  given.  ^  Their  own  favorite  terminations  were 
ton  and  by;  both  words  denoting  a  village  or  township,  like  ville  in 
French  «  In  each  of  these  there  gradually  rose  a  church,  and  the  ec- 
clesiastical division  for  the  most  part  corresponds  to  the  civil;  though 
to  this,  as  is  well  known,  there  are  frequent  exceptions.  The  central 
point  of  every  township  or  manor  was  its  lord,  the  thane  to  whose 
court  the  socagers  and  ceorls  did  service;  we  may  believe  this  to  have 
been  so  from  the  days  of  the  Heptarchy,  as  it  was  in  those  of  the  Con- 
fessor. 

The  servi  enumerated  in  Domesday  Book  are  above  25,000,  or  nearly 
one-eleventh  part  of  the  whole.  There  seem  generally  to  have  been 
domestic  slaves,  and  partly  employed  in  tending  the  lord's  cattle  or 
swine,  as  Gurth,  whom  we  all  remember,  the  ftos  fyopffos  of  the  thane 
Cedric,  in  Ivanhoe.  They  are  never  mentioned  as  occupiers  of  land, 
and  have  nothing  to  do  with  the  villeins  of  later  times.  A  genuine 
Saxon,  as  I  have  said,  could  only  become  a  slave  by  his  own  or  his 
forefather's  default,  in  not  paying  a  weregild,  or  some  legal  offence; 
and  of  these  there  might  have  been  many.  The  few  slaves  whose  names 
Mr.  Turner  has  collected  from  Hickes  and  other  authorities  appear  to 
be  all  Anglo-Saxon.  (Hist  of  Anglo-Saxons,  vol.  iii.  p.  92 )  Several 
others  are  mentioned  in  charters  quoted  by  Mr  Wright  in  the  39th 
volume  of  the  "  Achaeologia,"  p.  220.  But  the  higher  proportion  which 
servi  bore  to  vittani  and  bordarii,  that  is,  free  ceorls,  in  the  western 
counties,  those  in  Gloucestershire  being  almost  one-third,  may  natu- 

a  The  word  tun  denotes  originally  any  been  formed  with  this  word,  .while  upon 
enclosure  "  But  its  more  usual,  though  the  continent  of  Europe,  it  is  never 
restricted  sense,  is  that  of  a  dwelling,  a  used  for  such  a  purpose  In  the  .first 
homestead,  the  house  and  inland,  all,  two  volumes  of  the  Codex  Diplomatics, 
in  short,  that  is  surrounded  and  bound-  Dr.  Lee  computes  the  proportion  of 
ed  by  a  hedge  or  fence.  It  is  thus  ca-  local  names  compounded  with  tun  at 
pable  of  being  used  to  express  what  we  one-eighth  of  the  whole  number:  a  ratio 
mean  by  the  word  town,  viz.,  a  large  which  unavoidably  leads  us  to  the  con- 
collection  of  dwellings;  or,  like  the  elusion,  that  enclosures  were  as  much 
Scottish  town,  even  a  solitary  farm-  favored  by  the  Anglo-Saxons  as  they 
house.  It  is  very  remarkable  that  the  were  avoided  by  their  German  brethren 
largest  proportion  of  the  names  of  places  beyond  the  sea,"  Freface  to  Kerable  s 
among  the  Anglo-Saxons  should  have  Codex  Diplom,  vol.  in.  p.  xxxix. 


462  HALLAM 

rally  induce  us  to  suspect  that  many  were  of  British  origin,  and  these 
might  be  sometimes  in  praedial  servitude.  All  inference,  however,  from 
the  sentence  m  Domesday,  as  to  the  particular  state  of  the  enumerated 
inhabitants,  must  be  conjecturally  proposed. 


NOTE  V. 

The  constituent  parts  of  the  witenagemot  cannot  be  certainly  de- 
termined, though  few  parts  of  the  Anglo-Saxon  polity  are  more  im- 
portant. A  modern  writer  espouses  the  more  popular  theory,  "  There 
is  no  leason  extant  for  doubting  that  every  thane  had  the  right  of 
appearing  and  voting  m  the  witenagemot,  not  only  of  his  shire,  but 
of  the  whole  kingdom,  without  however  being  bound  to  personal  at- 
tendance, the  absent  being  considered  as  tacitly  assenting  to  the 
resolutions  of  those  present"  (Lappenberg,  Hibt.  of  England,  vol. 
ii.  p.  317 )  Palgrave,  on  the  other  hand,  adheres  to  the  testimony  of 
the  Histona_  Ehensis,  that  forty  hydes  of  land  were  a  necessary  quali- 
fication; which  of  course  would  have  excluded  all  but  very  wealthy 
thanes.  _  He  observes,  and  I  believe  with  much  justice,  that  :'  proceres 
terrse  "  is  a  common  designation  of  those  who  composed  a  curia  regis 
synonymous,  as  he  conceives,  with  the  witenagemot.  Mr.  Thorpe  in- 
geniously conjectures  that  "inter  proceres  terrae  enumerari"  was  to 
have  the  rank  of  an  earl,  on  the  ground  that  five  hydes  of  land  was  a 
qualification  for  a  common  thane,  whose  henot,  by  the  laws  of  Canute, 
was  to  that  of  an  earl  as  one  to  eight.  (Ancient  Laws  of  Anglo-Saxons, 
p.  81.)  Mr  Spence  supposes  the  rank  annexed  to  forty  hydes  to  have 
been  that  of  king's  thane  (Inquiry  into  Laws  of  Europe,  p.  311.)  But 
they  were  too  numerous  for  so  high  a  qualification. 

Mr.^  Thorpe  explains  the  word  witenagemot  thus— "The  supreme 
council  of  the  nation,  or  meeting  of  the  witan  This  assembly  was  sum- 
moned by  the  king;  and  its  members,  besides  the  archbishop  or  arch- 
bishops, were  the  bishops,  aldermen,  duces,  eorls,  thanes,  abbots, 
priests,  and  even  deacons  In  this  assembly,  laws,  both  secular  and 
ecclesiastical,  were  promulgated  and  repealed;  and  charters  of  grants 
made  by  the  king  confirmed  and  ratified  Whether  this  assembly  met 
by  royal  summons,  or  by  usage  at  stated  periods,  is  a  point  of  doubt." 
(Glossary  to^  Ancient  Laws.)  This  is  not  remarkably  explicit:  alder- 
men are  distinguished  from  earls,  and  duces,  an  equivocal  word,  from 
both;**  and  the  important  difficulty  is  slurred  over  by  a  general  de- 
scription, thanes.  But  what  thanes?  remains  to  be  inquired. 

^The  charters  of  all  Anglo-Saxon  sovereigns  are  attested,  not  only  by 
bishops  and  abbots,  but  by  laymen,  described,  if  by  any  Saxon  appella- 
tion, as  aldermen,  or  as  thanes.  Their  number  is  not  very  consider- 
able; and  some  appear  hence  to  have  inferred  that  only  the  superior 
or  royal  thanes  were  present  in  the  witenagemot.  But,  as  the  sig- 
natures of  the  whole  body  could  not  be  required  to  attest  a  charter, 
this  is  far  too  precarious  an  inference.  Few,  however,  probably,  are 
found  to  believe  that  the  lower  thanes  flocked  to  the  national  council, 
whatever  their  rights  may  have  been;  and  if  we  have  no  sufficient  proof 

m  a  Dux  appears  to  be  sometimes  used  given   originally  to  the   leader   of  an 

m  the  subscription  01  charters  lor  thane,  army;    but  in  the  latter  days  of  the 

more  commonly  for  alderman     Thane  monarchy    it    seems    to    have-  become 

is  generally,  in  Latin,  minister.    Codex  hereditary  in  the  family  of  those  on 

Diplomat,  passim.    Some  have  supposed  whom  the  government  of  the  provinces 

dux  to  signify,  at  least,  occasionally,  a  formed    out   of   the   kingdoms   of   the 

peculiar  dignity,  called,  in  Anglo-Saxon,  Heptarchy    were    bestowed,    and    was 

Jieretoch  (herzog,  Germ.)     This  word  sometimes    used    synonymously    with 

frequently  occurs  m  the  later  period.  those  of  ealdorman  and  eorl."   Glossary. 

Mr.  Thorpe  says— "  This  title,  among  voc.  Heretoga. 
the  Anglo-Saxons,  was,  as  it  implies, 


THE  MIDDLE  AGES 


463 


that  any  such  privileges  had  been  recognized  in  law  or  exercised  in 
tact,  if  we  are  lather  led  to  consider  the  sithcundman  or  sixhynder  as 
dependent  merely  on  his  lord,  in  something  very  analogous  to  a  feudal 
relation,  we  may  reasonably  doubt  the  strong  position  which  Lappen- 
berg,  though  following  so  many  of  our  own  antiquaries,  has  laid  down 
Probably  the  traditions  of  the  Teutonic  democracy  led  to  the  insertion 
of  the_assent  of  the  people  m  some  of  the  Anglo-Saxon  laws.  But  it  is 
done  in  such  a  manner  as  to  produce  a  suspicion  that  no  substantial 
share  in  legislation  had  been  reserved  to  them  Thus,  in  the  preamble 
of  the  laws  of  Withroed,  about  696,  we  read,  "The  great  men  decreed, 
with  the  suffrages  of  all,  these  dooms."  Ina's  laws  are  enacted  "  with 
all  my  ealdormen,  and  the  most  distinguished  witan  of  my  people" 
Alfred  has  consulted  his  "  witan."  Arid  this  is  the  uniform  word  in  all 
later  laws  m  Anglo-Saxon.  Canute's,  m  Latin,  run— "  Cum  consiho 
pnmanorum  meorum."  We  have  not  a  hint  of  any  numerous  or  popu- 
lar body  in  the  Anglo-Saxon  code. 

Sir  F.  Palgrave  (i  637)  supposes  that  the  laws  enacted  in  the  witen- 
agemot  were  not  valid  till  accepted  by  the  legislature  of  the  different 
kingdoms.  This  seems  a  paradox,  though  supported  with  his  usual 
learning  and  ingenuity  He  admits  that  Edgar  tk  speaks  in  the  tone  of 
prerogative,  and  directs  his  statutes  to  be  observed  and  transmitted  by 
writ  to  the  aldermen  of  the  other  subordinate  states."  (P.  638.)  But 
I  must  say  that  this  is  not  very  exact.  The  words  in  Thorpe's  transla- 
tion are,— u  And  let  many  writings  be  written  concerning  these  things, 
and  sent  both  to  JElfere,  alderman,  and  to  JEthelwine,  alderman,  and 
let  them  [send]  in  every  direction,  that  this  ordinance  be  known  to 
the  poor  and  rich."  (P.  118.)  "And  yet,"  Sir  F.  P.  proceeds,  "in 
defiance  of  this  positive  injunction,  the  laws  of  Edgar  were  not  ac- 
cepted m  Mercia  till  the  reign  of  Canute  the  Dane."  For  this,  how- 
ever, he  cites  no  authority,  and  I  do  not  find  it  in  the  Anglo-Saxon 
laws.  Edgar  says,—"  And  I  will  that  secular  rights  stand  among  the 
Danes  with  as  good  laws  as  they  best  may  choose.  But  with  the 
English,  let  that  stand  which  I  and  my  witan  have  added  to  the  dooms 
of  my  forefathers,  for  the  behoof  of  all  the  people.  Let  this  ordinance, 
nevertheless,  be  common  to  all  the  people,  whether  English,  Danes,  or 
Britons,  on  every  side  of  my  dominion.  (Thorpe's  Ancient  Laws,  p. 
116)  But  what  does  this  prove  as  to  Mercia?  The  inference  is,  that 
Edgar,  when  he  thought  any  particular  statute  necessary  for  the  public 
weal,  enforced  it  on  all  his  subjects,  but  did  not  generally  meddle  with 
the  Danish  usages 

"  The  laws  of  the  glorious  Athelstan  had  no  effect  in  Kent,  the  de- 
pendent appanage  of  his  crown,  until  sanctioned  by  the  witan  of  the 
shire."  ,It  is  certainly  true  that  we  find  a  letter  addressed  to  the  king 
in  the  name  of  "  episcopi  tui  de  Kancia,  et  omnes  Cantescyre  thaini, 
comites  et  villani,"  thanking  him  "  quod  nobis  de  pace  nostra  prse- 
cipere  volmsti  et  de  commodo  nostro  quzerere  et  consulere,  quia 
magnum  inde  nobis  et  opus  divitibus  et  pauperibus  "  But  the  whole 
tenor  of  this  letter,  which  relates  to  the  laws  enacted  at  the  witenage- 
mot,  or ^  "  grand  synod"  of  t  Greatanlea  (supposed  near  Andover), 
though  it  expresses  approbation  of  those  laws,  and  repeats  some  of 
them  with  slight  variations,  does  not,  in  my  judgment,  amount  to  a 
distinct  enactment  of  them;  and  the  final  words  are  not  very  legis- 
lative. "  Precamur,  Dotmne,  misencordiam  tuam,  si  in  hoc  scripto 
alterutrum  est  vel  nimis  vel  minus,  ut  hoc  emendari  jubeas  secundum 
velle  tuum.  Et  nos  devote  parati  sumus  ad  ornnia  quse  nobis  prse- 
cipere  velis  quse  unquam  aliquatenus  implere  valeamus."  (P,  91.) 

It  is,  moreover,  an  objection  to  considering  this  as  a  formal  enact- 
ment by  the  witan  of  the  shire,  that  it  runs  in  the  names  of  "  thaini, 
comites  et  villani."  Can  it  be  maintained  that  the  ceorls  ever  formed 


464  HALLAM 

an  integrant  element  of  the  legislature  in  the  kingdom  of  Kent?  It 
may  be  alleged  that  their  name  was  inserted,  though  they  had  not 
been  formally  consenting  parties,  as  we  find  in  some  parliamentary 
grants  of  money  much  later.  But  this  would  be  an  arbitrary  con- 
jecture, and  the  terms  "  omnes  thaim,"  &c ,  are  very  large.  By 
conntes  we  are  to  understand,  not  earls,  who  in  that  age  would  not 
have  been  spoken  of  distinctly  from  thanes,  at  least  in  the  plural 
number,  nor  postponed  to  them,  but  thanes  of  the  second  order,  sith- 
cundmen,  sixhynder,  Alfred  translates  "  comes "  by  "  gesith,"  and 
the  meaning  is  nearly  the  same 

In  the  next  year  we  have  a  very  peremptory  declaration  of  the  ex- 
clusive rights  of  the  king  and  his  witan  "  Athelstan,  king,  makes 
known  that  I  have  learned  that  our  '  frith '  (peace)  is  worse  kept  than 
is  pleasing  to  me,  or  as  at  Greatanlea  was  ordained,  and  my  witan  say 
that  I  have  too  long  borne  with  it.  Now,  I  have  decreed,  with  the 
witan  who  were  with  me  at  Exeter  at  midwinter,  that  they  [the  frith- 
breakers]  shall  all  be  ready,  themselves  and  with  wives  and  property, 
and  with  _all  things,  to  go  whither  I  will  (unless  from  thenceforth  they 
shall  desist),  on  this  condition,  that  they  never  come  again  to  the 
country.  And  if  they  shall  ever  again  be  found  in  the  country,  that 
they  be  as  guilty  as  he  who  may  be  taken  with  stolen  goods  (hand- 
habbende)." 

Sir  Francis  Palgrave,  a  strenuous  advocate  for  the  antiquity  of 
municipal  privileges,  contends  for  aldermen,  elected  by  the  people  in 
boroughs,  sitting  and  assenting  among  the  king's  witan.  (Edmb. 
Rev.  xxvi.  26  )  "  Their  seats  in  the  witenagemot  were  connected  as 
inseparably  with  their  office  as  their  duties  m  the  folkmote.  Nor  is 
there  any  reason  for  denying  to  the  aldermen  of  the  boroughs  the 
rights  and  rank  possessed  by  the  aldermen  of  the  hundreds;  and  they, 
in  all  cases,  were  equally  elected  by  the  commons  "  The  passage  is 
worthy  of  consideration,  like  everything  which  comes  from  this  in- 
genious and  deeply  read  author.  But  we  must  be  staggered  by  the 
absence  of  all  proof,  and  particularly  by  the  fact  that  we  do  not  find 
aldermen  of  towns,  so  described,  among  the  witnesses  of  any  royal 
charter.  Yet  it  is  possible  that  such  a  privilege  was  confined  to  the 
superior  thanes^  which  weakens  the  inference.  We  cannot -pretend,  I 
think,  to  deny,  in  so  obscure  an  inquiry,  that  some  eminent  inhabit- 
ants (I  would  here  avoid  the  ambiguous  word  citizens)  of  London,  or 
even  other  cities,  might  occasionally  be  present  in  the  witenagemot 
But  were  not  these,  as  we  may  confidently  assume,  of  the  rank  of 
thane?  The  position  in  my  text  is,  that  ceorls  or  inferior  freemen  had 
no  share  in  the  deliberations  of  that  assembly.  Nor  would  these  al- 
dermen, if  actually  present,  have  been  chosen  by  the  court-leet  for 
that  special  purpose,  but  as  regular  magistrates.  "  Of  this  great 
council/'  Sir  F  P.  says  in  another  place  (Edmb.  Rev.  xxxiv.  336),  "  as 
constituted  anterior  to  the  Conquest,  we  know  little  more  than  the 
name. '  The  greater  room,  consequently,  for  hypothesis.  In  a  later 
work,  as  has  been  seen  above,  Sir  F.  P.  adopts  the  notion  that  forty 
hydes  of  land  were  the  necessary  qualification  for  a  seat  in  the  witenage- 
raot  This  is  almost  inevitably  inconsistent  with  the  presence,  as  by 
right  of  aldermen  elected  by  boroughs.  We  must  conclude,  there- 
fore, that  he  has  abandoned  that  hypothesis.  Neither  of  the  two  is 
satisfactory  to  my  judgment. 

NOTE  VI. 

The  hundred-court,  and  indeed  the  hundred  itself,  do  not  appear  in 
our  Anglo-Saxon  code  before  the  reign  of  Edgar,  whose  regulations 
concerning  the  former  are  rather  full.  But  we  should  be  too  hasty  in 


THE  MIDDLE  AGES  465 

concluding  that  it  was  then  first  established  Nothing  in  the  language 
of  those  laws  implies  it.  A  theory  has  been  developed  in  a  very  bril- 
liant and  learned  article  of  the  Edinburgh  Review  for  1822  (xxxvi. 
287),  justly  ascribed  to  Sir  F.  Palgrave,  which  deduces  the  hun- 
dred from  the  harad  of  the  Scandinavian  kingdoms,  the  integral 
unit  of  the  Scandinavian  commonwealths  "  The  Gothic  common- 
wealth is  not  a  unit  of  which  the  smaller  bodies  politic  are  fractions. 
They  are  the  units,  and  the  commonwealth  is  the  multiple.  Every 
Gothic  monarchy  is  in  the  nature  of  a  confederation.  It  is  com- 
posed of  towns,  townships,  shires,  bailiwicks,  burghs,  earldoms,  duke- 
doms, all  in  a  certain  degree  strangers  to  each  other,  and  separated  in 
jurisdiction.  Their  magistrates,  therefore,  in  theory  at  least,  ought  not 

to  emanate  from  the  sovereign The  strength  of  the  state 

ascends  from  region  to  region  The  representative  form  of  govern- 
ment, adopted  by  no  nation  but  the  Gothic  tribes,  and  originally  com- 
mon to  them  all,  necessarily  resulted  from  this'  federative  system,  in 
which  the  sovereign  was  compelled  to  treat  the  component  members  as 
possessing  a  several  authority." 

