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CHA

THE

PHILOLOGICAL and BIOGRAPmCAL

WORKS

CHARLES BUTLER,

ESQUIRE, y^

OF LINCOLN'S-INN.

IN FIVE VOLUMES.

VOL. U.

CONTAININO

GERMANIC EMPIRE,
HOR^ JURIDICiE SUBSECIViE,

&c.

^rfvtkd for w. clarke & sons, portugal-street,
lincoln's-inn.

1817.

Printed by Luke Hansard & Sons,'
near Lincoln's-Iiin fields, I^ondoa.

( Hi )

CONTENTS

VOLUME THE SECOND.

GERMANIC EMPIRE - Page i

HOR^ JURIDIC.E SUBSEClViE - - - - after page 86

LIFE OF L'HOPITAL ?age 149

EARL OF MANSFIELD ■■ - — 219

a 2

A SUCCINCT HISTORY

THE GEOGRAPHICAL AND POLITICAL
REVOLUTIONS

OF THE

EMPIRE OF GERMANY.

THE PRINCIPAL STATES

WHICH COMPOSED THE

EMPIRE OF CHARLEMAGNE,

FROM

HIS CORONATION IN 800,

* TO ITS

DISSOLUTION IN 1806; ^

WITH SOME ACCOUNT

OF THE GENEALOGIES OF THE IMPERIAL HOUSE OF
HAPSBURGH,

AND OF THE

SIX SECUL-IR ELECTORS OF GERIMANY ;

AND OF

ROMAN, GERMAN, FRENCH AND ENGLISH NOBILITY.
SECOND EDITION.

a 3

ERRATA TO GERMANIC EMPIRE.

Page 6, llue Q,for Germaniacis-Rhenana, read Germania cis Rhenana.
33, last \me,for Erancia, read Francia,
1 12, line \Q, for his Uncle Ernest, read Ernest the son cf Leopold

the great-uncle of Albert :
146, line \6,for reviewed, read i-iewed

In the Proofs and Ilhistrations.

8-2, line 2, for Desdeardsi, read Dcsdoards
83, line 24, for Mason, read Masons

<e^

\TKSOLOGI.aAL .#

CONTENTS.

PART I.

Comprising the Period, from the General Division
of the Roman Empire between Arcadius and
Honorius, the Sons of Theodosius the First, to the
Revival of the Empire of the West, in the person
of Charlemagne.

395—800.

A.D.

395. I. 1. Final Division of the Empire, page 1
476. 2. Conquestofltaly by the Heiulians 2

493. 2. ------- Ostrogoths ib.

553. 4. _____ - and Justinian ib.

5. Conquest of Northern Italy by the

Lombards - - ~ - - - ib.

6. And appointment of the Exarch of

Ravenna to the government of the

remaining part of Italy - - 3

II. Early History of the Germans - 5

III. Francic Association _ - - _ 7

IV. 1. Rise of the Temporal Power of the

Popes -------_n

viii CONTENTS.

A.D.

720. 2. Political Relations between them, and

Charles Martel and Pepin - page 14
800. 3. Extinction of the kingdom of the Lom-
bards ; — Charlemagne crowned Emperor
of the West -------- 24

PART II.

Comprising the Period, during which the Western
Empire was governed by the Descendants of
Charlemagne.

814 911.

814. I. Extent of Charlemagne's Empire, and

its Division, at his decease, among

his three sons - - - - j..-i. j:x 26

II. Origin of the Feudal Polity - - v- 30

III. Decline of the House of Charlemagne 31

IV. Genealogy _---_--_ 32

PART III.

Comprising the Period of the German Empire, during
.the Saxon, Franconian, andSuabian Dynasties.

911— — 1024. .

Emperors of tK'e Wotise of Saxony.

911. 1. Limits and Principal States of Germany 33

2. Origin of the Houfe of Saxony - - - 35

3. First Cities --------- 36

4. First Monasteries in Germany - - - 39

CONiTENTS.

Emperors of the House of Franconia.

A. D.

1027. 1. Extent of the Empire of Germany dur-
ing tliis period - - - - - page 43

,, ,■•, 2. Christendom a Royal Republic) of which

the Emperors assumed to be the head ib.

3. Increase of Feudalism, — its effects - 45

Emperors of the House of Suabia.

1138. I. Contests between the Popes and Em-
perors ---------- ^q

1. On the right of Nominating to vacant

Bishopries -- - - - -^ - -60

2. On the mode of Investing the Bishops

with their Temporal Possessions - 64
3. Amicable Arrangements of the matters
in contest - -.. - - ... -, .. - 67
II. On the Claims of the Popes to hold
their ancient Italian Territories inde-
pendent of the Emperor - - - - 6q
\W, And on their" claims to Supreme Tem-
poral Power - - - - - ^72

xi CONTENTS.

PART VI.

Division of the House of Hapsburgh info its Spanish
and German Lines, till the fnal Extinction of the
latter in the House of Lorraine.

1558—1736- , \
A. D. ' '■ ■ • '■ -^^ ■''Page

1618. I. The War of Thirty yeats'^^' -''- 130
1700. II. ------ for the Succession of

Spain -_l_--_-, 439
1714. in. -'i'^'l. - - with the Porte -' - - 14,7
1733. IV. ~- - - ~- -'for the Succession of Po-
land - - - - - - - - 149

V. Fall of the Pope's Temporal Power 151
1740. VI. VV^ar for the Succession of Austria 160
1736. Marriage of Maria-Theresia, the

Heiress of the House of Haps-
burgh, with Francis Duke of Lor-
raine ;— War for tlfie Succession of
: _ , - _ Austria - - r - - - - i6.

PART VII.

The Period Jbetween the Marriage of Maria-Theresia y
and the Corrimencement of the French Revolution.

1736 1787.

I. The territories of Austria at this time,

and her Titles to them - - - 162

1757. II. The War of Seven Years - - 165

1777. III. War occasioned by the Extinction of

the House of Bavaria - - - 170

1772, 1

1773, >IV. The three Partitions of Poland - - ib,

^79^' )

CONTENTS. xjii

PART viir.

From the Commencement of the French Revolution
till the Extinction of the German Empire.

1787 1806.

I. Former Revolutions of France durino- the
Capetian Dynasty - _ _ _ pao-e 172

1 . Re-union of the Great Fiefs to the Crown 1 73

2. Rise of the Commonalty - - _ _ - lyc

3. Substitution of the States-General in the room

of the Assemblies on the Champ de Mars 177

4. Substitution of the Assembly of the Three

Orders of the State in the room of the

Assemblies of the States-General - - 178

,, _5. Rise of the Parliaments, and the Gens de

"t ')offi^/A'9f> sr,oli"!fiv/,?T i~r;.".,:T| - - - - 179

6. Despotism of the Crown in the reign of

Lewis XIV. - - - _ _ . _ ^ i3o

7. Attempts of the Clergy - _ _ - iSi

-_- __ Nobility - - _ _ _ ^'^^

_ and Parliaments, to regain

their power - - - - _ - _ _ -182

8. Privileges retained by the Clergy and No-

bility - - _ _ . i§3

II. General happiness of the World, and of

^;_ - _ France in particular, notwithstanding seme

abuses of Government - - - _ - 186

rV^7.v ,^11: ■ Proximate Causes and Commencement

~u - ;,■■, :<^. the French Revolution - - -189

IV. Unsuccessful attempts to restrain it - 194

xvi CONTENTS.

TABLE

IX. General Table of the Houses of Lorraine and
Austria - - - - - - -- -164

X. Chronological Table of the Re-union of the

Great Fiefs of France to the Grown - 176

XL Four Genealogies of Hugh Capet - -(14)

XII. Genealogy of the Capetian Monarchs - (16)

Xin. Sardinian Pretension to the throne of Great

Britain ---------- (24)

XIV. Kings of Naples ------- (29)

XV. ■ House of Hohenzollern ----- (34)

XVI. Four fruitful Branches of the Wittikindian
Trunk - - --.--..- (35)

XVII. Genealogy of the Dukes of Saxony - -(36)

XVIII. Guelphic Genealogy till the Marriage of

Azo with Cunegunda ----- (37)

XIX. Guelphic GeneaiQgy from that Marriage to
the present time ------ (44)

XX. Genealogy of the Palatine an^d Bavarian
Houses of W^ittlesbach - - - - -(49)

XXI. The Sixteen Quarters of Nobility, exhibited
by the Due d'Angouleme, Grand-Prieur
de France - - - - - - - {66)

REVOLUTIONS

OF THE

GERMANIC EMPIRE.

PART I.

Comprising the Period, from the General Divisiott
of the Roman Empire, between Arcadius and
HoNORius, the sons of Theodosius the First,
to the Revival of the Empire of the West, in the
person of Charlemagne.

395—800.

A. C

1. On the Final Division of the 395
Roman Empire, between the Em-
perors Arcadius and Honorius, the sons
of Theodosius the 1st, the Tlmpire of
the East, comprising Thrace, Macedonia,
Greece, Dacia, Asia Minor, Syria and
Egypt, was assigned to the former ; the
Empire of the West, comprising Italy,

Africa, Gaul, Spain, Noricum, Pan- a. C.
nonia, Dalmatia and Maesia, was
assigned to the latter.

. Honorius was succeeded by Valenti-
nian the third: — nine usurpers followed:
Orestes was the last of the nine, and
was succeeded by his son Augustulus. 474

2. In the following year, Odoacer,
King of the Herulians, conquered all
Italy, put an end to the Western Em-
pire, and w^as proclaimed King of
Italy. ---------- 476

3. Theodoric, King of the Ostro-
goths, or Eastern Goths, murdered and
succeeded Odoacer. He became the 493
founder of the Ostivgothic Dynasty of
Italian Kings. FromVitiges, the fourth
king of this dynasty, Belisarius reco- 536
vered Rome in 536 : It was re-con-
quered by Totila, it's 7th King, in - 546

4. Narses, a general of the Emperor
Justinian, vanquished Teyas, the son

of Totila; and, with the title of Pro- a. C.
consul, ruled Italy for sixteen years. - 553

5. Then Alboin, a Lombard Gene-
ral, conquered all that part of Italy,
which extends from the Alps, to a supposed
line from the Macra to the Rubicon, the
Gallia Cisalpina of the Romans, the Mo-
dern Lombardy. His successors subdued
the whole of Tuscany, the Neapolitan ter-
ritory, and the Duchy of Beneventum. This
formed the Lombard Kingdom of Italy ; the
usual residence of its Kings, was Pavia.
There were twenty-two Princes of this ^
dynasty. --------- 568

6. To preserve the rest of Italy from
the invasions of the Lombards, Justin,

the immediate successor of Justinian, sent
an officer, called an Ea:aixh, Avith imperial
command, into Italy. Ravenna was the seat
of his government : and his power extended
over the^ whole of that part of Italy, which
remained ^subject to the emperor. It was
B 2

divided into different territories, subject to
governors, generally called Dukes, who pos-
sessed, in their respective districts, both civil
and military authority ; but all of them were
subordinate to the Exarch. What was pro-
perly called the Exarchate, consisted of the
towns of Ravenna, Boulogna, Imola, Fa-
renza, Forlimpoli, Forli, Cesenna, Bobio,
Ferrara, Commachio, Adria, Servia, and
Secchia, and the castles and lands which be-
lono-ed to them. The towns of Arimini, Pe-
saro, Conca, Fano, Sinigalia, AnQona,Umana,
Jessi, Fossombron6, Monfetto, Urbino, the
territories of Balni, Cagli, Luceoli, Ugubio,
and the castles and lands which belonged
to them, were called the Pentapolis.*

* See the Dissertatio Chorographica de Italia Medii
Mvi, publisheil by Muratori.

II.

Such were the revolutions of the Em-
pire of the West — The kingdom of the

Francs now came into notice; but the
principal events in the earli/ history of
Germany f should first be mentioned.

The Ocean, on the north, the Danube,
on the south, the Rhine, on the west, and
the Sarmatic provinces, on the east, are
the boundaries, assigned by Tacitus, to
Antient Germany. The invasion of
Italy by the Cimbri and Teutones ; ^ ^
their defeat by Marius, in 3909, the 3909
invasion of Gaul by the borderers of
the Rhine, under Ariovistus, and
their defeat by Julius Ctesar, in
3950, are, almost, the only events 3950
of consequence in the history of
Germany, before the Christian aera,
of which we have any certain ac-
count.

When Caesar had completed the con-
quest of Gaul, he divided it into the
Aquitanic, the Celtic, and the Belgic
provinces; and comprised, in the latter,

all the German provinces on the left side
of the Rhine. Augustus separated from
the Belgic Gaul, the country between the
Me use, the Scheld and the Rhine, and
formed it into a province called the Germa-
niacis-Rhenana.

In 3995, the famous Arminius or Her-
mann, at the head of the Cherusci, a people
in the neighbourhood of Goslar, massacred
Varus and his three legions, at Wind-
felt, between the Lippe and the , ,,
Emms. --.---.--- 3995

The third century of the Christian
aera, is remarkable for different associa-
tions of German tribes, in their common
defence, against the Romans.

That of the Alemanni, was formed by
the nations between the Rhine, the Mein,
and the Lech ; — that of the Francici, by
the nations between • the Rhine, the Mein,
and the Weser ; — that of the Thuringians,
by the nations between the Mein, the

Danube, and the Hartz; — and that of the
Saxons, by the borderers of each side of
the Elbe.'

* See d'Anville's Etats formes en Europe apres la
chute de UEmpire Romain en Occident, Ato.
Paris 1771, and Mr. Turner's History of the
Anglo-Saxons, 1 vol. p. 50.

III.

Of these, upon every account, and par-
ticularly for the present subject of enquiry,
the Francic Association is the most re-
markable.

Not long after the beginning of the
fourth century, a body of the Francs, under
the command of Pharamond, their leader,
crossed the Rhine, and founded a kingdom,
in that part of Modern France, which lies
between the Rhine and the Scheld. Pha-
ramond was their first King ; and he gave
birth to a line of princes, called Merovin-
gian, from Merovaeus his second succes-
sor. Clovis, the second in succession to

Merovseiis, by several victories, particularly
that at Soissons, over the Romans, that
at Tolbiac, over the Alemaniii, and that
at Poitiers, over the Visigoths, conquered
almost all Gaul, and the whole of Ale-
mannia. His immediate successors con-
quered Bavaria, Thuringia, and other
parts of Germany. But, in consequence of
various partitions, and the civil wars
occasioned by them, the kingdom was
thrown into confusion.

IV.

In the mean time, the Topes had risen
into consequence.

1 . St. Peter, the first of the Popes, had
neither temporal estate, nor temporal power.
During the ten persecutions, his successors
acquired some moveable and immoveable
property, for the support of the altar, and
its ministers, and for purposes of charity.
The donation of Constantine is a fable ; but

his constitution of 3:21, by which he au-
thorized churches to acquire and hold pro-
perty of every description, by gift, testa-
mentary donation or purchase, is the real
source of the wealdi of the church. From
him and his successors, the Popes obtained
extensive possessions in Italy, Sicily, Dal-
matia, France and Africa. In consequence
of their descendible quality from Pope to
Pope, they were called the Patrimony of
St. Peter. Other churches had their respec-
tive patrimonies, to which they gave the
name of an eminent saint of the district.
Thus, the landed property of the church
of Ravenna, was called the patrimony of
St. Apollinaris ; that of the church of Mi-
lan, was called the patrimony of St. Am-
brose, and that of the church of Venice, w^as
originally called the patrimony of St. Theo-
dore, her first patron ; but, in the ninth
century, the body of St. Mark having been
brought from Alexandria to Venice, and

the Saint having then been declared Patron
of the city, the possessions of her church,
were, from that time, called the patrimony of
St. Mark. — In this manner, the Popes be-
came Owners of Houses and Farms.

The laws of Constantine and his successors
conferred on them, something like a right
of civil jurisdiction. This was increased by
the circumstances and temper of the times ;
and thus they acquired the Power of Magi-
stracy.

After Justinian had reconquered Italy,
Rome was governed by a duke, who, like
the other dukes of Italy, was wholly subor-
dinate to the exarch of Ravenna. Still, as
the Popes constantly resided at Rome, their
spiritual character, their talents, the use
they made of them, and particularly, the
sums of money spent by them in public and
private charities, in support of the walls and
fortresses of the city of Rome, and in main-
taining troops for its defence, endeared them

to the Roman people. This gave them
considerable political influence in the city
of Rome, and the adjoining parts of Italy.
Their exertion of it was always useful, and
sometimes necessary for answering the pur-
poses of government ; and thus, the Popes
became possessed, indirectly, of Temporal
Power.

Such was the situation of the Popes, ^ ^
when Leo the Isaurian, began his attack 720
on Religious Devotion to Images. He
issued an edict, for the destruction of
them, in every part of his empire. It was
received, M'ith universal execration, and oc-
casioned numberless tumults. In Ra\»enna,
it produced an insurre^ion, of which
Liutprand, the king of the Lombards, took
advantage, to make himself master of the
city ; but it was reconquered from him, by
the assistance of pope Gregory the 2d and
the Venetians; and they restored it to the
exarch. The emperor then ordered his

edict to be executed at Rome ; and, on its
being opposed by the pope, directed, that
the pope should be brought to him, dead
or aUve. Liutprand offered the pope
his protection ; besieged and took some
towns of the exarchate, and advanced to-
wards Rome. Equally averse from the
emperor and the Lombard king, the people
formed themselves into a separate govern-
ment, under their magistrates, and placed
the pope at their head. This proceeding
was alike . offensive to Liutprand and the
exarch; they agreed to unite their
forces, and possess themselves of the . ^
city of Rome.- ------- y^g

In this distress, the pope made re-
peated applications to the emperor,
urging him to abandon his iconoclastic
projects, which had alienated the minds of
his subjects, and pressing him to send them
succours against the Lombards. These, the
emperor often promised, but never sent; and

this made it necessary for the Romans to
apply for them to another power.

2. France was the only state from which
they could hope for relief; but, from Thierry
the 3d, who reigned in 688, France had
been subject to a succession of princes, to
whom history has given the appellation of
the Sluggard Kings.

They enjoyed merely a shadow of royal
authority. The mayors of the palace, or,
as they are called by the writers of the
time, the Majores domus regime, from being
chief officers of the household, had insen-
sibly grown to such a degree of conse-
quence, as to possess the whole civil and
military power of the state. They are traced
to the reign of Clotaire the 2d; hut Pepi7i
of Heristhall, of the family of the counts of
Ardenne, a country between the Moselle and
the Scheld, seems to have been the first of
them, who formed the project of usurping
the royal authority, and making it hereditary

in his own family. The states appointed
him regent of the kingdom : Charles Martel,
his natural son, succeeded him in the
regency; and assumed the title of Duke
and Prince of the Francs.

To him, pope Gregory the 2d made his
application; but neither the nature of the
application, nor the answer it received, is
known. In effect, the pope was left to his
own genius to deliver himself and the
people, who relied on his protection, from
the dangers which threatened them. He
succeeded beyond his wishes; he prevailed
on Liutprand, not only to desist from his
enterprise, but to restore several cities,
which he had conquered from the exar-
chate. Shortly after, he died, leaving pne
of the fairest characters recorded in history.
Anastasius the librarian mentions, that he
always exhorted the Romans to remain in
their obedience and fidelity to the emperor.
Natalis Alexander says of him (Diss. 1.

saec. 8), " This most learned pope was not
ignorant of the tradition of the fathers,
and never deviated from it. They always
taught, that subjects are bound to obey
their princes, though infidels and heretics,
in those things which belong to the rights
of the commonwealth/'

Pope Gregory the 2d was succeeded by
pope Gregory the 3d. During his pontifi-
cate, the emperor and the kings of Lom-
bardy persisted in their respective projects,
against the pope and city of Rome ; and the
Lombard king declared war against them.
Upon this, the pope finding his applications
to the emperor, fruitless, sent a solemn em-
bassy to Charles Martel. It was accom-
panied by a deputation from the senate
and people of Rome ; conferring on him the
dignities of patrician and consul. The de-
puties were honourably received; but Charles
Martel died without giving the pope any
effectual assistance. His titles, dignities and

talents, devolved to Pepin, his eldest son.
Pope Gregory the 3d died soon after, . „
and was succeeded by pope Zachary. 741

Matters were now brought to a cri-
sis. On the side of Pepin, the inglorious
existence of the Merovingian kinos had con-
tinned, and the mayors of the palace had
exercised all the functions of royalty so
long, that, excepting the right, nothing but
the name of king was wanting to Pepin.
On the side of Zachary, it was evident, that,
without instant, powerful and permanent
protection, the pope and city of Rome must
fall a prey to the kingdom of Lombardy.
The protection which Zachary wanted, Pepin
could grant: the right to the kingdom and
the name of king, which Pepin wanted, Za-
chary could not confer; but, to a general
belief, that Pepin possessed the former, and
to his obtaining the latter, Zachary could
contribute much. Their mutual wants pro-
duced a treaty of mutual assistance. In con-
sequence

sequence of it, Pepin sent two confidential
agents to the pope, proposing to him, as a
case of conscience, whether, as, in the em-
pire of the Francs, all the Power of Royalty
had been so long held and exercised by the
family of Pepin, it was not proper, under
the existing circumstances, that they should
also have the name of king. The pope pro-
nounced that he, who had the power, ought
to have the name of king. On receiv ing the
pope's answer, Pepin called an assembly of
the states at Soissons ; he was unanimously
proclaimed king, and enthroned. He was
crowned and anointed king by St. Boniface,
the bishop of Mentz, a prelate eminent for
the holiness of his life ; and, from the
extent and success of his missionary labours,
beyond the Rhine, called the apostle of Ger-
many.— Thus, ended the Merovingian dj-
nasty, after reigning two hundred and seventy
years from the accession of Clovis. Chilpe-
ric, the reigning monarch, was shut up in

the monastery of St. Bertin in the city of
St. Omer in Artois: Thierry, his only son^
was shut up in the monastery of Fonte-
nelles, in Normandy: the father died
in 754, the time of the son's death is
unknown. 750

Pope Zachary did not long survive
this revolution; he was succeeded by
Stephen the 2d.

On the death of Liutprand, Astolphus, his
brother and successor, made himself master
of Ravenna, and all the territories of
the exarchate and the Pentapolis ; and
thus put an end to the power of the ^
Exarch in Italy. - - - - 75-

He then turned his forces against
the city of Rome; and avowed his in-
tention of making the Romans his subjects,
and compelling them to pay him a poll tax
of a penny of gold. The pope applied to
Constantine, the emperor of Constantinople,
for relief; he granted him none, but ordered

him to wait, in person, on Astolphus, to
solicit the restoration of Ravenna, the exar-
chate and the Pentapohs. The pope obeyed;
but, being ill received by Astolphus, hasten-
ed into France. In his own name, and in
the names of the clergy, senate, nobility and
people of Rome, he proclaimed Pepin and
his sons, Carloman and Charles, patricians
of Rome, — that is, exarchs, chosen by the
Romans, with another name, and supposed
to be subordinate to the emperor. In
return, Pepin granted to the pope the
city of Ravenna, the Exarchate and the „
Pentapolis. ""------753

Though Pepin had been crowned
before by St. Boniface, he prevailed
on the pope to crown him and his wife and
his two sons Carloman and Charles, and to
give them the royal unction, in the abbey
of St. Denys. In granting his blessing to
the people, the pope absolved them from their
allegiance to the Merovingian family, and

C 2

conjured them by St. Peter, with whose
authority God had invested him, to maintain
. the crown in Pepin's family, whom God had
specially chosen for the defence of the
church and the holy apostolic see.

Then, at the head of his army, Pepin crossed
the Alps ; but, on Astolphus's promise to re-
store his conquests, he returned with his
army into France. Far from keeping his
word, Astolphus ravaged the Roman terri-
tory, and laid siege to the city. The pope
applied again to Pepin, by a letter addressed
to him, in St. Peter's name. Pepin flew to
his relief, and concluded a peace with As-
tolphus, and forced him to deliver up to the
pope the Exarchate, thePentapolis, and
all the cities, castles and territories,
which he had seized in the dukedom of . ^
Rome. ---------- ^54

Pepin was no sooner returned to
France, than Astolphus renewed the
war, and laid siege to Rome. But Pepin

again crossed the Alps ; forced the Lombard
prince to execute the treaty, and made a
formal grant of the Exarchate and the
Pentapolis to the Roman pontiff and
his successors in the apostolic see of . „
St. Peter. - - - - 755

From these gifts of Pepin, the tem-
poral sovereignty of the popes in Italy,
should be dated. But the pope was sub-
ordinate to Pepin, as patrician : and Pepin, as
patrician, was nominally subordinate to the
emperor of Constantinople ; so that the
supreme sovereignty of the emperor, was
acknowledged by both. .

3. Pepin was succeeded by Charle- ^ ^
magne, his son. ------- 768

Desiderius, the immediate successor
of Astolphus, dispossessed pope Adrian,
the immediate successor of pope Stephen
the second, of part of the papal posses-
sions : but Charlemagne took Desiderius pri-
soner, and put an end to the kingdom of the

Lombards in Italy, or rather annexed „
it to his own person. Charlemagne 774
confirmed to the pope and his succes-
sors, the donation made to him, by
Pepin, of the lands of the Exarchate and
the PentapoUs, w ith the city of Rome, and
the adjacent territory, and several other
cities and provinces not contained in Pepin^s
grant : the pope confirmed to Charlemagne
and his successor's, the patriciat, with the
right of nominating the pope. The Romans,
and the people of all the other territories,
included in the grants of Pepin and Charle-
magne, acknowledged the supreme jurisdic-
tion of Charlemagne in all civil and military
concerns, within the city of Rome, and the
Roman territories. Still, however, Charle-
magne recognized the emperor of Constanti-
nople, as his sovereign, for all his Italian
possessions out of Lombardy.

But, in this ambiguous and uncertain
state, it was impossible that things should

long continue. Itwas obvious, that, however
the recourse of the pope and the Romans to
Pepin and Charlemagne might be excused
or even justified, as a measure of absolute
necessity, it would be considered by the
Greek emperor, as an act of rebellion. This
made it necessary for the pope and the
Romans to place themselves beyond the
reach of his resentment. A temporary de-
fence of this kind they had in Pepin, while
he lived ; and it was continued to them by
Charlemagne ; but it behoved them to make
it permanent ; and this could only be done
by electing a sovereign, and rendering the
throne hereditary in his family. This being
once resolved on, every circumstance pointed
out Charlemagne, as the only person, from
whom and whose successors, they could rely
for the permanent protection which their
situation required.

Long was the negociation, for this pur-
pose, between the popes Adrian and Leo

the third, and Charlemagne. Finally, to-
wards the end of the year 800, Charle-
magne, at the pope's request, advanced to
Rome at the head of his army. On Christ-
mas day, while he was praying on the
tomb of St. Peter, the pope, accompanied
by the bishops, the clergy, the nobility and
a numerous body of the people of Rome,
placed on his head a crown of gold, and
the people shouted, " Long live Charles !
" the most pious, august, great and pacific
" Emperor! crowned of God! Life and
*' Conquest to him." The pope anointed
him Emperor, and did him homage. The
Emperor then took the following oath :
" I Charles, Emperor, promise, in the name
" of Jesus Christ, before God and the
" Apostle St. Peter, that I will always de-
" fend the Roman Church, against all,
" as far as God gives me strength and
" favour." Immediately, in imitation of
the Greek emperor, he took the name of

0,5

consul, and dated his acts from his own
indiction. After a short time the Byzantine
court acquiesced in his usurpation, and the
limits of the empires were amicably settled.

Thus, after an extinction of more
than three centuries, the Roman em-
pire in the West, was restored in the . ^
person of Charlemagne/ - _ _ _ 800

' See NOTE I.

PART II.

Comprising the History of the Roman Empire of
the West, during the time it was governed
by the Descendants of Chaklemagne.

814—911.

J HE empire of Charlemagne comprised the
part of Spain, which Ues between the Ebro
and Pyrenees; the three Gauls, or the
countries between the -Ocean, the Pyr6n6es,
the Rhine, and the Rhone ; the part of
Germany between the Rhine and the Oder;
the greatest part of the Austrian possessions
on the southern side of the Danube, and
the whole of Italy, from the Alps to Bene-
ventum.

On the death of Charlemagne, the empire
descended to his son, Lewis the Debonnaire.

He, in his lifetime, divided it among his
three sons ; they quarrelled immediately

after his decease. At the battle of Fontenai,

in which ahiiost the whole of the antient

nobility of the Francs perished, Lewis the

German and Charles the Bald, obtained a

victory over Lothaire, their eldest brother :

but, through the intervention of the few

surviving nobles, the three princes, by

the treaty of Verdun, agreed to a

Division among them of the . ,,

A. c

WHOLE FraNCIC EmPIRE. - - - 842

1. Lothaire preserved the title of
Emperor, and the Kingdom of Italy,
with all the countries between the Rhone
and the Saone, the Meuse, the Scheld, the
Rhine, and the Alps.

2. Lewis the German, took all Germany
from the Rhine to the Oder, and the three
cantons of Mentz, Spire, and Worms.

3. There remained of the empire of Char-
lemagne, the part of France between the
Scheld, the Meuse, the Saone, the Rhone,
and the Pyrenees, and the Marca Hispanica,

or the part of Spain between the Pyrenees
and the Ebro : these were assigned to
Charles the Bald.

Here, properly speaking, the Francic em-
pire terminates. The territories allotted to
Lothaire, received the appellation of the
Kingdom of Italy ; those allotted to Lewis
the German, were called Francia Orientalis ;
those allotted to Charles the Bald, were
called Francia Occidentalis ; in time, the
Francia Orientalis was called the King-
dom of Germany ; the Francia Occidentalis
was called the Kingdom of France. Till
Charles the Bald, the Teutonic or German
was the language of the court ; in his time,
the Romancic, afterwards called the French
language, came into use.

The three kingdoms were reunited in
Charles the Fat, who was deposed by his
subjects ; and the kingdoms of Italy, France,
and Germany, were again separated, the
two last, never to be reunited. — From the

skirts of the kingdoms of France and Ger-
many, two new kingdoms arose, — the King-
dom of Lorraine, which comprised the coun-
try between the Rhine, the Meuse and the
Scheld, or the modern Lorraine, the pro-
vince of Alsace, the Palatinate, Treves,
Cologn, Juliers, Liege, and the Nether-
lands:— and the Kingdom of Burgundy
divided into the Cisjuranan, or the part of it
to the west, and the Transjuranan, or the
part of it on the east, of Mount Jura. The
former comprised Provence, Dauphin^, the
Lyonese, Tranche- comt6, Bresse, Bugey,
and a part of Savoy ; the latter contained
the country between Mount Jura and the
Pennine Alps, or the part of Switzerland
within the Reuss, the Valais, and the rest
of Savoy. ^

IL
Soon after the division of the empire
of Charlemagne, the feudal Polity as-

Slimed a consistency ; and, by degrees
overpowered, in every part of his terri-
tories, the power and dignity of his de-
scendants. Availing themselves of the
weakness of the Carlovingian Princes, the
Dukes and Counts converted their Go-
vernments into Hereditary Possessions,
which they parcelled out among their
Barons, and those, among their Tenants,
the superior still retaining the faith, ho-
mage, and military service of his vassal.
The principal of these usurpers were, — in
France, the Dukes of France, Burgundy,
Normandy, Brittanny, Gascogny, Gothia,
or Septimania, and Aquitaine, the Counts
of Flandres, Champagne and Toulouse, —
in Germany, the Dukes of Franconia,
Saxony, Bavaria, Suabia and Lorraine. —
All of them professed to hold their pos-
sessions of the crown; but, as they exer-
cised every royal prerogative within them.

their dependance on the crown was very
sHght/

" This is the general opinion ; but the celebrated
Leibniz has attempted, with much learning
and ingenuity, to shew, that, in the very earliest
period of German History, the Dukes and
Counts were independent princes in their ter-
ritories; and that they preserved their inde-
pendence, notwithstanding Charlemagne's Ger-
man conquest. See his treatise, under the
assumed name of Casarinus Furstene/ius, de
^ Jure Suprematus ac Legationum Principuni
Germania, in the 4th Tome of Mr. Dutens's
edition of his works, six volumes 4to. Geneva,
1768. He seems, however, to concede, that
they acknowledged a general superiority, of
a feudal nature, in Charlemagne.

III.

Under these circumstances, the House
OF Charlemagne declined rapidly.

Li Italy, immediately upon the abdication
of Charles the Fat, the kingdom was seized
by Guy, the duke of Spolletto, and Beren-
ger duke of Friuh, who both, by females,
descended from Charlemagne. This is call-
ed by the Italians, the Translation of the

empire of the West to Italy. In Germany,
upon the abdication of Charles the Fat, the
people, from respect to the memory of
Charlemagne, deferred the crown, first to
Arnold, a natural son of Carloman, king of
Bavaria, and, after Arnold's decease, to
Lewis his son. On the decease of Lewis,
they elected a Duke of Franconia for their
king, and then a Saxon line of princes.
. In France, the same respect for the me-
mory of Charlemagne, preserved his de-
scendants longer on the throne : — finally,
on the death of Lewis the Fifth, without
issue male, Hugh Capet, duke of France,
and count of Paris and Orleans, wrested the
French sceptre from them.'
' See note II.

IV.

The first of the two following Genealo-
gical Tables shews the Descent of the Em-
perors of Germany ; the second shews the
Descent of the Kings of France, of the
House of Charlemagne.

To be placed be wetn pp. 32 <J 33 ;
and to face Table II.

EMP

Restore
+ . . •

III. LOTIIAIRE 1.

Associated . . . 817.
+ 8.5,5.

Associated
+ . . . .

rV. Lewis 2.

. . 850.
. . 875.

itEverard.

916.
9-24.

Irmengabde^: Boson, King of Cisju-
I ranan Bergundy.

VTII. Lewis 4.

Erap 900.

Exp 903.

+ 923.

•On the death of Charles the Fat, three pri^^®
Debonnaire ; and Guy, also of the Carlovingi*"**
Fianconia, the place on the Pedigree has been ;

TABLE I.

EMPERORS OF THE House of CHARLEMAGNE.
800—912.

I. CHARLEMAGNE..
Restorer tlie Empire of the West . . . 80O.

II. Levis the Dcboim,
AsiociateJ 813.

III. Lot
Associated . . . 817.

IV. Le
Associated . ■ . 850.

Lev.s, King of GeriMoj.

V. Charles the HM.

VI. CuAKLIS Me Fat,

lBMENOAliDE=Boion, King of Cisju- Vn. Aunoed.* natural Son of Carloman,

I ranan Bergundj. crowned, 883. 1

VIII. Le

En,,,

E^P

Hbdowige:=Otho, Duke of Sasonj.
I

First Emperor of the
House of S&xony,

CisLi.E=CouiitEctr«

•On tlie death of Charles the Fat, three princes pretended to the empire : Arnold, menlioned in the Pedigree j Berenger, the son of Gisele, a daughter of Lewis the
Debuonaire ; and Guv. alsj of the Carloving Lm Family, but whose lineage is not ascertained. As Arnold was recoguijed by the Dukes of Bavtiria, Saiony and
Fiancoiiia, the place on the Pedigree has beeansii^ned to hira,

.p, 32^33;
ible I.

KING

Charles Martel, a
+ 724.

Pepiv,
+ 768.

I ■_.

I I

Charlemagne, znTtheSaxon.

crowned, . . . 800.
+ 814.

Lewis le Debonnaire,
-t- 840.

LoTHAiRE, Lewis,

King of Italy. King of Germany

!luDOI.PH

iig, 923.
. . 936.

Carloman. Lewis. 5. >

TABLE II.

KINGS OF FRANCE of the CARLOVINGIAN LINE

To le placid brtmm pp. 3« * 33 ■
">«l r»/dfe T.bk I.

PEPIN OF IIERINSTHALL,

■ • 7i+.

Kii,g 01 Ilalj..

""•r""'

ILEA (Ac Bald,
became first King of
France, by the treaty
or Verdun, . . . 843,

7. Charles (

King.. .
Confined,

6. El,n„, 8. „„..,t;
Com,/ Pari,; Uake of France

King, . . 888. avd Bu,gu„du.

Deposed. 892. King, . . .9

Duke of Fr.fnce
and Bergundy ;

HUGH CAPET.-'
Tile Patriarch of tlie
Cfipetian Line of
King,.

— 1

i»=9. RuDi
King. (

'See note III.

TABLE III.

THE EMPERORS OF THE HOUSE OF SAXONY.
911 — 1024.

Henby I. M Fowlei
elected .

2. Otiio I. suriiamed llic Greae :
I tlMlfd

He>:hy, Duke of Ba-

I + • • .

Hp.Nnv, Duke of Ba'
I +. . . .

5. Henbt II. elected Kin.;. . . 1002
Einp. at Rome, 1011
+ 10S4,

955.

995.

PART III.

Comprising the Period of the German Empire,
during the Saxon, Franconian, and Suabian
Dynasties.

911 — 1024.

In the period of the German history,
during which, the throne was filled by the
Saxon Emperors, the reader's attention
is generally directed to four circumstances :
1. the principal states of which Germany
was then composed ; 2. the origin of the
house of Saxony ; 3. the early cities ; 4. and
early monasteries in Germany.

1 . The general limits of the German em-
pire have been mentioned : in respect to
its Pi'incipal States, a considerable portion
of the part of its territory, which lies on
each side of the Mayne, was known by
the various appellations of Nova Erancia,

Francia Orientalis, Francia Teutonica, Os-
trofrancia, Austrasia and Franconia. The
space between that part of Germany and
the upper Elbe, Saxonia and Alemannia,
was filled by the Thuringians. The Saxonia
of Ptolemy lay between the Oder and the
Elbe ; but, at the period, now under con-
sideration, the Saxons had deserted the
Oder, and were spread from the Elbe over
the Ems, and reached Francia arjd Thu-
ringia on the South. The northern coun-
try, between the Weser and the Meuse,
was called Frisia ; the country between the
Rhine and the Meuse was called Austrasia ;
the country between the Rhine, the Neker
and the Lech, was divided between the
Suevi and the Alemanni ; the country be-
tween the Lech, the Alps, and the Anisa,
was called Boioaria, since softened into
Bavaria. On the east of it, was Austria ;
Moravia was called Austria Maharensis; mo-
dern Bohemia was called Beheim ; Croatia,

Sclavonia, Servia, and Dalmatia, have con-
tinued, under the same appellations, to re-
present the same territories. ,

2. The Saxon Emperors are generally
supposed to derive their origin from Har-
derich, the first of the Saxon Kings whose
na,mes are known to us. He reigned ninety
years before Christ ; to him, Hengist, who
with his brother Horsa, invaded England
in 434, was fourteenth in succession ; and
Witekind the Great was tenth in succession
to Hengist. After a war of thirty years,
he was conquered by Charlemagne ; the
whole nation became subject to the con-
queror ; and he granted to Witekind the
Duchies of Engern and Westphalia ; from
that time, Witekind took the appellation of
Duke of Saxony. In a further part of
these sheets, some mention will be made
of the Houses which descended from him.
Henry, the first emperor of the house of

D 2

Saxony, was fifth in descent from him, by
males claiming through males.

3. The aversion of the antient Germans
from living in Cities or even in villages, is
mentioned more than once by Tacitus : it
decreased, as they spread themselves over
the countries lying on the west of the Rhine;
so that, at an early period after the Triboci,
Nemetes, and Vangiones settled in the
country between the Rhine and the Vosges,
we find the cities of Strasburgh, Spires,
Mayence and Worms. Under the Francic
Sovereigns, cities were multiplied ; but they
were particularly encouraged by Henry the
Fowler. From the troops quartered in
Germany, he chose every ninth soldier ; the
remaining eight were to sow and till the
land, and to convey its produce to the
ninth ; he was to raise buildings for its
preservation, and habitations for himself
and his companions. Insensibly these

soldiers were joined by the general body of
the people, particularly of the lower order.
The emperor ordered the courts of justice,
fairs, tournaments and other public meet-
ings, to be held in the cities, and sent his
own officers to preside over them. His ex-
ample was followed in every part of Ger-
many, so that it scarcely contained a terri-
tory which had not its city.

In each of them, there generally was a
college of decurions for its internal govern-
ment, and for transacting its concerns with
strangers, and to each of them the emperors
generally granted some exclusive privileges.
To the more favoured of them, they granted
the Jfiis Stapulce, or the right of having all
commodities, which were brought into them,
exposed to public sale for the benefit of the
inhabitants ; and the Jus Geranii, or the
right of having all goods imported into
them, or exported from them, weighed or
measured by the public weights and measures

D 3

of the city, for which the city was entitled
to a duty. The estabhshment of a city
was at first an imperial prerogative ; in-
sensibly it was usurped, with other prero-
gatives of royalty, by the nobles. By de-
grees the cities increased in consequence,
and their forms of government became more
regular. At first, their chief magistrates
were of noble extraction ; but by degrees,
the chief offices were opened to the general
body of the people : the city of Neurem-
berg alone invariably continued to be go-
verned by patrician magistrates ; on which
account, the German writers generally give
her the honourable appellation of the
Inclyta Nor'embei^ga. Thus, soon after the
time of which we are speaking, there were
in almost every town in Germany three
different ranks of inhabitants ; the nobles,
the citizens and the slaves ; but, about the
beginning of the twelfth century, Henry the
fifth enfranchised all slaves in cities who

were artisans, and raised them to the rank

of citizens/

• See Heinec. Elem.Jur. Germ. Lib. I. Tit. V. de
jure Municipum, and Dr. Robertson's Fiew of
the State of Society in Europe, Note xvi. xvii.

4. To this period, we may also assign the
great increase of the early monasteries of
Germany. On the general utility of those
foundations at this aera, a celebrated pro-
testant historian, Mr. Mallet, in his Histoire
des Suisses ou Helvetiens, 1 Tom. p. 105, thus
expresses himself: " The christian clergy,
" like the Druids of Gaul, were the only
" depositaries of knowledge ; the only law-
" yers, physicians, astronomers, historians,
" notaries ; the only persons acquainted
" with the Belles Letters ; the only persons
" who could instruct youth ; except among
" them, profound ignorance reigned every
" where. The Monks softened, by their
" instructions, the ferocious manners of the
" people ; and opposed their credit to the

" despotism of the nobility, who knew no
" other occupation than war, and grievously
" oppressed their subjects and inferiors. On
" this account, the government of the monks
" was preferred to theirs. The people sought
" them for judges ; it was an usual saying,
" that it was better to be governed by a.
" bishop's crosier, than a monarch's sceptre.
" The monks were engaged in useful em-
" ployments ; they cleared and cultivated
" desert and savage lands. We find that
" in many places, where those missionaries
" established themselves, agriculture, next
" to preaching, was their principal occu-
" pation. Where St. Gal built his church,
" he planted a garden, and reared a flock
" of sheep : he recommended to his dis-
" ciples to support themselves by the labour
" of their hands. Was it possible that such
" men should not be venerated, both during
" their lives and after their deaths? Can
" history then reckon up such a super-

" abundance of men, who have devoted
" themselves to the welfare of their neigh-
" hours? At a later period, the monks were
" corrupted by riches and power: this is the
" common fate of man ; but, at the time of
" which we are now speaking, they had
" never been other than respectable. The
" monastery of St. Gal had also a school,
" which by degrees became famous; both
" laymen and persons who devoted them-
" selves to the Church, flocked to it in
" crowds. There, books were preserved;
" there, they were copied; there, several
" precious works of antient writers were
" discovered, which must have perished in
" the general confusion of the barbarous
" ages, without these Asylums, where Reli-
" gion still threw out some light. When
" we consider the profound ignorance of
" the nations who invaded the Roman
" empire, and established themselves on its
" ruins, their exclusive passion for war, their

" contempt of the sciences, the arts, and
" even of writing, one perceives that every
" thing then concurred to produce in Eu-
" rope, the barbarism which had reigned so
" long among the Celtes, the Scandinavians
" and Sarmatians. What was it, which, in
" this aera of the ruin of the Roman empire,
" preserved the human mind from being
" plunged into the darkness of the greatest
" barbarism, and from losing the last re-
" mains of Greek and Roman lore?^ — For
" this blessing, mankind is indebted to the.
" Christian Religion. Nothing less than
" the power of religion could subdue those
" barbarous prejudices, which carried the
" contempt of the sciences, even to writing.
" It was necessary that there should be a
" sacred book, which made some knowledge
" of writing indispensable ; — a particular
" class, an order of informed men, bound to
" study and teach its contents/'

TABLE IV.

EMPERORS OF THE HOUSE OF FRANCONIA.
1027—1137-

1. CoNHiDB II.

Great Grandson of Luitgoarde, daughter of (lie Emperor Otho tbc Gr(

elected 1027,

+ 1039.

S. He

NRV III.

elected ....

.... 1039,

.... 1056.

3. He

»EV IV.

.... 1106.

4. Henry V.

elected HOG,

+ 11^5.

On hifl Deatli, Lotbaire the San
elected King of Germany . . , llgj

Agnes— Frederick Duke of Suabia.

CoHnADS— The first Emperor of tin
House of SuabJH.— See ths
following Table.

1. Under Henry the III, the Empire of
Germany had its greatest extent: it com-
prised Germany, Italy, Burgundy and Lor-
raine: Poland, and other parts of the
Sclavonian territories, were its tributaries;
Denmark and Hungary acknowledged them-
selves its vassals.

2. The Emperors affected to consider all
Christendom as forming a royal republic,
of which the empei'or was chief. At the
council of Tours, in 1055, the emperor
Henry III avowed all these pretensions,
against Ferdinand the king of Castille, who
had assumed the title of emperor; and, on
the suggestion of Henry, the pope and the
fathers of the council sent deputies to Fer-
dinand, forbidding him, under pain of ex-
communication, to take the title of emperor.
In consequence of this assumed supremacy,
the emperors claimed the exclusive right
of creating kings. Boleslaus, the duke of
Poland, having taken on himself the title

of King, in 1077, the states of the empire
declared it to be an infraction of the impe-
rial prerogative, and proclaimed war against
him. For his right to this splendid pre-emi-
nence the emperor has lately found advo-
cates in Germany. — (See Leibniz's Treatise,
under the assumed name of Ccesariiuis Furs-
tejierius, de Jure supremath ac legationum
Prhicipum GermanicB, Op. Omn. Tom. IV.)
— But, out of Germany, nothing of it is
allowed him, beyond precedence in rank,
which no sovereign in Europe contests m ith
him. It is observable that, as the French
monarchs insisted on the Carlovingian ex-
traction of Hugh Capet, they affected to
speak of Henry the Fowler and all his suc-
cessors as usurpers of their family dignities :
— in this manner Lewis the fourteenth ex-
presses himself in some memoirs attributed
to him, which have been recently published.
3. Soon after reaching this point of gran-
deur, the empire began to decline ; this was

principally owing to the rapid extension of
the Feudal System, perhaps the most singu-
lar event recorded in history. — The follow-
ing lines giving some account of the rise and
effects of the feudal law in Europe, are
copied from one of the writer's annotations
on " Coke upon Littleton/'

" The early history of the feuds
OF FOREIGN COUNTRIES is involved in a
considerable degree of obscurity. That in
the time of Pepin the feudal polity arrived
at a degree of maturity and consistence, is
certain. It must, therefore, have previously
had its rise and progress. Some vestiges
of these are discoverable in the scanty ma-
terials which have reached us, of the history
and antiquities of those early times. We
find mention in them of the lends ; — of lands
entrusted (commendati) by the king to his
followers ; — of estates, which, on account of
the infidelity, or the cowardice of the
proprietary, or his placing himself under

another lord, the king takes from him, and
restores to the fisc. There is also mention
of the pares comitum and the Jideles, and
of reinvesting the leudes, who had been un-
justly deprived of their possessions. At first,
kings alone granted fiefs. They granted
them to laymen only, not to ecclesiastics ;
and to such only who were free, and pro-
bably to the most important only of their
followers. They were not granted, for any
certain, or determinate period of time ; they
were not transmissible to the descendants
of the grantee ; they were resumable on the
bad conduct of the vassal, without the sove-
reign's being obliged to show the cause of
the resumption, or having recourse to any
judicial process. The vassal had no power
to alienate them. Every freeman was sub-
ject to the obligation of military duty ; this
was the case, in a more particular manner,
of the feudal tenants ; they were to attend
the sovereign on horseback, and in

complete armour, that is, with the breast-
plate, the shield, the spear, the helmet, and
the sword. They were to guard his life,
member, mind and right honour. They were
first called homines, Jideles, leudes, antriis-
tiones ; to all these, the appellation of vassals
succeeded. It appears, that, in early times,
the feudal tenants were numerous. A con-
siderable part however of the subjects were
free from the feudal tenure. The lands held
by these, were called allodial. The pro-
prietors of them were under the general
obligation of military service, and were sub-
ject to general taxation. Their particular
nature was chiefly discernible in this, that,
they differed from the villeins, as they were
freemen ; and from the feudal tenants, as
their possessions were from the first heredi-
tary. For, originally, the crown itself was
not in the sense, in which we now use the
word, hereditary. A marked preference was
always shewn, both by the sovereign and

the nation, to the royal hneage. But by
each, the strict Une of hereditary descent
was occasionally interrupted, by calling to
the throne a remote relation, to the prejudice
of the actual heir. The government was
monarchical ; but strongly controlled by the
people. Twice a year, the people, or as
they were afterwards called, the states, as-
sembled. The first of these general assem-
blies was held, originally in the month of
March, afterwards in the month of May,
and always in open air. Hence, from the
time of meeting, the expression le champ
de Mars, afterwards le champ de Mai. The
second assembly was held in the autumn.
It was divided into two classes. The first
comprised the bishops, the abbots, the
dukes, the counts, and the elders of the
nation ; and all of them had deliberative
voices in the assembly. The second con-
tained the magistrates, and the inferior offi-
cers ; but these attended only to receive the

orders

orders^ of the assembly. The king proposed
the subjects of debate, by his referendary ;
the members of the first class deliberated
upon them ; the king pronounced the de-
cision. The acts were reduced to writing,
under the name of capitularies, and the
execution of them was entrusted to the
members of the second class. The gover-
nors of provinces were called dukes ; the
counts were subordinate to them, and ad-
ministered justice, in the districts commit-
ted to their care. The missi regii, were
commissaries appointed by the king, to at-
tend to the general administration of justice,
throughout the nation. Next to the counts
were the barons, ©r the chief land owners :
then followed the general body of freemen ;
after these, came the artisans, the labour-^
ers, and the villeins. The general admi-
nistration of affairs, was entrusted to the
almoner, who was at the head of the clergy.
The referendary and chancellor were the

chief counsellors of state : then followed the
chamberlain, the count of the palace, the
high steward, the butler, the constable, the
marshal, the four huntsmen, and the grand
falconer. Such appears to be the general
outline of the feudal government, during
the Carlovingian line. That line was ex-
tinguished, in France, by the accession of
the Capetian line ; in Germany, by the ac-
cession of th-e House of Saxony ; and in
Italy, by the usurpation of the dukes. Soon
after, or perhaps some time before this event,
fiefs became hereditary. Even the offices
of duke, count and margrave, and the other
high offices of the crown, were transmitted
in the course of hereditary descent ; and
not long after, the right of primogeniture
was universally established. It first took
place, in the descent of the crown, but was
soon admitted by every branch of the feud.
This stability of possession was an immense
addition to the power of the crown vassals.