The  hundred  was  as  much,  according  to  Palgrave,  the  organic  germ 
of  the  Anglo-Saxon  commonwealth,  as  the  hserad  was  of  the  Scan- 
dinavian. Thus,  the  leet,  held  every  month,  and  composed  of  the  tyth- 
ingmen  or  head-boroughs,  representing  the  inhabitants,  were  both  the 
inquest  and  the  jury,  possessing  jurisdiction,  as  he  conceives,  in  all 
cases  civil,  criminal,  and  ecclesiastical,  though  this  was  restrained  after 
the  Conquest  William  forbade  the  bishop  or  archdeacon  to  sit  there; 
and  by  the  I7th  section  of  Magna  Charta  no  pleas  of  the  crown  could 
be  held  before  the  sheriff,  the  constable,  the  coroner,  or  other  bailiff 
(inferior  officer)  of  the  crown.  This  was  intended  to  secure  for  the 
prisoner,  on  charges  of  felony,  a  trial  before  the  king's  justices  on  their 
circuits;  and,  from  this  time,  if  ^  not  earlier,  the  hundred-court  was  re- 
duced to  insignificance.  That,  indeed,  of  the  county,  retaining  its  civil 
jurisdiction,  as  it  still  does  in  name,  continued  longer  m  force.  In  the 
reign  of  Henry  L,  or  when  the  customal  (as  Sir  F.  Palgrave  de- 
nominates what  are  usually  called  his  laws)  was  compiled  (which  in 
fact  was  a  very  little  later),  all  of  late  highest  rank  were  bound  to  attend 
at  it.  And  though  the  extended  jurisdiction  of  the  curia  regis  soon 
cramped  its  energy,  we  are  justified  in  saying  that  the  proceedings  be- 
fore the  justices  of  assize  were  nearly  the  same  in  effect  as  those  before 
the  shiremote.  The  same  suitors  were  called  to  attend,  and  the  same 
duties  were  performed  by  them,  though  under  different  presidents.  The 
grand  jury,  it  may  be  remarked,  still  corresponds,  in  a  considerable 
degree,  to  the  higher  class  of  landholders  bound  to  attendance  in  the 
county-court  of  the  Saxon  and  Norman  periods. 

I  must  request  the  reader  to  turn,  if  he  is  not  already  acquainted  with 
it,  to  this  original  disquisition  in  the  Edinburgh  Review  The  analogies 
between  the  Scandinavian  and  Anglo-Saxon  institutions  are  too  strik- 
ing to  be  disregarded,  though  some  conclusions  may  have  been  drawn 
from  them  to  which  we  cannot  thoroughly  agree.  If  it  is  alleged  that 
we  do  not  find  in  the  ancient  customs  of  Germany  that  peculiar  scale  of 
society  which  ascends  from  the  hundred,  as  a  monad  of  self-govern- 
ment, to  the  collective  unity  of  a  royal  commonwealth,  it  may  be  re- 
plied that  we  trace  the  essential  principle  in  the  pagus,  or  gau,  of  Tacitus, 
though  perhaps  there  might  be  nothing  numerical  in  that  territorial 
direction;  that  we  have,  in  fact,  the  centenary  distribution  under  pe- 
culiar magistrates  in  the  old  continental  laws  and  other  documents;  and 
that  a  large  proportion  of  the  inhabitants  of  England,  ultimately  coalesc- 
ing with  the  rest,  so  far  at  least  as  to  acknowledge  a  common  sover- 
eign, carne  from  the  very  birthplace  of  Scandinavian  institutions.  In 
the  Danelage  we  might  expect  more  traces  of  a  northern  policy  than 
VOL.  II.— 30 


466  HALLAM 

m  the  south  and  west;  and  perhaps  they  may  be  found  «  Yet  we  are 
not  to  disregard  the  effect  of  countervailing  agencies,  or  the  evidence 
of  our  own  records,  which  attest,  as  I  must  think,  a  far  greater  unity  of 
power,  and  a  more  paramount  authority  in  the  crown,  throughout  the 
period  which  we  denominate  Anglo-Saxon,  than,  according  to  the 
scheme  of  a  Scandinavian  commonwealth  sketched  in  the  Edinburgh 
Review,  could  be  attributed  to  that  very  ancient  and  rude  state  of  so- 
ciety. And  there  is  a  question  that  might  naturally  be  asked,  how  it 
happens  that,  if  the  division  by  hundreds  and  the  court  of  the  hundred 
were  parts  so  essential  of  the  Anglo-Saxon  commonwealth  that  all  its 
unity  is  derived  from  them,  we  do  not  find  any  mention  of  either  in  the 
numerous  laws  and  other  documents  which  remain  before  the  reign  of 
Edgar  in  the  middle  of  the  tenth  century.  But  I  am  far  from  supposing 
that  hundreds  did  not  exist  in  a  much  earlier  period 

NOTE  VII. 

The  judicial  functions  of  the  Anglo-Saxon  monarchs  were  of  a  two- 
fold nature;  the  ordinary  authority  which  the  king  exercised,  like  the 
inferior  territorial  judges,  differing,  perhaps,  m  degree,  though  the 
same  in  kind;  and  the  prerogative  supremacy,  pervading  all  the  tri- 
bunals of  the  people,  and  which  was  to  be  called  into  action  when  they 
were  unable  or  unwilling  to  afford  redress.  The  jurisdiction  which  he 
exercised  over  his  own  thanes  was  similar  to  the  authority  of  any  other 
hlaford;  it  resulted  from  the  peculiar  and  immediate  relation  of  the 
vassal  to  the  superior.  Offences  committed  in  the  fyrd  or  army  were 
punished  by  the  king,  in  his  capacity  of  military  commander  of  the  peo- 
ple. He  could  condemn  the  criminal,  and  decree  the  forfeiture  of  his 
property,  without  the  intervention  of  any  other  judge  or  tribunal.  Fur- 
thermore, the  rights  which  the  king  had  over  all  men,  though  slightly 
differing  in  "  Danelage  "  from  the  prerogative  which  he  possessed  in 
Wessex  and  Mercia,  allowed  him  to  take  cognizance  of  almost  every 
offence  accompanied  by  violence  and  rapine;  and  amongst  these  "  pleas 
of  the  crown  "  we  find  the  terms,  so  familiar  to  the  Scottish  lawyer  and 
antiquary,  of  "  hamsoken  "  and  "  flemen  firth/'  or  the  crimes  of  in- 
vading the  peaceful  dwelling,  and  harboring  the  outlawed  fugitive. 
(Rise  and  Progress  of  Engl  Commonwealth,  vol  i.  p.  282.) 

Edgar  was  renowned  for  his  strict  execution  of  justice.  "  Twice  in 
every  year,  in  the  winter  and  in  the  spring,  he  made  the  circuit  of  his 
dominions,  protecting  the  lowly,  rigidly  examining  the  judgments  of 
the  powerful  in  each  province,  and  avenging  all  violations  of  the 
law"  (Id.  p.  286.)^  He  infers  from  some  expressions  in  the  history 
of  Ramsey  (Gale,  iii.  441) — "  cum  more  assueto  rex  Cnuto  regni  fines 
peragraret  "—that  these  judicial  eyres  continued  to  be  held.  It  is  not 
at  all  improbable  that  such  a  king  as  Canute  would  revive  the  practice 
of  Edgar;  but  it  was  usual  in  all  the  Teutonic  nations  for  the  king,  once 
after  his  accession,  to  make  the  circuit  of  his  realm.  Proofs  of  this 
are  given  by  Grimm,  p.  237. 

In  this  royal  court  the  sovereign  was  at  least  assisted  by  his  "  witan," 
both  ecclesiastic  and  secular.  Their  consent  was  probably  indis- 
pensable; but  the  monarchical  element  of  Anglo-Saxon  polity  had  be- 
come so  vigorous  in  the  tenth  and  eleventh  centuries,  that  we  can 
hardly  apply  the  old  Teutonic  principle  expressed  by  Grimm.  "All 
judicial  power  was  exercised  by  the  assembly  of  freemen,  under  the 
presidence  of  an  elective  or  hereditary  superior."  (Deutsche  Rechts- 
Alterth.  p.  749.)  This  was  the  case  in  the  county-court,  and  perhaps 
naa  once  been  so  in  the  court  of  the  king. 

a  Vide  Leges  EthelredL 


THE  MIDDLE  AGES  467 

The  analogies  of  the  Anglo-Saxon  monarchy  to  that  of  France  dur- 
ing the  same  period,  though  not  uniformly  to  be  traced,  are  very  strik- 
ing. The  regular  jurisdiction  over  the  king's  domaimal  tenants,  that 
over  the  vassals  of  the  crown,  that  which  was  exercised  on  denial  of 
justice  by  the  lower  tribunals,  meet  us  in  the  two  first  dynasties  of 
France,  and  in  the  early  reigns  of  the  third.  But  they  were  checked 
in  that  country  by  the  feudal  privileges,  or  assumptions  of  privilege, 
which  rendered  many  kings  of  these  three  races  almost  impotent  to 
maintain  any  authority.  Edgar  and  Canute,  or  even  less  active  princes, 
had  never  to  contend  with  the  feudal  anstociacy.  They  legislated  for 
the  realm;  they  wielded  its  entire  force;  they  maintained,  not  always 
thoroughly,  but  in  right  and  endeavor  they  failed  not  to  maintain,  the 
public  peace  The  scheme  of  the  Anglo-Saxon  commonwealth  was 
better  than  the  feudal;  it  preserved  more  of  the  Teutonic  character,  it 
gave  more  to  the  common  freeman  as  well  as  to  the  king  The  love 
of  Utopian  romance,  and  the  bias  in  favor  of  a  democratic  origin  for 
our  constitution,  have  led  many  to  overstate  the  freedom  of  the  Saxon 
commonwealth;  or  rather,  perhaps,  to  look  less  for  that  freedom  where 
it  is  really  best  to  be  found,  in  the  administration  of  justice,  than  in 
representative  councils,  which  authentic  records  do  not  confirm.  But 
in  comparison  to  France  or  Italy,  perhaps  to  Germany,  with  the  ex- 
ception of  a  few  districts  which  had  preserved  their  original  customs, 
we  may  reckon  the  Anglo-Saxon  polity,  at  the  time  when  we  know 
most  of  it,  from  Alfred  to  the  Conquest,  rude  and  defective  as  it  must 
certainly  appear  when  tried  by  the  standard  of  modern  ages,  not  quite 
unworthy  of  those  affectionate  recollections  which  long  continued  to 
attach  themselves  to  its  name. 

The  most  important  part,  perhaps,  of  the  jurisdiction  exercised  by 
the  Anglo-Saxon  kings,  as  by  those  of  France,  was  ob  defectum  justitia, 
where  redress  could  not  be  obtained  from  an  inferior  tribunal,  a  case 
of  not  unusual  occurrence  in  those  ages  It  forms,  as  has  been  shown 
in  the  second  chapter,  a  conspicuous  feature  in  that  feudal  jurispru- 
dence which  we  trace  in  the  establishments  of  St.  Louis,  and  in  Beau- 
nianoir.  Nothing  could  have  a  more  decided  tendency  to  create  and 
strengthen  a  spirit  of  loyalty  towards  the  crown,  a  trust  in  its  power 
and  paternal  goodness.  "  The  sources  of  ordinary  jurisdiction,"  says 
Sir  F.  Palgrave,  "however  extensive,  were  less  important  than  the 
powers  assigned  to  the  king  as  the  lord  and  leader  of  his  people;  and 
by  which  he  remedied  the  defects  of  the  legislation  of  the  state,  speak- 
ing when  the  law  was  silent,  and  adding  new  vigor  to  its  administra- 
tion. It  was  to  the  royal  authority  that  the  suitor  had  recourse  when 
he  could  not  obtain  '  right  at  home/  though  this  appeal  was  not  to  be 
had  until  he  had  thrice  '  demanded  right '  in  the  hundred.  If  the  let- 
ter of  the  law  was  grievous  or  burdensome,  the  alleviation  was  to  be 
sought  only  from  the  king  &  All  these  doctrines  are  to  be  discerned 
in  the  practice  of  the  subsequent  ages ;  in  this  place  it  is  only  necessary 
to  remark  that  the  principle  of  law  which  denied  the  king's  help  in 
civil  suits,  until  an  endeavor  had  first  been  made  to  obtain  redress  in 
the  inferior  courts,  became  the  leading  allegation  in  the  'Writ  of 
Right  Close';  this  prerogative  process  being  founded  upon  the  de- 
fault of  the  lord's  court,  and  issued  lest  the  king  should  hear  any  more 
complaints  of  want  of  justice.  And  the  alleviation  of  '  the  heavy  law ' 
is  the  primary  source  of  the  authority  delegated  by  the  king  to  his 
council,  and  afterwards  assumed  by  his  chancery  and  chancellor,  and 
from  whence  our  courts  of  equity  are  derived  "  (Rise  and  Progress 
of  English  Commonwealth,  vol.  i.  p.  203.)  I  hesitate  about  this  last 
position;  the  "heavy  law"  seems  to  have  been  the  legal  fine  or  pen- 
alty for  an  offence.  (Leges  Edgar,  uki  suprd,,) 

b  Edgar  II.  2;    Canute  II.  16;  Ethelred,  17- 


468  HALLAM 

That  iheie  was  a  select  council  of  the  Anglo-Saxon  kings,  distinct 
from  the  witenagemot,  and  in  constant  attendance  upon  them,  not- 
withstanding the  opinion  of  Madox  and  of  Allen  (Edinb  Rev  xxxv.  8), 
appears  to  be  indubitable.  "  From  the  numerous  charters  granted  by 
the  kings  to  the  church,  and  to  their  vassals,  which  are  dated  from  the 
different  royal  vills  or  manors  wherein  they  resided  in  their  progresses 
through  their  dominions,  it  would  appear  that  there  were  always  a 
certain  number  of  the  optimates  in  attendance  on  the  king,  or  ready 
to  obey  his  summons,  to  act  as  his  council  when  circumstances  re- 
quired it  This  may  have  been  what  afterwards  appears  as  the  select 
council."  (Spence's  Equitable  Jurisdict.  p.  72)  The  charters  pub- 
lished by  Mr.  Kemble  in  the  Codex  Ang-Sax.  Diplomaticus  are  at- 
tested by  those  whom  we  may  suppose  to  have  been  the  members  of 
this  council,  with  the  exception  of  some,  which,  by  the  number  of  wit- 
nesses and  the  importance  of  the  matter,  were  probably  granted  in  the 
witenagemot. 

The  jurisdiction  of  the  king  is  illustrated  by  the  laws  of  Edgar. 
"  Now  this  is  the  secular  ordinance  which  I  will  that  it  be  held.  This 
then  is  just  what  I  will;  that  every  man  be  worthy  of  folk-right,  as  well 
poor  as  rich,  and  that  righteous  dooms  be  judged  to  him;  and  let  there 
be  that  remission  in  the  '  bot '  as  may  be  becoming  before  God  and 
tolerable  before  the  world.  And  let  no  man  apply  to  the  king  in  any 
suit,  unless  he  at  home  may  not  be  worthy  of  law,  or  cannot  obtain  law. 
If  the  law  be  too  heavy,  let  him  seek  a  mitigation  of  it  from  the  king; 
and  for  any  boiworthy  crime  let  no  man  forfeit  more  than  his  '  wer.'  " 
(Thorpe's  Ancient  Laws,  p.  112.)  Bot  is  explained  in  the  glossary, 
"  amends,  atonement,  compensation,  indemnification." 

This  law  seems  not  to  include  appeals  of  false  judgment,  in  the  feudal 
phrase.  But  they  naturally  come  within  the  spirit  of  the  provision;  and 
"  injustum  judicium  "  is  named  in  Leges  Henr.  Pnmi,  c  10,  among  the 
exclusive  pleas  of  the  crown.  It  does  not  seem  clear  to  me,  as  Pal- 
grave  assumes,  that  the  disputes  of  royal  thanes  with  each  other  came 
before  the  king's  court.  Is  there  any  ground  for  supposing  that  they 
were  exempt  from  the  jurisdiction  of  the  county-court  ?  Doubtless, 
when  powerful  men  were  at  enmity,  no  petty  court  could  effectively 
determine  their  quarrel,  or  prevent  them  from  having  recourse  to 
arms;  such  suits  would  fall  naturally  into  the  king's  own  hands  But 
the  jurisdiction  might  not  be  exclusively  his;  nor  would  it  extend,  as 
of  course,  to  every  royal  thane;  some  of  whom  might  be  amenable, 
without  much  difficulty,  to  the  local  courts  It  is  said  in  the  seventh 
chapter  of  the  laws  of  Henry  L,  which  are  Anglo-Saxon  in  substance, 
concerning  the  business  to  be  transacted  in  the  county-court,  where 
bishops,  earls,  and  others,  as  well  as  "  barons  and  vavassors,"  that  is, 
king's  thanes  and  inferior  thanes,  in  the  older  language  of  the  law,  were 
bound  to  be  present,—"  Agantur  itaque  pnmo  debita  vere  Chnstiani- 
tatis  jure;  secundo  regis  placita;  postremo  causse  singulorum  dignis 
satisfactiombus  expleantur."  The  notion  that  the  king's  thanes  re- 
sorted to  his  court,  as  to  that  of  their  lord  or  common  superior,  is 
merely  grounded  on  feudal  principles;  but  the  great  constitutional 
theory  of  jurisdiction  in  Anglo-Saxon  times,  as  Sir  F.  Palgrave  is  well 
aware,  was  not  feudal,  but  primitive  Teutonic. 

"  The  witenagemot,"  says  Allen,  "  was  not  only  the  king's  legis- 
lative assembly,  but  his  supreme  court  of  judicature."  (Edinb.  Rev. 
xxxv.  9;  referring  for  proofs  to  Turner's  History  of  the  Anglo-Sax- 
ons.) Nothing  can  be  less  questionable  than  that  civil  as  well  as 
criminal  jurisdiction  fell  within  the  province  of  this  assembly.  But 
this  does  not  prove  that  there  was  not  also  a  less  numerous  body,  con- 
stantly accessible,  following  the  king's  person,  and  though  not,  per- 
haps, always  competent  in  practice  to  determine  the  quarrels  of  the 


THE  MIDDLE  AGES  469 

most  powerful,  ready  to  dispose  of  the  complaints  which  might  come 
before  it  from  the  hundred  or  county  courts  for  delay  of  justice  or 
manifest  wrong.  Sir  F.  Palgrave's  arguments  for  the  existence  of 
such  a  tribunal  before  the  Conquest,  founded  on  the  general  spirit  and 
analogy  of  the  monarchy,  are  of  the  greatest  weight  But  Mr.  Allen 
had  acquired  too  much  a  habit  of  looking  at  the  popular  side  of  the 
constitution,  and,  catching  at  every  passage  which  proved  pur  early 
kings  to  have  been  limited  in  their  prerogative,  did  not  quite  attend 
enough  to  the  opposite  scale. 

NOTE  VIII. 

Though  the  following  note  relates  to  a  period  subsequent  to  the 
Conquest,  yet,  as  no  better  opportunity  will  occur  for  following  up  the 
very  interesting  inquiry  into  the  origin  and  progress  of  trial  by  jury, 
I  shall  place  here  what  appears  most  worthy  of  the  reader's  attention. 
And,  before  we  proceed,  let  me  observe  that  the  twelve  thanes,  men- 
tioned in  the  law  of  Ethelred,  quoted  in  the  text  (p  270),  appear  to 
have  been  clearly  analogous  to  our  grand  juries  Their  duties  were  to 
present  offenders;  they  corresponded  to  the  scabmi  or  echevins  of  the 
foreign  laws.  Palgrave  has,  with  his  usual  clearness,  distinguished 
both  compurgators,  such  as  were  previously  mentioned  in  the  text,  and 
these  thanes  from  real  jurors.  "  Trial  by  compurgators  offers  many 
resemblances  to  a  jury,  for  the  dubious  suspicion  that  fell  upon  the 
culprit  might  often  be  decided  by  their  knowledge  of  his  general  con- 
duct and  conversation,  or  of  some  fact  or  circumstance  which  con- 
vinced them  of  his  innocence.  The  thanes  or  echevins  may  equally 
be  confounded  with  a  jury;  since  the  floating,  customary,  unwritten 
law  of  the  country  was  a  fact  to  be  ascertained  from  their  belief  and 
knowledge,  and,  unlike  the  suitors,  they  were  sworn  to  the  due  dis- 
charge of  their  duty  Still,  each  class  will  be  found  to  have  some  pe- 
culiar distinction.  Virtually  elected  by  the  community,  the  echevins 
constituted  a  permanent  magistracy,  and  their  duty  extended  beyond 
the  mere  decision  of  a  contested  question;  but  the  jurors,  when  they 
were  traversers,  or  triers  of  the  issue,  were  elected  by  the  king's  offi- 
cers, and  impanelled  for  that  time  and  turn  The  juror  deposed  to 
facts,  the  compurgator  pledged  his  faith."  (English  Commonw.  i, 
248) 

In  the  Anglo-Saxon  laws  we  find  no  trace  of  the  trial  of  offences  by 
the  judgment,  properly  so  called,  of  peers,  though  civil  suits  were  de* 
termined  in  the  county  court.  The  party  accused  by  the  twelve  thanes, 
on  their  presentment,  or  perhaps  by  a  single  person,  was  to  sustain 
his  oath  of  innocence  by  that  of  compurgators  or  by  some  mode  of 
ordeal.  It  has  been  generally  doubted  whether  trial  by  combat  were 
known  before  the  Conquest;  and  distinct  proofs  of  it  seem  to  be  want- 
ing. Palgrave,  however,  thinks  it  rather  probable  that,  in  questions 
affecting  rights  in  land,  it  may  sometimes  have  been  resorted  to  (p. 
224).  But  let  us  now  come  to  trial  by  jury,  both  in  civil  and  criminal 
proceedings,  as  it  slowly  grew  up  in  the  Norman  t  and  later  periods, 
erasing  from  our  minds  all  prejudices  about  its  English  original,  except 
in  the  form  already  mentioned  of  the  grand  inquest  for  presentment  of 
offenders,  and  in  that  which  the  passage  quoted  in  the  text  from  the 
History  of  Ramsey  furnishes — the  reference  of  a  suit  already  com- 
menced, by  consent  of  both  parties,  to  a  select  number  of  sworn  ar- 
bitrators. It  is  to  be  observed  that  the  thirty-six  thanes  were  to  be 
upon  oath,  and  consequently  came  very  near  to  a  jury. 