It enabled them to establish an indepen-
dency of the crown. They usurped the
sovereign property of the land, with civil
and military authority over the inhabitants.
The possessions, thus usurped, they granted
out to their immediate tenants, and these
granted them over to others, in like man-
ner. By this means, though they always
professed to hold their fiefs from the crown,
they were in fact absolutely independent
of it. They assumed in their territories,
every royal prerogative : they promulgated
laws ; they exercised the power of life and
death ; they coined money ; fixed the stand-
ard of weights and measures ; granted safe-
guards ; entertained a military force ; and
imposed taxes, with every other right sup-
posed to be annexed to royalty. In their
titles, they styled themselves, Dukes, &c.
" by the grace of God," a prorogative
avowedly confined to sovereign power. It
was even admitted, that, if the king refused

E 2

to do the lord justice, the lord might make
war against him. In the ordonnances of
St. Lewis, ch.50, is this remarkable passage:
" If the lord says to his liege tenant. Come
" with me, I am going to make war against
" my sovereign, who has refused me the
" justice of his court : upon this, the liege
" man should answer in this manner to the
" lord : I would willingly go to the king to
" know the truth of what you say, that he
" has denied you his court. And then he
*' shall go to the king, saying to him in this
" manner : ' Sir, the lord in whose ligeance
" and fealty I am, has told me you have
" refused the justice of your court; and
" upon this I am come expressly to your
" majesty, to know if it is so ; for my lord
" has summoned me to go to war with you/
" And thereupon, if the king answers, that
** he will do no judgment in his court, the
" man shall return immediately to his lord,
" and his lord shall equip him, and fit him

** out at his own expence ; and if he will
" not go with him, he shall lose his fief by
" right. But if the king answers, that he
" will hear him, and do justice to the lord,
" the man shall return to him, and shall
" say : ' Sir, the king has said to me, that he
" will willingly do you justice in his court/
" Upon which, if the lord says, ' I never will
" enter into the king's court, come there-
" fore with me, according to the summons
" I have sent you ;' then the man shall say,
" I will not go with you ; and he shall not
" lose his fief for his not going/' This
shews how powerful and absolute the great
vassals were. The same motive which in-
duced the vassals of the crown to attempt to
make themselves independent of the crown,
induced their tenants to make themselves
independent of them. This introduced an
jlterior state of vassalage. The king was
called the Sovereign lord; his immediate
vassal was called the Suzereign ; and the

tenants holdino^ of him were called the ar-
rierc vassals. Between these and the sove-
reign, the connexion was very small. In
those reigns even, when the power of the
monarch was greatest, his authority over
the arriere vassals was faint and indirect.
Of this the history of Joinville presents a
striking instance : Previously to the depar-
ture of St . Lewis on the crusade, he sum-
moned an assembly of his barons to attend
him, and required them to swear, that, on
the event of his decease during the expe-
dition, they would be loyal and true to his
son. Joinville his historian, a feudatary of
the count of Champagne, though he pos-
sessed an enthusiastic veneration for the
kino:, and the warmest attachment to his
person, refused, on account of his vassalage
to the count, to take the oath ; his words
are, " // le me demanda^ maisje iie vox f aire
point deseremeut^carje nestoie pas son home."
The consequence was, that, in every king-

dom there were as many sovereigns, with
the power and ensigns of royalty, as
powerful vassals. With respect to Finance,
Hugh Capet acquired the crown of that
kingdom, by availing himself of the ex-
treme weakness, to which it was reduced
by the system of subinfeudation. After he
acquired the throne he used his utmost
efforts to restore it to its antient splendour
and strength. His successors pursued his
views with undeviating attention and po-
licy ; and with so much success, that pre-
viously to the accession of Le^is the thir-
teenth, the seventy-two great fiefs of France
were united to the crown, and all their
feudal lords attended, at the states general
in 1614, the last that were held, till the late
memorable assembly of them in 1789. This
system of re-union was compleated by the
accession of the provinces of Lorraine and
Bar to the crown of France, in 1735- (See

E 4

AbrSge Chronologique des grands Fiefs de la
Couronne de France^ Paris 1729.) —

Like France, Spain was broken into as
many principalities as it contained barons.
In the course of time, they were all absorbed
in the more powerful kingdoms of Arragon
and Castile ; and, by the marriage of Fer-
dinand, the sovereign of Arragon, with Isa-
bella the sovereign of Castile, they were all
united to descend in the same line. — No
such re-union took place in The Empire.
Under the immediate successors of Charle-
magne, it was broken into innumerable
principalities, never to be re-united. If we
allo^y for the difference of public and private
manners, it presents the same spectacle at
this day, as the other states of Europe pre-
sented formerly, but which is now peculiar
to itself — a complex association of prin-
cipalities more or less powerful, and more
or less connected, with a nominal sove-

reignty in the emperor, as its supreme feu-
dal chie£ -r 'T(r

In England no such dismemberment, as
that we have been speaking of, took place ;
nor did the nobles ever acquire, in Eng-
land, that sovereign or even independent
power, which they acquired in Spain,
Germany or France. The power and in-
fluence of some of the English nobles
were certainly great, and sometimes over-
shadowed royalty itself. But it is evident
that Nevil the great earl of Warwick, and
the nobles of the house of Percy, the great-
est subjects ever known in the country,
were, in strength, dignity, power, influence,
and every other point of view, greatly in-
ferior to the dukes of Brittany or Burgundy,
or the counts of Flanders. The nature of
this note neither requires, nor allows, a
further deduction of the public history
of the feuds of Europe : the four circum-

stances we have mentioned — the heirship of
fiefs, the right of primogeniture, the inter-
mediate sovereignty of the crown vassals,
and the introduction of subinfeudation,
completed the triumph of the feud over
monarchy. — Here the historical deduction
naturally closes. The Carlovingian family
is the important link, which connects an-
tient with modern history, Roman jurispru-
dence with the codes of the German tribes,
and the law of civil obligation, with the law
of tenure.*'

TABLE V.

EMPERORS OF THE HOUSE OF SUABIA.
3138—1254.

H E N « V IV.

Duke of Siiabia. |

J, CUNIIAD III.

elcclcd ....

«. Fnioinicii I. Darbiir«!s« =

elected,. . . 1198, (

6. FBtDinicn II.=
elecltd .... 1220, 1
+ 1250.

5. Ohio IV.=DiiAlix, daughter of Philjp IT.
?..n of Henrv llie Lion,
■i.kc ..f B.iv.,cia and

THE principal events in the history of
the latter princes of the Franconian line,
and of all the princes of the Suabian line,
were produced or influenced by the con-
tests BETWEEN THE POPES AND THE
EMPERORS. The grounds of these contests
were I. The Right claimed by the emperors
of nominating to vacant bishopricks, and
the form, by which they contended that
bishops elect, should be invested with the
temporal possessions of their sees : II. The
claims of the popes to hold their antient
Italian territories, independent of the em-
perors, and the disputes between the popes
and the emperors, respecting the new
acquisitions of the popes in Italy : and
III. The claim of the popes to the supreme
dominion of every part of the christian
world, both in temporal and spiritual con-
cerns.

I. 1. As

I. I. As to theRight of nominating
TO VACANT BisnoPRiCKS : — in the early
ages of the church, bishops were elected at
a congregation of the clergy and laity of
the diocese. One or more of the neigh-
bouring bishops presided at the elections :
the whole congregation elected, the bishops
consecrated. If, on some occasions, the
bishops did not acquiesce in the choice of
the congregation, these were considered as
extraordinary cases, in which the general
rule was infringed.

In the reign of Constantine the Great,
rank and wealth began to preponderate ;,
the nsgative power of the bishops, from
their exclusive right of consecration, and
the general influence of the clergy, from
the superior sanctity of their character,
were more sensibly felt. In process of time,

the emperor became lord of the ascendant ;
and, by degrees, Uttle attention was paid
in the choice of bishops, either to the wishes
of the clergy, or the wishes of the laity.

The election of the bishop of Rome was
conducted in the same manner, but, on
account of the superior importance of the
see, attracted more of the attention of the
emperors, than the election of any other
bishop.

On the division of the Empire between
the sons of Theodosius the first, all that
concerned the bishop of Rome, devolved to
the emperor of the west. After Justinian
recovered Rome from the Vandals, it fell
to the Greek emperor ; and, on account of
his distance from Rome, his rio^hts on these
occasions were exercised in his name, first,
by the Proconsul of Italy, and afterwards
by the Exarch of Ravenna. On the resto-
ration of the Roman empire of the west, in
the person of Charlemagne, they devolved

to him : and thus, in his time, the Roman
pontiffs were raised to that dignity, by the
suffrages of the sacerdotal order, accom-
panied with the voice of the people; but,
after their election, the approbation of the
emperor was necessary to their consecra-
tion. Less attention was shewn to the au-
thority of the emperor in the reign of the
successors of Charlemagne; and, at length,
it seems to have been wholly disregarded;
but it was regained by Otho the Great,
and uninterruptedly and exclusively enjoyed
by him and his successors, at least till the
time of pope Gregory the seventh.

The emperors exerted a less direct in-
fluence in the election of other bishops.
About the eleventh century, the laity ceased
to take a part in them, so that they were
considered to belong wholly to the clergy.
In the succeeding century, they were en-
grossed by that part of the clergy, which
was attached to the service of the Cathedral

church of the diocese, and which, from this
circumstance, was, afterwards, called its
chapter.

Something similar took place in the elec-
tion of the bishop of Rome. The seven
bishops, who were attached to the city and
territory of Rome, had long been called
Cardinal Bishops : the ministers of the
twenty-eight Roman parishes, or principal
churches, were called Cardinal Priests. By
an ordinance of a council held at Rome in
1159, pope Nicholas the second, confined
the election of the bishops of Rome to the
two orders of Cardinal Bishops and Cardi-
nal Clerks : still, he expressly acknowledged
and confirmed the right of the emperor to
ratify, by his consent, the election of the
Pontiff; but, in the election of Alexander
the second, this regulation was wholly dis-
regarded.

Such, at the time of the accession of
the Suabian dynasty, were the opposite

claims to the right of nomination to vacant
bishopricks.

I. 2. With respect to the mode of Invest^
ing the Bishop elect with his temporal pos-
sessions.— According to the law of tenure,
no person was considered the lawful, or
even the actual possessor of the tene-
ment, till he had taken an oath of allegi-
ance to the lord of whom he held it, and till
he had received from the hand of his lord a
solemn mark, by which the property, com-
prised in the grant, was transferred to him.
This invested him with the seizin or legal
ownership of the property. The ceremony
was usually performed by presenting to
the tenant a bough, or a piece of turf, or
some other symbol of the property. When a
bishop died, his ring and crosier were trans-
mitted to the prince, within whose jurisdiction
his diocese was situated : on the appointment
of his successor, the prince presented them
to him, as a symbolical delivery of the tem-
poral

poral possessions of the see: the bishop
delivered them over into the hands of the
metropohtan, and received them back from
him, as a symbol of the spiritual right
conferred on him by his consecration.

It is evident, that the delivery of the ring
and crosier, by the emperor to the bishop
elect, though it was principally intended
as a symbolic delivery of the tenements
or temporal possessions of the see, ope-
rated, indirectly, as an appointment to the
see, or at least as a Veto on any other
appointment. Besides, — it too often hap-
pened, that the princes sold, or otherwise
corruptly disposed of the vacant bishopricks;
and, in this, they were assisted by the right
claimed by them, of withholding the ring
and crosier.

In this ceremonial, three things gave par-
ticular offence to the Roman pontiffs, ist,
they considered it a spiritual ceremony,
which it was, therefore, a sacrilege in a

layman to perform ; — but the spirituality of
the ceremony it was difficult to prove : —
2dly, they said it virtually deprived the
clergy of their right of election ; in answer
to this, the prince alledged that he re-
presented the whole body of the people,
to whom the right of election primitively
belonged : — and 3dly, it was said to facili-
tate the simoniacal traffic of benefices ; — this
was certainly the case, but it was rather an
abuse of the ceremony, than an objection
to the ceremony itself.

It is probable, that, if some person of
weight had brought the popes and princes
to a clear understanding of the rights claim-
ed by them, their disputes might have been
accommodated to their mutual satisfaction,
either by substituting some ceremonial agree-
able to both parties, or by making each
party declare what he understood the cere-
monial in use to import, and disclaim the
opposite construction. Instead of this, the

dispute involved the state and church, for
more than a century, in the deepest cala-
mities, and the most complicated scenes of
confusion and distress.

I. 3. At length the matters in dispute
were amicably arranged.

In respect to the right of nominating
to^ Bishopricks, — it wsls finally settled — in
Germany, by the Concordate of 1447,
which confirmed the election of bishops tb
the chapters exercising that right: — in
France, by the Concordate of 1516, which
vested the nomination to bishopricks, and
the collation of certain benefices of the
higher class in the kings of France, — in
Spain, by prescription, repeatedly allowed
by the popes, under which the kings have
uninterruptedly exercised the right of no-
minating bishops, — and in England, by the
charter of king John, recognized and con-
firmed by his Great Charter, and by the 25th
of Edward the Third, Stat. 6. § 3, which
F 2

gave up to the chapters the free right
of electing their prelates ; but that statute
is virtually repealed by the 25th of
Henry the Eighth, c. 7, by which, the
chapters, if they do not elect the person
recommended by the king's letters missive,
are subjected to the penalties of Pre-
munire.

I. 4. As to the mode of investing Bishops
elect with their temporalities : — At a General
Diet, held at Worms in 1 122, it was settled,
that bishops should be chosen by those to
whom the right of election belonged, in
the presence of the emperor or his ambas-
sador ; that, in the case of a dispute among
the electors, the emperor should decide ;
and that the bishop should take an oath of
allegiance to the emperor, and receive his
temporalities from him by the delivery of
the sceptre, and do the emperor homage for
them. This convention was solemnly con-
firmed in the following year, at the council

of Lateran. Speaking generally, this form
of investiture has been adopted in every
part of Christendom.

il.

' In respect to THE CLAIMS OF THE POPES
TO HOLD THEIR ANTIENT ITALIAN TER-
RITORIES INDEPENDENT OF THE EMPE-
RORS, AND THE DISPUTES OF THE POPES
WITH THE EMPERORS RESPECTING THE
NEW PAPAL ACQUISITIONS IN ItALY,

in some former of these sheets, the gradual
rise of the bishop of Rome, in his succes-
sive character of an unpropertied ecclesi-
astic,— of a trustee of some moveables and
immoveables for the service of the church
and purposes of charity, — of an owner of
houses and farms, — of a magistrate, — and
of a subordinate prince with a consider-
able degree of temporal and territorial
power and political influence, has been
noticed. With his growth and his strength

the general body of the clergy grew and
strengthened. They first acquired for them-
selves and their successors, those private
possessions which every citizen may enjoy ;
they were afterwards endowed with castles,
fortresses, cities, provinces and other pub-
lic grants, which are peculiar to sovereigns,
to princes, and to the highest nobility.
These, the Carlovingian monarchs bestowed
on the clergy with a liberal hand. Their
aim was, through the medium of these
grants, to civilize the barbarous countries
over which they reigned ; and to secure a
numerous and respectable body of men, on
whose loyalty and fidelity they could de-
pend, in any contest with their overgrown
vassals or turbulent subjects.

In the first of these objects, they partially
succeeded ; in the second, they wholly
failed, as the clergy soon enlisted under
the banners of the pope, in his quarrels
with the emperor, and made it a common

cause with him, to render themselves inde-
pendent of the secular power.

Their next attempt was of a bolder kind.
They asserted a right, both of spiritual and
temporal power, over the emperor ; and
pretended that he held the empire as a fief
or benefice from them. Their success in
these attempts in a great measure answered
their wishes. On the one hand, it became
a fundamental maxim of jurisprudence, that
the emperor acquired in the instant of his
election at the German diet, the kingdoms
of Italy and Rome ; on the other, this
kingdom was merely nominal ; and it be-
came another maxim of jurisprudence, that
the emperor could not legally assume the
titles of Emperor or Augustus, till he had
received the crown from the hands of the
pope ; and he was often obliged to purchase
it by great sacrifices.

In the mean time, the pious munificence
of the celebrated Mechtildis, countess of
F 4

Tuscany, had enriched the holy see with
considerable possessions. By two deeds of
gift, she gave all the estates she was then
possessed of, or might afterwards acquire,
to the holy see. The principal of them
were Tuscany, Spoletto, Parma, Placentia
and a considerable territory in Lombardy.
She died without lineal heirs, and the em-
peror claimed them as an escheat : this
was a fresh subject of contest between the
popes and the emperors.

III.

The Popes soon advanced a still higher
claim : In virtue of an authority, which they
pretended to derive from heaven, some of them
asserted, that the Pope was the supreme Tem-
poralLord of the universe, and that all princes,
and civil governors, were, even in temporal
concerns, subject to them. In conformity to
this doctrine, the popes took upon them to
try, condemn,, and depose sovereign princes ;

to absolve their subjects from allegiance
to them, and to grant their kingdoms to
others.

That a claim so unfounded and impious,
so detrimental to religion, so hostile to the
peace of the world, and apparently so ex-
travagant and visionary, should have been
made, is strange : — stranger still is the suc-
cess it met with. There scarcely is a king-
dom in christian Europe, the sovereign of
which did not, on some occasion or other,
acquiesce in it, so far, at least, as to invoke
it against his own antagonist ; and, having
once urged it against an antagonist, it was
not always easy for him to deny the justice
of it, when it was urged against himself.
The contests respecting it were chiefly car-
ried on with the German emperors. All
Italy and Germany were divided betw^een
the adherents of the popes and the adhe-
rents of the emperors.

At the time, when these contests first

commenced, the Guelphs of Altorf in
Saxony, were among the most illustrious
families in Germany. In several battles,
in which a prince of that house commanded
the Saxon and Bavarian troops against the
emperor Conrad the third, the son of Fre-
derick duke of Suabia, Guelph was the
word of war with the former, and Weib-
hngen, the place where Frederick was born,
was the word of war with the latter. In-
sensibly these words were used to denomi-
nate opposite parties ; and by degrees all
persons opposed to the emperor were called
Welfts, and all his adherents were called
Weiblingenites. These appellations con-
tinued to be used in the contests between
the popes and the emperors, but the Ita-
lians softened them into Guelphs and Ghi-
hellines.^

'In this Section the writer has principally con-
sulted the very learned work of Thomassin,
^* Traits de la Discipline Ecclesiastigue, 3 vol.

fol. 1725; — Histoire de Charlemagne, par M.
Gaillard, 4 vol. 8vo. Paris, 1782. Mosheim's
Ecclesiastical History, translated by Doctor
Maclaine, 5 vol. Svo. London, 1774. What is
said in the last of these works on the subject
of investitures is particularly interesting; —
Giannone's Historia de Napoli, 4 vol. 4to.
Naples, 1723. On the celebrated Donation of
the Countess Mecthildis, the writer particularly
consulted the Abbe St. Marc's Dissertations on
this subject in his Ahrege Chronologique de
Fhistoire d'ltalie, 6 vol. Svo. A short and clear
account of the political views with which the
Pragmatic Sanction of France was framed, is
given by Mr. Roscoe, in his Life and Ponti-
Hcate of Leo the tenth, vol. iii. p. 62 — 63.

FART

PART IV.

Comprising the Period of the German History,
between the Extinction of the Suabi an Dynasty,
and the Ele<5lion of the Emperor Charles the
Fifth.

1254 1519.

1. The Great Interregnum^

1254 1272.

The contests between the Popes and the
Princes of the House of Suabia reduced
the Empire to a state of anarchy, which
produced, what is generally called by the
German writers, the Great Inter-
regnum. During this period six princes
claimed to be Emperors of Germany.

Henry Raspo, Land-
grave of Thuringia ;
elected emperor in 1246,
in opposition to Frede-
rick, II, + in 1248.

William Count of Hol-
land, elected emperor in
1250, by another party;
+ in 1256.

3. Conrad

Richard, Duke of Corn-
wall ; elected by some
princes in 1257; quitted
the empire in 1259.

Premislaus III. King
of Bohemia, elected in

1272.

Conrad IV, the last of
the Suabian princes ; he is
mentioned in the preced-
ing Tabje V. (p. 59.)

Alphonsus, son of Fer-
dinand III, king of Leon
and Castile ; elected the
same year, as Richard ;
but he never came into
Germany, or took the
title.

2. The period between the first and last ac-
cession of the House of Hapsburgk to the

Empire.

1272 1438. '

The Interregnum was determined by the
election of Rudolph count of Haps-
BURGH. From him, till the ultimate
accession of the House of Austria, the em-
pire of Germany was held by the following
Emperors :

1 Time of

Election.

Rudolph, Count of Hapsburgh '*^'^^">i^ 1273

_ Time of

* Election.

Adolph, Count of Nassau - - - 1 292

Albert I. Archduke of Austria - - 1 298

4-
Henry, Count of Luxemburgh - - 1308

Lewis V. Duke of Bavaria - - - 1314

Charles, King of Bohemia - - - 1347

WinceslauSj King of Bohemia - - 1378

8.
Robert, Elector Palatine - - - - 1400

Sigismond, King of Hungary - - 1410

10.
Albert H, Duke of Austria - - - 1438

During the period between the last ac-
cession of the House of Hapsburgh, and
the election of Charles V, the empire of

Germany was held by the following Em-
perors :

2 Time of

Election.

Frederick III. ------- 1440

2.
Maximilian I. ------- 1493

Charles V. -------- 1519

The events, which claim particular at-
tention in the history of this period, may
be divided into those which relate to the
Italian, and those which relate to the Ger-
man territories of the emperor.

With respect to the first, the chief of
them appear to be I. The rise of the Italian
Republics, particularly Venice, Genoa, and
Florence : the rise of the Princes of Savoy,
and Milan, and the revolutions of Naples,
and the two Sicilies : II. The commence-
ment of the decline of the Pope's temporal
power : and III. The state of the City of
Rome.

About the middle of the twelfth cen-
tury, the towns of Lombardi/ and Tuscany
availed themselves of the weakness of the em-
perors to form themselves into Republics, but
with an acknowledgment of feudal subjec-
tion to the emperor. Milan led the way,
and was followed by Parma, Placentia,
Pavia, Cremona, Lodi, Como, Padua, Bou-
logna, Pisa and other towns. At first, the
emperors connived at these innovations,
with a view of weakening the power of their
immediate vassals : but Frederick Barba-
rossa undertook to reduce the towns to their
orio-inal condition ; and actually destroyed
Milan, and dispersed its inhabitants. The
other towns did not lose their courage; in
1162, they entered into a federal union
of attack and defence, and the See of
Rome always assisted them : (See Mallet

du Pan, 2 Vol. 350, 351.) At the battle of

Lignaro,

Lignaro, in 1176, they gave the emperor a
check, which wholly disabled him from
continuing his hostile measures against
them ; and a definitive treaty of peace be-
tween them and the emperor was signed at
Constance in 1183. — This is the Treaty de
Pace Const ant icB, generally published after
the Novells, in the Corpus Juris Civilis. —
His son Frederick revived his pretensions ;
but the towns renewed their league, and
baffled his attempts to subdue them.

Generally speaking, the nobles of Italy
became members of the towns adjoining
their possessions. Too often, an ambi-
tious individual interrupted the peace of
the community, by his attempts to attract
to himself, in some form or other, the whole
power of the state.

The rise of the republics of Venice,^ Ge-
noa,'' and Florence,^ of the Princes of' Savoy

« See Note IV. ' See Note VI.

* See Note V. * See Note VII.

and Milan,' and of the kingdom of" Naples,
is a curious subject of enquiry. It belongs
rather to the history of Italy than to the
history of Germany : its connexion with the
latter is not, however, very remote ; and
therefore some account of the rise and first
increase of some of these republics and
principalities, and of the kingdom of Na-
ples, will be found in the notes.

II.

But the History of the German Empire is
immediately connected with the history

OF the papal territories in ITALY.

Something has been said on the rise and
progress of the temporal power of the
popes. The beginning of the fourteenth
century may be assigned for the sera of
its highest elevation; as, about that time,
their territorial possessions had their largest
extent : they had then made their greatest

' See Note VIII. "" See Note IX.

progress in exempting the clergy from the
civil power ; and they then experienced
least resistance to their general claim of
divine right to temporal power. They
might, therefore, at this time be thought to
have secured the duration of their Tem-
poral Empire: — from this period, however,
it began to decline, and the causes of its
decline are obvious.