The  period  between  the  Conquest  and  the  reign  of  Henry  II  Is  one 
in  which  the  two  nations,  not  yet  blended  by  the  effects  of  intermar- 


470  HALLAM 

riage,  and  retaining  the  pride  of  superiority  on  the  one  hand,  the  jeal- 
ousy of  a  depressed  but  not  vanquished  spirit  on  the  other,  did  not 
altogether  fall  into  a  common  law.  Thus  we  find  in  a  law  of  the  Con- 
queror, that,  while  the  Englishman  accused  of  a  crime  by  a  Norman 
had  the  choice  of  trial  by  combat  or  by  ordeal,  the  Norman  must  meet 
the  former  if  his  English  accuser  thought  fit  to  encounter  him;  but  if 
he  dared  not,  as  the  insolence  of  the  victor  seems  to  presume,  it  was 
sufficient  for  the  foreigner  to  purge  himself  by  the  oaths  of  his  friends, 
according  to  the  custom  of  Normandy.  (Thorpe,  p.  210  ) 

We  have  next,  in  the  Leges  Hennci  Pnmi,  a  treatise  compiled,  as  I 
have  mentioned,  under  Stephen,  and  not  intended  to  pass  for  legis- 
lative,'1 numerous  statements  as  to  the  usual  course  of  procedure,  es- 
pecially on  criminal  charges.  These  are  very  carelessly  put  together, 
very  concise,  very  obscure,  and  in  several  places  very  corrupt.  It  may 
be  suspected,  and  cannot  be  disproved,  that  in  some  instances  the 
compiler  has  copied  old  statutes  of  the  Anglo-Saxon  period,  or  re- 
corded old  customs  which  had  already  become  obsolete  But  be  this 
as  it  may,  the  Leges  Henrici  Pnmi  still  are  an  impoitant  document 
for  that  obscure  century  which  followed  the  Norman  invasion.  In  this 
treatise  we  find  no  allusion  to  juries;  the  trial  was  either  before  the 
court  of  the  hundred  or  that  of  the  territorial  judge,  assisted  by  his 
free  vassals.  But  we  do  find  the  great  original  principle,  trial  by  peers, 
and.  as  it  is  called,  per  pais,  that  is,  in  the  presence  of  the  country,  op- 
posed to  a  distant  and  unknown  jurisdiction— a  principle  truly  derived 
from  Saxon,  though  consonant  also  to  Norman  law,  dear  to  both 
nations,  and  guaranteed  to  both,  as  it  was  claimed  by  both,  in  the  2gth 
section  of  Magna  Charta.  "  Unusquisque  per  pares  suos  judicandus 
est,  et  ejusdem  provinciae;  peregrma  autem  judicia  modis  omnibus  sub- 
movemus."  (Leges  H.  I.  c.  31 )  It  may  be  mentioned  by  the  way 
that  these  last  words  are  taken  from  a  capitulary  of  Ludovicus  Pius, 
and  that  the  compiler  has  been  so  careless  as  to  leave  the  verb  in  the 
first  person.  Such  an  inaccuracy  might  mislead  a  reader  into  the  sup- 
position that  he  had  before  him  a  real  law  of  Henry  I. 

It  is  obvious  that,  as  the  court  had  no  function  but  to  see  that  the 
formalities  of  the  combat,  the  ordeal,  or  the  compurgalion  were  duly 
regarded,  and  to  observe  whether  the  party  succeeded  or  succumbed, 
no  oath  from  them,  nor  any  reduction  of  their  numbers,  could  be  re- 
quired But  the  law  of  Normandy  had  already  established  the  inquest 
by  sworn  recogmtors,  twelve  or  twenty-four  in  number,  who  were  sup- 
posed to  be  well  acquainted  with  the  facts,  and  this  in  civil  as  well  as 
criminal  proceedings.  We  have  seen  an  instance  of  it,  not  long  before 
the  Conquest,  among  ourselves,  in  the  history  of  the  monk  of  Ramsey. 
It  was  in  the  development  of  this  amelioration  m  civil  justice  that  we 
find  instances  during  this  period  (Sir  F.  Palgrave  has  mentioned  sev- 
eral) where  a  small  number  have  been  chosen  from  the  county  court 
and  sworn  to  declare  the  truth,  when  the  judge  might  suspect  the 
partiality  or  ignorance  of  the  entire  body.  Thus  in  suits  for  the  re- 
covery of  property  the  public  mind  was  gradually  accustomed  to  see 
the  jurisdiction  of  the  freeholders  in  their  court  transferred  to  a  more 
select  number  of  sworn  and  well-informed  men.  But  this  was  not  yet 
a  matter  of  right,  nor  even  probably  of  very  common  usage.  It  was  in 
this^  state  of  things  that  Henry  II.  brought  in  the  assize  of  novel  dis- 
seizin. 

alt  may  be  here  observed  that,  in  to  the  city  of  London.  A  similar  in- 
all  probability,  the  title,  Leges  Henrici  advertence  has  caused  the  well-known 
Primi,  has  been  continued  to  the  whole  book,  commonly  ascribed  to  Thomas  a 
book  from  the  first  two  chapters,  which  Kempis,  to  be  called  "  De  Irmtatione 
do  really  contain  laws  of  Henry  I.,  Chnsti,"  which  is  merely  the  title  of  the 
namely,  his  general  charter  and  that  first  chapter. 


THE  MIDDLE  AGES  4?I 

This  gave  an  alternative  to  the  tenant  on  a  suit  for  the  recovery  of 
land,  if  he  chose  not  to  risk  the  combat,  of  putting  himself  on  the 
assize,  that  is,  of  being  tried  by  four  knights  summoned  by  the  sheriff 
and  twelve  more  selected  by  them,  forming  the  sixteen  sworn  recog- 
nitors,  as  they  were  called,  by  whose  verdict  the  cause  was  determined. 
"  Est  autem  magna  assisa,"  says  Glanvil  (lib.  n.  c  7),  "  regale  quod- 
darn  beneficmm,  dementia  pnncipis  de  consiho  procerum  popuhs  in- 
dultum,  quo  vitae  hommum  et  status  mtegritati  tarn  salubriter  consuli- 
tur,  ut  in  jure  quod  quis  in  libero  soli  tenemento  possidet  retinendo 
duelh  casum  declinare  possmt  homines  arnbiguum.  Ac  per  hoc  con- 
tingit  insperatae  et  premature  mortis  ultimum  evadere  supphcium,  vel 
saltern  perennis  infamise  opprobrium,  illius  mfesti  et  inverecundi  verbi 
quod  in  ore  victi  turpiter  sonat  consecutivum.6  Ex  sequitate  autem 
maxima  prodita  est  legalis  ista  institutio.  Jus  emm  quod  post  multas 
et  longas  dilationes  vix  evincitur  per  duellum,  per  beneficium  istius 
consti tutionis  commodius  et  acceleratius  expeditur."  The  whole  pro- 
ceedings on  an  assize  of  novel  disseizin,  which  was  always  held  in  the 
king's  court  or  that  of  the  justices  itinerant,  and  not  before  the  county 
or  hundred,  whose  jurisdiction  began  in  consequence  rapidly  to  de- 
cline, are  explained  at  some  length  by  this  ancient  author,  the  chief 
justiciary  of  Henry  II 

Changes  not  less  important  were  effected  in  criminal  processes  dur- 
ing the  second  part  of  the  Norman  period,  which  we  consider  as  ter- 
minating with  the  accession  of  Edward  I.  Henry  II.  abolished  the 
ancient  privilege  of  compurgation  by  the  oaths  of  friends,  the  manifest 
fountain  of  unblushing  perjury;  though  it  long  afterwards  was  pre- 
served in  London  and  in  boroughs  by  some  exemption  which  does  not 
appear.  This,  however,  left  the  favorite,  or  at  least  the  ancient  and 
English,  mode  of  defence  by  chewing  consecrated  bread,  handling  hot 
iron,  and  other  tricks  called  ordeals.  But  near  the  beginning  of  Henry 
III 's  reign  the  church,  grown  wiser  and  more  fond  of  her  system  of 
laws,  abolished  all  kinds  of  ordeal  in  the  fourth  Lateran  council.  The 
combat  remained,  but  it  was  not  applicable  unless  an  injured  prose- 
cutor or  appellant  came  forward  to  demand  it.  In  cases  where  a  party 
was  only  charged  on  vehement  suspicion  of  a  crime,  it  was  necessary  to 
find  a  substitute  for  the  forbidden  superstition.  He  might  be  com- 
pelled, by  a  statute  of  lienry  II.,  to  abjure  the  realm.  A  writ  of  3 
Henry  III.  directs  that  those  against  whom  the  suspicions  were  very 
strong  should  be  kept  in  safe  custody.  But  this  was  absolutely  incom- 
patible with  English  liberty  and  with  Magna  Charta  "  No  further 
enactment,"  says  Sir  F.  Palgrave,  "  was  made;  and  the  usages  which 
already  prevailed  led  to  a  general  adoption  of  the  proceeding  which  had 
hitherto  existed  as  a  privilege  or  as  a  favor — that  is  to  say,  of  proving 
or  disproving  the  testimony  of  the  first  set  of  inquest-men  by  the  testi- 
mony of  a  second  array — and  the  individual  accused  by  the  appeal,  or 
presented  by  the  general  opinion  of  the  hundred,  was  allowed  to  defend 
himself  by  the  particular  testimony  of  the  hundred  to  which  he  be- 
longed. For  this  purpose  another  inquest  was  impanelled,  sometimes 
composed  of  twelve  persons  named  from  the  '  visne '  and  three  from 
each  of  the  adjoining  townships;  and  sometimes  the  very  same  jurymen 
who  had  presented  the  offence  might,  if  the  culprit  thought  fit,  be  ex- 
amined a  second  time,  as  the  witnesses  or  inquest  of  the  points  in  issue. 
But  it  seems  worthy  of  remark  that  *  trial  by  inquest '  in  criminal  cases 
never  seems  to  have  been  introduced  except  into  those  courts  which 
acted  by  the  king's  writ  or  commission.  The  presentment  or  declara- 
tion of  those  officers  which  fell  within  the  cognizance  of  the  hundred 
jury  or  the  leet  jury,  the  representatives  of  the  ancient  echevins,  was 

b  This  was  the  word  "  craven,"  or  begging  for  life,  which  was  thought  th« 
utmost  disgrace. 


472  HALLAM 

final  and  conclusive;  no  traverse,  or  trial  by  a  second  jury,  in  the  nature 
of  a  petty  jury,  being  allowed."     (P.  269.) 

Thus  trial  by  a  petty  jury  upon  criminal  charges  came  in;  it  is  of  the 
reign  of  Henry  III ,  and  not  earlier.  And  it  is  to  be  remarked,  as  a 
confirmation  of  this  view,  that  no  one  was  compellable  to  plead ;  that  is, 
the  inquest  was  to  be  of  his  own  choice.  But  if  he  declined  to  endure 
it  he  was  remanded  to  prison,  and  treated  with  a  severity  which  the 
statute  of  Westminster  i,  in  the  third  year  of  Edward  I,  calls  peinc 
forte  et  dure;  extended  afterwards,  by  a  cruel  interpretation,  to  that 
atrocious  punishment  on  those  who  refused  to  stand  a  trial,  commonly 
in  order  to  preserve  their  lands  from  forfeiture,  which  was  not  taken 
away  by  law  till  the  last  century. 

Thus  was  trial  by  jury  established,  both  in  real  actions  or  suits  af- 
fecting property  in  land  and  in  criminal  procedure,  the  former  pre- 
ceding by  a  little  the  Blatter.      But  a  new  question  arises  as  to  the 
province  of  these  early  juries;  and  the  view  lately  taken  is  very  different 
1  from  that  which  has  been  commonly  received 

The  writer  whom  we  have  so  often  had  occasion  to  quote  has  pre- 
sented trial  by  jury  in  what  may  be  called  an  altogether  new  light;  for 
though  Reeves,  in  his  "  History  of  the  English  Law,"  almost  translating 
Glanvil  and  Bracton,  could  not  help  leading  an  attentive  reader  to 
something  like  the  same  result,  I  am  not  aware  that  anything  approach- 
ing to  the  generality  and  fulness  of  Sir  Francis  Palgrave's  statements 
can  be^found  in  any  earlier  work  than  his  own. 

"  Trial  by  jury,  according  to  the  old  English  law,  was  a  proceeding 
essentially  different  from  the  modern  tribunal,  still  bearing  the  same 
name,  by  which  it  has  been  replaced ;  and  whatever  merits  belonged  to 
the  original  mode  of  judicial  investigation— and  they  were  great  and 
unquestionable,  though  accompanied  by  many  imperfections— such 
benefits  are  not  to  be  exactly  identified  with  the  advantages  now  re- 
sulting from  the  great  bulwark  of  English  liberty  Jurymen  m  the 
present  day  are  triers  of  the  issue:  they  are  individuals  who  found  their 
opinion  upon  the  evidence,  whether  oral  or  written,  adduced  before 
them;  and  the  verdict  delivered  by  them  is  their  declaration  of  the 
judgment  which  they  have  formed  But  the  ancient  jurymen  were  not 
impanelled  to  examine  into  the  credibility  of  the  evidence:  the  question 
was  not  discussed  and  argued  before  them:  they,  the  jurymen,  were  the 
witnesses  themselves,  and  the  verdict  was  substantially  the  examination 
of  these  witnesses,  who  of  their  own  knowledge,  and  without  the  aid  of 
other  testimony,  afforded  their  evidence  respecting  the  facts  in  question 
to  the  best  of  their  belief  In  its  primitive  form  a  trial  by  jury  was 
therefore  only  a  trial  by  witnesses;  and  jurymen  were  distinguished 
from  any  other  witnesses  only  by  customs  which  imposed  upon  them 
the  obligation  of  an  oath  and  regulated  their  number,  and  which  pre- 
scribed their  rank  and  defined  the  territorial  qualifications  from  whence 
they  obtained  their  degree  and  influence  in  society. 

I  find  it  necessary  to  introduce  this  description  of  the  ancient '  Trial 
by  jury,  because,  unless  the  real  functions  of  the  original  jurymen  be 
distinctly  presented  to  the  leader,  his  familiar  knowledge  of  the  existing 
course  of  jurisprudence  will  lead  to  the  most  erroneous  conclusions 
Many  of  those  who  have  descanted  upon  the  excellence  of  our  venerated 
national  franchise  seem  to  have  supposed  that  it  has  descended  to  us 
unchanged  from  the  days  of  Alfred;  and  the  patriot  who  claims  the 
jury  as  the  judgment  of  his  peers '  secured  by  Magna  Charta  can  never 
have  suspected  how  distinctly  the  trial  is  resolved  into  a  mere  examina- 
tion of  witnesses."  (Palgrave,  i.  243.) 

This  theory  is  sustained  by  a  great  display  of  erudition,  which  fully 
establishes  that  the  jurors  had  such  a  knowledge,  however  acquired,  of 
the  tacts  as  enabled  them  to  render  a  verdict  without  hearing  any  other 


THE  MIDDLE  AGES  473 

testimony  in  open  court  than  that  of  the  parties  themselves,  fortified,  if 
it  might  be,  by  written  documents  adduced.  Hence  the  knights  of  the 
grand  assize  are  called  recogmtors,  a  name  often  given  to  others  sworn 
on  an  inquest  In  the  Grand  Coustumier  of  Normandy,  from  which 
our  writ  of  right  was  derived,  it  is  said  that  those  are  to  be  sworn  "  who 
were  born  in  the  neighborhood,  and  who  have  long  dwelt  there;  and 
such  ought  they  to  be,  that  it  may  be  believed  they  know  the  truth  of  the 
case,  and  that  they  will  speak  the  truth  when  they  shall  be  asked."  This 
was  the  rule  in  our  own  grand  assize.  The  knights'  who  appeared  in  it 
ought  to  be  acquainted  with  the  truth,  and  if  any  were  not  so  they  were 
to  be  rejected  and  others  chosen,  until  twelve  were  unanimous  witnesses 
Glanvil  (lib.  li )  furnishes  sufficient  proof,  if  we  may  depend  on  the 
language  of  the  writs  which  he  there  inserts.  It  is  to  be  remembered 
that  the  transactions  upon  which  an  assize  of  modern  disseizin  or  writ 
of  right  would  turn  might  frequently  have  been  notorious  In  the  elo- 
quent language  of  Sir  F.  Palgrave,  "  the  forms,  the  festivities,  and  the 
ceremonies  accompanying  the  hours  of  joy  and  the  days  of  sorrow  which 
form  the  distinguishing  epochs  in  the  brief  chronicle  of  domestic  life, 
impressed  them  upon  the  memory  of  the  people  at  large.  The  parch- 
ment might  be  recommended  by  custom,  but  it  was  not  required  by  law, 
and  they  had  no  registers  to  consult,  no  books  to  open.  By  the  declara- 
tion of  the  husband  at  the  church  door,  the  wife  was  endowed  in  the 
presence  of  the  assembled  relations,  and  before  all  the  merry  attend- 
ants of  the  bridal  train.  The  birth  of  the  heir  was  recollected  by  the 
retainers  who  had  participated  in  the  cheer  of  the  baronial  hall;  and 
the  death  of  the  ancestor  was  proved  by  the  friends  who  had  heard  the 
wailings  of  the  widow,  or  who  had  followed  the  corpse  to  the  grave 
Hence  trial  by  jury  was  an  appeal  to  the  knowledge  of  the  country; 
and  the  sheriff,  in  naming  his  panel,  performed  his  duty  by  summon- 
ing those  individuals  from  amongst  the  inhabitants  of  the  country  who 
were  best  acquainted  with  the  points  at  issue.  If  from  peculiar  circum- 
stances the  witnesses  of  a  fact  were  previously  marked  out  and  known, 
then  they  were  particularly  required  to  testify.  Thus,  when  a  charter 
was  pleaded,  the  witnesses  named  in  the  attesting  clause  of  the  instru- 
ment and  who  had  been  present  in  the  folkmoot,  the  shire,  or  the 
manor  court  when  the  seal  was  affixed  by  the  donor,  were  included  in 
the  panel;  and  when  a  grant  had  been  made  by  parol  the  witnesses 
were  sought  out  by  the  sheriff  and  returned  upon  the  jury. "(Palgrave,. 
p.  248  ) 

Several  instances  of  recognition — that  is,  of  jurors  finding  facts  on 
their  own  knowledge — occur  in  the  very  curious  chronicle  of  Jocelyn 
de  Brakelonde,  published  by  the  Camden  Society,  long  after  the  "  Rise 
and  Progress  of  the  Commonwealth."  One  is  on  a  question  whether 
certain  land  was  liberum  feudum  ecclesise  an  non  "  Cumque  inde 
summonita  fuit  recognitio  12  mihtum  in  curia  regis  facienda,  facta  est 
in  curia  abbatis  ap^ud  Herlavum  per  licentiam  Ranulfi  de  Glanvilla,  et 
juraverunt  recognitores  se  nunquam  sciyisse  illam  terram  fuisse  sep- 
aratam  ab  ecclesia."  (P.  45.)  Another  is  still  more  illustrative  of  the 
personal  knowledge  of  the  jury  overruling  written  evidence.  A  recog- 
nition was  taken  as  to  the  right  of  the  abbey  over  three  manors. 
"  Carta  nostra  lecta  in  publico  nullam  vim  habuit,  quia  tota  curia  erat 
contra  nos.  Juramento  facto,  dixerunt  milites  se  nescire  de  cartis  nos- 
tris,  nee  de  priyatis  conventionibus;  sed  se  credere  dixerunt,  quod 
Adam  et  pater  ejus  et  avus  a  centum  annis  retro  tenuerunt  maneria  in 
feudum  firmum,  unusquisque  post  alium,  diebus  quibus  fuerunt  vivi  et 
mortui,  et  sic  disseisiati  sumus  per  judicum  terrae."  (P.  91.) 