1. On some occasions, thet/ carried their
pretensions to a length, which excited the dis-
gust, and even provoked the resistance of the
most timid. The extravagant conduct and
language of Innocent III, Boniface VIII,
and Clement VI, in their contests with
Philip Augustus, Philip the fair, and Lewis
of Bavaria, gave general offence, and led
several States of the kingdoms of Europe
to make strong declarations of the inde-
pendence of their sovereigns on the see of
Rome in all temporal concerns.

2. They were engaged in some enterprizes

G 2

evidently unjust'; and the lives of some of
them were confessedly dissolute.

3. In the year 1309, the policy of the
French king prevailed on the pope to Trans-
late his see to Avignon: and, for a period of
seventy years, that city continued the me-
tropolis of Christendom. This exasperated
the Italians to the highest degree : they lost
their personal affection for the pope, they
called his residence at Avignon the cap-
tivity of Babylon, and filled Europe with
their invectives against him.

4. An event then took place which was
still more detrimental to the popes. Gre-
gory the eleventh quitted Avignon, and esta-
blished his residence at Rome ; he died in
1378. The Italian cardinals chose a pope,
who-took the name of Urban the sixth, and
fixed his seat in the city of Rome : the
French cardinals chose one, who took the
name of Clement the seventh, and fixed his
seat at Avignon. All Christendom was

85,

divided between the popes; and The Schism
continued from 1378 to 1417, when it was
ended by the elevation of Martin the fifth.
During the period of the schism two and
sometimes three rival popes were wander-
ing over Christendom, dividing it by their
quarrels, and scandalizing it by their mu-
tual recriminations.

5. But nothing contributed so much to
the decline of the Temporal Power of the
Popes, as the Discussions which took place at
the councils of Constance, Basil and Pisa, and
the writings of several men of learning, par-
ticularly of the Parisian school, who now be-
gan to discuss the papal pretensions to tem-
poral power with temper and erudition.

6. A rougher attack was made on them
by the Albigenses, Wicklefites, Waldenses,
Lollards and other heretics of the fourteenth
and fifteenth centuries. It must be admit-
ted on the one hand, that they maintained
several doctrines irreconcileablewith those of

G 3

the gospel, and sub versi-e of civil society; so
that it is amazing that the reformed churches
should be so anxious to prove their descent
from them; and on the other, that they
brought charges against some Temporal
Usurpations of the popes, and churchmen,
to which their advocates could make no
reply.

The effect of these circumstances was,
that the justice of the pretensions of the
see of Rome to temporal power, by divine
right, became much suspected; the antient
canons were more attended to, and the
limits of spiritual and temporal power were
better understood."

" The general justice of this representation is ac-
knowledged by the warmest and ablest advo-
cates of the church of Rome. While, with
every true Roman Catholic, they assert, that
nothing can be wrong in the faith or worship of
the church; and that the authority, which the
church, her supreme pastor, and her prelates,
received from Christ, always has been, and must
ever be, unaltered and unalterable : they admit,
that, when Luther first made his attack on the

church of Rome, much reformation in the
church, both in respect to its Head and its
Members, was wanting in discipline and morals.
• — See the first pages of the celebrated Varia-
tions; particularly the extract in them, from
Cardinal Julian's Letter to Pope Eugenius
IV, written nearly a century before the Re-
formation, in which he clearly predicts it and its
consequences.

A well-written Historia Reformationis ante
Reformat iojiem (an expression familiar to the
writers on the Continent), is much wanted.
We are informed by the Editors of Beausobre's
Histoire de la Reformation^ (a valuable work),
that something of the kind was found among
his papers, with the title of Preliminaires de
la Reformation; if it has been printed, it has not
found its way to the London market. — The
Abbe Barruel has promised the public an
Histoire du Jacobinisme du Moyen Age: it is
to be hoped he will execute his proraife.

III.

Of the Papal Territories, — (particularly
in respect to the Subject of these sheets), —
no part is of so much importance as the
CITY OF ROME. It is a remarkable circum-
stance, that, during the time that the power
of the popes was most formidable in every

G 4

part of Christendom, their authority at home
was so inconsiderable, that, on many occa-
sions, the city of Rome was poUuted with
sedition and murder, and the popes could
not preserve themselves from the greatest
indignities. The political heresy of Arnold
of Brescia, not very unlike the Jacobinical
doctrines of our times, shook both the
civil and ecclesiastical governments of
Rome to their foundations. As soon as it
was subdued, some measures were taken to
establish good order in the dominions of
the pope. For a contederable time, they
produced the most salutary effects; but the
papal chair w as no sooner moved to Avignon,
than Rome was plunged into all its former
disorders; and Italy, in general, began to
entertain republican principles. Nicholas
Rienzi, an eloquent and ambitious Roman,
availed himself of this disposition of his
fellow-citizens to make himself master of
the city of Rome, under the popular name
of Tribune. He spread terror over all

Italy; and, if he had possessed discretion
equal to his popular talents, might have
effected a complete revolution in the great-
est part of the Italian territories : — for want
of discretion, he failed. The popes, how-
ever, did not soon regain their asce^ndancy,
either in the city or in the other parts of
their territories.

During the schism, the tumults of Rome
increased. With the elevation of Martin V,
which terminated it, they appeared to sub-
side; but they again broke out under Eu-
genius his immediate successor. Nicholas
the fourth, the successor of Eugenius, a man
of talents and a peaceful disposition, restored
order to the ecclesiastical territories. Dur-
ing his reign, Frederick III. of Austria was
crowned emperor at Rome : and he was the
last emperor for whom the ceremony was
performed in that city; so that his suc-
cessors wholly rest their title on the choice
of the electors of Germany.

To this period may be assigned the eleva-
tion of the Roman Nobles : the principal
families of them are, confessedly, the Co-
lonnas, Ursinis, Contis and Savellis.

IV.

Such was the state of Italy during this
period : — With respect to Germany, — its
boundaries, the form of its government, —
and the rise of its towns, particularly those
which composed the Hanseatic League, are
the chief subjects of consideration.

Its BOUNDARIES were the Eyder and the
sea on the north ; the Scheld, the Meuse,
the Saone, and the Rhone on the west ; the
Alps and the Rhine on the south ; and the
Leith and the Vistula on the east.

This ample territory consisted of various
provinces.

1st. The most important of them was
the Dutchy of Burgundy : — it contained

Savoy, the lesser Burgundy, Provence, Dau-
phin6 and Switzerland.

2nd. The next in importance, was the
Dutchi/ of Lorraine : — besides the territory
of Lorraine, properly called, it contained
the Lower Lorraine, or the country between
the Rhine, the Meuse and the Scheld ; — the
country of Holland and Zeeland ; — the
Dutchies of Brabant and Limburgh ; the
countries of Hanau, Flanders, Gueldres
and Luxemburgh. The adjoining province
of Friezeland was, in some measure, at-
tached to Lorraine, but was neither subject
to a Duke nor a Count.

3d. On the extinction of the Suabian
Dynasty, the antient Alemannia and Fran-
conia, in which their possessions chiefly lay,
were divided into various principalities.

4th. It has boon observed, that, in the
times of Caesar and Tacitus, the Danube
was the southern boundary of Germany.
The irruption of the Franks carried it over

Rhsetia, Noricum and Pannonia. The
greatest part of this new territory, since
called Bavaria, was then called Boioaria,
from the Boii.

5th. The original limits of Saxony have
been mentioned : at this period of the Ger-
man history, Saxony was divided by the
course of the Weser, into the different de-
nominations of the eastern and western
Saxony ; or, as the inhabitants of them were
then called, in the language of the country,
the Ost-fales Saxons and the West-fales
Saxons. The country of the former was
sometimes called Saxony on the Elbe ; the
country of the latter was sometimes called
Saxony on the Weser. Under the general
name of Saxony, Misnia, Thuringia and
Hessia, were usually comprised.

6th. The Sclavic territory, or the country
between the Oder and the Vistula, was
filled by the Margraves of Brandenburgh
and the Dukes of Poland and Bohemia.

To the latter, Moravia, Silesia, and Luzatia
were generally vassals, or in a looser state
of subjection.

7th. On the east of Saxony, were Fome-
rania and Prussia. They, generally, were
in a state of warfare with some or other of
the adjacent princes.

8th. On the east of Bavaria a consider-
able territory received the appellation of
the Marchia Orien talis, or Oost-rich : it was
afterwards called Austria.

Such were the territories of Germany. —
In respect to the sovereigns, by whom it was
governed, none but the principal of them
are the subject of the present enquiry. It
has been observed, that, under the imme-
diate successors of Charlemagne the empire
was broken into innumerable principalities,
and were never re-united.

As to the FORM OF ITS Government,
the empire was always elective ; but great
alterations took place in the mode of elec-
tion. At first, the emperor was chosen by
the people at large ; the right of election
was afterwards confined to the nobility and
principal officers of the state : insensibly it
was engrossed by the five great officers, the
Chancellor, the Great-Marshal, the Great-
Chamberlain, the Great-Butler and the
Great-Master of the Palace. At first, they
assumed the right of proposing the candi-
date to the general body of electors ; they
afterwards confined the whole right of elec-
tion to themselves. After much discontent
this was settled, first, by the Electoral Union
in the year 1337, and finally, in the reign
of the emperor Charles the fourth, by the
celebrated constitution, called, from the seal
of gold affixed to it, the Golden Bull. By
that, the right of election was fixed in four
spiritual, and three temporal electors; in

the Archbishop of Mentz, as Great-Chan-
cellor of the empire in Germany ; the Arch-
bishop of Cologn, as Great-Chancellor of
the empire in Italy ; the Archbishop of
Treves, as Great-Chancellor of the empire
in the Gauls, and the kingdom of Aries ;
the King of Bohemia, as Great-Butler ; the
Count Palatine, as Great-Master; the Duke
of Saxony, as Great-Marshal ; and the
Margrave of Brandenburgh, as Great-
Chamberlain of the empire. At subsequent
periods, the duke of Bavaria and the duke
of Brunswick-Lunenburgh have been ad-
vanced to the electoral dignity ; the former
is styled the Arch-treasurer, the latter, the
Arch-standard-bearer of the empire.

These are the ancient Electoral families
of Germany : some account of them will,
therefore, be given in a note." — The fleet-
ing forms of the Minor Princes of Germany

• See note X.

it is foreign to the subject of these sheets to
trace ; a general mention of them will be
made in a note.''

VI.

VI. 1. The cities of Germany de-
serve particular notice in this period of the
German history ; — their rise and progress to
the end of the Saxon dynasty have been
noticed. In the acquisition of indepen-
dence they preceded the Italian republics ;
insensibly they became divided into the
Free Cities, or those which held immediately
of the emperor, and had seat and voice at
the diet : — the Mixed Cities, or those which
had put themselves under the protection of
some prince to whom they paid a quit-rent,
but were not subject to his jurisdiction,
and had neither seat nor voice at the diet ;
—and the Municipal Cities, which were en-
tirely subject to the states. All these cities

p See note XII.

were

were encouraged by the emperors ; the
principal inhabitants among them were in-
corporated ; and the corporations, when the
members of them became very numerous,
were divided into companies. Insensibly,
they were admitted, by their deputies, to a
voice in the diet, or national council of the
Empire ; and the clergy forming the first,
and the nobility forming the second state in
it, they formed the third estate. England
gave the example of this salutary and im-
portant innovation ; the origin of her house
of commons, as a separate body, may be
assigned to the middle of the thirteenth
century ; in France, the commoners were
admitted into States General, in 1302 ; in
Germany, in 1309. The Abolition of Slavery
followed. In 1315, Lewis the tenth pub-
lished a Royal Ordonance, which declared,
" that slavery w^as contrary to the Law of
Nature ; that his kingdom was called the
kingdom of Franks or Freemen, and that

it was fit, that, it should be such in re-
ahty/' In other kingdoms, the spirit of
Christianity, and the increasing humanity
of the times, gradually abolished slavery,
without any legislative provision. In Ger-
many, the number of slaves rapidly de-
creased after the thirteenth century : — in
England, villenage was wholly extinguished
towards the beginning of the reign of James
the first.

VI. 2. The Hanse-towns deserve particu-
lar mention. — They were originally a con-
federacy of Towns, which, in the thirteenth
century, united in alliance for the mutual
support and encouragement of their com-
merce. The confederacy was first set on
foot by the city of Bremen, and several sea-
port towns in Livonia. The advantages,
which they derived from the confederacy,
attracted other trading towns to it. At
one time, the confederacy reckoned eighty
towns : they were divided into four classes ;

the Vandallic, over which Lubec presided,
comprised the towns on the Baltic between
Hamburgh and Pomerania: — the Rhenanan,
over which Cologne presided, comprised the
towns on the Rhine : — the Saxon, over which
Brunswick presided, comprised the towns
in Saxony and Westphalia : — the Prussian,
over which Dantzick presided, contained
the towns of Prussia and Livonia.

From the beginning of the fifteenth cen-
tury, Lubec was considered as the head of
the towns : the archives of the confederacy
were kept, and its general assemblies were
held in that town.

The League possessed factories and ware-
houses at Bruges, for their trade with Flan-
ders ; at London, for their trade with Eng-
land ; at Novogorod, for their trade with
Russia ; and at Bergen, for their trade with
Norway.

Originally, the only objects of the Hanse-
atic confederacy were to secure their com-

H 2

100

merce against pirates and plunderers, and
to extend it by peaceable and friendly com-
munications. They conveyed to the southern
parts of Europe, the flax, hemp, timber
for shipping, skins, leather, and other com-
modities of its northern growth ; and re-
turned to the north, laden with fruits, wines,
drugs, silks, and other commodities of its
southern growth. In the course of time,
they rose to such a degree of power as to
engage in treaties with sovereigns, and even
to carry on offensive and defensive wars.
This raised general jealousy, and the kings
of France, Spain and Denmark, and several
states of Italy, forbad their towns to con-
tinue members of the confederacy. Upon
this, the Teutonic Hanse-towns restricted
the confederacy to Germany, and distri-
buted it under four metropolitan towns, —
Lubec, Cologne, Brunswick and Dantzick.
Brunswick and Cologne afterwards sepa-
rated from them; several towns follow^ed

101

their example, so that, about the middle of
the seventeenth century, the confederacy
was almost wholly confined to the towns of
Hamburgh, Lubec and Bremen. They re-
tained the appellation of Hanseatic towns,
and claimed their former privileges. Un-
der the appellation of Hanse-towns they
were recognised at the peace of Utrecht in
1715, and, at the Definitive Treaty of In-
demnity in 1 805 ; — almost the last moment
of their political existence.

VI. 3. The Hanse-towns were robbed of
a considerable portion of their trade by the
Netherlands. For centuries, they enjoyed,
almost exclusively, the commerce of cloth,
cotton, cameletts and tapestry. In exchange,
they received raw m^ooI from England ; silk,
sprees, and the other productions of the
Levant, from the Italians. The wealth and
splendour of the commercial towns in that
country in the sera of their prosperity,
placed the Dukes of Burgundy, their sove-
H 3

102

reigns, on a level with the greatest monarchs,
and enabled their principal merchants to
display such magnificence in their dress,
their buildings, and their mode of living, as
excited the envy of the noblest princes of
Europe.— Bruges was their capital : — in
1310, it contained sixty-eight companies
of traders and artificers ; insurances and
letters of change were in common use.

Doctor Robertson (in his Historical Dis-
quisition, page 239), mentions, that, in the
year 1301, Joanna of Navarre, the wife of
Philip the fair, King of France, having
been some days in Bruges, was so much
struck with its grandeur and wealth, and
particularly with the splendid appearance
of the citizens wives, that she was moved
by female envy to exclaim with indigna-
tion, " I thought that I had been the only
" queen here, but I find that there are
" many hundreds more."" Few persons
have seen, without surprise, the long and

103

splendid line of towns between Ostend and
Liege. When we consider, that they have
survived their commerce for more than two
hundred years, we may form some notion
of the general populousness and magnifi-
cence of the territory and its inhabitants in
the day of their prosperity.

In consequence of a dispute with the em-
peror Maximilian, Bruges was deprived of
a considerable part of its trade, and from
that time, the city of Antwerp took the lead
in commerce ; but taxes and imprudent re-
gulations insensibly undermined the general
trade of the Netherlands ; and, while the
wise policy of Edward the third attracted
almost the whole of its woollen trade to
England, the remainder of it was carried
to Holland. An important addition to the
commerce of the latter, was the discovery
made towards the end of the 14th century,
H4

104

by William Beukelroon, of the art of pickle-
ing herrings.''

'^ See Doctor Robertson's Fierc of the Progress of
Society in Europe, prefixed by him to his His-
tory of Charles the Fifth ; the Historical Dis-
quisition concerning the Knowledge which the
Antients had of India, with which he so re-
spectably closed his literary career; Guiccar-
dini's Description of the Lozv Countries; and
the elegant opening of Strada's liistoria de
Bello Be/gico. — What is said on the Hanse-
towns is chiefly taken from Mr. Anderson's
History of Trade and Commerce ; and Mr. Mal-
let's recent work De la Ligue Hanseatigue,
octavo. Geneve, 1805,

105

PART V.

Containing some Account cf the Rise and Progress
of the House of Hapsburgh, till its ultimate
Accession to the Empire of Germany.

700 — 1428.

1 HE Origin of the House of Haps-
burgh is traced, with a high degree of
probability, to Eticho, duke of Suabia and
Alsace in the year 700, the patriarch both
of the antient and modern House of Austria.
Hugh, a descendant from him in the fourth
degree, had two sons, Everard, the general
parent of the House of Lorraine, and Gun-
tram, the general parent of the House of
Hapsburgh, and died about the year 920.
It is remarkable, that, by the marriage of
Maria-Theresa of Austria, with Francis of
Lorraine, in 1736, the families, after asepa^

106

ration of eight centuries, were re-united.
Guntram had considerable possessions in
AJsace, Brisgau and the Argau : his pos-
sessions in Alsace and Brisgau he forfeited,
in consequence of his rebelling against the
emperor Otho the first. Rudolph, the im-
mediate author of the high fortunes of the
Hapsburgh family, was about the tenth in
descent from Guntram. His ancestors had
become Counts of Surgau, Argau, Altem-
burgh, Kyburgh and Zeirengen, and Land-
graves of all Alsace. Their castle of Haps-
burgh stood in the bailliwick of Argau, not
far from the junction of the Aar and the
Reuss. It commanded an extensive view
of the eastern extremities of the Pennine
Alps ; and, from that position, derived its
original appellation of Alpesburgh, after-
wards contracted to Hapsburgh. About
the beginning of the eleventh century, it
was rebuilt and considerably enlarged by
Radfodus, a descendant from Guntram.

107

It appears that Rudolph of Hapsburgh
had, in his youth, an office in the house-
hold of Ottocar, king of Bohemia. At a
more advanced age he commanded the
military forces of the towns of Zurich and
Strasburgh, and acquired the character of
an honourable knight and an able general;
but neither the extent of his territories, nor
his personal consequence, could lead him
to expect the high rank, to which he lived
to see his house exalted.

His sister Elizabeth married Frederick,
of the house of Hohenzollern, the founder
of the royal house of Prussia. It certainly
was not then foreseen, that the houses of
Hapsburgh and Hohenzollern should be-
come the preponderating powers of Ger-
many, and fill it with their civil and religious
quarrels.

At this period of its history, the German
empire was in its lowest state of anarchy;
its princes lived in constant warfare v\ ith

108

one another, and the people had no other
means of protecting themselves against ge-
neral oppression, than forming leagues and
associations, or making themselves vassals
to some neighbouring prince, who, how-
ever he might himself oppress them, would
defend them against the oppression of
others. This scene of public and private
confusion and calamity had continued so
long, that every description of men anxi-
ously wished - an emperor might be chosen
who should restore good order and govern-
ment. The difficulty was to find a person
capable of effecting so desirable an object,
without possessing, at the same time, such a
degree of power, as would alarm the jea-
lousy of the princes, and make them trem-
ble for the security of their own usurpations.
Such a person, the electors thought they had
found in Rudolph of Hapsburgh : he was
accordingly elected king of the Romans
on the 30th of September 1273, and soon

109

afterwards crowned emperor at. Aix-la-
Chapelle. Ottocar, his former master, had,
during the anarchy of the empire, seized
the province of Austria, a fief held of the
emperor by the counts of Tyrol : Rudolph
summoned him to restore it and do homage
for his possessions. Ottocar received the
summons with indignation: " What does
" Rudolph want?" he used to say ; " I have
" paid him his wages/' Rudolph marched
his army into Austria, vanquished Ottocar,
and insisted on his rendering him homage.
It was agreed between them, that the cere-
mony should be performed, under cover,
in a tent. It took place in an island on
the Danube ; and the hostile armies were
ranged along the opposite banks of the river.
Ottocar, according to the usual form,
was placed at the knees of Rudolph, with
his hands inclosed in the emperor's ; — on a
sudden, the tent was drawn up, and exposed
the triumph and humiliation of the chiefs

to their troops. Ottocar renewed the war,
and lost his Hfe and all his territories.
Rudolph restored Bohemia to the son of
Ottocar ; but retained the dutchies of Aus-
tria, Stjria, Carniola and Carinthia. In
right, they belonged to Mainhard, count of
Tyrol, from whom they had been usurped
by Ottocar. Rudolph made over Carinthia
to him, on condition of a marriaoe between
their children, Albert, the son of Rudolph,
and Elizabeth, the daughter of Mainhard.
The marriage took place : Mainhard left
no issue male ; and thus Albert acquired,
by marriage, Carinthia and the Tyrol, and
a right, by heirship, to Austria, Styria and
Carniola. From the time of Rudolph^s
conquest he quitted the appellation of
Hapsburgh, and called himself Rudolph
of Austria. He had several sons ; by
his letters patent he raised Austria to
the dignity of an Arch-duchy, and granted
to the Arch-dukes the right of creating

Ill

counts and other nobility, and of imposing
taxes.

Such were the foundations of the house
of Hapsburgh. It was the object of Ru-
dolph to perpetuate the empire in his fa-
mily ; but, on his decease, Adolphus count
of Nassau was elected emperor. On the
death of Adolphus, Albert, the first son of
Rudolph, was elected. On his decease,
several princes of other families succeeded ;
but, in the person of Frederick the first,
who was fifth in descent from Rudolph,
the empire, in 1452, returned to the
house of Hapsburgh. Frederick con-
firmed to his family the archducal title,
which had before been conferred on it by
Rudolph. Maximilian succeeded Frederick.
Philip, the son of Maximilian, had two
sons, Charles and Ferdinand : the former
is considered to be the patriarch of the
Spanish branch, and the latter is considered

11^

to be the patriarch of the German branch of
the house of Austria.

II.

In this period of the history of the princes
of the house of Austria, nothing is so
remarkable as their fortunate mar-
riages. Six, in particular, have attracted
the attention of historians : they have given
rise to the celebrated distich, —

" Bella gerant alii ! Tu, felix Austria, nube !
" Nam, qucs Mars aliis, dat tibi regna, Venus"

By the following table it appears that
Rudolph of Hapsburgh is the founder of
the archducal family of Austria, and the
First Patriarch of that house. On the de-
cease and failure of issue of Albert, the fifth
Archduke of that name, the resort was to
his uncle Ernest : this makes Ernest its
Second Patriarch. On the decease and
failure of issue of Mathias, in 1619, the
archducal title descended to Ferdinand

the

To face p. 118.

Division of the Hapshurgh family'
ustria— and the Three patriarchal

iges.

Heiress of Ferrette in Alsace.

IPOLD,

386.

• NEST, The second Patriarch of the Hous«
I of Austria. + 1424.

EOFRICK,

1493.

I Fourth of the Marriages.

xrMiLiAN I,rrMARY IV, Heiress of Bur-
519. I gundy, and the Nether-

lands.

I Fifth of the Marriages.

Ph ILIPlZlJoANN A,

+ 1.506,
intiie lile-
time of his
father.

Heiress of the Spanish Mo-
narchy.

Sixth of the Marriages.

ERDINAND Ij^tAnN,

1564. I Heiress of Hungary and

I Boheiuia.

Chari.es,
tlie 3d Pa-
triarch of
the House
of Autsria.
+ '1590.1

15. Ferdinand II,
+ 1637.

TABLE VI.

The following Table will shew the descent of the Archduail Title, till the Division of the Hapsburgh fdmily"
into the Spanish and German Branches ; — the Six happif Marriages uf Austria— and the Three patriarchal
sterna of Archdukes.

I First pf the Marriapei.
2. Albert I.=Elii;«»etii. Heii
+ 1308. I of CanulLia a
Tjrol.

8. Frederick, + 1330.

"— 1 Second of the Jfamli;fi.

4. Alreri II,=joA»!(A II, Hijress of FericKe in Alsace.
+ 13.58.

a. Ali.ert III.
+ 1395.

LsiJPntD,
+ il386.

+ 1404.

I Third ,,/• He Marricges.

T. AiBEKT V,=:Ei.iza»eth, Heiress of Hungary,
+ 1439. Boheniiu. Silesia, and Moravia.

ESHEST, The second Pufriarch of the Housa
I ofAuslrla. + 1424.

8. F^OFR.CK,

+ M93.

;| F'mrlh «f the Marriages.