This  "  judgment  of  the  land  "  is,  upon  Jocelyn's  testimony,  rather 
suspicious ;  since  they  seem  to  have  set  common  fame  against  a  written 
deed.  But  we  see  by  it  that,  although  parole,  testimony  might  not  be 


474  HALLAM 

generally  admissible,  the  parties  had  a  right  to  produce  documentary 
evidence  in  support  of  their  title 

It  appears  at  first  to  be  an  obvious  difficulty  in  the  way  of  this  gen- 
eral resolution  of  jurors  into  witnesses,  or  of  witnesses  into  jurors,  that 
many  issues,  both  civil  and  criminal,  required  the  production  of  rather 
more  recondite  evidence  than  common  notoriety.  The  known  events 
of  family  history,  which  a  whole  neighborhood  could  attest,  seem  not 
very  likely  to  have  created  litigation  But  even  m  those  ages  of  sim- 
plicity facts  might  be  alleged,  the  very  groundwork  of  a  claim  to  suc- 
cession, as  to  which  no  assize  of  knights  could  speak  from  personal 
knowledge.  This,  it  is  said,  was  obviated  by  swearing  the  witnesses 
upon  the  panel,  so  that  those  who  had  a  real  knowledge  of  the  facts  m 
question  might  instruct  their  fellow-jurors.  Such,  doubtless,  was  the 
usual  course;  but  difficulties  would  often  stand  in  the  way.  Glanvil 
meets  the  question,  What  is  to  be  done  if  no  knights  are  acquainted 
with  the  matter  m  dispute?  by  determining  that  persons  of  lower  de- 
gree may  be  sworn.  But  what  if  women  or  villeins  were  the  witnesses? 
What,  again,  if  the  course  of  inquiry  should  render  fresh  testimony 
needful ?  It  must  appear,  according  to  all  our  notions  of  judicial  evi- 
dence, that  these  difficulties  must  not  only  have  led  to  the  distinction 
of  jurors  from  witnesses,  but  that  no  great  length  of  time  could  have 
elapsed  before^the  necessity  of  making  it  was  perceived.  Yet  our  no- 
tions of  judicial  evidence  are  not  very  applicable  to  the  thirteenth 
century.  The  records  preserved  give  us  reason  to  believe  that  common 
fame  had  great  influence  upon  these  early  inquests.  In  criminal  in- 
quiries especially  the  previous  fame  of  the  accused  seems  to  have  gen- 
erally determined  the  verdict.  He  was  not  allowed  to  sustain  his  in- 
nocence by  witnesses—a  barbarous  absurdity,  as  it  seems,  which  was 
gradually  removed  by  indulgence  alone;  but  his  witnesses  were  not 
sworn  till  the  reign  of  Mary.  If,  however,  the  prosecutor  or  appel- 
lant, as  he  was  formerly  styled,  was  under  an  equal  disability,  the  in- 
equality will  vanish,  though  the  absurdity  will  remain.  The  prisoner 
had  originally  no  defence,  unless  he  could  succeed  in  showing  the  weak- 
ness of  the  appellant's  testimony,  but  by  submitting  to  the  ordeal  or 
combat,  or  by  the  compurgation  of  his  neighbors.  The  jurors,  when 
they  acquitted  him,  stood  exactly  in  the  light  of  these,  it  was  a  more 
refined  and  impartial  compurgation,  resting  on  their  confidence  in  his 
former  behavior.  Thus  let  us  take  a  record  quoted  by  Palgrave  vol  ii 
p.  184:— Robertas  filius  Roberti  de  Ferrariis  appellat  Ranulfum  de  Fattes- 
warthe  quod  ipse  venit  in  gardmum  suum,  in  pace  domini  Regis,  et 
nequiter^assultavit  Rogeruni  hominem  suum,  et  eum  verberavit  et  vul- 
neravit.  ita  quod  de  vita  ejus  desperabatur;  et  ei  robavit  unum  pallium 
et  gladium  et  arcum  et  sagittas;  et  idem  Rogerus  offer!  hoc  probare  per 
corpus  suum,  prout  curia  consideraverit;  et  Ranulphus  venit  et  defendit 
totum  de  verbo  m  verbum,  et  offert  domino  Regi  unam  marcam  argenti 
pro  habenda  inquisitione  per  legales  milites,  utrum  culpabilis  sit  mde, 
necne;  et  prseterea  dicit  quod  iste  Rogerus  nunquam  ante  appellavit 
eum,  et  petit  ut  hoc  ei  allocetur,— oblatio  recipitur.— Juratores  dicunt 
quod  revera  contencio  fuit  inter  gardinariurn  pradicti  Roberti,  Osmund 
nomine,  et  quosdam  garciones,  sed  Ranulfus  non  fuit  ibi,  nee  malecre- 
m  e£m'  iqua  r°beria,  vel  de  aliquo  malo,  facto  eidem  " 
We  have  here  a  trial  by  jury  in  its  very  beginning,  for  the  payment 
of  one  mark  by  the  accused  in  order  to  have  an  inquest  instead  of  the 
combat  shows  that  it  was  not  become  a  matter  of  right.  We  may  ob- 
serve that,  though  Robert  was  the  prosecutor,  his  servant  Roger,  being 
the  aggrieved  party,  and  capable  of  becoming  a  witness,  was  put  for- 
ward as  the  appellant,  ready  to  prove  the  case  by  combat.  The  verdict 
seems  to  imply  that  the  jury  had  no  bad  opinion  of  Ranulf  the  ap- 


THE  MIDDLE  AGES  475 

The  fourteenth  book  of  Glanvil  contains  a  brief  account  of  the  forms 
of  criminal  process  in  his  age;  and  here  it  appears  that  a  woman  could 
only  be  a  witness,  or  rather  an  appellant,  where  her  husband  had  been 
murdered  or  her  person  assaulted.  The  words  are  worth  considering: 
"  Duo  sunt  genera  homicidiorum;  unum  est,  quod  dicitur  murdrum, 
quod  nullo  vidente,  nullo  sciente,  clam  perpetratur,  praeter  solum  mter- 
fectorum  et  ejus  complices,  ita  quod  mox  non  assequatur  clamor  popu- 
lans  juxta  assisam  super  hoc  proditam.  In  hujusmodi  autem  accusa- 
tione  non  admittitur  aliquis,  nisi  fuerit  de  consanguimtate  ipsius 
defuncti.  Est  et  aliud  homicidium  quod  constat  in  general!  vocabulo, 
et  dicitur  simplex  homicidium  In  hoc  etiam  placito  non  admittitur 
aliquis  accusator  ad  probationer^  nisi  fuerit  mortuo  consangumitate 
conjunctus,  vel  homagio  vel  dommio,  ita  ut  de  morte  loquatur,  ut  sub 
visus  sui  testwiomo.  Prseterea  sciendum  quod  in  hoc  placito  mulier 
auditur  accusans  aliquem  de  morte  viri  sui,  si  de  wsu  loquatur  (1  xiv.  c. 
3).  Tenetur  autem  mulier  quae  proponit  se  a  viro  pppressam  in  pace 
domim  regis,  mox  dum  recens  fuerit  maleficium  vicinam  villam  adire, 
et  ibi  injunam  sibi  illatam  probis  hommibus  ostendere,  et  sangumem, 
si  quis  fuerit  effusus,  et  vestium  scissiones;  dehinc  autem  apud  prseposi- 
tum  hundredi  idem  facit.  Postea  quoque  in  pleno  comitatu  id  publice 
proponat  Auditur  itaque  mulier  in  tali  casu  aliquem  accusans,  sicut 
et  de  alia  quahbet  injuna.  corpon  suo  illatam  solet  audio."  (C.  6.) 

Thus  it  appears  that  on  charges  of  secret  murder  the  kindred  of  the 
deceased,  but  no  others,  might  be  heard  in  court  as  witnesses  to  com- 
mon suspicion,  since  they  could  be  no  more.  I  add  the  epithet 
secret;  but  it  was  at  that  time  implied  in  the  word  murdrum.  But  in 
every  case  of  open  homicide  the  appellant,  be  it  the  wife  or  one  of  his 
kindred,  his  lord  or  vassal,  must  have  been  actually  present  Other 
witnesses  probably,  if  such  there  were,  would  be  placed  on  the  panel. 
The  woman  was  only  a  prosecutrix;  and,  in  the  other  sex,  there  is  no 
doubt  that  the  prosecutor's  testimony  was  heard. 

In  claims  of  debt  it  was  in  the  power  of  the  defendant  to  wage  his 
law;  that  is,  to  deny  on  oath  the  justice  of  the  demand.  This  he  was 
to  sustain  by  the  oaths  of  twelve  compurgators,  who  declared  their 
belief  that  he  swore  the  truth;  and  if  he  declined  to  do  this,  it  seems 
that  he  had  no  defence.  But  in  the  writ  of  right,  or  other  process 
affecting  real  estate,  the  wager  of  law  was  never  allowed;  and  even 
in  actions  of  debt  the  defendant  was  not  put  to  this  issue  until  witnesses 
for  the  plaintiff  had  been  produced,  "  sine  testibus  fidehbus  ad  hoc 
inductis,"  This,  however,  was  not  in  presence  of  a  jury,  but  of  the 
bailiff  or  judge  (Magna  Charta,  c.  28),  and  therefore  does  not  Im- 
mediately bear  on  the  present  subject. 

In  litigation  before  the  king's  justices,  in  the  curia  regis,  it  must 
have  been  always  necessary  to  produce  witnesses;  though,  if  their  testi- 
mony were  disputed,  it  was  necessary  to  recur  to  a  jury  in  the  county, 
unless  the  cause  were  of  a  nature  to  be  determined  by  duel.  A  passage 
in  Glanvil  will  illustrate  this.  A  claim  of  villenage,  when  liberty  was 
pleaded,  could  not  ,be  heard  in  the  county  court,  but  before  the  king's 
justices  in  his  court  "  Utroque  autem  praesente  in  curia  hoc  mode 
dirationabitur  libertas  in  curia,  siquidem  producit  is^qui  libertatem  petit, 
plures  de  proximis  et  consanguineis  de  eodem  stipite  unde  ipse  exierit 
exeuntes,  per  quorum  liberates,  si  fuerint  in  curia  recognitse  et  proba- 
tse,  liberabitur  a  jugo  servitutis  is  qui  ad  libertatem  proclamatur.  Si 
vero  contra  dicatur  status  libertatis  eorundem  productorum  vel  de 
eodem  dubitatur,  ad  vicinetum  erit  recurrendum;  ita  quod  per  ejus^vere- 
dictum  sciatur  utrum  illi  liberi  homines  an  non,  et  sectmdum  dictum 
vicineti  judicabitur."  (L.  ii.  c.  4  )  The  plea  of  villenage  was  never 
tried  by  combat  „  m  „ 

It  is  the  opinion  of  Lord  Coke  that  a  single  accuser  was  not  sufficient 


476  HALLAM 

at  common  law  to  convict  any  one  of  high  treason;  in  default  of  a 
second  witness  "  it  shall  be  tried  before  the  constable  or  marshal  by 
combat,  as  by  many  records  appeareth."  (3  Inst.  26  )  But  however 
this  might  be,  it  is  evident  that  as  soon  as  the  trial  of  peers  of  the 
realmjor  treason  or  felony  in  the  court  of  the  high  steward  became 
established,  the  practice  of  swearing  witnesses  on  the  panel  must  have 
been  relinquished  in  such  cases.  "  That  two  witnesses  be  requiied  ap- 
peareth by  our  books,  and  I  remember  no  authority  in  GUI  books 
to  the  contrary.  And  this  seemeth  to  be  the  more  clear  in  the  trial  by 
the  peers  or  nobles  of  the  realm  because  they  come  not  de  ahquo  vicmcto, 
whereby  they  might  take  notice  of  the  fact  in  respect  of  vicinity,  as  other 
jurors  may  do  "  (Ibid.)  But  the  court  of  the  high  steward  seems  to 
be  no  older  than  the  reign  of  Henry  IV  ,  at  which  time  the  examination 
of  witnesses  before  common  juries  was  nearly,  or  completely,  estab- 
lished in  its  modern  form;  and  the  only  earlier  case  we  have,  if  I 
remember  right,  of  the  conviction  of  a  peer  in  parliament—  that  of  Mor- 
timer in  the  4th  o£  Edward  III.  —  was  expressly  grounded  on  the  noto- 
riousness  of  the  facts  (Rot  Parl.  ii.  53).  It  does  not  appear,  therefore, 
indisputable  by  precedent  that  any  witnesses  were  heard,  save  the  ap- 
pellant, on  trial  of  peers  of  the  realm  m  the  twelfth  or  thirteenth  cen- 
tury, though  it  is  by  no  means  improbable  that  such  would  have  been 
the  practice. 

Notwithstanding  such  exceptions,  however,  sufficient  proofs  remain 
that  the  jury  themselves,  especially  in  civil  cases,  long  retained  their 
character  of  witnesses  to  the  fact  If  the  recogmtors,  whose  name  be- 
speaks their  office,  were  not  all  so  well  acquainted  with  the  matters  in 
controversy  as  to  believe  themselves  competent  to  render  a  verdict,  it 
was  the  practice  to  afforce  the  jury,  as  it  was  called,  by  rejecting  these 
and  filling  their  places  with  more  sufficient  witnesses,  until  twelve  were 
found  who  agreed  in  the  same  verdict.*  (Glanvil,  1.  n  c  17  )  Not  that 
unanimity  was  demanded,  for  this  did  not  become  the  rule  till  about  the 
reign  of  Edward  III.;  but  twelve,  as  now  on  a  grand  jury,  must  concur.** 
And  though  this  profusion  of  witnesses  seems  strange  to  us,  yet  what 
they  attested  (in  the  age  at  least  of  Glanvil  and  for  some  time  after- 
wards) was  not,  as  at  present,  the  report  of  their  senses  to  the  fact  in 
issue,  but  all  which  they  had  heard  and  believed  to  be  true,  above  all 
their  judgment  as  to  the  respective  credibility  of  the  demandant  and 
tenant,  heard  in  that  age  personally,  or  the  appellant  and  appellee  in  a 
prosecution. 

Bracton  speaks  of  afforcing  a  panel  by  the  addition  of  better-informed 
jurors  to  the  rest,  as  fit  for  the  court  to  order,  "  de  consilio  curise  af- 
fortietur  assisa  ita  quod  apponantur  alii  juxta  numerum  majoris  partis 
quje  dissensent,  vel  saltern  quatuor  vel  sex,  et  adjungantur  aliis  '*  The 
method  of  rejection  used  in  Glanvirs  time  seems  to  have  been  altered. 
But  m  the  time  of  Britton,  soon  afterwards,  this  afforcernent  it  appears 
could  only  be  made  with  the  consent  of  the  parties;  though  if,  as  his 
language  seems  to  imply,  the  verdict  was  to  go  against  the  party  refus- 
ing to  have  the  jury  afforced,  no  one  would  be  likely  to  do  so.  Perhaps 
he  means  that  this  refusal  would  create  a  prejudice  in  the  minds  of  the 
jury  almost  certain  to  produce  such  a  verdict 

'  It  may  be  doubtful,"  says  Mr.  Starkie,  "  whether  the  doctrine  of 
attorcement  was  applied  to  criminal  cases.  The  account  given  by  Brac- 
ton as  to  the  trial  by  the  country  on  a  criminal  charge  is  very  obscure. 

iJS.3??.?16  3"r7'  thi?  reader  wil1  reme?'  Year-books,  digested  into  Reeves's  His- 
ber  that,  m  Glanvirs  time,  is  meant  the  tory  of  the  Law 


a/p  asslf  °f  SP^ito-  din  20  E.  III.  Chief  Justice  Thorpe  is 

rt,.          ^rW'u  F°r  these  said  *?  have  been  r^ved  for  taking 

*?,u  ,  „    J  n?w  fbohshe£»  he  may  con-  a  verdict  from  eleven  juors.    Law  Re- 

sult a  good  chapter  on  them  in  Black-  view,  No.  iv.  p.  383. 

stone,  unless  fce  prefer  Bracton  and  the  P  3  3 


THE  MIDDLE  AGES  477 

It  was  lo  be  by  twelve  jurors,  consisting  of  milites  or  liberi  et  legales 
homines  of  the  hundred  and  four  villatse."*  But  it  is  conjectured  that 
the  text  is  somewhat  corrupt,  and  that  four  inhabitants  of  the  vill  were 
to  be  added  to  the  twelve  jurors.  In  some  criminal  cases  it  appears 
from  Bracton  that  trial  by  combat  could  not  be  dispensed  with,  because 
the  nature  of  the  charge  did  not  admit  of  positive  witnesses.  "  Oportet 
quod  defendat  se  per  corpus  suum  quia  patna  mhil  scire  potest  de  facto, 
nisi  per  prsesumtionem  et  per  auditum,  vel  per  mandatum  [?]  quod 
quidom  non  sufiicit  ad  probationem  pro  appellando  nee  pro  appellato 
ad  hberaUonem."  This  indicates,  on  the  one  hand,  an  advance  in  the 
appreciation  of  evidence  since  the  twelfth  century;  common  fame  and 
mere  hearsay  were  not  held  sufficient  to  support  a  charge,  But  on  the 
other  hand,  instead  of  presuming  the  innocence  of  a  party  against  whom 
no  positive  testimony  could  be  alleged,  he  was  preposterously  called 
upon  to  prove  it  by  combat,  if  the  appellant  was  convinced  enough  of 
his  guilt  to  demand  that  precarious  decision.  It  appears  clear  from 
some  passages  in  Bracton  that  in  criminal  cases  other  witnesses  might 
occasionally  be  heard  than  the  parties  themselves.  Thus,  if  a  man  were 
charged  with  stealing  a  horse,  he  says  that  either  the  prosecutor  or  the 
accused  might  show  that  it  was  his  own,  bred  in  his  stable,  known  by 
certain  marks,  which  could  hardly  be  but  by  calling  witnesses.  It  is 
not  improbable  that  witnesses  were  heard  distinct  from  the  jury  in  crim- 
inal cases  before  the  separation  had  been  adopted  in  real  actions. 

At  a  later  time  witnesses  are  directed  lo  be  j'oined  to  the  inquest,  but 
no  longer  as  parts  of  it  "  We  find  in  the  23d  of  Edward  III."  (I  quote 
at  present  the  words  of  Mr.  Spence,  Equitable  Jurisdiction,  p.  129)  *k  the 
witnesses,  instead  of  being  summoned  as  constituent  members,  were 
adjoined  to  the  recognitors  or  jury  in  assizes  to  afford  to  the  jury  the 
benefit  of  their  testimony,  but  without  having  any  voice  in  the  verdict./ 
This  is  the  first  indication  we  have  of  the  jury  deciding  on  evidence  for- 
mally produced,  and  it  is  the  connecting  link  between  the  ancient  and 
modern  jury."  But  it  will  be  remembered — what  Mr.  Spence  certainly 
did  not  mean  to  doubt— that  the  evidence  of  the  demandant  in  an  assize 
or  writ  of  right,  and  of  the  prosecutor  or  appellant  in  a  criminal  case, 
had  always  been  given  in  open  court;  and  the  tenant  or  appellee  had 
the  same  right,  but  the  latter  probably  was  not  sworn.  Nor  is  it  clear 
that  the  court  would  refuse  other  testimony  if  it  were  offered  during 
the  course  of  a  trial.  The  sentence  just  quoted,  however,  appears  to  be 
substantially  true,  except  that  the  words  "  formally  produced  "  imply 
something  more  like  the  modern  practice  than  the  facts  mentioned  war- 
rant. The  evidence  in  the  case  reported  in  23  Ass.  n  was  produced  to 
none  but  the  jury. 

Mr.  Starkie  has  justly  observed  that  "  the  transition  was  now  almost 
imperceptible  to  the  complete  separation  of  the  witnesses  from  the  in- 
quest. And  this  step  was  taken  at  some  time  before  the  nth  of  Henry 
IV.  ;S  namely,  that  all  the  witnesses  were  to  give  their  testimony  at  the 

c  The  history  of  trial  by  jury  has  been  gThe  Year-book  of  n   H.   IV.,  to 

very  ably  elucidated  by  Mr.  Starkie,  in  which  a  reference  seems  here  to  be 

the  fourth  number  of  the  Law  Review,  made,  has  not  been  consulted  by  me. 

which,  though  anonymous,  I  venture  to  But  in  the  next  year  (la  H.  .IV.  7)  wit- 1 

quote  by  his  name.   I  have  been  assisted  nesses  are  directed  to  be  joined  to  the  J 

in  the  text  by  this  paper.  inquest  (as.  m  23  Ass.  it)  j  and  one  of , 

/  The  reference  is  to  the  Year-book,  23  the  judges  is  reported  to  have  .said,  this 

Ass   ii.    It  was  adjudged  that  the  wit-  had  often  been  done;  yet  we  might  infer 

nesses  could  not  be  challenged  like  ju-  that  the  practice  was  not  so  general 

rors:    "  car  ils  doivent  rien  temoigner  as  to  pass  without  comment  ^  This  looks 

fors  ceo  qu'ils  verront  et  oiront     Et  as  if  the  separation  of  the  witnesses,  by 

Fassise  fut  pris,  et  les  temoins  ajoints  a  their  examination  in  open  court,  were 

eux."    This  has  no  appearance  of  the  not  quite  of  so   early  a  date  as  Mr. 

introduction  of  a  new  custom.    Above  Starkie  and  Mr.  Spence  suppose.    But, 

fifty  years  had  elapsed  since  Bracton  perhaps,    both    modes    of    procedure 

wrote,  so  that  the  change  might  have  might  be  concurrent  for  a  certain  time, 
easily  crept  m. 


478  HALLAM 

bar  of  the  court,  so  that  the  judges  might  exclude  those  incompetent  by 
law,  and  direct  the  jury  as  to  the  weight  due  to  the  rest"  "This  ef- 
fected a  change  in  the  modes  of  trying  civil  cases,  the  importance  of 
which  can  haidly  be  too  highly  estimated.  Jurors,  from  being,  as  it 
were,  mere  recipients  and  depositaries  of  knowledge,  exercised  the  more 
intellectual  faculty  of  forming  conclusions  from  testimony— a  duty  not 
only  of  high  importance  with  a  view  to  truth  and  justice,  but  also  col- 
laterally in  encouraging  habits  of  reflection  and  reasoning  (aided  by 
the  instructions  of  the  judges),  which  must  have  had  a  great  and  most 
beneficial  effect  in  promoting  civilization.  The  exercise  of  the  control 
last  adverted  to  on  the  part  of  the  judges  was  the  foundation  of  that 
system  of  rules  in  regard  to  evidence  which  has  since  constituted  so 
large  and  important  a  branch  of  the  law  of  England."  (Spence,  p. 


he  obscurity  that  hangs  over  the  origin  of  our  modern  course  of 
procedure  before  juries  is  far  from  being  wholly  removed.  We  arc 
reduced  to  comectural  inferences  from  brief  passages  in  early  law- 
books,  written  for  contemporaries,  but  which  leave  a  considerable 
uncertainty,  as  the  readers  of  this  note  will  be  too  apt  to  discover. 
If  we  say  that  our  actual  trial  by  jury  was  established  not  far  from 
the  beginning  of  the  fifteenth  century,  we  shall  perhaps  approach  as 
nearly  as  the  diligence  of  late  inquirers  has  enabled  us  to  proceed. 
But  in  the  time  of  Fortescue,  whose  treatise  De  Laudibus  Legurn 
Angliae  was  written  soon  after  1450,  we  have  the  clearest  proof  that 
the  mode  of  procedure  before  juries  by  viva  voce  evidence  was  the 
same  as  at  present.  It  may  be  presumed  that  the  function  of  the 
advocate  and  of  the  judge  to  examine  witnesses,  and  to  comment  on 
their  testimony,  had  begun  at  this  time  The  passage  in  Fortescue 
is  so  full  and  perspicuous  that  it  deserves  to  be  extracted. 

"  Twelve  good  and  true  men  being  sworn  as  in  the  manner  above 
related,  legally  qualified— that  is,  having,  overhand  besides  their  mov- 
able possessions,  in  land  sufficient  (as  was  said)  wherewith  to  main- 
tain their  rank  and  station — neither  suspected  by  nor  at  variance  with 
either  of  the  parties;  all  of  the  neighborhood;  there  shall  be  read 
to  them  in  English  by  the  court  the  record  and  nature  of  the  plea  at 
length  which  is  depending  between  the  parties;  and  the  issue  there- 
upon shall  be  plainly  laid  before  them,  concerning  the  truth  of  which 
those  who  are  so  sworn  are  to  certify  the  court:  which  done,  each  of 
the  parties,  by  themselves  or  their  counsel,  in  presence  of  the  court, 
shall  declare  and  lay  open  to  the  jury  all  and  singular  the  matters  and 
evidences  whereby  they  think  they  may  be  able  to  inform  the  court 
concerning  the  truth  of  the  point  in  question;  after  which  each  of 
the  parties  has  a  liberty  to  produce  before  the  court  all  such  wit- 
nesses as  they  please,  or  can  get  to  appear  on  their  behalf,  who,  be- 
ing charged  upon  their  oaths,  shall  give  in  evidence  all  that  they 
know  touching  the  truth  of  the  fact  concerning  which  the  parties  are 
at  issue.  And  if  necessity  so  require,  the  witnesses  may  be  heard  and 
examined  apart,  till  they  shall  have  deposed  all  that  they  have  to  give 
in  evidence,  so  that  what  the  one  has  declared  shall  not  inform  or  in- 
duce another  witness  of  the  same  side  to  give  his  evidence  in  the 
same  words,  or  to  the  very  same  effect.  The  whole  of  the  evidence 
being  gone  through,  the  jurors  shall  confer  together  at  their  pleasure, 
as  they  shall  think  most  convenient,  upon  the  truth  of  the  issue  be- 
fore them,  with  as  much  deliberation  and  leisure  as  they  can  well 
desire;  being  all  the  while  in  the  keeping  of  an  officer  of  the  court, 
in  a  place  ^assigned  them  for  that  purpose,  lest  any  one  should  at- 
tempt by  indirect  methods  to  influence  them  as  to  their  opinion, 
which  they  are  to  give  in  to  the  court.  Lastly,  they  are  to  return  into 
court  and  certify  the  justices  upon  the  truth  of  the  issue  so  joined  in 


THE  MIDDLE  AGES  479 

the  presence  of  the  parties  (if  they  please  to  be  present),  particularly 
the  person  who  is  plaintiff  in  the  cause:  what  the  jurors  shall  so 
certity,  in  the  laws  of  England,  is  called  the  verdict.1'  (C.  26.) 

Mr.  Amos  indeed  has  observed,  in  his  edition  of  Fortescue  (p.  93), 
"  The  essential  alteration  which  has  since  taken  place  in  the  character 
of  the  jury  does  not  appear  to  have  been  thoroughly  effected  till  the 
time  of  Edward  VI.  and  Mary.  Jurors  are  often  called  testes."  But 
though  this  appellation  might  be  retained  from  the  usage  of  older 
times,  I  do  not  see  what  was  left  to  effect  in  the  essential  character  of 
a  jury,  when  it  had  reached  the  stage  of  hearing  the  witnesses  and 
counsel  of  the  parties  in  open  court. 

The  result  of  this  investigation,  suggested  perhaps  by  Reeves,  but 
followed  up  by  Sir  Francis  Palgrave  for  the  earlier,  and  by  Mr. 
Starkie  for  the  later  period,  is  to  sweep  away  from  the  ancient  constitu- 
tion of  England  what  has  always  been  accounted  both  the  pledge  of 
its  freedom  and  the  distinctive  type  of  its  organization,  trial  by  jury, 
in  the  modern  sense  of  the  word,  and  according  to  modern  functions. 
For  though  the  passage  just  quoted  from  Fortescue  is  conclusive  as 
to  his  times,  these  were  but  the  times  of  the  Lancastrian  kings;  and 
we  have  been  wont  to  talk  of  Alfred,  or  at  least  of  the  Anglo-Saxon 
age,  when  the  verdict  of  twelve  sworn  men  was  the  theme  of  our 
praise.  We  have  seen  that,  during  this  age,  neither  in  civil  nor  in 
criminal  proceedings,  it  is  possible  to  trace  this  safeguard  for  judicial 
purity.  Even  when  juries  may  be  said  to  have  existed  in  name,  the 
institution  denoted  but  a  small  share  of  political  wisdom,  or  at  least 
provided  but  indifferently  for  impartial  justice.  The  mode  of  trial  by 
witnesses  returned  on  the  panel,  hearing  no  evidence  beyond  their  own 
in  open  court,  unassisted  by  the  sifting  acuteness  of  lawyers,  laid 
open  a  broad  inlet  for  credulity  and  prejudice,  for  injustice  and  cor- 
ruption. Perjury  was  the  dominant  crime  of  the  middle  ages;  en- 
couraged by  the  preposterous  rules  of  compurgation,  and  by  the  mul- 
tiplicity of  oaths  in  the  ecclesiastical  law.  It  was  the  frequency  of 
this  offence,  and  the  impunity  which  the  established  procedure  gave 
to  that  of  jurors,  that  produced  the  remedy  by  writ  of  attaint;  but  one 
which  was  liable  to  the  same  danger;  since  jury  on  an  attaint  must,  in 
the  early  period  of  that  process,  have  judged  on  common  fame  or  on 
their  own  testimony,  like  those  whose  verdict  they  ^were  called  to 
revise;  and  where  hearsay  and  tradition  passed  for  evidence,  it  must, 
according  to  our  stricter  notions  of  penal  law,  have  been  very  difficult 
to  obtain  an  equitable  conviction  of  the  first  panel  on  the  ground  of 
perjury. 

The  Chronicle,  already  quoted,  by  Jocelyn  de  Brakelonde,  affords 
an  instance,  among  multitudes,  probably,  that  are  unrecorded,  where 
a  jury  flagrantly  violated  their  duty.  Five  recognitors  in  a  writ  of 
assize  came  to  Samson  Abbot  of  St.  Edmund's  Bury,  the  Chronicler's 
hero,  the  right  of  presentation  to  a  church  being  the  question,  in 
order  to  learn  from  him  what  they  should  swear,  meaning  to  receive 
money.  He  promised  them  nothing,  but  bade  them  swear  according 
to  their  consciences.  They  went  away  in  wrath,  and  found  a  verdict 
against  the  abbey.fc  (P.  44.) 

h  I  may  set  down  here  one  or  two  bus  be  hundredo,  qui  ntraventnt  hoc 

other  passages  from  the  same  Chronicle,  esse  jus  abbatis.    P.  44-   The  proceeding 

illustrating  the  modes  of  trial  in  that  by  jurors  was  sometimes  applied  even 

age.     Samson  offered  that  a  right  of  when  the  sentence  belonged  to  the  ec- 

advowson  should  be  determined  by  the  clesiastical  jurisdiction.     A  riot,  with 

claimant's  oath,  a  method  recognized  in  bloodshed,  having  occurred,  the  abbot, 

some  cases  by  the  civil  and  canon  law,  acceptis  juramentis  a  sexdocim  legalibus 

but  only,  I  conceive,  in  favor  of  the  de-  honumbus,    et   auditis   eorum   attesta- 

fendant.     Cumque  miles  ille  renuisset  tionibus,   pronounced  sentence  of  ex- 

jurare,  dilatum  est  juramentum  per  con-  communication  against  the  offenders, 

sensum  utrjusque  partis  sexdecirn  legali-  The  combat  was  not  an  authorized 


480  HALLAM 

Yet  in  its  rudest  and  most  imperfect  form,  the  trial  by  a  sworn 
inquest  was  far  superior  to  the  impious  superstition  of  ordeals,  the 
hardly  less  preposterous  and  unequal  duel,  the  unjust  deference  to 
power  in  compurgation,  when  the  oath  of  one  thane  counterbalanced 
those  of  six  ceorls,  and  even  to  the  free-spirited  but  tumultuary  and 
unenlightened  decisions  of  the  hundred  or  the  county.  It  may,  in- 
deed, be  thought  by  the  speculative  philosopher,  or  the  practical  law- 
yer, that  in  those  early  stages  which  we  have  just  been  surveying, 
from  the  introduction  of  trial  by  jury  under  Henry  II.  to  the  attain- 
ment of  its  actual  perfection  in  the  first  part  of  the  fifteenth  century, 
there  was  little  to  warrant  our  admiration.  Still  let  us  ever  remem- 
ber that  we  judge  of  past  ages  by  an  erroneous  standard  when  we 
wonder  at  their  prejudices,  much  more  when  we  forget  our  own. 
We  have  but  to  place  ourselves,  for  a  few  minutes,  in  imagination 
among  the  English  of  the  twelfth  and  thirteenth  centuries,  and  we 
may  better  understand  why  they  cherished  and  panted  for  the  indi- 
cium parium,  the  trial  by  their  peers,  or,  as  it  is  emphatically  styled, 
by  the  country  It  stood  in  opposition  to  foreign  lawyers  and  foreign 
law;  to  the  chicane  and  subtlety,  the  dilatory  and  expensive  though 
accurate  technicalities,  of  Normandy,  to  tribunals  where  their  good 
name  could  not  stand  them  in  stead,  nor  the  tradition  of  their  neigh- 
bors support  their  claim.  For  the  sake  of  these,  for  the  maintenance 
of  the  laws  ot  Edward  the  Confessor,  as  in  pious  reverence  they 
termed  every  Anglo-Saxon  usage,  they  were  willing  to  encounter  the 
noisy  rudeness  of  the  county-court,  and  the  sway  of  a  potent  adver- 
sary. 

Henry  II.,  a  prince  not  perhaps  himself  wise,  but  served  by  wise 
counsellors,  blended  the  two  schemes  of  jurisprudence,  as  far  as  the 
times  would  permit,  by  the  assize  of  novel  disseizin,  and  the  circuits 
of  his  justices  in  eyre.  From  this  age  justly  date  our  form  of  civil 
procedure;  the  trial  by  a  jury  (using  always  that  word  in  a  less  strict 
sense  than  it  bears  with  us)  replaced  that  by  the  body  of^hundredors; 
the  stream  of  justice  purified  itself  in  successive  generations  through 
the  acuteness,  learning,  and  integrity  of  that  remarkable  series  of 
men  whose  memory  lives  chiefly  among  lawyers,  I  mean  the  judges 
under  the  house  of  Plantagenet;  and  thus,  while  the  common  law  bor- 
rowed from  Normandy  too  much,  perhaps,  of  its  subtlety  in  dis- 
tinction, and  became  as  scientific  as  that  of  Rome,  it  maintained,  with- 
out encroachment,  the  grand  principle  of  the  Saxon  polity,  the  trial 
of  facts  by  the  country.  From  this  principle  (except  as  to  that  pre- 
posterous relic  of  barbarism,  the  requirement  of  t  unanimity)  may  we 
never  swerve — may  we  never  be  compelled,  in  wish,  to  swerve — by  a 
contempt  of  their  oaths  in  jurors,  and  a  disregard  of  the  just  limits  of 
their  trust! 

NOTE  IX. 

The  nature  of  both  tenures  has  been  perspicuously  illustrated  by  Mr. 
Allen,  in  his  Inquiry  into  the  Rise  and  Growth  of  the  Royal  Pre- 
rogative, from  which  I  shall  make  a  long  extract. 

"  The  distribution  of  landed  property  in  England  by  the  Anglo-Sax- 
ons appears  to  have  been  regulated  on  the  same  principles  that  di- 

mode  of  trial  within  boroughs*    they  resident  within  the  borough,  it  would 

preserved  the  old  Saxon^  compurgation.  not  have  come  to  battle,  but  he  would 

And  this  may  be  an  additional  proof  of  have  purged  himself  by  the  oaths  of  his 

the  antiquity  of  their  privileges.    A  free  neighbors,  sicut  libertas  est  eorum  qui 

tenant  of  the  celeranus  of  the  abbey,  cui  manent  infra  burgum.    P  74.    It  is  hard 

potus  et  escae  cura  (Du  Cange),  being  to  pronounce  by  which  procedure  the 

charged  with  robbery,  and  vanquished  greater  number  of  guilty  persons  es- 

in  the  combat,  was  hanged.    The  bur-  caped. 
gesses  of  Bury  said  that,  if  he  had  been 


THE  MIDDLE  AGES  481 

rected  their  brethren  on  the  continent.  Part  of  the  lands  they  ac- 
quired was  converted  into  estates  of  inheritance  for  individuals,  part 
remained  the  property  of  the  public,  and  was  left  to  the  disposal  of  the 
state.  The  former  was  called  bocland;  the  latter  I  apprehend  to  have 
been  that  description  of  landed  property  which  was  known  by  the 
name  as  foldand. 

Folcland,  as  the  word  imports,  was  the  land  of  the  folk  or  people. 
It  was  the  property  of  the  community.  It  might  be  occupied  in  com- 
mon, or  possessed  in  severalty;  and,  in  the  latter  case,  it  was  prob- 
ably parcelled  out  to  individuals  in  the  fokgemot,  or  court  of  the  dis- 
trict, and  the  grant  attested  by  the  freemen  who  were  then  present 
But,t  while  it  continued  to  be  folcland,  it  could  not  be  alienated  in  per- 
petuity; and,  therefore,  on  the  expiration  of  the  term  for  which  it  had 
been  granted,  it  reverted  to  the  community,  and  was  again  distributed 
by  the  same  authority.** 

"  Bocland  was  held  by  book  or  charter.  It  was  land  that  had  been 
severed  by  an  act  of  government  from  the  folcland,  and  converted  into 
an  estate  of  perpetual  inheritance.  It  might  belong  to  the  church,  to 
the  king,  or  to  a  subject.  It  might  be  alienable  and  devisable  at  the 
will  of  the  proprietor.  It  might  be  limited  in  its  descent  without  any 
power  of  alienation  in  the  possessor.  It  was  often  granted  for  a  single 
life,  or  for  more  lives  than  one^  with  remainder  in  perpetuity  to  the 
church.  It  was  forfeited  for  various  delinquencies  to  the  state. 

"  Estates  in  perpetuity  were  usually  created  by  charter  after  the  in- 
troduction of  writing,  and,  on  that  account,  bocland  and  land  of  in- 
heritance are  often  used  as  synonymous  expressions.  But  at  an  earlier 
period  they  were  conferred  by  the  delivery  of  a  staff,  a  spear,  an  arrow, 
a  drinking-horn,  the  branch  of  a  tree,  or  a  piece  of  turf;  and  when 
the  donation  was  in  favor  of  the  church,  these  symbolical  representa- 
tions of  the  grant  were  deposited  with  solemnity  on  the  altar;  nor  was 
this  practice  entirely  laid  aside  after  the  introduction  of  title-deeds. 
There  are  instances  of  it  as  late  as  the  time  of  the  Conqueror.  It  is 
not,  therefore,  quite  correct  to  say  that  all  the  lands  of  the  Anglo-Sax- 
ons were  either  folcland  or  bocland.  When  land  was  granted  in  per- 
petuity it  ceased  to  be  folcland;  but  it  could  not  with  propriety  be 
termed  bocland,  unless  it  was  conveyed  by  a  written  instrument. 