9. Mammuian I,=MAnv IV, Heiress of Bur.
+ l:il9. I gundy, and the Ncther-

I gundy, an
I Fifth of the 1

Siilh of Hr Marriages.
11. F,nr,v,.voI,=ANN,

+ lot;4 I Heir.s> of Hungary and

BohoMiia,

li.e 3d Fu.
Iriarcli of
the House
of Anisria.
+ '1590.1

113

the second, whose father was Charles the
son of Ferdinand the first : this makes the
Charles, of whom we are speaking, the Third
Patriarch of the Austrian family.

The table also shews their six fortunate
marriages ; — that of Albert the first, with
the heiress of Carinthia and the Tyrol ; —
that of Albert the second, with the heiress
of Ferrette in Alsatia ; — that of Albert the
fifth, with the heiress of Bohemia and Hun-
gary ; — that of Maximilian with the heiress
of Burgundy, and the Netherlands ; — that
of Philip the father of Charles the fifth,
with the heiress of Spain, Naples and
Sicily ; and that of Ferdinand the first, with
the heiress of Bohemia and Hungary, which
restored those kingdoms to the house of
Austria, from which, after her former ac-
quisition of them, they had past into
another family.

Of these, the marriage of Maximilian
I

114

with the heiress of Burgundy and the
Netherlands/ is the most remarkable.
Mention has been made of the kingdom of
Burgundy : the dutchy and county of Bur-
gundy must be distinguished from it, and
from each other. Both of them centered
in Charles the bold ; and he also inherited
the possessions of the dukes of Lower Lor-
raine and Brabant, of the earls of Flanders,
and the counts of Hainault. Mary, his
daughter and heiress, married Maximilian
the first. — On the death of Charles the bold,
Lewis the eleventh of France, seized on
Burgundy, as an escheat, for want of a male
heir, and united it, for ever, to the king-
dom of France ; but Mary was permitted
to carry the rest of her dominions into the
house of Austria. The seizure of Burgundy
by Lewis the eleventh, was sometimes the
real, and sometimes the ostensible cause

' See note XI.

115

of wars, which, with httle interruption,
lasted from the time of Maximihan's mar-
riage to the middle of the last century. —
Lewis the fifteenth, being at Bruges in 1745,
exclaimed, on seeing the Mausoleum of
Charles the bold, and Mary of Burgundy, —
" Behold the cradle of all former wars/'

If Preservation be as important as Acqui-
sition, the recent marriage of the Arch-
dutchess Maria-Louisa must be considered
the Seventh Fortunate Marriage of the
House of Austria.

But, besides her acquisitions by her Six
Fortunate Marriages, the house of Austria,
during this period, obtained, by other
means, a large increase of territories, par-
ticularly the Brisgau, near Freyburgh, by
gift from the emperor Lewis of Bavaria in
1330, and the Burgau and some other
districts in Suabia, under the emperor
Maximilian the first, in 1505.

116

III.

One of the most important events in the
history of the Hapsburgh family, during
this period, is their unsuccessful

CONTEST WITH THE SwiSS.

Nature herself has fixed the boundaries
of Switzerland : separating her from Ger-
many, by the Rhine ; from Italy, by the
Alps and the Rhone, and from France, by
the Jura.

The Apibrones filled the territory on the
Rhone ; the Tigurenses, the territory be-
tween Zuric and the Rhine ; the Tugeni, a
territory of which Zug was the capital ;
and the Verbigenses, a territory between
the Aar and the Reuss.

The Swiss are first known in history by
the name of Helvetii ; frequent mention
of them is made in the account of the

117

irruption of the Cimbri. About fifty-seven
years before Christ, they were subdued by
JuHus Caesar : he annexed Helvetia to the
Celtic Gaul : Augustus took it from the
Celtic, and annexed it to the Belgic. In
69, Vitellius divided Helvetia into two pre-
fectures, separated from each other by the
Reuss.

About the end of the fourth century, the
whole nation was almost extirpated by the
Alemanni; and those, in 496, were expelled
by Clovis. — The country was occupied by
the Francs, and made a part of the Francic
kingdom till 888, when, upon the death of
Charles the fat, it was seized by Raoul, and
annexed by him to the Transjuranan Bur-
gundy. With the other part of that king-
dom, it was united to the empire of Ger-
many, by Conrade the second. On the
dismemberment of the empire, a consider-
able portion of it became a part of the pos-
sessions of the dukes of Zeirenghen, a noble

118

•family, which took its name from the castle
of Zeirenghen, in the Black Forest near the
Treysa. Next, but much inferior to them
in power and influence, were the counts of
Burgundy, Savoy, Hapsburgh and Ky-
burgh. On the extinction of the house of
Zeirenghen, Switzerland became an imme-
diate province of the empire, and was
divided into many ecclesiastical and secu-
lar states. Several noble families, among
whom the house of Hapsburgh was parti-
cularly distinguished, had large territorial
possessions in this country. The towns of
Zurich, Soleure, Basil and Berne, were
imperial towns ; the inhabitants of Uri,
Schweitz and Underwald, were governed
by their own magistrates ; but justice w^as
administered, at least in criminal cases, by
officers appointed by the emperor, and
called Avoyers. The emperor Rudolph
conducted himself, in their regard, with
justice and moderation ; Albert, his sonj

119

formed the design of bringing them to a
total subjection to his family, and erecting
them into a principality for one of his sons.
In 1315, the Cantons of Uri, Schweitz and
Underwald, confederated to assert their
freedom, and thus laid the foundations of
the celebrated Helvetic confederacy. In
1332, they were joined by Lucerne ; in
1351, by Zurich and Claris ; in 1352, by
Zug ; in 1481, by Berne, Frey burgh and
Soleure ; in 1 50 1 , by Basle and Schaff hausen ;
and in 1513, by Appenzell. These thirteen
towns, and the territories attached to them,
form the repubfic of Switzerland : she
ranked next to Venice.

With invincible perseverance, after sixty
pitched battles, they secured their liberty :
the Austrians were wholly expelled from
Helvetia, and the castle of Hapsburgh, the
original seat of the Austrian family, was
rased to the ground.

120

IV.

Another event of importance, in this
period of the history of the Hapsburgh
family, is the invasion of ItaIaY by
Charles the eighth of France.

It will appear in the Notes, that the
French princes of the house of Anjou had
a claim to the kingdom of Naples, and that
it was made over, by Charles of Anjou, to
Lewis the eleventh. By that monarch, it
was disregarded ; but his son Charles the
eighth attempted the conquest of Naples.
At the head of an army of twenty thousand
men, and with an immense train of artil-
lery, ammunition and warlike stores, he
crossed the Alps. As he advanced, Florence,
Pisa and Rome, submitted to him : he took
quiet possession of Naples, and, for a time,
gave law to every part of Italy. But he
lost his new kingdom, in as little time as

121

he had spent in gaining it : the pope, the
emperor, Ferdinand of Arragon, Isabella
of Castile and the Venetians, joined in a
league against him : he obtained a victory
over them ; but it was of no other use than
to open to him, a safe passage into his own
territories. In a few months, he was stripped
of all his conquests, and the troops, which
he had left to guard them, were entirely
expelled from Italy.

He died soon after, leaving no child ; the
duke of Orleans succeeded to the throne of
France by the title of Lewis the twelfth.
By him, the conquest of Naples was repeat-
edly attempted • without success. These
wars first introduced, among the sovereigns
of Europe, the idea of that great object of
modern politics, a balance of power: it
amounts to a tacit league, which is under-
stood to be always subsisting, for the pre-
vention of the inordinate aggrandizement
(of any one state.

122

Another event of importance in this
period of the Hapsburgh annals, is the Ri-
valship which then first broke out, and which
has subsisted till our times, between Austria
and France.

Among the six fortunate marriages of the
house of Austria, we have mentioned that of
MaximiUan with Mary the heiress of Bur-
gundy; and that of PhiHp, Archduke of
Austria, with Jane, the daughter of Ferdinand
and Isabella, and the heiress of the Spanish
fnonarchy. Philip died in the life-time of the
emperor Maximilian his father, leaving two
sons, Charles and Ferdinand. Maximilian
died in 1519. Thus, in the right of Mary,
his grandmother, Charles was sovereign of
those possessions of the house of Burgundy,
which had not been usurped by France ; in
the right of Joanna, his mother, he was

123

sovereign of the whole Spanish monarchy ;
and, in the right of his father, he was
Archduke of Austria.

By the death of the emperor MaximiUan,
his grandfather, the empire of Germany be-
came vacant. Cliarles aspired to it ; Francis
the first entered the Hsts against him. Each
pursued the contest with eagerness and
abihty. It was finally decided, by the
unanimous vote of the electoral college, in
favour of Charles. This preference shewn
to his rival, in the face of all Europe, mor-
tified Francis in the highest degree ; from
this aera the rivalsMp between Austria and
France may be dated.

VI.

Another important event in this period
of the history of Germany, is the Division
of the Tej^ritories of the Empire into
Circles.

The first division of Germany was into

124

its Upper and Lower, or Southern and
Northern States, considering it as inter-
sected by a supposed Hne, drawn eastwardly
from the mouth of the Mayn. A subse-
quent division of it was made by its rivers,
so that it was considered as parcelled into
the countries severally bordering on each
side of the Danube, the Rhine, the Weser,
the Elbe and the Oder.

But these were rather geographical than
political divisions of the country. With a
view of forming certain generalities or large
territories, consisting of different states,
which, on account of their nearness to each
other, might conveniently assemble, either
to regulate their common concerns, or
enforce the general laws and ordinances of
the empire, Maximilian the first divided
all Germany into ten parts, — the Circles
of Bavaria, Franconia, Suabia, the lower
Saxony, the lower Rhine, Westphalia, Au-
stria, Burgundy, the upper Saxony and the

125

upper Rhine. — The Circle of Burgundy
comprised the High Burgundy, or Franche-
comt6, and the seventeen provinces of the
Low Countries ; but this Circle was, by
degrees, completely dismembered from the
empire, so that the number of Circles was
reduced to nine.

VII.

Another important event in this period
of the history of Germany, is the Final
Settlement of its Political Constitution. It
forms a body, of which the Emperor is the
head, the States are the Members.

I. We have seen, that, during the Carlo-
vingian Dynasty, the empire was hereditary;
and that, on the extinction of that Dy-
nasty, the empire became, and has since
continued elective. It is generally said, that
during that Dynasty, and for some time
after, the empire was altogether monarchi-
cal : this must be understood with a con-

siderable degree of restriction ; and, at all
events, since Frederick II, the government
has been partly monarchicpl, and partly
aristocratic, the emperor being absolute in
some instances, while, in others, his acts
must have the consent of all the states of
the empire.

2. The States are divided into three
classes, — the College of Electors, the Col-
lege of Ecclesiastic and Secular Princes,
and tlie College of Imperial Towns : this
division was finally established at Francfort
in 1580. Their meeting is called a Diet.
The Emperor is seated on a throne ; the
electors of Mentz, Bavaria, and Branden-
burgh, on his right hand, the Electors of
Cologne and Saxony, and the Elector Pa-
latine on his left, and the Elector of Triers
opposite to his person.

The Ecclesiastical Princes are seated on
benches to his right ; the Secular Princes
are seated on benches to his left ; the De-

127

puties of the Imperial Towns are seated on
two benches which cross from the right to
the left ; one of these benches is filled by
the Deputies from the Imperial Towns on
the Rhine, the other by the Deputies from
the Towns in Suabia.

The three Colleges deliberate apart.
When they are agreed on any point, and
the emperor consents, it becomes a resolu-
tion of the empire : but, if the three col-
leges are not united, or the emperor refuses
his consent to it, the measure drops.

As soon as the Diet breaks up, the Em-
peror publishes, in his name, a recess or
minute of the resolutions passed at it ;
exhorts the States to see them carried into
execution ; and orders the tribunals to con-
form to them.

VIII.

Another important event in this period
of the History of Germany, is the establish-

128

ment oi The Imperial Chamber and theAulic
Council by Maximilian I. — The Imperial
Chamber was fixed at Worms in 1495 ; it
was removed to Spires in 1533, and to
Weslar in i6g6, where it is now held. The
president of it is appointed by the Em-
peror : the assessors, by the States : it has
always been viewed by the Emperors with
jealousy ; and, soon after its institution,
Maximilian prevailed on the States to
permit him to revive his Court Palatine, or,
as it is generally called, the Aulic Council.
With some exceptions, each of these courts
has equal jurisdiction ; there is no appeal
frooi one to the other, so that the appeal
from each is to the Diet. During the
vacancy of the throne, the powers of
the Aulic Council are suspended ; but
the Imperial Council acts under the Vicars
of the Empire. From its superior activity,
and the general superior ability of its
Judges and Advocates, the Aulic Council

has

129

has engrossed almost the whole of the
business, not specially reserved to the
cognizance of the Imperial Council.'

' Thus far the writer had the assistance of Ta-
bleau des Revolutions de L'Europe dans le
Moyen Age, par M. Koch, Strasburgh, 3 vol.
8vo. and found it of the greatest use.

130

PART VI.

The Division of the House of Hapsburgh into its
Spanish and German Lines, till the Final Extinction
of the latter, in the House of Lorraine.

1558-1736.

J H E principal events in the history of
Germany during this period, are

Began. Ended.

L The war of thirty years - - -i6i8- 1648

H. The war for the Succession of Spain 1700 - 1713

HL The war with the Porte - - - -1714-1718

IV. Thewar for the Succession of Poland 1733 - 1735

V. The marriage of Maria Theresa, the
eldest of the two daughters, and
surviving children of the Emperor
Charles the sixth, with Francis
Stephen the Duke of Lorraine, and
the wars for the Succession of
Austria -------- 1736 - 1748

VI. And the final decline of the Pope's
temporal power.

Toj

ties.

Ch| 1564.

Phi
Phi
Phi
Cba

Ann*

nperor, -\- 1740.
le obtained by the
af Radstadt, the
ands and Mila-

Uncis Duke of
ILorrdiue.

To face p. ^fMh I Jo.

TABLE VII.

The following Table shews the Division of the House of Hnp.burgI, into its Spanish and German Branchei

Mjximil.an, Em

Philip (he Fair,
+ 1506, ill the life till
ol hi» lather.

SPANISH BRANCH.

GERMAN BRANCH.

Philip II. + . . 1598.
Puiiip III. + . . 1631.

I r—

Philip IV, + . . 1665. 3. Ri-dolph.

I Enpeior,

Cu««LE» U, + . . 1700. + '^'

Ferdinand, Emperor + 1

Charles, + 1590. Ann

uperor, + 1705.

8. JosFPH. Emperor, + 1711.

He, in 1708. possessed inn, .li.by

coHliseatioa, of tlje Dultliyof

9. CiuRLES VI. Einp^tor, + 1740.

I 111 1714. 1. nl.Uined by tlie

maty .,1 lt„il)ladl. the

Nelh'erliiiiJ. and Miia-

Mari* Theresh^Fh.vch Duke of
Warned in 1736, I „rrjiiie.

+ 1780.

131

The war of thirty years was
principally owing to the religious disputes
of the sixteenth century. Very soon after
Luther's first attack on the see of Rome, the
Reformation was established in Saxony,
Livonia, Prussia and Hesse-cassel ; in several
Imperial Towns ; in Friezeland and Holland,
in several of the Swiss Cantons, in Pome-
rania, Mecklenburgh, Anhalt, Sweden,
Denmark, Norway, England and Scot-
land. Its progress in the empire is par-
ticularly connected with the subject of these
sheets.

At the diet of Augsburgh in 1530, the
protestant princes of Germany delivered
their confession of faith ; and afterwards,
at Smalcald, entered into an offensive and
defensive league against the emperor. Being
sensible that they were unable to resist him,
they engaged the French monarch in their

K 2

13^

cause. At first the emperor was victorious;
but a new league was formed ; France then
took a more active part in favour of the
confederates, and the contest ended in the
peace of Passau in 1552, where the parties,
for the first time, treated as equals, and
the free exercise of the Lutheran religion
was allowed. Things remained quiet during
the reign of Ferdinand the first and Maxi-
milian the second ; but, in consequence of
the disputes which arose on the succession
to the Dutchies of Cleves and Juliers, the
religious differences broke out with fresh
animosity ; — the protestant princes formed
a confederacy called the Evangelical Union,
and placed, at its head, the Elector Palatine;
the Catholics formed a confederacy called
the Catholic League, and placed, at its head,
the Duke of Bavaria. In the year 1618,
they burst into open war : every state in
Europe, and even the Ottoman princes, at
one time or other, took a part in this war.

133

France was the soul of the protestant cause ;
she assisted it with her armies, and her
subsidies : — it may be truly said, that if
there be a Protestant state from the Vistula
to the Rhine, or a Mahometan state be-
tween the Danube and the Mediterranean,
its existence is owing to the Bourbon
monarchs.

From the period of its duration, it has
been called the War of Thirty years : it is
divided by its Palatine, Danish, Swedish
and French periods. — Frederick, the fifth
elector palatine of that name, being elected
King of Bohemia, by the states of that
Kingdom, made war on the emperor, Ferdi-
nand the second. Being defeated, in 1620,
at the battle of Prague, and abandoned by
his allies, he was driven from Bohemia, and
deprived of his other states. Christian the
fourth of Denmark, then placed himself at
the head of the confederacy against the
emperor; but having in 1626 lost the
K 3

134

battle of Lutter, in which Tilly com-
manded the Austrian forces, he signed,
three years after, a separate peace with the
emperor. The following year, Gustaviis-
Adolphus, king of Sweden, was placed at
the head of the confederacy ; their cause
appeared desperate ; Walstein, the Austrian
general, had been uniformly successful, and
almost the whole of Germany had sub-
mitted to the emperor ; but the brilliant
campaigns of Gustavus turned the tide of
success in favour of the confederates. On
his death, at the battle of LUtzen, the
principal weight of the war rested on France.
The French armies, under the command of
Guebrian, Turenne and Conde, the Swedish
under the command of Banier, Torstenson
and Wrangel, were every where triumphant,
and brought the war to a conclusion. It was
closed, in 1648, by the Peace of Westphalia.
France and the protestant princes dictated
its terms ; the Swedes were indemnified for -

135

their charges of the war by Pomerania
Stetm, Rugen, Wismar, and Verden ; the
house of Brandenburgh obtained Magde-
burgh, Halberstad, Minden, and Camin ;
Alsace was conquered and retained by
France ; Lusace was ceded to Saxony. —
The history of this Treaty has been ably
written by father Bougeant ; some critics
have pronounced it to be the best historical
work in the French language.

During the whole war of thirty years,
and at different times during the remainder
of the period now under consideration,
Germany was a scene of devastation. In
almost every part of it, the ravages of ad-
vancing and retreating afmies were repeat-
edly experienced ; many of its finest towns
were destroyed : whole villages depopu-
lated ; large territories laid waste. Much
of this was owing to the contest of Austria
and France for power, much to religious
animosity.

K 4

136

A view of the fatal effects which this ani-
mosity has produced in the christian world,
has often made wise and peaceful men en-
deavour to reunite all denomijiations of chris-
tians in one religion. With this view, at an
early period of the Reformation, Melancthon
formed his celebrated distinction of the
points in dispute between Roman Catholics
and Prot2stants, into the Essential, the
Important, and the Indifferent : — in a latter
period of the Reformation, Grotius, the most
learned man of his age, employed the last
years of his life in projects of religious pa-
cification : towards the end of the seven-
teenth century, a correspondence for the
reunion of the Roman Catholic and Lu-
theran churches was carried on between
Bossuet on one side, and Leibniz and Mola-
nns on the other : it may be seen in the
Benedictine edition of the works of Bos-
suet, and Mr. Dutens's edition of the works
of Leibniz. In the beginning of the last

137

century, a similar correspondence for the
reunion of the Roman Cathohc and Eno--
hsh churches, was carried on under the
direction, or at least with the connivance,
of Cardinal de Noailles andArchbishop Wake :
a full account of it is inserted in the last
volume of Mosheim's Ecclesiastical History.
With a view of facilitating this reunion,
Doctor Courayer wrote his Discourse on the
Validity of English Ordinations. A curious
history of the controversy to which that
treatise gave rise, is contained in Commen-
tatio historica-theologica de Consecratione
Anglorum Episcoporiwi, ah Olao Kiorningio,
4to, Helmstadii, 1739.

That such men as Melancthon, Grotius,
Bossuet, Leibniz and Molanus, should en-
gage in the project of reunion, is a strong
argument in favour of its practicability ;
that it failed in their hands, may shew that
it is more than an Herculean labour ; but
does not prove it utterly impracticable.

138

It is evident, that, at one time more than
another, the public mind may be disposed
to peaceful councils, and to feel the advan-
tage of carrying mutual concession, as far
as the wise and good of each party wish
them carried. Perhaps the time is now
come :

The soul's dark cottage, batter'd and decay'd,

Lets in new lights through chinks which time

hfts made.

Waller.

Through the flaws and breaches, the
yawning chasms (as they are termed by
Mr. Burke), which the events of the times
have made in the civil and ecclesiastical
institutions of almost every country, a flood
of light seems to break in, and to point out
to all who invoke the name of Christ, the
expediency of mutual forbearance, mutual
good humour, and a general coalition in
defence of their common Christianity.*

' A short account of the Epistolary Correspondence
between Bossuet and Leibniz for the Reunion

139

of the Roman-catholic and Lutheran churches
is given in the Author's Life of Bossuet.
A very interesting account of the at-
tempts which have heen made to effect an
union of the Protestant churches among them-
selves, is given by Mosheim, 17 Cent. Sec. IL
Part IL ch. L

II.

The war tor the succession of
Spain began in the year 1700, on the
death of Charles the second.

Phihp the fourth, the father of Charles
the second, was twice married. His first
wife was Isabel or Elizabeth, the daughter
of Henry the fourth of France. By her he
had a daughter, Maria-Theresa, the wife of
Lewis the fourteenth ; his second wife was
Mary-Ann, the daughter of the emperor
Ferdinand : by her he had Charles the se-
cond, his immediate successor, and Margaret,
the wife of the emperor Leopold. Lewis
the fourteenth had issue by Maria-Theresa,
Lewis the dauphin : he died in his father's

140

life-time, leaving issue Lewis, the cele-
brated duke of Burgundy, and Philip the
duke of Anjou. The issue of Leopold by
Margaret was Maria- Antoinetta, who mar-
ried Maximilian-Emanuel, the elector of
Bavaria, by whom she had issue Ferdinand-
Joseph. These descents and the times of
the deceases of the persons mentioned in
them, will appear from the following table.
The persons from whom the pretendants
to the Spanish succession made their claims,
are marked in it by a large Roman nume-
ral over their names.

TABLE VIII.

Pret«ndants to ifae S(>anish Succession on the Death of Charles the \'t*

,1 SPAIN.

*Cdi»l., V. + ,

Pllllip III, KingotS

. [V. SAVOY.

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141

Charles the second, by his will, be-
queathed his dominions to Philip duke of
Anjou and his heirs male, on this special
condition, that the crowns of France and
Spain should never unite in them ; failing
this line of heirs, he limited the succession
to the Duke of Berri, and his heirs male,
on the same condition : failing those, to the
Archduke Charles and his heirs male, on
a similar condition, that the empire and
the crown of Spain should never unite in
them ; and, failing that line, to the Duke
of Savoy.

If Charles the second had a right to dis-
pose of his dominions by his will, the claim
of the duke of Anjou was incontestable : if
he had not that right, they belonged to the
person, who could make a title to them by
a prior gift, or by heirship.

1 . The fii St Pretendant was the Dauphin :
— there having been a total failure of issue

142

of Margaret, the younger sister of Charles
the second, and the EngUsh exclusion of
half blood from inheritance being wholly
unknown in the law of Spain, the claim of
the Dauphin as son and heir of Maria-
Theresa, the wife of Lewis the fourteenth,
would have been indisputable, if, upon her
marriage, she had not, by a solemn act,
executed with the approbation of the court
of Madrid, renounced her pretensions to
the throne of Spain.

2. If that branch were excluded, and
primogeniture allowed in the succession of
females to the crown of Spain, the next re-
sort was to Lewis the fourteenth as son and
heir of Ann-Mary, the eldest daughter of
Philip the third, and the wife of Lewis the
thirteenth. To him, a similar renunciation
of Ann-Mary was objected.

3. The next resort was to the emperor
Leopold, as son and heir of Mary-Ann,
the youngest daughter of Philip the third.

143

and the wife of the emperor Ferdinand the
third. He urged two other titles ; one, as
heir male of Ferdinand, the brother of
Charles the fifth, to whom and to whose
male posterity, in default of issue male of
Charles the fifth, he contended the crown
of Spain ought to revert, in consequence
of a family settlement executed by Charles
the fifth and Ferdinand, which, on failure
of issue male of one, limited the succession
to the issue male of the other of them;^ —
his other title arose from a settlement al-
leged by the emperor 'to have been exe-
cuted by Philip the fourth, by which, on
failure of issue male of his body, Philip the
fourth had limited the succession to Mary-
Ann his sister.

4. The descendants of Catherine the
duchess of Savoy formed the fourth class
of pretendants ; they founded - their claim
on a settlement supposed to be executed

144

in her favour by Philip the second, or by
Charles the fifth, or by both of them.

Such were the claims of the different
competitors for the Spanish succession.