"  Folcland  was  subject  to  many  burdens  and  exactions  from  which 
bocland  was  exempt.  The  possessors  of  folcland  were  bound  to  assist 
in  the  reparation  of  royal  vills  and  in  other  public  works.  They  were 
liable  to  have  travellers  and  others  quartered  on  them  for  subsistence. 
They  were  required  to  give  hospitality  to  kings  and  great  men  in  their 
progresses  through  the  country,  to  furnish  them  with  carriages  and 
relays  of  horses,  and  to  extend  the  same  assistance  to  their  messen- 
gers, followers,  and  servants,  and  even  to  the  persons  who  had  charge 
of  their  hawks,  horses,  and  hounds.  Such  at  least  are^the  burdens 
from  which  lands  are  liberated  when  converted  by  charter  into  bocland. 

"  Bocland  was  liable  to  none  of  these  exactions.  It  was  released 
from  all  services  to  the  public,  with  the  exception  of  contributing  to 
military  expeditions,  and  to  the  reparation  of  castles  and  bridges. 
These  duties  or  services  were  comprised  in  the  phrase  of  tnnoda,  neces- 
titas,  which  were  said  to  be  incumbent  on  all  persons,  so  that  none 
could  be  excused  from  them.  The  church  indeed  contrived,  in  some 
cases,  to  obtain  an  exemption  from  them;  but  in  general  its  lands,  like 
those  of  others,  were  subject  to  them.  Some  of  the  charters  granting 

cSpelman  describes  folcland  as  terra  duplici  tittilo  possidebant:    v£  scrf£li 

popufaris,  qua*  jure  communi  possidetur  auctontate,.  quod  D 

--sine  scrlpto.    Gloss.  Folcland.   In  an-  populi  testimony 

other  place  he  distinguishes   it  accti-  Ib.  Bocland. 
rately  from  bocland.    Praedia  Saxoaes 

VOL.  II.— 31 


482  HALLAM 

to  the  possessions  of  the  church  an  exemption  from  all  services  what- 
soever were  genuine;  but  the  greater  part  are  forgeries."  (P.  142.) 

Bo  eland,  we  perceive  by  this  extract,  was  not  necessarily  allodial, 
in  the  sense  of  absolute  propriety.  It  might  be  granted  for  lives,  as  was 
often  the  case;  and  then  it  seems  to  have  been  called  Icsn-land  (praesti- 
ta),  lent  or  leased.  (Palgrave,  n  361.)  Such  land,  however,  was  not 
feudal,  as  I  conceive,  if  we  use  that  word  in  its  legitimate  European 
sense;  though  lehn  is  the  only  German  word  for  a  fief.  Mr.  Allen  has 
found  no  traces  of  this  use  of  the  word  among  the  Anglo-Saxons.  (Ap- 
pendix, p.  57 )  Sir  F.  Palgrave  agrees  in  general  with  Mr.  Allen.& 

We  find  another  great  living  authority  on  Anglo-Saxon  and  Teu- 
tonic law  concurring  in  the  same  luminous  solution  of  this  long-dis- 
puted problem.  "  The  natural  origin  of  folcland  is  the  superabundance 
of  good  land  above  what  was  at  once  appropriated  by  the  tribes,  fam- 
ilies, or  gentes  (maegburg,  gelondan),  who  first  settled  in  a  waste  or 
conquered  land;  but  its  existence  enters  into  and  modifies  the  system 
of  law,  and  on  it  depends  the  definition  of  the  march  and  the  gau  with 
their  boundaries.  Over  the  folcland  at  first  the  king  alone  had  no  con- 
trol; it  must  have  been  apportioned  by  the  nation  in  its  solemn  meet- 
ing; earlier,  by  the  shire  or  other  collection  of  freemen.  In  Beowulf, 
the  king  determines  to  build  a  palace,  and  distribute  in  it  to  his  comites 
such  gold,  silver,  arms,  and  other  valuables  as  God  had  given  him, 
save  the  folcsceare  and  the  lives  of  men — '  butan  folcsceare  and  feorum 
gumena ' — which  he  had  no  authority  to  dispose  of.  This  relative  posi- 
tion of  folcland  to  bocland  is  not  confined  to  the  Anglo-Saxon  insti- 
tutions. The  Frisians,  a  race  from  whom  we  took  more  than  has  gen- 
erally been  recognized,  had  the  same  distinction.  At  the  same  time  I 
differ  from  Grimm,  who  seems  to  consider  folcland  as  the  pure  alod, 
bocland  as  the  fief.  '  Folcland  in  Gegensatz  zu  beneficium.  Leges 
Edv.  II.;  das  ist,  reine  alod,  im  Gegensatz  zu  beneficium,  Lehen,  Vgl. 
das  Fnesische  caplond  und  bocland  As.  p.  15 '  (D.  R.  A.  p.  463  ) 
I  think  the  reverse  is  the  case;  and  indeed  we  have  one  instance  where 
a  king  exchanged  a  certain  portion  of  folcland  for  an  equal  portion  of 
bocland  with  one  of  his  comites.  He  then  gave  the  exchanged  folcland 
all  the  privileges  of  bocland,  and  proceeded  to  make  the  bocland  he 
had  received  in  exchange  folcland"  (Kemble's  Codex  Diplomaticus, 
i.  p.  104.) 

It  is  of  importance  to  mention  that  Mr.  K.,  when  he  wrote  this 
passage,  had  not  seen  Mr.  Allen's  work;  so  that  the  independent  con- 
currence of  two  such  antiquaries  in  the  same  theory  lends  it  very  great 
support.  In  the  second  volume  of  the  Codex  Diplomaticus  the  editor 
adduces  fresh  evidence  as  to  the  nature  of  folcland,  "  the  terra  fiscahs, 
or  public  land  grantable  by  the  king  or  his  council,  as  the  represent- 
atives of  the  nation."  (P.  9.)  Mr.  Thorpe,  in  the  glossary  to  his  edi- 
tion of  "  Ancient  Laws  "  (y.  Folcland),  quotes  part  of  the  same  extract 
from  Allen  which  I  have  given,  and,  making  no  remark,  must  be  under- 
stood to  concur  in  it  Thus  we  may  consider  this  interpretation  in 
possession  of  the  field.* 

The  word  folcland  fell  by  degrees  into  disuse,  and  gave  place  to  the 
term  terra  regis,  or  crown-land.  (Allen,  p.  160  )  This  indicates  the 
growth  of  a  monarchical  theory  which  reached  its  climax,  in  this  ap- 

b  The  law  of  real  property,  or  bocland,  c  It  seems  to  be  a  necessary  inference 

in  the  Anglo-Saxon  period,  is  given  in  a  from  the  evidence  of  Domesday  Book 

few  pages,  equally  succinct  and  lumi-  that  all   England  has  been  converted 

nous,  by  Mr.  Spence.   Equit  Junsd.  pp  into  bocland  before  the  Conquest,  with 

20-25      The    Codex   Diplomaticus    fur-  the  exception  of  the  terra  regis,  if  that 

nishes  the  best  ancient  precedents,  and  were  truly  the  representative  of  ancient 

is  of  course  studied,  to  the  disregard,  folcland,  att  Allen  tupposes. 
where  necessary,  of  more  defective  au- 
thorities, by  those  who  regard  this  por- 
tion of  legal  history. 


THE  MIDDLE  AGES  483 

plication  of  it,  after  the  Conquest,  when  the  entire  land  of  England 
was  supposed  to  have  been  the  demesne  land  of  the  king,  held  under 
him  by  a  feudal  tenure. 

NOTE  X. 

"  Amongst  the  prerogatives  of  the  crown,  the  Conqueror  and  many 
of  his  successors  appear  to  have  assumed  the  power  of  making  laws  to 
a  certain  extent,  without  the  authority  of  their  greater  council,  es- 
pecially when  operating  only  in  restraint  of  the  king's  prerogative,  for 
the  benefit  of  his  subjects,  or  explaining,  amending,  or  adding  to  the 
existing  law  of  the  land,  as  administered  between  subject  and  subject; 
and  this  prerogative  was  commonly  exercised  with  the  advice  of  the 
king's  ordinary  or  select  council,  though  frequently  the  edict  was  ex- 
pressed in  the  king's  name  alone  But  as  far  as  can  be  judged  from 
existing  documents  or  from  history,  it  was  generally  conceived  that 
beyond  these  limits  the  consent  of  a  larger  assembly,  of  that  which  was 
deemed  the  f  Commune  concilium  regm,'  was  in  strictness  necessary, 
though  sometimes  the  monarch  on  the  throne  ventured  to  stretch  his 
prerogative  further,  even  to  the  imposition  of  taxes  to  answer  his  neces- 
sities, without  the  common  consent;  and  the  great  struggles  between 
the  kings  of  England  and  their  people  have  generally  been  produced 
by  such  stretches  of  the  royal  prerogative,  till  at  length  it  has  been 
established  that  no  legislative  act  can  be  done  without  the  concurrence 
of  that  assembly,  now  emphatically  called  the  king's  parliament."  (Re- 
port of  Lords'  Committee  on  the  Dignity  of  a  Peer,  p.  22,  edit.  1819.) 

"  It  appears,"  says  the  committee  afterwards,  "  from  all  the  charters 
taken  together,  that  during  the  reigns  qf  William  Rufus,  his  brother 
Henry,  and  Stephen,  many  things  had  been  done  contrary  to  law;  but 
that  there  did  exist  some  legal  constitution  of  government,  of  which  a 
legislative  council  (forborne  purposes  at  least)  formed  a  part;  and  par- 
ticularly that  all  impositions  and  exactions  by  the  mere  authority  qf  the 
crown,  not  warranted  by  the  existing  law,  were  reprobated  as  infringe- 
ments of  the  just  rights"  of  the  subjects  of  the  realm,  though  the  exist- 
ing law  left  a  large  portion  of  the  king's  subjects  liable  to  tallage  im- 
posed at  the  will  of  the  crown;  and  the  tenants  of  the  mesne  lords  were 
in  many  cases  exposed  to  similar  exaction.'*  (P.  42 ) 

These  passages  appeared  to  Mr.  Allen  so  inadequate  a  representation 
of  the  Anglo-Norman  constitution,  that  he  commented  upon  the  igno- 
rance of  the  committee  with  no  slight  severity  in  the  Edinburgh  Review. 
The  principal  charges  against  the  Report  in  this  respect  are,  that  the 
committee  have  confounded  the  ordinary  or  select  council  of  the  king 
with  the  commune  concilium,  and  supposed  that  the  former  alone  was 
intended  by  historians  as  the  advisers  of  the  crown  in  its  prerogative 
of  altering  the  law  of  the  land,  when,  in  fact,  the  great  council  of  the 
national  aristocracy  is  clearly  pointed  out;  and  that  they  have  disre- 
garded a  great  deal  of  historical  testimony  to  the  political  importance 
of  the  latter.  It  appears  to  be  clearly  shown,  from  the  Saxon  Chronicle 
and  other  writers,  that  assemblies  of  bishops  and  nobles,  sometimes 
very  large,  were  held  by  custom,  "  de  more,"  three  times  in  the  year,  by 
William  the  Conqueror  and  by  both  his  sons;  that  they  were,  however, 
gradually  intermitted  by  Henry  L,  and  ceased  early  in  the  reign  of 
Stephen.  In  these  councils,  which  were  legislative  so  far  as  new  stat- 
utes were  ever  required,  a  matter  of  somewhat  rare  occurrence,  but 
more  frequently  rendering  their  advice  on  measures  to  be  adopted,  or 
their  judgment  in  criminal  charges  against  men  of  high  rank,  and  even 
in  civil  litigation,  we  have,  at  least  in  theory,  the  acknowledged  limita- 
tions of  royal  authority.  I  refer  the  reader  to  this  article  in  the  Edin- 
burgh Review  (vol.  xxxv.),  to  which  we  must  generally  assent;  ob- 


484  HALLAM 

serving,  however,  that  the  committee,  though  in  all  probability  mis- 
taken in  ascribing  proceedings  of  the  Norman  sovereigns  to  the  advice 
of  a  select  council,  which  really  emanated  from  one  much  larger,  did 
not  call  in  question,  but  positively  assert,  the  constitutional  necessity 
of  the  latter  for  general  taxation,  and  perhaps  for  legislative  enactments 
of  an  important  kind.  And,  when  we  consider  the  improbability  that 
"  all  the  great  men  over  all  England,  archbishops  and  bishops,  abbots 
and  earls,  thanes  and  knights,"  as  the  Saxon  chronicler  pretends,  could 
have  been  regularly  present  thrice  a  year,  at  Winchester,  Westminster, 
and  Gloucester,  when  William,  as  he  informs  us,  "  wore  his  crown,"  we 
may  well  suspect  that,  in  the  ordinary  exercise  of  his  prerogative,  and 
even  in  such  provisions  as  might  appear  to  him  necessary,  he  did  not 
wait  for  a  very  full  assembly  of  his  tenants  in  chief.  The  mam  question 
is,  whether  this  council  of  advice  and  assent  was  altogether  of  his  own 
nomination,  and  this  we  may  confidently  deny. 

The  custom  of  the  Anglo-Saxon  kings  had  been  to  hold  meetings  of 
their  witan  very  frequently,  at  least  in  the  regular  course  of  their  govern- 
ment. And  this  was  also  the  rule  in  the  grand  fiefs  of  France.  The 
pomp  of  their  court,  the  maintenance  of  loyal  respect,  the  power  of 
keeping  a  vigilant  eye  over  the  behavior  of  the  chief  men,  were  sufficient 
motives  for  the  Norman  kings  to  preserve  this  custom;  and  the  nobility 
of  course  saw  in  it  the  security  of  their  privileges  as  well  as  the  exhibi- 
tion of  their  importance.  Hence  we  find  that  William  and  his  sons  held 
their  courts  de  more,  as  a  regular  usage,  three  times  a  year,  and  gen- 
erally at  the  great  festivals,  and  in  different  parts  of  the  kingdom.  In- 
stances are  collected  by  the  Edinburgh  Reviewer  (vol  xxxv.  p.  5). 
And  here  the  public  business  was  transacted;  though,  if  these  meet- 
ings were  so  frequent,  it  is  probable  that  for  the  most  part  they  passed 
off  in  a  banquet  or  a  tournament. 

The  Lords'  Committee,  in  notes  on  the  Second  Report,  when  re- 
printed in  1829,  do  not  acquiesce  in  the  positions  of  their  hardy  critic, 
to  whom,  without  direct  mention,  they  manifestly  allude.  "  From  the 
relations  of  annalists  and  historians,"  they  observe,  "  it  has  been  in- 
ferred that  during  the  reign  of  the  Conqueror,  and  during  a  long 
course  of  time  from  the  Conquest,  the  archbishops,  bishops,  abbots 
and  priors,  earls  and  barons  of  the  realm  were  regularly  convened 
three  times  in  every  year,  at  three  different  and  distinct  places  in  the 
kingdom,  to  a  general  council  of  the  realm.  Considering  the  state  of 
the  country,  and  the  habits  and  dispositions  of  the  people,  this  seems 
highly  improbable;  especially  if  the  word  barones,  or  the  words  pro- 
ceres  or  magnates,  often  used  by  writers  in  describing  such  assem- 
blies, were  intended  to  include  all  the  persons  holding  immediately 
of  the  crown,  who,  according  to  the  charter  of  John,  were  required 
to  be  summoned  to  constitute  the  great  council  of  the  realm,  for  the 
purpose  of  granting  aids  to  the  crown."  (P  449.)  But  it  is  not 
necessary  to  suppose  this;  those  might  have  attended  who  lived  near, 
or  who  were  specially  summoned.  The  committee  argue  on  the  sup- 
position that  all  tenants  in  chief  must  have  attended  thrice  a  year, 
which  no  one  probably  ever  asserted.  But  that  William  and  his  sons 
did  hold  public  meetings,  de  more,  at  three  several  places  in  every  year, 
or  at  least  very  frequently,  cannot  be  controverted  without  denying 
what  respected  historical  testimonies  affirm;  and  the  language  of  these 
early  writers  intimates  that  they  were  numerously  attended.  Aids 
were  not  regularly  granted,  and  laws  much  more  rarely  enacted  in 
them;  but  they  might  still  be  a  national  council  But  the  constituent 
parts  of  such  councils  will  be  discussed  in  a  subsequent  note. 

It  is  to  be  here  remarked  that,  with  the  exception  of  the  charters 
granted  by  William,  Henry,  and  Stephen,  which  are  in  general  rather 
like  confirmations  of  existing  privileges  than  novel  enactments,  though 


THE  MIDDLE  AGES  485 

some  claitses  appear  to  be  of  the  latter  kind,  little  authentic  evidence 
can  be  found  of  any  legislative  proceedings  from  the  Conquest  to  the 
reign  of  Henry  II.  The  laws  of  the  Conqueror,  which  we  find  in 
Ingulfus.  do  not  come  within  this  category;  they  are  a  confirmation  of 
English  usages,  granted  by  William  to  his  subjects.  "  Cez  sunt  les 
Icis  el  les  custumes  que  li  reis  William  grantad  el  pople  de  Engleterre 
apres  le  conquest  de  la  terre.  Iceles  mesmes  que  li  reis  Edward  sun 
cusm  tint  devant  lui."  These,  published  by  Gale  (Script  Rer  Anglic, 
vol  i.),  and  more  accurately  than  before  from  the  Holkham  manuscript 
by  Sir  Francis  Palgrave,  have  sometimes  passed  for  genuine.  The 
real  original,  however,  is  the  Latin  text,  first  published  by  him  with 
the  French.  (Eng.  Commonw.  vol  ii.  p.  89)  The  French  transla- 
tion he  refers  to  the  early  part  of  the  reign  of  Henry  III.  At  the  time 
when  Ingulfus  is  supposed  to  have  lived,  soon  after  the  Conquest,  no 
laws,  as  Sir  F.  Palgrave  justly  observes,  were  written  in  French,  and 
he  might  have  added  that  we  cannot  produce  any  other  specimen  of 
the  language  which  is  certainly  of  that  age  (See  Quarterly  Review, 
xxxiv.  260.)  It  is  said  in  the  charter  of  Henry  I.  that  the  laws  of  Ed- 
ward were  renewed  by  William  with  the  same  emendation. 

But  the  changes  introduced  by  William  in  the  tenure  of  land  were 
so  momentous  that  the  most  cautious  inquirers  have  been  induced  to 
presume  some  degree  of  common  consent  by  those  whom  they  so 
much  affected.  "  There  seems  to  be  evidence  to  show  that  the  great 
change  in  the  tenure  of  land,  and  particularly  the  very  extensive  intro- 
duction of  tenure  by  knight-service,  was  made  by  the  consent  of  those 
principally  interested  in  the  land  charged  with  the  burdens  of  that 
tenure;  and  that  the  general  changes  made  in  the  Saxon  laws  by  the 
Conqueror,  forming  of  the  two  one  people,  was  also  effected  by  com- 
mon consent;  namely,  m  the  language  of  the  charter  of  William  with 
respect  to  the  tenures,  '  per  commune  concilium  tocius  regni,'  and 
with  respect  to  both,  as  expressed  in  the  charter  of  his  son  Henry, 
'  concilio  baronum ' ;  though  it  is  far  from  clear  who  were  the  persons 
intended  to  be  so  described  "  (Report  of  Lords'  Committee,  p.  50 ) 

The  separation  of  the  civil  and  ecclesiastical  jurisdictions  was  an- 
other great  innovation  m  the  reign  of  the  Conqueror.  This  the  Lords' 
Committee  incline  to  refer  to  his  sole  authority  But  Allen  has  shown 
by  a  writ  of  William  addressed  to  the  Bishop  of  Lincoln  that  it  was 
done  "  communi  concilio,  et  concilio  archiepiscoporum  meorum,  et 
caeterorum  episcoporum  et  abbatum,  et  omnium  principum  regni  mei." 
(Edmb.  Rev.  p.  15  )  And  the  Domesday  survey  was  determined  upon, 
after  a  consultation  of  William  with  his  great  council  at  Gloucester, 
in  1084.  This  would  of  course  be  reckoned  a  legislative  measure  in 
the  present  day;  but  it  might  not  pass  for  more  than^  a  temporary 
ordinance.  The  only  laws  under  Henry  L,  except  his  charter,  of 
which  any  account  remains  in  history  (there  are  none  on  record),  fall 
under  the  same  description. 

The  Constitutions  of  Clarendon,  in  1164,  are  certainly  ^  a  regular 
statute;  whoever  might  be  the  consenting  parties,  a  subject  to  be 
presently  discussed,  these  famous  provisions  were  enacted  in  the  great 
council  of  the  nation.  This  is  equally  true  of  the  Assizes  of  Northamp- 
ton, in  1178.  But  the  earliest  Anglo-Norman  law  which  is  extant  in 
a  regular  form  is  the  assize  made  at  Clarendon  for  the  preservation 
of  the  peace,  probably  between  1165  and  1176.  This  remarkable 
statute,  "  quam  dominus  rex  Henricus,  consilio  archiepiscoporum^  et 
episcoporum  et  abbatum,  caeterorumque  baronum  suorum  constituit, 
was  first  published  by  Sir  F.  Palgrave  from  a  manuscript  in  the  British 
Museum,  (Engl.  Commonw.  i.  257;  ii.  168.)  In  other  instances  the 
royal  prerogative  may  perhaps  have  been  held  sufficient  for  innova- 
tions which,  after  the  constitution  became  settled,  would  have  re- 


486  HALLAM 

quired  the  sanction  of  the  whole  legislature  No  act  of  parliament  is 
known  to  have  been  made  under  Richard  I  ;  but  an  ordinance,  setting 
the  assize  of  bread,  in  the  fifth  of  John,  is  recited  to  be  established 
"  communi  concilio  baronum  nostrorum  "  Whether  these  words  af- 
ford sufficient  ground  for  believing  that  the  assize  was  set  in  a  full 
council  of  the  realm,  may  possibly  be  doubtful.  The  committee  in- 
cline to  the  affirmative,  and  remark  that  a  general  proclamation  to  the 
same  effect  is  mentioned  in  history,  but  merely  as  proceeding  from  the 
king,  so  that  "  the  omission  of  the  words  '  communi  concilio  baro- 
num '  in  the  proclamation  mentioned  by  the  historian,  though  appear- 
ing in  the  ordinance,  tends  also  to  show  that,  though  similar  words 
may  not  be  found  in  other  similar  documents,  the  absence  of  those 
words  ought  not  to  lead  to  a  certain  conclusion  that  the  act  done  had 
not  the  authority  of  the  same  common  council."  (P.  84.) 


NOTE  XI 

This  charter  has  been  introduced  into  the  new  edition  of  Rymer's 
Fcedera,  and  heads  that  collection.  The  Committee  of  the  Lords  on 
the  Dignity  of  a  Peer,  in  their  Second  Report,  have  the  following 
observations:—"  The  printed  copy  is  taken  from  the  Red  Book  of  the 
Exchequer,  a  document  which  has  long  been  admitted  in  the  Court 
of  Exchequer  as  evidence  of  authority  for  certain  purposes;  but  no 
trace  has  been  hitherto  found  of  the  original  charter  of  William, 
though  the  insertion  of  a  copy  in  a  book  in  the  custody  of  the  king's 
Exchequer,  resorted  to  by  the  judges  of  that  court  for  other  purposes, 
seems  to  afford  reasonable  ground  for  supposing  that  such  a  charter 
was  issued,  and  that  the  copy  so  preserved  is  probably  correct,  or 
nearly  correct.  The  copy  in  the  Red  Book  is  without  date,  and  no 
circumstance  tending  to  show  its  true  date  has  occurred  to  the  com- 
mittee; but  it  may  be  collected  from  its  contents  that  it  was  probably 
issued  in  the  latter  part  of  that  king's  reign,  about  which  time  it  ap- 
pears from  history  that  he  confirmed  to  his  subjects  in  England  the 
ancient  Saxon  laws,  with  alterations."  (P.  28.) 

I  once  thought,  and  have  said,  that  this  charter  seems  to  compre- 
hend merely  the  feudal  tenants  of  the  crown.  This  may  be  true  of 
one  clause;  but  it  is  impossible  to  construe  "omnes  liberi  homines 
totius  monarchist"  in  so  contracted  a  sense.  The  committee  indeed 
observe  that  many  of  the  king's  tenants  were  long  after  subject  to 
tallage.  But  I  do  not  suppose  these  to  have  been  included  in  "  liberi 
homines."  The  charter  involves  a  promise  of  the  crown  to  abstain 
from  exactions  frequent  in  the  Conqueror's  reign,  and  falling  on  mesne 
tenants  and  others  not  liable  to  arbitrary  taxation. 

This  charter  contains  a  clause — "  Hoc  quoque  praecipimus  ut  pmnes 
habeant  et  teneant  legem  Edwardi  Regis  in  omnibus  rebus  adjunctis 
his  quse  constituimus  ad  ultilitatem  Anglorum."  And  as  there  is  ap- 
parent reference  to  these  words  in  the  charter  of  Henry  I. — "  Legem 
Edwardi  Regis  vobis  reddo  cum  illis  emendationibus  quibus  pater  meus 
earn  emendavit  consilio  baronum  suorum"— the  committee  are  suf- 
ficiently moderate  in  calling  this  "  a  clause,  tending  to  give  in  some 
degree  authenticity  to  the  copy  of  the  charter  of  William  the  Con- 
queror inserted  in  the  Red  Book  of  the  Exchequer."  (P.  39.)  This 
charter  seems  to  be  fully  established:  it  deserves  to  be  'accounted  the 
first  remedial  concession  by  the  crown;  for  it  indicates,  especially  taken 
in  connection  with  public  history,  an  arbitrary  exercise  o|  royal  power 
which  neither  the  new  nor  the  old  subjects  of  the  English  monarchy 
reckoned  lawful  It  is  also  the  earliest  recognition  of  the  Anglo- 
Saxon  laws,  such  as  they  subsisted  under  the  Confessor,  and  a  proof 


THE  MIDDLE  AGES  487 

both  that  the  English  were  now  endeavoring  to  raise  their  heads  from 
servitude,  and  that  the  Normans  had  discovered  some  immunities  from 
taxation,  or  some  securities  from  absolute  power,  among  the  con- 
quered people,  in  which  they  desired  to  participate.  It  is  deserving 
of  remark  that  the  distinction  of  personal  law,  which,  indeed,  had 
almost  expired  on  the  continent,  was  never  observed  in  England;  at 
least,  we  have  no  evidence  of  it,  and  the  contrary  is  almost  demon- 
strable. The  conquerors  fell  at  once  into  the  laws  of  the  conquered 
and  this  continued  for  more  than  a  century. 

The  charter  of  William,  like  many  others,  was  more  ample  than 
effectual.  "The  committee  have  found  no  document  to  show,  nor 
does^it  appear  probable  from  any  relation  in  history,  that  William  ever 
obtained  any  general  aid  from  his  subjects  by  grant  of  a  legislative 
assembly;  though  according  to  history,  even  after  the  charter  before 
mentioned,  he  extorted  great  sums  from  individuals  by  various  means 
and  under  various  pretences.  Towards  the  close  of  his  reign,  when  he 
had  exacted,  as  stated  by  the  editor  of  the  first  part  of  the  Annals  called 
the  Annals  of  Waverley,  the  oath  of  fealty  from  the  principal  land- 
holders of  every  description,  the  same  historian  adds  that  William 
passed  into  Normandy,  '  adquisitis  magnis  thesauris  ab  hominibus  suis, 
super  quos  aliquam  causam  invenire  poterat,  sive  juste  sive  inique' 
(words  which  import  exaction  and  not  grant),  and  he  died  the  year 
following  in  Normandy."  (P.  35.) 

The  deeply  learned  reviewer  of  this  Report  has  shown  that  the 
Annals  of  Waverley  are  of  very  little  authority,  and  merely  in  this 
part  a  translation  from  the  Saxon  Chronicle.  But  the  translation  of 
the  passage  quoted  by  the  committee  is  correct;  and  it  was  perhaps 
rather  hypercritical  to  cavil  at  their  phrase  that  William  obtained  this 
money  "  by  exaction  and  not  by  grant."  They  never  meant  that  he 
imposed  a  general  tax.  That  it  was  not  by  grant  is  all  that  their  pur- 
pose required;  the  passage  which  they  quote  shows  that  it  was  under 
some  pretext,  and  often  an  unjust  one,  which  is  not  very  unlike 
exaction^ 

It  is  highly  probable  that,  in  promising  this  immunity  from  unjust 
exactions,  William  did  not  intend  to  abolish  the  ancient  tax  of  Dane- 
gelt,  or  to  demand  the  consent  of  his  great  council  when  it  was  thought 
necessary  to  impose  it.  We  read  in  the  Saxon  Chronicle  that  the  king 
in  1083  exacted  a  heavy  tribute  all  over  England,  that  is,  seventy-two 
pence  for  each  hyde.  This  looks  like  a  Danegelt.  The  rumor  of  in- 
vasion from  Denmark  is  set  down  by  the  chronicler  under  the  year 
1085;  but  probably  William  had  reason  to  be  prepared.  He  may  have 
had  the  consent  of  his  great  council  in  this  instance.  But  as  the  tax 
had  formerly  been  perpetual,  so  that  it  was  a  relaxation  in  favor  of 
the  subject  to  reserve  it  for  an  emergency,  we  may  think  it  more  likely 
that  this  imposition  was  within  his  prerogative,  that  he,  in  other 
words,  was  sole  judge  of  the  danger  that  required  it.  It  was,  how- 
ever, in  truth,  a  heavy  tribute,  being  six  shillings  for  every  hyde,  in 
many  cases,  as  we  see  by  Domesday,  no  small  proportion  of  the  annual 
valtie,  and  would  have  been  a  grievous  burden  as  an  annual  payment 


NOTE  XII. 

This  passage  in  a  contemporary  writer,  being  so  unequivocal  asjt  is, 
ought  to  have  much  weight  in  the  question  which  an  eminent  foreigner 
has  lately  raised  as  to  the  duration  of  the  distinction  between  the  Nor- 
man and  English  races  It  is  the  favorite  theory  of  M.  Thierry,  pushed 
to  an  extreme  length  both  as  to  his  own  country  and  ours,  that  the 
conquering  nation,  Franks  in  one  case,  Normans  in  the  other,  re- 


488  HALLAM 

mained  down  to  a  late  period — a  period  indeed  to  which  he  assigns 
no  conclusion — unmmgled,  or  at  least  undistinguishable,  constituting 
a  double  people  of  sovereigns  and  subjects,  becoming  a  noble  order 
in  the  state,  haughty,  oppressive,  powerful,  or,  what  is  m  one  word 
most  odious  to  a  French  ear  in  the  nineteenth  century,  aristocratic. 

It  may  be  worthy  of  consideration,  since  the  authority  of  this  writer 
is  not  to  be  disregarded,  whether  the  Norman  blood  were  really 
blended  with  the  native  quite  so  soon  as  the  reign  of  Henry  II.;  that 
is,  whether  intermarriages  in  the  superior  classes  of  society  had  be- 
come so  frequent  as  to  efface  the  distinction,  M.  Thierry  produces  a 
few  passages  which  seem  to  intimate  its  continuance.  But  these  are 
too  loosely  worded  to  warrant  much  regard;  and  he  admits  that  after 
the  reign  of  Henry  I.  we  have  no  proof  of  any  hostile  spirit  on  the 
part  of  the  English  towards  the  new  dynasty;  and  that  some  efforts 
were  made  to  conciliate  them  by  representing  Henry  II.  as  the  de- 
scendant of  the  Saxon  line.  (Vol.  ii.  p.  374)  This,  in  fact,  was  true; 
and  it  was  still  more  important  that  the  name  of  English  was  studiously 
assumed  by  our  kings  (ignorant  though  they  might  be,  in  M.  Thierry's 
phrase,  what  was  the  vernacular  word  for  that  dignity),  and  that  the 
Anglo-Normans  are  seldom,  if  ever,  mentioned  by  that  separate  desig- 
nation. England  was  their  dwelling-place,  English  their  name,  the 
English  law  their  inheritance;  if  this  was  not  wholly  the  case  before 
the  separation  of  the  mother  country  under  John,  and  yet  we  do  not 
perceive  much  limitation  necessary,  it  can  admit  of  no  question  after- 
wards. 

It  is,  nevertheless,  manifest  that  the  descendants  of  William's  ten- 
ants in  capite,  and  of  others  who  seized  on  so  large  a  portion  of  our 
fair  country  from  the  Channel  to  the  Tweed,  formed  the  chief  part  of 
that  aristocracy  which  secured  the  liberties  of  the  Anglo-Saxon  race, 
as  well  as  their  own,  at  Runnymede;  and  which,  sometimes  as  peers 
of  the  realm,  sometimes  as  well-born  commoners,  placed  successive 
barriers  against  the  exorbitances  of  power,  and  prepared  the  way  for 
that  expanded  scheme  of  government  which  we  call  the  English 
constitution.  The  names  in  Dugdale's  Baronage  and  in  his  Summoni- 
tiones  ad  Parliamentum  speak  for  themselves;  in  all  the  earlier  periods, 
and  perhaps  almost  through  the  Plantagenet  dynasty,  we  find  a  great 
preponderance  of  such  as  indicate  a  French  source.  New  families 
sprung  up  by  degrees,  and  are  now  sometimes  among  our  chief  no- 
bility; but  in  general,  if  we  find  any  at  this  day  who  have  tolerable 
pretensions  to  deduce  their  lineage  from  the  Conquest,  they  are  of 
Norman  descent;  the  very  few  Saxon  families  that  may  remain  with 
an  authentic  pedigree  in  the  male  line  are  seldom  found  in  the  wealthier 
class  of  gentry.  This  is  of  course  to  be  taken  with  deference  to  the 
genealogists.  And  on  this  account  I  must  confess  that  M.  Thierry's 
opinion  of  a  long-continued  distinction  of  races  has  more  semblance 
of  truth  ^ as  to  this  kingdom  than  can  be  pretended  as  to  France,  with- 


animosity  against  the  ancient  nobility  of  France,  on  the  preposterous 
hypothesis  that  they  are  descended  from  the  followers  of  Clovis,  that 
Frank  and  Gaul  have  never  been  truly  intermingled,  and  that  a  con- 
quering race  was,  even  in  this  age,  attempting  to  rivet  its  yoke  on  a 
people  who  disdained  it  This  strange  theory,  or  something  like  it, 
had  been  announced  in  a  very  different  spirit  by  Boulainvilhers  in  the 
last  century.  But  of  what  family  in  France,  unless  possibly  in  the 
eastern  part,  can  it  be  determined  with  confidence  whether  the  founder 
were  Frank  or  Gallo-Roman?  Is  it  not  a  moral  certainty  that  many 
of  the  most  ancient,  especially  in  the  south,  must  have  been  of  the 


THE  MIDDLE  AGES  489 

latter  origin?  It  would  be  highly  wrong  to  revive  such  obsolete  dis- 
tinctions m  order  to  keep  up  social  hatreds  were  they  founded  in  truth: 
but  what  shall  we  say  if  they  are  purely  chimerical? 

NOTE  XIII. 

It  appears  to  have  been  the  opinion  of  Madox,  and  probably  has 
been  taken  for  granted  by  most  other  antiquaries,  that  this  court,  de- 
nominated Aula  or  Curia  Regis,  administered  justice  when  called  upon, 
as  well  as  advised  the  crown  m  public  affairs,  during  the  first  four  Nor- 
man reigns  as  much  as  afterwards.  Allen,  however,  maintained 
(Edmb.  Rev.  xxvi.  p.  364)  that  "  the  administration  of  justice  in  the 
last  resort  belonged  originally  to  the  great  council.  It  was  the  king's 
baronial  court,  and  his  tenants  in  chief  were  the  suitors  and  judges/' 
Their  unwillingness  and  inability  to  deal  with  intricate  questions  of 
law,  which,  after  the  simpler  rules  of  Anglo-Saxon  jurisprudence  were 
superseded  by  the  subtleties  of  Normandy,  became  continually  more 
troublesome,  led  to  the  separation  of  an  inferior  council  from  that  of 
the  legislature,  to  both  which  the  name  Curia  Regis  is  for  some  time 
indifferently  applied  by  historians.  This  was  done  by  Henry  IL,  as 
Allen  conjectures,  at  the  great  council  of  Clarendon  in  1164. 

The  Lords'  Committee  took  another  view,  and  one,  it  must  be  con- 
fessed, more  consonant  to  the  prevailing  opinion.  "  The  ordinary 
council  of  the  king,  properly  denominated  by  the  word  '  concilium ' 
simply,  seems  always  to  have  consisted  of  persons  selected  by  him  for 
that  purpose;  and  these  persons  in  later  times,  if  not  always,  tpok  an 
oath  of  office,  and  were  assisted  by  the  king's  justiciaries  or  judges, 
who  seem  to  have  been  considered  as  members  of  this  council;  and 
the  chief  justiciar,  the  treasurer  and  chancellor,  and  some  other  great 
officers  of  the  crown,  who  might  be  styled  the  king's  confidential  min- 
isters, seem  also  to  have  been  always  members  of  this  select  council; 
the  chief  justiciar,  from  the  high  rank  attributed  to  his  office,  generally 
acting  as  president.  This  select  council  was  not  only  the  king's  or- 
dinary council  of  state,  but  formed  the  supreme  court  of  justice,  de- 
nominated Curia  Regis,  which  commonly  assembled  three  times  in 
every  year,  wherever  the  king  held  his  court,  at  the  three  great  feasts 
of  Easter,  Whitsuntide,  and  Christmas,  and  sometimes  also  at  Michael- 
mas. Its  constant  and  important  duty  at  those  times  was  the  adminis- 
tration of  justice."  (P.  20.) 

It  has  been  seen  in  a  former  note  that  the  meetings  de  more,  three 
times  in  the  year,  are  supposed  by  Mr.  Allen  to  have  been  of  the  great 
council,  composed  of  the  baronial  aristocracy.  The  positions,  there- 
fore, of  the  Lords'  committee  were  of  course  disputed  in  his  celebrated 
review  of  their  Report  "  So  far  is  it,"  he  says,  "  from  being  true 
that  the  term  Curia  Regis,  in  the  time  of  the  Conqueror  and  his  im- 
mediate successors,  meant  the  king's  high  court  of  justice,  as  dis- 
tinguished from  the  legislature,  that  it  is  doubtful  whether  such  a  court 
then  existed."  (Ed.  Rev.  xxxv.  6.)  This  is  expressed  with  more  hesi- 
tation than  in  the  earlier  article,  and  in  a  subsequent  passage  we  read 
that  "  the  high  court  of  justice,  to  which  the  committee  would  restrict 
the  appellation  of  Curia  Regis,  and  of  which  such  frequent  mention  is 
made  tinder  that  name  in  our  early  records  and  courts  of  law,  was  con- 
firmed and  fully  established  by  Henry  IL,  if  not  originally  instituted 
by  that  prince."  (P.  8.)  f  . 