The war, which they occasioned, was
terminated in respect to all the powers in
league against France, except the empire,
by the peace of Utrecht in 17 lis and, in
respect to the empire, by the congress of
Radstadt, in the following year. So far
the event of it was favourable to the house
of Bourbon, that Philip the duke of Anjou
was seated on the throne of Spain, and was
allowed to retain the Spanish possessions in
America. He made a formal renunciation
of his rights to the crown of France ; and
both the duke of Berri, and the duke of
Orleans, renounced their rights to the
Spanish monarchy. It was a fundamental
principle of the constitution of France,
that by accepting any foreign sovereignty, a

prince

145

prince of the blood forfeited his right to
the throne of France. To prevent the effect
of this principle on the rights of the duke
of Anjou, Lewis the fourteenth had granted
to that prince, on his accession to the
throne of Spain, letters patent, which pre-
served to him, his rights to the throne of
France. — These, by the treaty of Utretcht,
he was compelled to revoke; and, on failure of
issue of Philip of Anjou, the crown of Spain
was assured to the house of Savoy. A large
portion of the other possessions of Spain
was dismembered from her : the house of
Austria had the Netherlands, the Milanese,
Naples, and Sardinia: Savoy received the
eventual succession of Sicily, exchanged
seven years after for Sardinia; England ac-
quired Gibraltar, Minorca and Newfound-
land ; and Holland obtained a barrier of
strono; towns in the Netherlands to secure
her against France. These were great sa-

146

crifices ; but much better terms might have
been obtained by the allies, if the intrigues
of the tories had not checked their career
of success, and deprived them of the fruit
of their victories. Still, the military glory
which England acquired by her victories
on the continent, during the war for the
Spanish Succession, and the increase of terri-
tory, both in Europe and America, which
she acquired by the peace of Utrecht,
raised her to a continental rank and conse-
quence, which she had not enjoyed before.
Her naval importance rapidly increased,
and the powers of the continent began to
view it with something of that jealousy, with
which they had reviewed the first strides of
Lewis the fourteenth to power. They be-
gan to think that the English dominion of
the seas was as inconsistent with a general
balance of power, as the extensive territorial
conquests, and acquisitions of the French
monarchs.

147

HI.

But the attention of Austria was, at this
time, wholly engaged in her disputes with
The Porte. To wrest from the Venetians,
their possessions in the Morea, had long
been a favourite object of the Ottoman
power. In 1715 they began to put their
plan for the conquest of them into execu-
tion ; and they succeeded in it so well, that,
before the end of the campaign, they had
conquered, from the Venetians, the whole
of the Morea, and the Island of Candia ;
and, early in the ensuing year, laid siege to
Corfli. This alarmed the Christian powers,
and the pope, the emperor, and the king of
Spain, entered into a confederacy against
the Porte. The campaigns of 1716 and
1717 were very glorious to the arms of the
emperor ; by the battle of Peterwaradin,
prince Eugene secured Hungary, and con-

L 3

148

quered the whole of the Temeswar for the
emperor. The siege of Belgrade completed
his glory. It was garrisoned, says M. de
Voltaire, in his Age of Lewis the fifteenth,
with 15,000 men ; and prince Eugene, while
he besieged it, was himself besieged by the
Turks, who had a larger army than his own.
Finding himself, in the same situation, in
which Caesar found himself, at the siege of
Alesia, he extricated himself in the same
manner, by first beating the enemy in the
field, and then taking the town. This suc-
cession of brilliant victories compelled the
Porte to sue for peace. Under the mediation
of England, a congress was opened at Pas-
sarowitz, a small town in Servia, and a peace
was soon concluded on the general basis of
the uti possidetis. The emperor retained the
Temeswar, Orsowa, Belgrade, all Wallachia
within the river Alutha, and a great part
of Servia ; the Turks retained the Morea ;
and the Venetians, some places in Dalmatia.

149

and the Island of Cerigo, in the Archi-
pelago.

IV.

The war for the succession of
Poland arose from, the dethronement of
Augustus, the king of Poland, by Charles
the twelfth ; and by his causing Stanislaus
Levinski to be elected king of Poland in
the place of Augustus. After the defeat
of Charles the twelfth at Pultowa, Augustus
re-ascended the throne ; Stanislaus escaped
from Poland in disguise ; and, for some
years, lived in exile and in great want.
Lewis the fifteenth married his daughter ;
and, on the decease of Augustus, caused
Stanislaus to be re-elected. Russia, Austria,
and the empire in general, supported Au-
gustus : France, Spain, and Sardinia, sup-
ported Stanislaus. The war began in 1733,
and ended in two years. Augustus, the

150

son of the deceased king, obtained the
throne of Poland ; Stanislaus recovered his
patrimony ; was allowed to retain the title
of King, and Lewis the fifteenth assigned to
him Lorraine for his residence : the duke
of Lorraine was sent into Tuscany, which,
together with Parma, was taken from Spain,
whose king, Philip of Anjou, had married
the heiress of these two dutchies. Don
Carlos, the eldest son of that marriage, was
indemnified by the crowns of Naples and
Sicily, with this special condition, that they
should never be united to that of Spain ;
and the king of Sardinia gained several dis-
tricts in the Milanese/

* In this Section, two works have been particularly
followed, Elemens d^Histoire Gimrale, seconde
partie, of the Abbe Mil lot ; and the Droit public
of the Abbe de Mably.

151

The commencement of the Decline of
THE Pope's Temporal Power has been
mentioned. — It was wholly rejected in
every country, in which the Reformation
was established; and, to all appearance,
would have been as quickly rejected by the
states, which retained their spiritual obedi-
ence to the see of Rome, if, soon after the
commencement'of the Reformation, an event,
or rather a combination of events, had not
taken place, which, for a time, supported
its falling fortunes.

After several viscissitudes of persecu-
tion and toleration, the Calvinists obtained
a legal settlement in France, and began
even to attract the favours of the Court:
the Roman Catholics naturally united in
opposition to them. This produced one of
the most celebrated events in modern his-
tory ; — the League of France. Almoft every

152

Catholic in that kingdom entered into it; the
house of Guise, an illustrious branch of the
family of Lorraine, placed themselves at its
head, and it soon found an active friend in
Philip the second, the most powerful mo-
narch of his time. The Guises descended
from Charlemagne ; they appear to have
been attached, by principle and inclination,
to the Roman Catholic cause ; but probably
wt)uld not have embarked their fortunes in
its support, if, by doing it, they had not
hoped to wrest the crown from the House
of Bourbon ; and to restore it, in their own
persons, to the House of Charlemagne. On
the other hand, Philip the second was aware
of the powerful enemy, whom the House of
Austria would always meet with, in the
French, if they were united among them-
selves: he strove therefore to throw France
into confusion. This cemented the league :
and something of the kind, though of a very
inferior degree, took place in every state in

153

Christendom, where there was a conflict be-*
tween a Roman CathoHc and a Protestant
party. It is obvious, how greatly theCathohc
party stood in need of the countenance and
assistance of the Court of Rome : this, for a
time, preserved to the Popes their temporal
power, in the states, who acknowledged their
spiritual supremacy. The influence, which
this gave them, made them venture on those
enormities which now excite so much asto-
nishment.— the bulls, by which they absolved
the subjects of Henry the fourth of France,
and our Elizabeth, from their allegiance ; and
their concurrence in the League.

In proportion, as Henry the fourth tri-
umphed over the League, and the Spanish
party lost its ascendant in Europe, the Pope's
influence subsided; so that at the begin-
ning of the eighteenth century, little more,
than the magni nominis umbra, remained
to the Popes, of that temporal power which

154

at one time or other, had shaken every throne
in Europe.

In this last stage of its existence, four
events deserve particular consideration :

1st. The Venetians claim the merit of
being the first state, who openly contested
the Pope's assumption of temporal power,
and of triumphing in the contest, without a
schism. This was the result of the cele-
brated difference with Paul the fifth; — in
consequence of their refusing to release
two ecclesiastics, who had been thrown into
prison for murder, that haughty pontiff laid
the territory of Venice under an interdict,
and continued it in force for a year. Through
the interference of Henry the fourth, he re-
called it ; the Venetians received his ambas-
sador with the greatest marks of respect, but
absolutely refused the absolution, which he
offered them. — adly. The good sense of
Cardinal Bellarmine then shewed him, that

155

the time was come, when the lofty language,
with which the Popes urged their temporal
pretensions, would no longer be endured.
He, therefore, proposed a middle opinion:
— rejecting the Pope's claim of a right to
interfere in concerns merely temporal, he
claimed for them, a right to the use of tem-
poral power, both in temporal and spiritual
concerns, if the good of religion required
it. Perhaps the distinction is merely ver-
bal, but his softening the language of the
claim shewed his apprehensions, that, in
the extent in which it had been formerly
asserted, it was no longer supportable. —
3dly, About forty years after Bellarmine's
work appeared, the War of Thirty Years was
terminated by the peace of Westphalia;
several articles of it were favourable to the
Protestant religion. Pope Innocent, by a
protestation, in the form of a bull, took upon
him to annul them; but neither Catholics
nor Protestants paid the slightest attention

156

to his protestation. 4thlj, In the year 1682,
the clergy of France pubUshed their cele-
brated Declaration. It is expressed in four
articles ; by the first they declare, that
" Kings and Princes are not subject, in tem-
" poral concerns, to ecclesiastical power;
" that they cannot be deposed, directly 01
" indirectly, by the authority of the keys of
" the church, nor their subjects discharged
" from the allegiance and duty they owe
" to them."

The three other articles became subjects
of dispute; but, in the declaration of the
independence of the civil powers on the
spiritual, in temporal concerns, the Roman
Catholics, on this side of the Alps, univer-
sally acquiesced.

That such a claim was ever made is one
of the greatest misfortunes which have
befallen Christianity. The scenes in which
the Popes were engaged, in consequence of

157

it, certainly present the dark side of the
papal character. In most other points of
view, they appear to advantage, both in their
sacerdotal and their regal capacity. That
some of them were infamous by their crimes
and their vices, is true : it is also true, that
much more than an equal number of them
have been eminently distinguished by talents
and virtue; and_ that, collectively considered,
they will not suffer in comparison with any
series of sovereigns. Voltaire observes that,
in the dark ages, there was less of barbarism
and ignorance in the Pope's dominions,
than in any other European state : much
certainly was done by them, in every part
of Christendom, to protect the lower ranks
against their oppressors, to preserve peace
among Kings and Princes, and to alleviate
the general calamities of the times. Their
exertions for the conversion of infidels were
unremitted : few nations can read the hi$-

158

tory of the first introduction of Christianity
among them, without being sensible of their
obHgations to the Popes. This is acknow-
ledged by all candid Protestants, " Quod
' ad conversionem ethnicorum attinet, mis-
' siones Romanorum, quantum in me est,
' omni ope consilioque promovere soleo :
' neque invidise aut obtrectationi locum do ;
' gnarus, evangelii predicationem, a quo-
' cunque demum fiat, non sine fructu aut
' efficaci^ manere." (Ludolfi epistola ad
Leibnizium, Op. Leib. Ed, Dutens, vol. vi,
P. I. 140.) This is the genuine language
of good sense and conciliation. No conver-
sion was ever made, by proving to a Roman
Catholic, that his religion may be found in
the Name of the Beast, or by proving to a
Protestant, that Protestants were prefigu-
rated by the Locusts which issued from
the bottomless pit, and darkened the hea-
yens and the earth.

159
VI.

We now come to the last link of the
Hapsburgh chain.— It has been observed,
that the House of Lorraine descended from
Eticho, duke of Suabia and Alsatia, in 700 ;
and that Hugh, a descendant from him in
the fourth degree, had two sons, Everard,
the general parent of the house of Lorraine,
and Guntram, the general parent of the
house of Hapsburgh. At the distance of
about seventeen descents from Everard, we
reach Renatus the second, who died in 1508,
leaving two sons, Anthony, the patriarch
of the latter dukes of Lorraine ; and Claude,
the patriarch of the house of Guise. From
the house of Guise the branches of Mayenne,
Joyeuse, Aumale and Elboeuf, proceeded.
The whole of this illustrious house is now
represented by the princes of Vaudemont
and Lambesc.

To Anthony duke of Lorraine, Francis-

160

Stephen was seventh in descent. In 1736,
he married Maria-Theresia, the eldest of
the two daughters, and surviving children
of the emperor Charles the sixth. In 17.13,
by a testamentary disposition, called the
Pragmatic Sanction, guaranteed by most
of the European powers, the emperor had
regulated the succession to his hereditary
dominions, settling them first on the males^
and afterwards on the females, according
to seniority. But he was no sooner dead^
than the succession was disputed ; and the
dispute gave rise to a long and bloody war^
During the greatest part of it, France, Spain^
Bavaria, Naples and Parma, were on one
side ; Austria, England, Holland and Savoy,
on the other. Finally, the arms of Maria-
Theresia triumphed : — with the exception
of Silesia and Parma, she obtained all the
possessions of her father, and Francis-
Stephen, her husband, was elected em-
peror.

161

f n Charles the sixth the male stock of the
imperial line of the house of Hapsburgh
expired, after filling, without interruption,
the throne of Germany, and giving sove-
reigns to many other thrones during the
space of three hundred years : — in the late
emperor Joseph, his grandson, the two lines
of the Hapsburgh family, after a separation
of eight hundred years, were re-united.
This will appear by the annexed pedigree.'

" See Table IX, p. 164.

162

PART VII.

The Period, between the Marriage of Mari a-
Th ERE SI A, and the Commencement of the
J^'rench Revolution.

1736 1787-

It remains to give some account of the
Lorrainese- Austrian Emperors, from the
marriage of Maria-Theresia of Hapsburgh
mth Francis duke of Lorraine, to the com-
mencement of the French Revolution.

VII. 1. On the decease of Charles VI,
Maria-Theresia, his only daughter, suc-
ceeded to a splendid inheritance. — Speak-
ing generally, at the time of her accession,
the House of Austria was possessed of the
following territories, and held them hy the
following titles :

1st. Austria, Stiria, Carinthia, Carniola
and the Tyrolj had been acquired to her by

163

the Conquests of Rudolph of Hapsburgh,
and by the marriage of his son, Albert,
with the heiress of those possessions :

2d. The Netherlands had been acquired
to her, by the marriage of Maximilian the
first, with Mary, the heiress of the House
of Burgundy, and subsequent treaties :

3d.' Some territories in Suabia, particu-
larly the Burgau, had been acquired to her
in consequence of the emperor Maximilian's
reuniting them to the Empire :

4th. Bohemia, Silesia, Moravia, and Hun-
gary, with Croatia, Sclavonia and Dalmatia,
had been acquired to her by the marriage
of the emperor Ferdinand the first, with
Ann, the heiress of Bohemia and Hungary:

5th. She had acquired Brisgau, by the
grant of the emperor Lewis of Bavaria ;

6th. The Mantuan, by confiscation, under
Joseph I ;

7th. And the Milanese, by the treaty of
Radstadt.

M 2

164

Francis-Stephen of Lorraine, the hus-
band of Maria-Theresia, died in 1765 ;
she survived him fifteen years, and died
in 1780; her descendants will appear by
the following Table.

gl o s- ? , ?-

S^l^f-— M = ^ 1

i ; S o? + + + _
" ' ' ^1 S 8 i *

?— m

iH-r;^i

^crcrv.^— g — I

++ +++++++

§1 psSSasp

r ?-. h-

165

VII. 2. The first event of importance,
after the accession of Maria-Theresia, was
The War of Seven Years.

In a Note, X. 2, to this present work,
some mention will be made of the gradual
rise and increase of the territorial possessions
of the House of Hohenzollern — of their
elevation to the Electoral Dignity, under
the title of Electors of Brandenburgh ; — of
their assumption of the title of King of
Prussia, — and of the extensive influence
acquired by them in Germany. These were
strongly seen and strongly felt both within
and out of Germany, during the war for
the succession of Austria. That war was
scarcely terminated, before a private treaty
was entered into between the Courts of
Vienna and Dresden, — to which, the Court
of Petersburgh afterwards acceded, — the
object of which was, to recover the whole
of Silesia, and other ample territories from
the King of Prussia. Having received

166

information of this project, the King of
Prussia invaded Saxony and Bohemia : this
was the origin of the war of seven years.
The AuHc Council voted his conduct a
breach of the PubUc Peace ; and the Diet
of the Empire passed a decree for enforcing
the Execution of the Resolution of the Aulic
Council. This made it that kind of war
which the Publicists of Germany call a War
of Execution of the Empire. Afterwards,
an attempt was made to bring before the
three colleges of the Empire the question,
whether the King of Prussia, in his capacity
of Elector of Brandenburgh, ought not, on
account of his alleged breach of the pub-
lic peace, to be put to the Ban of the
Empire: but such measures were taken by
the King's adherents, as effectually kept it
from regular discussion.

The event of the war is well known : —
after seven years of war, in all its horrors,
conferences for peace were opened at

167

Hubertsburgh, and soon after a treaty was
concluded between the Empress Queen and
his Prussian Majesty : the substance of it
was, that a mutual restitution and oblivion
should take place, and that each party
should sit down in the same situation in
which he began.

" It is impossible,'* says Mr. Dornford, in
a note in his excellent translation of Pro-
fessor Putter's *' Historical Development of
the Political Constitution of the Germanic
Empire,'' vol. iii. p. 113, " to give the
" reader a more just idea of the calamities
" of this dreadful war, than from the follow-
*' ing elegant and descriptive letter written
" by her present Majesty, when princess of
" Mecklenburg, to the King of Prussia.

" May it please your Majesty,

" I am at a loss whether I should
" congratulate or condole with you on your
" late victory, since the same success which

M 4

168

** has covered you with laurels has over-
" spread the country of Mecklenburg with
** desolation. I know, Sire, that it seems
" unbecoming my sex, in this age of vicious
** refinement, to feel for one's country, to
*' lament the horrors of war, or w ish for the
** return of peace. I know you may think
" it more properly my province to study the
•* arts of pleasing, or to inspect subjects of
** a more domestic nature : but, however
*' unbecoming it may be in me, I cannot
** resist the desire of interceding for this
^' unhappy people.

*' It was but a few years ago, that this
*' territory wore the most pleasing appear-
*' ance, the country was cultivated, the
*' peasant looked cheerful, and the towns
*' abounded with riches and festivity. What
" an alteration, at present, from so charm-
" ing a scene ! I am not expert at descrip-
*' tion, nor can my fancy add any horrors
" to the picture ; but surely even con-

169

" querors themselves would weep at the
** hideous prospect now before me.

" The whole country, my dear country!
" lies one frightful' waste, presenting only
" objects to excite terror, pity, and de-
" spair. The business of the husbandman
" and the shepherd are quite discontinued.
" The husbandman and the shepherd are
" become soldiers themselves, and help to
" ravage the soil they formerly cultivated.
" The towns are inhabited only by old men,
** women, and children. Perhaps, here and
" there, a warrior, by wounds or loss of
" limbs rendered unfit for service, left at
" his door ; his little children hang around,
^' ask the history of every wound, and
** grow themselves soldiers before they find
•' strength for the field. But this were
" nothing ; did we not feel the alternate
" insolence of either army, as it happens
** to advance or retreat in pursuing the
" operal:ions of the campaigns. It is im-

170

** possible to express the confusion, which
" even those who call themselves our friends
** create. Those, from whom we might
*' expect redress, oppress us with new ca-
** lamities. From your justice, therefore, it
*' is that we expect relief. To you even
" women and children may complain, whose
*' humanity stoops to the meanest petition,
** and whose power is capable of repressing
•' the greatest injustice/'

VII. 3. The second event during this pe-
riod was the war, occasioned hy the extinction
of the House of Bavaria. — It ended in the
peace of Sax-Teschen, by which, the right
of the Elector Palatine to the succession
was allowed, with the exception of some
districts of land between the Danube, the
Inn and the Salze, which were ceded to
Austria.

VII. 4. The next event during this pe-
riod, was the Partition of Poland. — That
part of Poland, which lies on the west of

171

the Vistula, belonged to the antient Ger-
many ; the remainder of it belonged to the
antient Sarmatia Europa^a. The nation is
of Sclavonic origin : the word Pole, in that
language, signifies a plain, and was applied
to the immense tract of level country, of
which, with scarcely any exception, the
whole of Poland consists. The sovereigns
of Poland are generally divided into four
dynasties : I. The House of Lesko ; II. The
House of Piast ; III. The House of Jaghel-
lon ; and IV. The different families, from
whom the princes have been taken, who
succeeded that house. The history of the
first Dynasty, and of the first princes of
the second Dynasty, is fabulous : with the
third Dynasty, the history of Poland be-
comes more interesting. Poland was always
a powerful barrier against the Ottoman
irruptions, and frequently triumphed in
the centre of Germany, and on the Rhine :
she is now blotted out of the nations of

172

Europe. By successive partitions in 1772,
1793 and 1796, the whole kingdom
became divided among the Austrians,
Prussians, and Russians; — each sovereign
seized the territory adjoining his own ; that,
seized by Austria, was the most populous ;
that, seized by Prussia, was the most com-
mercial ; that, seized by Russia, was the
most extensive.

PART VIII.

From the commencement of the French Revolu-
tion till the Extinction of the German
Empire.

1787—1806.

We are now come to the last page of
the history of the Empire of Germany. —
the efpects produced in it by the
French Revolution.

For this purpose, it may be useful to re-
turn to that period of the history of France,

173

in which it was left in one of the preceding
sheets— the accession of Hugh Capet to
the throne of France ; and to point out the
successive alterations, which took place in
the constitution of France, between that
period and the late revolution.

These are, — 1st, the re-union of the Great
Fiefs to the crown ; adlj, the elevation of
the commons to a third order in the state ;
3dly, the substitution of the States-General
for the assemblies on the Champ de Mars ;
4thly,the substitution ofthe Three Orders of
the State for the States-General ; 5thly, the
increase of the authority of the Parliament
of Paris ; and 6thly, the absolute power of
Lewis the fourteenth. We should also
notice, 7thly, the conflicts during this
period of the clergy, the nobility, and the
parliament, with the crown ; and Sthly,
the privileges retained by the clergy and
nobility.

174
I.

1. Mention has been made of the
usurpations of the great vassals of France,
and of their rendering their dignities and
governments hereditary in their famihes.

The paternal domains of Hugh Capet
consisted of the dukedom of Paris, and the
Isle of France. These, with the royal do-
mains, which he acquired by his usurpation,
extended from the mouth of the Somme
over a considerable tract of the country on
the south of Blois, leaving Normandy and
Brittany on the w^est ; and Champagne, the
Nivernois, and the Berri, on the east. After
Hugh Capet acquired the throne, he used
his utmost efforts to restore it to its antient
splendour ; but, throughout his reign, he
was obliged to acquiesce in the hereditary
descent, which his great vassals claimed
for their possessions.

The leading object of all his successors,
was to re-unite to the crowns the possessions

175

usurped from it hy its Great Vassals ; and
they pursued it with unvaried attention.
By treaties, marriages, successions, pur-
chases and conquests, they accomphshed
their object so far, that, previously to the
accession of Lewis the thirteenth, the
seventy-two great fiefs of France were united
to the crown, and all their feudal lords
attended at the states-general in 1614, the
last that were held till the memorable
assembly of them in 1789. This system
of re-union was completed by the conquests
of Lewis the fourteenth, and by the acqui-
sition of the provinces of Lorraine and Bar
to the crown of France in 1735. A chrono-
logical account of these re-unions may be
seen in the annexed Table X.

2. To lessen the power of the vassals, the
French monarchs raised the commonalty. — •
During the Merovingian and Carlovingian
dynasties, the classes of society, below the
mill tes, consisted chiefly o^ freemen engaged
in husbandry, villeins^ or persons attached

176

to the soil of their lords with some property
of their own ; and Serfs or Slaves, who
were in the lowest state of public and
private slavery.

Lewis the fat enfranchised the slaves and
villeins in all the towns which belonged
to the crown. Thus he raised them to the
rank of freemen engaged in husbandry, and
brought them under the protection of the
law ; his vassals imitated his example. Ac-
cording to the notions of justice in those
times, it was a branch of the royal preroga-
tive to administer justice in all cases, which
the law of tenure did not bring under the
cognizance of the feudal courts. The French
monarchs appointed commissioners to exer-
cise, in their names, this part of their royal
prerogative ; and, twice in a year, they made
a justiciary circuit of the kingdom.

By degrees, the monarchs advanced a
step farther : — m the settlement of diffe-
rences among themselves, the sub-vassals

had

To face ji. 176.

THE Ciiow^-, is translated from the
'* 1759-

FRANCE.

Visr. . - - - Viscountv.

The following Chronologic

I TABLE X.

. Account op theIReukion of the Great Fiefs of Fr,\>
Abrcgc Chronologiqie des Granils Fiefs ile la Couromie de Frmia

is translated from the

B. - - - • Bishopr

CHRlONOLOGlCAL TABLE
OF THE REUNION OF THE GREAT FIEFS TO THE CROWN OK FKANCE.
*«• Tile inilial litters in this table denote ns follows :
D. - - . . Duchv. M -

. Duchv.
. Kingdon

- - Marquisale.
. - - Principality,

;;:

\ 1303.
J 1307.
■\ 1307.
/ 1310.
I 1312.
. 1 1327.

!1328.
13S8'.
1329.
1349.
l:»0.
f 1365.
J 1375.
") 1375.
( 1.380.

and the Ebro. By deg

^ ._ ;]! ilK-Croivn.

C. o( fJisnies )

C. or MatwiJIes . . . | '<'« Con.uls.

C. .if n,.i7.,lois. ... >I"!D. of Burgundy.

C. .11 Muiftliifon ... I "'= C, of Boiirboniiois

^■■;:;^i:;::::;:| "-'=-"■

f. ..I C I iluiis .... I thf!D. ofBurgiinHy,

C. uf Hm'il.igne' .''. . I* tl#-Cro<.m

T. iifViLiHK- .... I ttf Arclibishopricli.

Jr.of Pru.LTlCC . . . i 1

C. of Ihoolouae . . . S IW Crown.

C. of Ossi-iine .' . ! . | tM D. of Burgundy.

C o|-CI,'.X" \ 'H '^"""■

vise, of Warn '. .'.'.\ Oil C. of Fmx.

C. of laJIardie . . .i

C. ofAngoulSme ../ ,|,» Cro»n.

C. of Bigore f

C. of Lyon J

C. of Ronergue ... I the C of ..Vrmagnftc.

C. ofCharoloi! ...| tht C. of Arniagnac.
C. ofCliampagne . .i

C. of Brie .

C. of Valoi I

C. of Anion V „ ,. „

C. of Maine / "'= '^'"''"■

C. ofCiiartre. ....

DauphineofViennois |

C. of Montiu'llier . .J
C.ofAn.erre ) j

D. of Valoi, / l„ „,„

C. of Ponlhicu . . . )

cnt of Charlemagne's empire, page 26, it
the wholn of that country was lost to thd c

lave comprised the whole of the country belweeii ihc Pyrei.nei
ancc: the hist portion of it was resigned by St. Lewis, in l-ioS.

177

had their own tribunals ; an appeal from
them lay to the plaids or parliaments of
the chief vassals ; by degrees, the kings of
France established an appeal from those
plaids or parliaments to their own particu-
lar plaids or parliament : this materially
contributed to the splendor and power of
the sovereign. These innovations cemented
the union between the monarch and the
commons ; and, by increasing the import-
ance of the latter, insensibly raised them to
a thii'd oj'der in the state.

3. We have seen that the assemblies on
the Champ de Mars consisted of a body of
individual chieftains, convened by their
prince. — After the chief vassals had made
their governments independent and heredi-
tary, the national assembly was a convention
of hereditary governors of particular states,
bringing to it their own vassals. To this
convention the commons, on account of
their acknowledged civil rights, and their im-
mediate subordination to the soveregin, now

178

obtained admission. It is anticipating both
events and language, to call these states,
the three orders of the state : the first states,
(not the first order of the state), were those
governed by the chief ecclesiastical vassals ;
the second states, (not the second order of
the state), were those governed by the chief
lay vassals ; the third states, were civil com-
munities, governed by municipal officers.
Both the chief ecclesiastical and the chief
lay vassals brought with them their own
vassals to the assembly ; the communities
appeared by their deputies. Such was the
original constitution of the States General.

4. In proportion to the depression of the
chief vassals, the general body of the clergy
rose into notice and power, and became
the Order of the Clergy., and the general
body of the nobles rose into notice and
power, and became the Order of the No-
hility : and thus the assembly of the states,
retaining their name, but consisting of
members of a very different character.

179

became an assembly of the Three Orders of
the State.

It is observable, that, notwithstanding
the two last revolutions, each order retained
much of the spirit of their predecessors.
Like the governors of the ecclesiastical
states, the clergy, except on some remark-
able occasions, as in quarrels between Philip
the Fair and Boniface the eighth, favoured
the pretensions of the popes ; — like the
governors of the lay states, the nobility
sought to throw off their dependence on the
crown; like their husbandmen predecessors,
the third order, notwithstanding its advance-
ment, felt its inferiority to the two other
orders, and shewed an habitual submission
to them.

= 5. But in the mean time a new power
arose in the state. When Hugh Capet
usurped the throne, he had a large paternal
territory, of which, as duke of Paris and
the Isle of France, he was the feudal lord ;
and which, like other feudal baronies, had

N 2

180

its plaids or parliament. This territory de-
scended to his successors; and, as the great
fiefs were severally re-united to the crown,
the plaids or parliament of Paris became the
plaids or Parliaments of those fiefs. At first,
particularly while judicial combats lasted,
the parliaments administered justice with a
kind of military law; insensibly the par-
liament became a court of civil justice
and civil forms. — Those required know-
ledge and application, and thus the Gens
de loi, a class of persons wholly unknown
to the ancient constitution of France, be-
came a separate class of persons, and
something like a distinct order in the state.
By degrees, the parliament became a na-
tional court for the administration of justice
throughout the kingdom, particularly in
great ca^uses, a general court of appeal, and a
court of record to register the king's decrees.
6. Under the meridian glories of Lewis
the fourteenth both the order of the clergy
and the order of the nobility wholly lost

181

their territorial power and influence ; the
third estate scarcely felt its existence, and
the parliament was a mere tool of the crown :
then, in the largest sense of the word, tlie
monarch became absolute. " L'Stat est moi,"
is an expression attributed to Lewis the
fourteenth.

7. At different periods of the Capetian
dynasty, each of the orders of state had its
conflict with the crown. In the quarrels of
pope Boniface the eighth with Philip the
Fair, some oithe clergy showed a strong incli-
nation to support the former, but the general
body was rivetted to their allegiance by the
spirit of the monarch, and the firm adhe-
rence of the nobility and third estate to his
cause. During the league, the clergy took
part against the crown ; but, from the reign
of Henry the fourth, their temporal power
declined.

Many were the attempts of the nobility to
regain their former consequence. With that
view they engaged in the League of Public

182

Good, under Lewis the eleventh; joined in
the Holy League in the reigns of Francis
the second, Charles the ninth, Henry the
third, and Henry the fourth; thwarted the
attempts of Lewis the thirteenth, to subdue
the Huguenots ; and, in the minority of
Lewis the fourteenth, kindled the war of
the Fronde.

The parliament showed an equal spirit of
resistance to the monarch's will. They as-
sumed, and were allowed, the privilege of
remonstrating against the decrees which the
king sent them to register, if they professed
to discover in them any thing contrary to
the interest of the state, identifying it, in
expression, with the interest of the monarch.
In the time of the league, they acquired
great consequence : they positively refused
to register a decree of Henry the fourth ;
and announced to him that " they would
" always be guilty of that crime, when his
*' will should stand in opposition to his in-r
" terest," Cardinal de Richelieu reduced

183

them to the lowest state of submission:
but they revived in the troubles of the
Fronde.

It is observable that neither the clergy
nor the nobility recovered from the state of
dependence to which they were reduced
by Lewis the fourteenth ; but the parlia-
ment soon rose with fresh vigour. Even
in the life-time of that monarch, they be-
came so powerful, that it required much
exertion and management to make them
register his decree for legitimating his na-
tural offspring ; they set aside his will, and
were constantly at variance with his suc-
cessor, during the last years of his reign. '

8. It must also be observed that, though
the Clergy and the Nobility had been thus
deprived of the whole of their territorial in-
dependence, they had been permitted to
hold their rank among the orders of the
state, the privileges annexed to it, and al-
most an exclusive title to the favours of
the court. This gave them a superiority

N 4

184

over the third order, which was severely
felt by its members in every public and
private occurrence.

In 1614, M. de S6ne^ey presented to
Lewis the thirteenth, an address from the
order of nobility assembled at the states-
general, in which, after much pompous de-
clamation, on the services and rights of the
nobility, he thus expresses himself: — " I
*' should never finish, were I to relate to
" his majesty, all, that antiquity has taught
" the nobility, respecting the pre-eminence
" which birth gives to their order; — an order
" so distinct from the rest of the people,
*' that they never can bear any kind of com-
" parison. The third estate is composed of
" the people in the towns, and in hamlets:
" almost all of them owe homage, and are
" subject to the courts of the other two
" orders, either as citizens, burgesses, trades-
" men, or mechanics, or in virtue of some
*' offices. These are they, who losing sight
" of their proper conduct, unmindful of

185

" their duty, and not acknowledged by those
" they represent, venture to compare them*
** selves to Us! — I am ashamed,^' continues
the orator, " to relate to your majesty the
" expressions, which have again offended
*' us. They compare your state to a family
" consisting of three children. They say
" the clerical order is the eldest, ours the
" puisnS, and themselves the cadets. Into
" what a miserable condition are we fallen
" if this expression be true! — To what are
" reduced so many services, rendered from
" time immemorial ! — so many honours and
" dignities transmitted hereditarily! — thus
" to form, with the vulgar, the closest so-
** ciety among men,^^ Such notions, too
generally entertained, and too publicly
avowed by the French nobility till the
latest aera of their political existence, must
at all times be offensive: after a general
diffusion of knowledge and opulence, they
must be insupportable. This was their
effect in France : they contributed very

186

much to produce that irritation of the
public mind, which was one of the causes of
the late revolution.

Among the privileges which the nobility
were permitted to retain, after the loss of
their territorial independence, was their
exemption from the Taille,"' and from some
other burdens of the state. This greatly
lessened the resources of government, and
increased its financial embarrassments : — it
was the proximate cause of that, event, from
which the revolution is usually dated.

^ See note XIII.

. II.

But, whatever may have been the abuses
of the ancient regime, there is great reason
to doubt, whether the situation of the world,
or of France in particular, was such, as pro-
n)oked a devolution. — Mr. Gibbon, (i. v.
c. 3,) has asserted that, " if a man were to
" be called to fix the period in the history
" of the world, during which the condition

187

" of the human race was most happy and
'*' prosperous, he would, without hesitation,
** name that, which elapsed from the death
^* Domitian to the accession of Commo-
*' dus." But this would be doing injustice
to our own times. In the annals of the
world, the Governments of Europe were
never so mild ; the nobility never enjoyed
their honours in so much quiet ; the clergy
were never so little disturbed in their privi-
leges ; the professions of Agriculture and
Commerce were never so much protected
and encouraged, the poor were never treated
with so much kindness, as from the end of
the seventeenth century to the commence-
ment of the French Revolution : nor, till
that time, had useful or ornamental know-
ledge either reached such a height, or been
50 generally diffused. Europe abounded
with Institutions for promoting public and
private comfort and convenience ; the check
of manners, and opinion on power and rank
were very strong ; War was generally de-

188

precated ; and, when it broke out, the
general temper of mankind prevented or
softened many of the calamities which are
its usual concomitants. Thus the various
states of Europe enjoyed a degree of public
and private happiness, which they had
never before experienced, and they were
the more sensible of their happiness as they
might reasonably expect its increase.

This was particularly the case with
France:- — particular instances of oppression
might be mentioned; but, viewing the general
state of the Country, it may be confidently
asserted that the French nation was ne-
Ter so prosperous, the individuals of it
never so happy, as in the fifty years
which immediately preceded the French
Revolution. " The severest censors of the
'* French Government,'' says M. Mounier,
** could not deny the great populousness of
** the Kingdom, the flourishing state of its
** commerce, the plenty of its markets, or
*^ its public tranquillity ; what stronger

189

*' proof can be given of its general happi-
" ness and prosperity?"

III.

The events which immediately led to the
French revolution, was the discovery, in the
year 1787, that the annual produce of the
French finances fell short of the annual
expenditure, hy fifty-four French millions,
or two millions two hundred thousand pounds
of our money.

1 . To raise a sum, which would equalize
the income with the expenditure, it was
found necessary to subject the privileged
orders to contribute more equally than they
had done to the national burden. To effect
this, the king called, first an assembly of the
Notables, — afterwards an assembly of the
States General. According to their ancient
constitution, the three orders, of which th»
states-general were composed, were to as-
semble in separate chambers, and each

J 90

order to vote separately. To this mode of
voting, the third order objected ; and, on
account of the system of taxation intended
to be carried against the two privileged
orders, they were supported in their ob-
jection by the court. After some discussion
it was settled, that the three orders fhould
meet in one deliberative assembly and vote
by the head. The king was soon dissatis-
fied with their proceedings : he issued a
peremptory order for the suspension of
them, and placed a guard at the door of
the chamber where the three orders used to
meet, to prevent their assembling there in
future. The members adjourned to a
tennis court, and took the celebrated oath,
not to separate, till a legal constitution
should be established : the court allowed
them to proceed : — here the revolution
began ; it ended in the abolition of royalty^
and the establishment of a re])ublic.

That such an annual deficit, fhould pro-
duce such a sensation, in such a kingdom

191

as France, is nndeniahle proof that its go-
vernment was in the highest degree weak
and- embarrassed.

2. The chief causes of this weakness and
embarrassment were, the expensive wars and
magnificence of Lewis the fourteenth ; and
the expensive zvars and profuse profligacy of
Lewis the fifteenth. But many states hav6
had their weakness and embarrassments,
and have sunk or recovered without a re-
volution.

3. The circumstances, xvhich made the
weakness and embarrassment of the French
government immediately lead to a revolution^
were the general dissatisfaction of every
class of persons in France with the place it
held in the state : and the general wish for
a new order of things, to which that dissa-
tisfaction gave rise. The labouring part of
the community complained, that they were
the despised portion of the state, and bore
all its burdens ; the lower rank of the clergy
felt very strongly the unequal distribution

192

of ecclesiastical property, and the lofty
manners of the dignitaries of their order ;
the financiers, the merchants, and the opulent
burghers, had often reason to feel that, not-
withstanding their wealth, their Splendor,
and their relative importance, they were a
degraded cast in the view of the privileged
orders ; the nobility of the provinces, or, as
we should call them, the country gentle-
men, were jealous in the extreme of the
nobility of the court ; and those saw with
indignation, that all their rank and conse-
quence vanished before the crown and its
favourites. Even the monarch himself was
not wholly satisfied with his lot : partly with
a view to gratify his subjects, and partly
with a view to his own ease, he wished to
deprive the nobility and great lords of cer-
tain prerogatives, which occasionally pres-
sed inconveniently both on himself and his
people : and he was particularly desirous of
some alteration in the forms of the consti-
tution, which would put an end to the

quarrels

193

quarrels between the parliaments and his
ministers, which equally distracted his peace,
and disturbed the government.

Thus each class of men was dissatisfied
with the place it held in the state, and a
revolutionary spirit prevailed every where.

4. Unknown in a great measure to them-
selves, this revolutionary spirit had a repub-
lican tendency J On one hand, the respect
of the French for the monarch had been
greatly diminished by the low profligacy of
the court in the latter part of the long reign
of Lewis the fifteenth, and had been still
further diminished by Maria-Antoinetta's
rejection of etiquette, and the consequential
freedom of manners : on the other hand,
the contests of Lewis the fifteenth with
his parliaments, the increased intercourse
between France and England, and the
monarch's improvident connexion with
America, introduced notions of liberty, in-

' See note XIV.

194

compatible with the existing form of the
French government.

To these, may be added a host of writers,
almost incessantly employed in exposing to
ridicule and detestation the national religion,
and the abuses of government, and in point-
ing out the advantages and necessity of a
radical reform. To those, many have at-
tributed the destruction of monarchy, the
murder of the monarch, and the general
horrors of the French revolution. The
charge has been principally levelled against
the class of men called the French Philoso-
phers :_ from this charge they have been
defended, not very successfully, by M-
Mounier and M. Mallet du Pan.'

• See note XV.

IV.

At the commencement of the revolution,
there was a considerable difference of opinion
among the politicians of the other states of

195

Europe, on the line of conduct which it was
their interest to adopt in respect to France,
one party advising peace, the other war.

1 . The advocates for peace asserted, that
every nation has a right to regulate its inter-
nal concerns and change its form of govern-
ment ; and that her making those changes
can never be a just cause of war. They
contended that the intentions of France
were pacific : and that, if she were left
to herself, the occupations of commerce
and husbandry, and the pursuits of the arts
and sciences would continue as before ; the
political effervescence would subside, the
sober and well-intentioned party would gain
the ascendant ; and the king, with some
salutary modifications, would preserve his
power. They predicted that the war must
ultimately prove ruinous to the powers who
should engage in it : for, though it should
destroy the commerce and finances of
France, yet this would only have the effect
qf recruiting her armies, by supplying her,

O 3

196

from her unemployed workmen and arti-
ficers, with an inexhaustible body of recruits ^
that making her a bankrupt would only re-
lieve her from her debts; that her twenty-
five millions of population would be re-
duced to two professions, war and agricul-
ture : that France would thus become a
nation of armed men, with all the energy,
and all the resources which, in a time of
anarchy and revolution, a foreign and a
popular war gives to a triumphant party,
by putting them in full possession of the
sovereignty, the power, the armies, the
offices, and the treasures of the kingdom.
Finally, they remarked how seldom coali-
tions have succeeded ; and that, from the
known aversion, which the Austrians and
Prussians, the leading powers in the pro-
jected coalition, had for each other, and the
envy, not to say the hatred, which all the
powers proposed to be coalesced bore to
the English, there were more than sufficient
seeds of discord in the original constitution

197

of the coalition to produce its ruin. This
was the language of Prince Kaunitz at
Vienna, and of Mr. Fox in England.

2. The advocates for war contended, that,
if the revolutionary spirit and practices of
France were not subdued, they would over-
run Europe ; so that, to prevent their
perishing in the shipwreck of France, it Mas
necessary that the other states of Europe
should unite and, b^ restoring monarchi-
cal principles, destroy their common foe.
They predicted, from the state of the finances
of France, that there must soon be an end
of her credit, and that, whenever her credit
should be at an end, she must fall at the
feet of her enemies. They maintained that
unconditional submission, and a full resto-
ration of monarchy, and the ancient order of
things, were the only terms which the allied
powers should receive : but that the allied
powers, in return for their services, should
have what they were so justly entitled to,
indemnity for the past, and security for the

1^8

future. They added that, in France, the
friends of the revolution bore no proportion
to the royalists ; and that, as soon as the
allied powers should appear in force on
the confines of the kingdom, the royalists
would crowd to their camps, the towns would
open their gates to receive them, and the flag
of royalty would be unfurled in every pro-
vince of the interior. — This was the language
of Mr. Pitt.

3. Among the advocates for war a smalt
portion of enlightened men, at the head of
which were Mr. Burke and Mr. Mallet du
Pan, held a different language. In a work,
which for an united display of eloquence,
information, discernment, and philosophy,
has very few rivals, Mr. Burke exposed his
sentiments. He predicted, in it the fall of
royalty, the complete triumph of the Jaco-
bins, the extinction of public credit, and,
its consequence, the portentous power of
the usurpers of the French government ;
thieir attempts to revolutionize evety st^te

199

of Europe, their successes, and their enor-
mities : he adjured the powers of Europe
to unite against them, to make such exer-
tions as befitted no common war, to pursue
no other object than the restoration of the
monarch and the old government of France,
and to disclaim, in the most unequivocal
expressions, and by the most unequivocal
acts, any views of private interest.

Early in the year 1792 the League was
formed, and the emperor and king of
Prussia, at the head of an immense army,
invaded France. Some time after, they
were joined by England ; and Mr. Herbert
Marsh's excellent History of the Politics of
Great Britain and France^ from the time of
the conference of Pibiitz till the declaration
of war against Great Brit ain^y^dis composed
to show that England did not join the
league till after the open and avowed hos-
tilities of France had made it unavoidable.

This grand coalition produced no effect :
the states^ of whom it was composed, en-

200

tered into it, one after another, with no
cordiahty, and with a coolness approaching
to indifference. The friends of royalty
among the French were persuaded, that the
league was formed with some views, distinct
from the re-establishment of the monarchy;
the powers themselves never made any ex*
plicit declaration to the contrary ; the in-
demnity, which they claimed for the past,
41- was construed by the French to mean a dis-

memberment of a part of the empire ; the
security, which they claimed for the future,
was construed by the French to mean the
dismemberment of a further part of it ;
and some ground for this construction ap-
peared in the indifference shown by the allied
powers to the princes of the house of Bour-
bon, from their unwillingness to employ
them, or to repose the least confidence in
them ; and from their making their con-
quests in their own names and garrisoning
them with their own troops. Good policy,
perhaps, required that the French princes

201

should have appeared as the principals in the
war, the allied powers as their auxiliaries ; — -
the reverse of which was uniformly shown ; —
that the French princes and allied powers
should have made the terms of communion
with them as broad as possible; that the
French nation should have been given to
understand, that much of the property which
the revolution had transferred from one hand
to another, should be permitted to remain
with the new possessors ; that, with a very
small exception, a general amnesty should
have been proclaimed ; and that by abo-
lishing the leftres de cachet , establishing
regular meetings of the states-general, and
making their consent necessary to new
taxes; by allowing the subjects something
in the nature of our Habeas Corpus; by sub-
jecting the nobility to the burdens of the
state in common with other subjects, and
by extinguishing the most odious of the
prerogatives of the privileged orders, some
sacrifices should lie made to the general

202

wish-, expressed by almost all ranks of men
at the beginning of the revolution, for the
limitation of the arbitrary power of the
crown, and the privileges of the nobility.
It is probable that, by proceeding in this
manner, a general insurrection in the in-
terior might have been produced, which,
with the co-operation of the allied armies,
might have overturned the Jacobin govern-
ment of France. This was the burden of
many a page of M. Mallet du Pan. His
melancholy forebodings, and their regular
accomplishment, merited for him the ho-
nourable appellation of the Cassandra of
tbe French revolution.

4. The event of the war is known. After
issuing a manifesto, which should never
have been issued but from the camp of vic-
tory, when the enemy was prostrate and
suppliant, the duke of Brunswick made an
ignominious retreat from France.

or;

JEx illo fluerCj ac retro sublapsa referri,

Spes Danaum. Virg.

" From that time," sajs Mallet du Pan,
" the French republicans turned against
" their enemies the terrors with which their
" enemies thought they should have smit-
" ten them. — In six weeks the dominion of
" the revolution was rapidly extended, from
** the Alps to the Rhine, and from the
" territory of Genoa to the mouth of the
" Scheldt. The higher circles of the
" German empire, the United Provinces,
" Switzerland, Italy, all floated to the
** abyss."

From this it is evident, what produced
the rapid and extensive conquests of the
French. It was that which gave Thrace,
Greece, and the Persic empire to Alexan-
der the Great; — whi^^h gave all within the
Ocean, the Rhine, the Danube, the Eu-
phrates, Mount Atlas, and the Nile, to the
Romans; — which gave Asia-Minor and the
Morea to the Turks, — the want of One
powerful, united, energetic and wise con-
federacy to subdue the common foe. —

Tacitus, in a single line, has written the
history of the coalitions against France, —

' ■ " Dum singuli pugnant, universi vincuntur."

Sometime in the month of August 1792,
the writer of these pages called on Mr.
Burke; and found him, as he usually was,
at that time, surrounded by many of the
French nobility, and haranguing them, with
great warmth and eloquence, on the horrors
of the French revolution, and the general
ruin with which it threatened every state in
jEurope. One of them interrupted him by
saying, with something more of levity than
suited either the seriousness of the subject,
or the earnestness with which Mr. Burke
was expressing himself, — " Mais enfin, Mon-
" sieur, quand est f e nous retournerons dans
" la France ?" " Jamais!" was Mr. Burke's
answer. It was a word of woe : he pro-
nounced it in a very impressive manner, and
it evidently appalled the whole audience..
After a short silence, during which his mind

205

appeared to labour with something, almost
too big for utterance, — he continued,—

" Messieurs ! les fausses esperance ne sont
" pas une monnoye que j*ai dans men tiroir :
" dans la France vous ne re tournerez jamais/'
— " Quoi done," exclaimed one of the audi-
ence, " ^es coquins!'' — " Coquins!" said
" Mr. Burke; — "Coquins! ils sont Coquins ;
" mais ils sont les coquins les plus formi-
" dables, les plus terribles que le monde a
" connu/' — " It is most strange!'' He then
said in the English language, — " I fear, I am
" the only man in France or England, who
" is aware of the extent of the danger with
*' which we are threatened." — A pause en-
sued : — " But," said a person present, who
wished to prolong this very interesting con-
versation, " the Duke of Brunswick is to set
" all right." " The Duke of Brunswick!"
Mr. Burke exclaimed, " the Duke of Bruns-
" wick to do any good! a war of Posts to
" subdue France!" — Another pause ensued.
'* Ce qui me desesp6re la plus," he then
•^ 07

said, addressing himself again to his French
hearers, " pe qui me desespere le plus, est
" que, quand je pldne dans V hemisphere
** politique, jene vois guerre de t^te ministe-
" rielle a la hauteur des circonstanf es/'

: V.

" Je n^ai pas le courage de parler des
** mis^res qui suivirent," are Montesquieu's
words, when he comes to the last years of
the empire of the East : they may be used
by every writer, whose subject leads him to
notice, without obHging him to dwell upon,
the last years of the Empire of the West.

For the purpose of these sheets it is quite
sufficient to mention, that the original con-
federacy against France was terminated, in
respect to Austria, by the Treaty of Campo
Formio^ in October 1797 ; and that a second
. confederacy against France was terminated
in respect to Austria, by the Treaty of Lune-
ville in February 1801 ; that, during the

207

peace, or rather armistice, which followed,
Buonaparte, in May 1804, assumed the title
of Emperor of the French, and was crowned
at Paris in the following November ; that,
in August of the same year, the Emperor
of Germany assumed the title of Emperor
of Austria, for his independent kingdoms ;
and was soon after crowned at Vienna ;
that, in March 1805, the Kingdom of Italy
. was deferred to Buonaparte ; that he was
crowned, at Milan, King of Italy, in the
following May ; that, in the close of that
jeafj there was a third confederacy against
France, to which Austria, Russia, Prussia,
and England were parties; and that Buona-
parte obtained a complete victory over it,
at Austerlitz, almost immediately followed
by the treaty of Presburgh, signed in the
ensuing December. The first of the three
confederacies we have mentioned, gave to
France, Italy, and a part of Germany ; the
second, laid Austria at her feet; the third,
annihilated Prussia.