The  argument  of  Mr.  Allen  rests  very  much  on  the  judicial  functions 
of  the  witenagemot,  which  he  would  consider  as  maintained  in  its  sub- 
stantial character  by  the  great  councils  or  parliaments  of  the  Norman. 
dynasty.  In  this  we  may  justly  concur;  but  we  have  already  seen  how 


490  HALLAM 

far  he  is  from  having  a  right  to  assume  that  the  Anglo-Saxon  kings, 
though  they  might  administer  justice  in  the  full  meetings  called  wit- 
enagemots,  were  restrained  from  its  exercise  before  a  smaller  body 
more  permanently  attached  to  their  residence.  It  is  certain  that  there 
was  an  appeal  to  the  king's  court  for  denial  of  justice  in  that  of  the 
lord  having  territorial  jurisdiction,  and,  as  the  words  and  the  reason 
imply,  from  that  of  the  sheriff.  (Leg.  Hen.  L  c.  58.)  This  was  also 
the  law  before  the  Conquest  But  the  plaintiff  incurred  a  fine  if  he 
brought  his  cause  in  the  first  instance  before  the  king.  (Thorpe's  An- 
cient Laws,  p.  85;  and  see  Edmb.  Rev.  xxxv.  10)  It  hardly  appears 
evident  that  these  cases,  rare  probably  and  not  generally  interesting, 
might  not  be  determined  ostensibly,  as  they  would  on  any  hypothesis 
be  in  reality,  by  the  chancellor,  the  high  justiciar,  and  other  great 
officers  of  the  crown,  during  the  intervals  of  the  national  council;  and 
this  is  confirmed  by  the  analogy  of  the  royal  courts  in  France,  which 
were  certainly  not  constituted  on  a  very  broad  basis.  The  feudal  court 
of  a  single  barony  might  contain  all  the  vassals;  but  the  inconvenience 
would  have  become  too  great  if  the  principle  had  been  extended  to  all 
the  tenants  in  chief  of  the  realm.  This  relates  to  the  first  four  reigns, 
for  which  we  are  reduced  to  these  grounds  of  probable  and  analogical 
reasoning,  since  no  proof  of  the  distinct  existence  of  a  judicial  court 
seems  to  be  producible. 

In  the  reign  of  Henry  II.  a  court  of  justice  is  manifestly  distinguish- 
able both  from  the  select  and  from  the  greater  council.  "  In  the  Curia 
Regis  were  discussed  and  tried  all  pleas  immediately  concerning  the 
king  and  the  realm;  and  suitors  were  allowed,  on  payment  of  fines,  to 
remove  their  plaints  from  inferior  jurisdictions  of  Anglo-Saxon  crea- 
tion_into  this  court,  by  which  a  variety  of  business  was  wrested  from 
the  ignorance  and  partiality  of  lower  tribunals,  to  be  more  confidently 
submitted  to  the  decision  of  judges  of  high  reputation.  Some  plaints 
were  also  removed  into  the  Curia  Regis  by  the  express  order  of  the 
king,  others  by  the  justices,  then  itinerant,  who  not  unfrequently  felt 
themselves  incompetent  to  decide  upon  difficult  points  of  law  Matters 
of  a  fiscal  nature,  together  with  the  business  performed  by  the  Chan- 
cery, were  also  transacted  in  the  Curia  Regis.  Such  a  quantity  of  mis- 
cellaneous business  was  at  length  found  to  be  so  perplexing  and  im- 
practicable, not  only  to  the  officers  of  the  Curia  Regis,  but  also  to  the 
suitors  themselves,  that  it  became  absolutely  necessary  to  devise  a 
remedy  for  the  increasing  evil.  A  division  of  that  court  into  distinct 
departments  was  the  consequence;  and  thenceforth  pleas  touching  tlae 
crown,  together  with  common  pleas  of  a  civil  and  criminal  nature,  were 
continued  to  the  Curia  Regis;  plaints  of  a  fiscal  kind  were  transferred 
to  the  Exchequer;  and  for  the  Court  of  Chancery  were  reserved  all  mat- 
ters unappropriated  to  the  other  courts."  (Hardy's  Introduction  to 
Close  Rolls,  p.  23  ) 

Mr.  Hardy  quotes  a  passage  from  Benedict  Abbas,  a  contemporary 
historian,  which  illustrates  very  remarkably  the  development  of  our 
j'udicial  polity.  Henry  II.,  in  1176,  reduced  the  justices  in  the  Curia 
Regis  from  eighteen  to  five;  and  ordered  that  they  should  hear  and 
determine  all  writs  of  the  kingdom— not  leaving  the  king's  court,  but 
'remaining  there  for  that  purpose;  so  that,  if  any  question  should  arise 
which  they  could  not  settle,  it  should  be  referred  to  the  king  himself, 
and  be  decided  as  it  might  please  him  and  the  wisest  men  of  the  realm, 
And  this  reduction  of  the  justices  from  eighteen  to  five  is  said  to  have 
been  made  per  consilwm  sapientium  regni  sul;  which  may,  perhaps,  be 
understood  of  parliament.  But  we  have  here  a  distinct  mention  of  the 
Curia  Regis,  as  a  standing  council  of  the  king,  neither  to  be  confounded 
with  the  great  council  or  parliament,  nor  with  the  select  body  of  judges, 
which  was  now  created  as  an  inferior,  though  most  important  tribunal. 


THE   MIDDLE  AGES  49I 

From  this  time,  and  probably  from  none  earlier,  we  may  date  the  com- 
mencement of  the  Court  of  King's  Bench,  which  very  soon  acquired, 
at  first  indifferently  with  the  council,  and  then  exclusively,  the  appella- 
tion of  Curia  Regis. 

The  rolls  of  the  Curia  Regis,  or  Court  of  King's  Bench,  begin  in  the 
sixth  year  of  Richard  I.  They  are  regularly  extant  from  that  time;  but 
the  usage  of  preserving  a  regular  written  record  of  judicial  proceed- 
ings was  certainly  practised  in  England  during  the  preceding  reign. 
The  roll  of  Michaelmas  Term,  in  9  John,  contains  a  short  transcript  of 
certain  pleadings  in  7  Hen.  II.,  "  proving  that  the  mode  of  enrolment 
was  then  entirely  settled."  (Palgrave's  Introduction  to  Rot.  Cur. 
Regis,  p.  2.)  This  authentic  precedent  (in  1161),  though  not  itself  ex- 
tant, must  lead  us  to  carry  back  the  judicial  character  of  the  Curia  Regis, 
and  that  in  a  perfectly  regular  form,  at  least  to  an  early  part  of  the  reign 
of  Henry  II.;  and  this  is  more  probable  than  the  date  conjectured  by 
Allen,  the  assembly  at  Clarendon  in  1164.°  But  m  fact  the  interruption 
of  the  regular  assemblies  of  the  great  council,  thrice  a  year,  which  he 
admits  tOtdate  from  the  reign  of  Stephen,  would  necessitate,  even  on  his 
hypothesis,  the  institution  of  a  separate  court  or  council,  lest  justice 
should  be  denied  or  delayed.  I  do  not  mean  that  in  the  seventh  year  of 
Henry  II.  there  was  a  Court  of  King's  Bench,  distinct  from  the  select 
council,  which  we  have  not  any  grounds  for  affirming,  and  the  date 
of  which  I,  on  the  authority  of  Benedict  Abbas,  have  inclined  to  place 
several  years  lower,  but  that  suits  were  brought  before  the  king's  judges 
by  regular  process,  and  recorded  by  regular  enrolment. 

These  rolls  of  the  Curia  Regis,  or  the  King's  Court,  held  before  his 
justices  or  justiciars,  are  the  earliest  consecutive  judicial  records  in  ex- 
istence. The  Olim  Registers  of  the  Parliament  of  Paris,  next  to  our 
own  in  antiquity,  begin  in  1254.*  (Palgrave's  Introduction,  p.  i.) 
Every  reader,  he  observes,  will  be  struck  by  the  great  quantity  of  busi- 
ness transacted  before  the  justiciars.  t"And  when  we  recollect  the 
heavy  expenses  which,  even  at  this  period,  ^were  attendant  upon  legal 
proceedings,  and  the  difficulties  of  communication  between  the  remote 
parts  of  the  kingdom  and  the  central  tribunal,  it  must  appear  evident 
that  so  many  cases  would  not  have  been  prosecuted  in  the  king's  court 
had  not  some  very  decided  advantage  been  derived  from  this  source." 
(P.  6.)  The  issues  of  fact,  however,  were  remitted  to  be  tried  by  a  jury 
of  the  vicinage;  so  that,  possibly,  the  expense  might  not  be  quite  so  con- 
siderable as  is  here  suggested.  And  the  jurisdiction  of  the  county  and 
hundred  courts  was  so  limited  in  real  actions,  or  those  affecting  land, 
by  the  assizes  of  novel  disseizin  and  mort  d' ancestor,  that  there  was  no 
alternative  but  to  sue  before  the  courts  at  Westminster. 

It  would  be  travelling  beyond  the  limits  of  my  design  to  dwell  longer 
on  these  legal  antiquities.  The  reader  will  keep  in  mind  the  threefold 
meaning  of  Curia  Regis:  the  common  council  of  the  realm,  already  men- 
tioned in  a  former  note,  and  to  be  discussed  again;  the  select  council 
for  judicial  as  well  as  administrative  purposes;  and  the  Court  of  King's 
Bench,  separated  from  the  last  in  the  reign  of^  Henry  II.,  and  soon  af- 
terwards acquiring,  exclusively,  the  denomination  Curia  Regis. 

In  treating  the  judges  of  the  Court  of  Exchequer  as  officers  of  the 
crown,  rather  than  nobles,  I  have  followed  the  usual  opinion.  But 
Allen  contends  that  they  were  "  barons  selected  from  the  common  coun- 
cil of  the  realm  on  account  of  their  rank  or  reputed  qualifications  for  the 
office."  They  met  in  the  palace;  and  their  court  was  called  Curia  Regis, 

a  This  discovery  has  led  Sir  F.  Pal-       presume  any  written  records  in  his  time. 


grave""to  "correct"  his'  former^  opinion,       English  Commonw.^  vol  11.  p.  i. 
that  the  rolls  of  Curia  Regis  under  Rich- 


0~  _ —  &They  are  published   in  the  Doc»- 

ard  I.  are  probably  the  first  that  ever       mens  InSdits,  1839.  by  M.  Beugnot, 
existed,  Glanvil  giving  us  no  reason  to 


492  H  ALLAH 

with  the  addition  "  ad  scaccarium."  Hence  Fleta  observes  that,  after 
the  Court  of  Exchequer  was  filled  with  mere  lawyers,  they  were  styled 
barons,  because  formerly  real  barons  had  been  the  judges;  "  justiciaries 
ibidem  cornmorantes  barones  esse  dicimus,  eo  quod  suis  locis  barones 
sedere  solebant."  (Edmb.  Rev.  xxxv.  n.)  This  is  certainly  an  im- 
portant remark.  But  in  practice  it  is  to  be  presumed  that  the  king  se- 
lected such  barons  (a  numerous  body,  we  should  remember)  as  were 
likely  to  look  well  after  the  rights  of  the  crown  The  Court  of  Ex- 
chequer is  distinctly  traced  to  the  reign  of  Henry  I. 


NOTE  XIV. 

The  theory  of  succession  to  the  crown  in  the  Norman  period  intimated 
in  the  text  has  now  been  extensively  received.  "  It  does  not  appear," 
says  Mr.  Hardy,  "  that  any  of  the  early  Enghshjnonarchs  exercised  any 
act  of  sovereign  power,  or  disposed  of  public  affairs,  till  after  their  elec- 
tion and  coronation.  .  .  .  These  few  examples  appear  to  be  unde- 
niable proofs  that  the  fundamental  laws  and  institutions  of  this  king- 
dom, based  on  the  Anglo-Saxon  custom,  were  at  that  time  against  an 
hereditary  succession  unless  by  common  consent  of  the  realm."  (Intro- 
duction to  Close  Rolls,  p.  35.)  It  will  be  seen  that  this  abstinence  from 
all  exercise  of  power  cannot  be  asserted  without  limitation. 

The  early  kings  always  date  their  reign  from  their  coronation,  and 
not  from  the  decease  of  their  predecessor,  as  is  shown  by  Sir  Harris 
Nicolas  in  his  Chronology  of  History  (p.  272).  It  had  been  with  less 
elaborate  research  pointed  out  by  Mr.  Allen  in  his  Inquiry  into  the 
Royal  Prerogative.  The  former  has  even  shown  that  an  exception 
which  Mr.  Allen  had  made  in  respect  of  Richard  I ,  of  whom  he  sup- 
poses public  acts  to  exist,  dated  in  the  first  year  of  his  reign,  but  be- 
fore his  coronation,  ought  not  to  have  been  made;  having  no  authority 
but  a  blunder  made  by  the  editors  of  Rymer's  Fcedera  in  antedating  by 
one  month  the  decease  of  Henry  II.,  and  following  up  that  mistake  by 
the  usual  assumption  that  the  successor's  reign  commenced  immedi- 
ately, in  ^placing  some  instruments  bearing  date  in  the  first  year  of 
Richard  just  twelve  months  too  early.  This  discovery  has  been  con- 
firmed by  Mr.  W.  Hardy  in  the  27th  volume  of  the  Archseologia  (p. 
109),  by  means  of  a  charter  in  the  archives  of  the  duchy  of  Lancaster, 
where  Richard,  before  his  coronation,  confirms  the  right  of  Gerald  de 
Camville  and  his  wife  Nichola  to  the  inheritance  of  the  said  Nichola 
in  England  and  Normandy,  with  an  additional  grant  of  lands.  In  this 
he  only  calls  himself  "  Ricardus  Dei  gratia  domiwus  Angliae."  It  has 
been  observed,  as  another  slighter  circumstance,  that  he  uses  the  form 
ego  and  meus  instead  of  nos  and  nosier. 

Whatever,  therefore,  may  have  been  the  case  in  earlier  reigns,  all  the 
kings,  indeed,  except  Henry  II ,  having  come  in  by  a  doubtful  title,  we 
perceive  that,  as  has  been  before  said  in  the  text  on  the  authority  of 
an  historian,  Richard  I.  $cted  in  some  respects  as  king  before  the  title 
was  constitutionally  his  by  his  coronation.  It  is  now  known  that 
John's  reign  began  with  his  coronation,  and  that  this  is  the  date  from 
which  his  charters,  like  those  of  his  predecessors,  are  reckoned.  But 
he  seems  to  have  acted  as  king  before.  (Palgrave's  Introduction  to 
Rot  Cur.  Regis,  vol.  I  p.  91;  and  further  proof  is  adduced  in  the  Intro- 
duction to  the  second  volume  )  Palgprave  thinks  the  reign  virtually 
began  with  the  proclamation  of  the  king's  peace,  which  was  at  some 
short  interval  after  the  demise  of  the  predecessor.  He  is  positive  in- 
deed that  the  Anglo-Saxon  kings  had  no  right  before  their  accept- 
ance by  the  people  at  their  coronation.  But,  <r after  the  Conquest,"  lie 
proceeds,  "it  is  probable,  for  we  can  only  speak  doubtmgly  and 


THE  MIDDLE  AGES 


493 


hypothetically,  that  the  heir  obtained  the  royal  authority,  at  least  for 
the  purposes  of  administering  the  law,  from  the  day  that  his  peace  was 
proclaimed.  He  was  obeyed  as  chief  magistrate  so  soon  as  he  was 
admitted  to  the  high  office  of  protector  of  the  public  tranquillity.  But 
he  was  jnot  honored  as  the  king  until  the  sacred  oil  had  been  poured 
upon  him,  and  the  crown  set  upon  his  head,  and  the  sceptre  grasped 
in  his  hand."  (Introduct  to  Rot.  Cur.  Reg.  p.  92.) 

This  hypothesis,  extremely  probable  in  all  cases  where  no  opposition 
was  contemplated,  is  not  entirely  that  of  Allen,  Hardy,  and  Nicolas; 
and  it  seems  to  imply  an  admitted  right,  which  indeed  cannot  be  dis- 
puted in  the  case  of  Henry  II.,  who  succeeded  by  virtue  of  a  treaty 
assented  to  by  the  baronage,  nor  is  it  likely  to  have  been  in  the  least 
doubtful  when  Richard  I.  and  Henry  III.  came  to  the  throne.  It  is 
important,  however,  for  the  unlearned  reader  to  be  informed  that  he 
has  been  deceived  by  the  almanacs  and  even  the  historians,  who  lay  it 
down  that  a  king's  reign  has  always  begun  from  the  death  of  his  prede- 
cessor: and  yet,  that,  although  he  bore  not  the  royal  name  before  his 
coronation,  the  interval  of  a  vacant  throne  was  virtually  but  of  a  few 
days;  the  successor  taking  on  himself  the  administration  without  the 
royal  title,  by  causing  public  peace  to  be  proclaimed. 
m  The  original  principle  of  the  necessity  of  consent  to  a  king's  succes- 
sion was  in  some  measure  preserved,  even  at  the  death  of  Henry  III 
in  1272,  when  fifty-six  years  of  a  single  reign  might  have  extinguished 
almost  all  personal  recollections  of  precedent.  "  On  the  day  of  the 
king's  burial  the  barons  swore  fealty  to  Edward  L,  then  absent  from 
the  realm,  and  from  this  his  reign  is  dated."  Four  days  having  elapsed 
between  the  death  of  Henry  and  the  recognition  of  Edward  as  king, 
the  accession  of  the  latter  was  dated,  not  from  his  father's  death,  but 
from  his  own  recognition.  Henry  died  on  the  i6th  of  November,  and 
his  son  was  not  acknowledged  king  till  the  20th.  (Allen's  Inquiry,  p. 
44,  quoting  Palgrave's  Parliamentary  Writs.)  Thus  this  recognition 
by  the  oath  of  fealty  came  in  and  was  in  the  place  of  the  coronation, 
though  with  the  important  difference  that  there  was  no  reciprocity. 

NOTE  XV. 

Mr.  Allen  has  differed  from  me  on  the  lawfulness  of  private  war, 
quoting  another  passage  from  Glanvil  and  one  from  Bracton  (Edinb 
Rev.  xxx.  168);  and  I  modified  the  passage  after  the  first  edition  m 
consequence  of  his  remarks.  But  I  adhere  to  the  substance  of  what  I 
have  said.  It  appears,  indeed,  that  the  king's  peace  was  originally  a 
personal  security,  granted  by  charter  under  his  hand  and  seal,  which 
could  not  be  violated  without  incurring  a  penalty.  Proofs  of  this  are 
found  in  Domesday,  and  it  was  a  Saxon  usage  derived  from  the  old 
Teutonic  mundeburde.  William  L,  if  we  are  to  believe  what  is  written, 
maintained  the  peace  throughout  the  realm.  But  the  general  pro- 
clamation of  the  king's  peace  at  his  accession,  which  became  the  regu- 
lar law,  may  have  been  introduced  by  Henry  II.  Palgrave,  to  whom  I 
am  indebted,  states  this  clearly  enough  "  Peace  is  stated  in  Domes- 
day to  have  been  given  by  the  king's  seal,  that  is,  by  a  writ  under  seal. 
This  practice,  which  is  not  noticed  in  the  Anglo-Saxon  laws,  continued 
in  the  protections  granted  at  a  much  later  period,  though  after  the 
general  law  of  the  king's  peace  was  established  such  a  charter  had 
ceased  to  afford  any  special  privilege.  All  the  immunities  arising  from 
residence  within  the  verge  or  ambit  of  the  king's  presence— from  the 
truces,  as  they  are  termed  in  the  continental  laws,  which  recurred  at 
the  stated  times  and  seasons— and  also  from  the  '  handselled  protec- 
tion of  the  king,  were  then  absorbed  in  the  general  declaration  of  the 


494 


HALLAM 


peace  upon  the  accession  of  the  new  monarch.  This  custom  was  prob- 
ably introduced  by  Henry  II.  It  is  inconsistent  with  the  laws  of  Henry 
I  ;  which,  whether  an  authorized  collection  or  not,  exhibit  the  juris- 
prudence of  that  period,  but  it  is  wholly  accordant  with  the  subsequent 
tenor  of  the  proceedings  of  the  Curia  Regis."  (English  Common- 
wealth, vol.  h.  p.  105.) 

A  few  words  in  Glanvil  (those  in  Bracton  are  more  ambiguous), 
which  may  have  been  written  before  the  king's  peace  was  become  a 
matter  of  permanent  law,  or  may  rather  refer  to  Normandy  than  Eng- 
land, ought  not,  in  my  opinion,  to  be  set  against  so  clear  a  declaration 
The  right  of  private  war  in  the  time  of  Henry  II  was  giving  way  in 
France;  and  we  should  always  remember  that  the  Anglo-Norman  gov- 
ernment was  one  of  high  prerogative  The  paucity  of  historical  evi- 
dence or  that  for  records  for  private  war,  as  a  usual  practice,  is  cer- 
tainly not  to  be  overlooked. 


The  Notes  for  Book   VI11 ',  Part  III.,  will  be  found  in   Vo29   III., 
beginning  with  Note  XV I ^  on  page  186* 


book 

was 

presented 

to 

the  people 

of  Kansas  City 

as  a  gift 

from.. 


C 
CD 


136732