208

In July 1 806, most of the princes in the
western and southern divisions of Germany
separated themselves from the Germanic
body, and formed themselves into a league,
under the protection of the Emperor of the
French, with the title of the Confederated
States of the Rhine. On the 7th of the
following August, the Emperor of Germany,
by a solemn edict, abdicated the Imperial
Government of the Germanic Empire, and
absolved the Electors, Princes and States,
and all that belonged to the Empire, from
the duties, by which they were united to
him, as its legal chief.
- Such has been the extinction of the
Germanic Empire, after having subsisted
during a thousand years ; and having been
uninterruptedly possessed by the House of
Hapsburgh since the election of the Em-
peror Albert the second, in 1438.'

* See note XVI.

APPENDIX

PROOFS

ILLUSTRATIONS.

PROOFS AND ILLUSTRATIONS.

NOTE L p. 25.

r £ w subjects formerly occasioned more dis-
cussion, than the lawfulness of the de-
thronement OF Childeric by Pepin, and

the LAWFULNESS OF THE ELEVATION OF

Charlemagne to the Empire of the West,

IN EXCLUSION OF THE GrEEK EmPERORS ;

and this discussion has been revived by the re-
cent occurrences in France. It presents two
distinct subjects for consideration ; the conduct
of Pepin and Cliarlemagne, and the conduct of
the popes.

I. A more unjust usurpation than that of
Pepin can scarcely be imagined. Perhaps, in
our notion of the word, the Francic throne was
not, at that time, hereditary ; but it was heredi-
tary, in the sense then given to that word ; so
that, when a prince of the reigning family had
been seated on the throne, and recognized
by the people, his title, according to the uni-
versal opinion of those times, was as sacred

P 2

( 4 )

and incontestable as the title of any sovereign
has since been considered m modern Europe.
The Merovingian princes had done no act by
vs^hich they deserved to forfeit the affections of
their subjects; still less had they been guilty
of those enormities, " which make nature rise
" up, and, claiming her original rights, over-
" turn a corrupt system." (Boswells Life of
Johnson, 2d edit. vol. ii. p. 389). The only
charge alledged against them was, the degree
of inactivity, which gave them the appellation
of The Sluggard Kings ; but, by confining them
within the walls of their palaces, and reducing
them to a life of indolence, the Mayors them-
selves were the real authors of their inactivity ;
and thus made the crime of which they availed
themselves. This is demonstrated by Vertot,
Memoires de fAcadanie des Inscriptions et Belles
Lettres, torn. vi. Pepin's usurpation was there-
fore an act of glaring injustice.

But no objection lies to the justice oi Charle-
magne's assumption of the Western Empire.
The Greek Emperors had more than abandoned
the people of Rome. So far they exercised
sovereignty over them, as to claim a right of
persecuting them for holding religious tenets
different from their own ; but, when they were
invaded by the Lombards, and applied to the
emperors for relief, it appeared that the em-

( 5 )
perors had little will, and no power, to relieve
them. Now the rights of protection and alle-
giance are reciprocal ; and none can claim the
latter, who has not both the ability and the
will to afford the former. Protection, the em-
perors could not give to the Romans ; their
right to the allegiance of the Romans was,
therefore, at an end. On this ground, the part
taken by the Romans, first in seeking the assist-
ance of the Francic princes, and afterwards in
electing Charlemagne for their monarch, de-
serves praise ; and it is highly in favour of the
leaders in this revolution, that, till it became
necessary to choose betvveen submission to a
foreign yoke, and transferring their allegiance
to a new potentate, they rather retarded than
accelerated the final crisis.

II. In respect to the conduct of the popes
towards Pepin and Charlemagne, — the various
texts of ancient writers which throw any light
on it, are collected by Launoy, (Opera, torn, v,
pars 2. /. 12. epist. g. p. 477-487) and may be
seen in the originals, in Dom Bouquet's Col-
lection, tom. v.^ To suppose that the popes,

* The title of the first volume of this work, is Rerum Gal^
licarum 8f Francicarvm Scriptores, ou Recueil des Historie?is
des Gaules et de la Frame (les plus anciens et les contempo-
rains donnes dans leur langue originale ) , contenant tout ce qui
s'est passe dans les Gaules avant I'arrivee des Francois, et

( 6 )
in the time of Pepin and Charlemagne, as-
sumed a divine right to distribute kingdoms
and principahties, is to ascribe to them the
Hildebrandine principles, which the Roman see

plusieurs autre choses qui regardent les Francois dcpuis Ictir
origine jusqu'ct Clovis ; le tout accompagne de Prefaces, de
Sommaires, de Notes et de Tables, par le R. P. Dom Martin
Bouquet, et autres Religieux Baiedictins, Paris, 1738. It was
continued on the same plan to the year 1060 : the first vo-
lume was published in 1738, the eleventh and last in 1767.
The general value of the work is enhanced by the learned
Dissertations, the ample Table of Contents, and the full
Index, inserted in each volume, and by the Maps and other
explanatory or illustrative matter occasionally introduced
into the work. The Tables of Contents and the Indexes are
framed with so much minuteness and skill, as to bring, in a
few minutes, before the reader's eye, all that can he found in
contemporary or ancient writers, respecting any fact within
the period of the collection on which he can seek for in-
formation : — at the same time, that the dissertations are so
copious and so ably executed, that there seldom is a point of
importance or difficulty, where the writers have not collected
for the reader, the learning and sentiments of all preceding
writers upon it. Dom Bouquet lived to finish the eight
first volumes ; on his decease, the work was put into the
hands of Dom Haudequier ; who with a view to it, had, in
Dom Bouquet's life-time, learned the Arabic language, to
enable him to print, with a translation, the authors who have
•written, in that language, upon the Crusades. — Both writers
were Benedictine Monks of the Congregation of St. Maur;
and invaluable as the work is, it is by no means the only
work of the same calibre, for which we are indebted to that
learned community. — In surveying the collection, it is im-
possible not to feel a wish for a similar collection of our
ancient English historians.

( 7 )
did not profess till three centuries afterwards.
But, even in the times of Pepin and Charle-
magne, the popes took on them to pronounce,
that there were cases, in which it was lawful
for subjects to dethrone their sovereign and
choose another ; and also took on themselves
to decide, when these cases happened ; and to
ascribe the justice of the measure, in some degree,
to the authority of their decision.

It is curious to see how Father Daniel justi-
fies St. Boniface, one of the principal actors in
this memorable scene (Histoire de France, edit.
1755, vol. ii. p. 277). "All great affairs," he
observes, " have a double face ; and, at all
" times, even in the schisms of the church,
" holy persons have been seen to embrace dif-
" ferent sides of a question, according to their
" different manner of viewing things. The dan-
" ger in which Rome stood of being crushed
" by the Lombards, the attempts of the em-
" perors of Constantinople against the catholic
" religion, the conquests made by the Sara-
" cens in Spain and the southern provinces of

France, where their progress had been ar-
" rested by Charles Martel, the exposed situa-
" tion of the German churches to the incur-
" sions of their idolatrous neighbours, the
" power and reputation of Pepin, who alone
*' could keep off or prevent so many evils with

( 8 )
" which the church was threatened, the alarm-
*' ing consequences of incurring his displea-
" sure, the good consequences hkely to be
" produced by a friendly understanding be-
" tween him and the holy see, the little which
" in fact was taken from the king, (a king in
" name only), or from a family, who, for a
" century, had nothing of royalty but the
" name, — all this being represented to the holy
" prelate in the strong and persuasive style
" which Pepin was so much master of, when
" he pleased to use it, had its effect on St.
" Boniface, and brought him over to Pepin's
" party. For these reasons, he thought he saw,
" in what was transacting, the good of the
" church and the greater glory of God."

This is an exquisite morsel of casuistry ; it
certainly is impossible to frame, on the grounds
chosen by Father Daniel, a more artful apology
for the pope and his adherents ; but it is only
saying in other words, that the end sanctified
the means ; a principle of the most dangerous
tendency, and never more dangerous than
when, as on an occasion like that under con-
sideration, it is used to justify injustice done
for the supposed good of rehgion. If the
question proposed by Pepin's desire to Pope
Zachary, had been proposed to St. Paul, for
his decision upon it, on tlie grounds chosen

( 9 )
by Father Daniel, his answer would have
been, " non sunt facienda mala, ut bona
" eveniant"

But, it is by no n>eans clear, that the popes
acted on the principles suggested by Father
Daniel. On the contrary, they appear to have
decided the case by the genuine whigish
principle of the correlative rights and duties
of protection and allegiance. They found that
Pepin was in possession of all the powers of
government; — on the legality of his acquiring or
continuing to hold them, their opinion was not
required : the only fact stated to them was,
that the sovereign power of the state was in
the hands of Pepin ; with an intimation of
the inability of the Merovingian princes to re-
cover it. Upon this statement, their opinion
was asked, whether, as Pepin had the pow^r, it
was lawful to give him the name, and to ac-
quiesce in his exercising the functions of king.
To this they answered in the affirmative f and
their answer, in this viezv of the case, does them
honour".

*• About the beginning of the 17 th century, a dispute be-
tween the pope and the emperor Joseph the first, produced
a minute and warm discussion of the nature and extent of
the donations of Pepin and Charlemagne. On the decease
of Alphonsus II, duke of Modena and Ferrara, in 1597,
without a child or brother, three claims were made to the

( 10 )
The account given in these sheets, of the
transactions between Pepin and Charlemagne
and the popes, is conformable to that of the
Abbe St. Marc, in his Abrege Chronologique de
VHistoire G inhale de V Italic, 6 vol. 8vo. Paris,
1761 — 1770, a work of the greatest merit.

dutchy of Ferrara, a part of the possessions which devolved
to him from the house of Este ; — one by Caesar, the collateral
heir and devisee of Alphonsus; another by the pope, and a
third by the emperor Both the pope and the emperor
claimed Ferrara, as an escheat for want of a male heir of
the house of Este ; and the question between them was,
whether Ferrara was a part of the Imperial Domains in
Italy, or included in the donations from Pepin and Charle-
magne. The emperor took no step to enforce his claim ;
but the pope, at the head of an army of 16,000 men, seized
the whole territory. It remained with him and his successors
till the year 1708, when the emperor Joseph the first seized
Ferrara and its dependences. Among them, were the town
and salt-works of Commachio on the Adriatic. In the fol-
lowing year, the differences between the pope and the em-
peror were adjusted, and Commachio restored to the pope :
but, with an express saving of the rights of the duke of
Modena, which were to be examined and settled by a con-
gregation, to be instituted for that very purpose by the pope.
This gave rise to the discussion in question ; it was con-
ducted by Fontanini, on the part of th« pope ; and by Muratori,
on the part of the duke of Modena. Every part of history,
in any degree connected with the subject, was discussed by
the combatants with the greatest learning , and a due share
of their exertions was bestowed on the nature and extent of
the donations of the Carlovingian monarchs to the popes.
(See the Abbe Mabl/s Droit Public de I'Europe, and
Brenna's Life of Muratori ■)

( 11 )

After a very attentive perusal of some of the
principal works on the subject, his relation ap-
peared to the writer, to give a consistent and
probable account of the events in question, to
be warranted by the best ancient authorities,
and to contain such a series or chain of facts
as might be expected from the spirit of the
times, and the temper of the actors.

NOTE 11. p. 32.

On the justice of the usurpation of Pepin
and Charlemagne some observations have been
made. The usurpation of hugh capet
was less objectionable than Pepin's, as the weak-
ness of the Carlovingian monarchs, of which
Hugh Capet availed himself to dispossess them
of their throne, was by no means so much his
own Avork, as the indolence of the Merovin-
gian monarchs was the work of Pepin. But,
as the Carlovingian monarchs had not deserted
their subjects, and no foreign enemy actually
pressed on them, Hugh Capet could not urge all,
that Charlemagne might have urged, in his
defence.

From Hugh Capet the sceptre of France has
been regularly ti^ansmitted to our time, in a
course of hereditary descent from male to male:
we have lived to behold its lamentable end.
After a long scene of anarchy, Buonapaite has

( 12 )
possessed himself of the vacant throne, and
given the French monarchy the more splendid
title of an Empire; and Pius the seventh has
repeated, in his regard, at Paris, something like
the splendid ceremonies which Zachary and
Leo performed for Pepin and Charlemagne,
at Soissons and Rome.

The crimes and horrors of the preceding stages
of the French revolution, or the deposition of
Lewis the sixteenth, it is impossible even to
palliate: in defence of Buonaparte's assumption
of the sovereign power of France much may
be allecred.

The throne of France was vacant; the exiled
princes had no visible means of regaining it; and
it was manifest that nothing, but the strong arm
of absolute power, could restore order and good
government to the country. As soon as he
possessed himself of the sovereignty all the kings
and powers of Europe acknowledged Buona-
parte in the capacity be assumed, — a strong
proof that the exigencies of the times made the
measure necessary.

From this moment, in respect, both to his
French subjects and to foreign Princes, Buona-
parte was the lawful sovereign of France, under
whatevei title he might please to assume.

After such a convulsion, if it were not ne-
cessary, it certainly was justifiable, for the pope

( 13 )
to concur in any measure that tended to quiet
the consciences of the timorous, or estabhsh
general tranquilhty. This appears to be the
light, in which the part he acted at Buonaparte's
coronation should be viewed : and, viewing it
in this light, whatever blame seems imputable
to pope Zachary, none seems to attach to pope
Pius the seventh.

The ecclesiastical division of France by the
pope and Buonaparte has not been acquiesced in
by some of the Gallican prelates: they appear
much perplexed between allegiance to the
Bourbons, and duty to the pope. — In defence
of their conduct, they invoke the canons of
the church, which, in the strongest and most
explicit terms, declare it unlawful to impose a
new bishop on the see of any bishop who is
alive and has not resigned, or been canonically
deposed from his see. — Their appeal to the
canons must be decided in their favour, if the
case should be tried by the ordinary rules of
the ecclesiastical polity of the Roman Catholic
Church. But, at the time we speak of, no sen-
tence founded on those rules could be carried
into execution. Such was the extraordinary
state of things, that nothing short of the Do-
mifiium Altiim, or the right of providing for
extraordinary cases by extraordinary acts of
authority, could be exerted with effect: and

( 14 )

that Dominium Altum, in the spiritual concerns
of the church, the venerable prelates cannot, con-
sistently with their own principles, deny to the
successor of St. Peter,

NOTE III, referred to in Table 1 1, folloxvifig
page 32.

That Hugh Capet was the great-grandson
of Robert the Strong, is a probable opinion ; but
the Carlovingian descent of Robert the Strong,
is, at least, problematical. The French writers
differ among themselves in the manner of de-
ducing it : and the German writers contend, that
he was of German extraction. In general, the
wi'iters on the subject adopt one or other of the
four following schemes ; and, so little of cer-
tainty is there in them, that, in no two of them is
the same father assigned to Robert the Strong. '^

At all events, three facts are certain, — that
Hugh Capet was an usurper; that he is the
Patriarch of the Capetian Dynasty, and that,
through him, in a regular course of male succes-
sion, the Crown of France was transmitted to
Lewis the sixteenth, its last possessor. But it
has twice happened that, from the want of male
issue, the lineal line has stopped, and it has be-
come necessary to have recourse to the next col-
*=See Table XI.

To face -p. (14) in sig. P.

the Strong as his great grandfather.
— 0 — 0

UlILDEBRAND.

)

TABLE XI.

FOUR GENEALOGIES OF HUGH CAPET:
Two adopted by the French, and two by the German writers ; — all agree in assigning Robert the Stn

0 0 — 0 — 0 — 0 0 — 0 — 0 0 0 — 0 — 0 0 — 0 0 0 — 0 — 0 — (

The tito French Genealogies :
Pepis the Fat, Duke ..f Brahant=ALAis, his Mistnss.

r,./«tp. (14)in.ig.P.

i his great {

I freurl Gem

LuDOLPH, Duke of Sai
Otto, Duke of Saxony.

T!.e fouTth of the^c scliei
MahiUon, Supp. ,ib libros dc
Memoire of M. dc Foofemuf;
e\tractionof the Capetian monan
llie glories tbey receive from the

jflopteH in the Orlgiaet Giu phiat, and supported with great learning, Vol. II. Pref- * 8, et acq— And see Chifitt, Vindici<r Hitji. p. 8.
,» ««<.i.» ^ tn A e. *~s Inie, HUtoire Geuealiigiqut de U mnisott de France, I vnt. ThuHlerie, de la Mffuvance de Bretagiic ; and the
BJrffj Itucriptiona, torn. x\. p. 340— .i79. Sthi-idius, tlie d" Iphic Genealogist, will not admit that tlie Guelphic
: as, according to hiii notion^, they unly retii'ct bade on the Guelphsi with uudimitiished luatre^

( 15 )
lateral line. This successively introduced the
Valesian and Bourbon lines.

In respect to the introduction of the Valesian
Hue ; — Saint Lewis, the eighth monarch in suc-
cession to Hugh Capet, had two sons, Philip the
third, and Robert Count of Clermont.

Philip the third had two sons, PhiUp the
fourth, and Charles Count of Valois.

Philip the fourth had three sons, Lewis the
tenth, Philip the fifth, and Charles the fourth ;
Lewis left no issue male ; but his queen was de-
livered of a posthumous son, and he died a few
days after his birth : Both Philip and Charles died
without issue male. The resort then was to the
descendants of Charles Count of Valois their
uncle ; and accordingly, Philip his son succeeded
to the throne, and gave rise ta the Valesian line
of the Capetian kings.

In respect to the introduction of the Bourbon
line ; — on the death of Henry the third, without
issue male, the resort was to Henry the fourth,
the next heir to the throne, and lineal male
descendant of Robert Count of Clermont. By
his marriage with Beatrice, heiress of the house
of Bourbon, Robert Count of Clermont became
entitled to the lordship of Bourbon in her right,
and his posterity assumed the title of Counts
of Bourbon. In time, they became divided
into several branches: as those of Bourbon-

( 16 )
^ Vendome, Bourbon-Montpensier, Bourbon-
Orleans, and Bourbon-Cond^. Henry the fourth
was of the first branch : — in right of his mother,
Jane of Albret, he inherited the kingdom of
Navarre. Thus he gave rise to the Bourbon Une
of Capetian kings ; which, from his maternal
heirship, is sometimes called the Navarrese.
Perhaps there is not, in the annals of history, an
instance of one sovereign's succeeding another in
a direct course of hereditary descent, at so re-
mote a degree of consanguinity as that which
existed between Henry the third and Henry the
fourth of France. Saint Lewis was their com-
mon ancestor ; from him, Henry the third des-
cended in the eleventh, and Henry the fourth in
the tenth degree ; so that they were related in
the twenty-first degree of consanguinity ; and it
is observable, that a period of three hundred
years elapsed between the death of Saint Lewis,
their common Patriarch, and the accession of
Henry the fourth.

The introduction of the Valesian and Bour-
bonian lines into the royal genealogy of France,
will appear more clearly by the annexed table.

TABLE XII-
THE C A P E T I A \ KINGS O 1 FRANCE.

r./-™ p,<,6)m,ig. P.

THE DIRECT C.i P BTl-/! ^' I y E.

1. HUCIH CAPET, *ng.n'7 Hlffi

If«».r I Ki.» . . . + lOOT.
PHiiif I. Kill,, , . . + lins-
llJis vr. King, . . . + 113'-

•"^TllJ^ TTl'l rr iT ; th«iP«W«lri,nfthAV;r.fHnt»i.nfniirpl]llc|pi—PB.TTnnr |t,j~Aj..^jj^

-., ,J uave'it to p'uiLiP llie Bald, hii loudU sun, »lio iliuj biCi r. l-jtimrtli ui ilic Sewod Huu.c u;'

fi. L.wii VII, KiiiK-. . . . +

7. Piiiii*- 11. King, . . . +

6. Lewm VIII. King, . . . +

9. Sl.l.mislX. King. . . . +

BoDERT, Count' of Clerii

I-oiiu, DuLeof DurtjUDdj. - T ■•
31. I.iwuXV J t-

Liwia, Dauphin r'' ^

Piiiiir, Duli-nT

) A..J...I. K.iig I

y '"■'•■ u„,Ip....... +

Lk»..i-H|!i.«v. + WfX
Lewis, Prince of Condt, H

Lovte-Paitip-Jinrpii. (EcmiTt; Loun.M.nu. ruEnii

+ i;o3.

LoiiB-PniiiP,
D. of Oikaa,.

D. «f Mu.ii|,

,;-

;,r;

J,i,.-H,..,.J™„„
DukL- ut Uuurbou. '

I Ouke uf 1

zx...

L.«i--J...rpn. n.opliij, ■ I ">, "."Sltin, MAnii-T.tPEiE-Looi.ii

Bour&on-Confi.

M), Ptincc uf

"DoIo of aiigooli'mr. Di,,. of Betr

( 17 )

NOTE IV. p. 81.

The 'EvTirai of the Greeks, the Veneti of the
Romans, occupied a territory which stretched
from the Addua on the west, to the confines of
Pannonia on the east ; and, from north to south,
filled the space between the Rhaetian and
JuHan Alps, and the Po. Modern Venice
owes its origin to the invasion of Attila in
457, whicli drove several families of Aquileia,
Padua and the adjacent country, into a clus-
ter of numerous islands, which lie in the ex-
tremity of the Hadriatic Gulph, and are se-
parated by shallow waters from the continent.
Insensibly, something of a federal union was
established among them ; and, in the twelve
principal islands, twelve judges were annually
elected. These, in 697, were superseded by a
chief, called a Duke or Doge, who was chosen
for life, and enjoyed sovereign power : he was
elected by a general assembly of the people.
At first, all the public concerns of the repub-
lic were subject to the controul of that assem-
bly. In 1172, a great council was established,
which insensibly drew to it the whole admi-
nistration of affairs. It was chosen out of
the body of the people, by twelve persons,
elected for that purpose at a general meeting.

( 18 )

In 1298, the council was made hereditary. A
conspiracy in 1 3 1 0, to restore the ancient form
of government, gave rise to an appointment of
twelve commissioners to discover its secret ac-
complices. That appointment, under the appel-
lation of the Council of Ten, was soon after made
permanent. In this form, till the late revolu-
tion, the government of Venice continued. It
was a pure aristocracy : — the councils were om-
nipotent : the doge was almost a pageant, the
people quite a cipher.

About the beginning of the eleventh cen-
tury, Venice became generally known in Europe,
by its extensive and lucrative trade with the
sovereigns and states of Italy, Germany, Greece,
and Egypt. From a merchant, she became,
like our own East India company, a conqueror :
by degrees she turned her factories into for-
tresses, and by conquest or treaty made herself
mistress of many towns and ports in Dalmatia,
Albania, Greece, and the Morea; and of the
islands of Candia, Corfu and Cephalonia, in
the Archipelago.

With equal success, but perhaps without equal
wisdom, she then extended her conquests over a
considerable part of the adjoining continent of
Italy. They often proved to her a source of dis-
pute and war, and drained her of the wealth,
which she received from the sea.

( 19 )

Of the wealth and magnificence of Venice,
during the aera of her prosperity, the following
account is given by the elegant and nervous pen of
Doctor Robertson, {Historical Disquisition con-
cerning Ancient India, p. 1 30). " The revenues
" of the republic, as well as the wealth amassed
" by individuals, exceeded whatever was else-
" where known. In the magnificence of their
" houses, in richness of furniture, in profusion of
" plate, and in every thing which contributed
" either towards elegance or parade in their
" mode of living, — the nobles of Venice sur-
" passed the state of the greatest monarch be-
" yond the Alps. — Nor was all this the display
" of an inconsiderate dissipation, it was the
" natural consequence of successful industry,
" which, having accumulated wealth with ease,
" is entitled to enjoy it in splendor." — About
the year 1420, (lb. Note 50), " the naval force
" of the repubhc consisted of 3000 trading ves-
" sels of various dimensions, on board of which
" were employed 17,000 sailors ; of 300 ships of
" greater force, manned by 8000 sailors : and
*' of 45 large galleasses or carracks, navigated
" by 11,000 sailors. In public and private ar-
" senals 16,000 carpenters were employed."

To this high state of prosperity the new system
of commerce introduced into Europe, in conse-
Q 2

( 20 )
quence of the discovery of America, and the
opening of a direct course of navigation to the
East Indies, by the Cape of Good Hope, were
fatal. From that time Venice declined ; but,
though shorn of her beams, she preserved a dig-
nified independence, till the treaty of Campo
Formio consigned her to Austria.

The nobility of Venice is divided into four
classes; — 1st, the electoral families, descended
from the twelve tribunes, who elected the first
doge in 697 ; they subsist to this day : these are
the Contarini, Morosini, Gradenigi, Baduari,
Tiepoh, Micheli, Sanudi, Memmi, Falieri, Dan-
doli, Polani and Barozzi : they boast the most
ancient and purest blood in Europe : four other
families, almost as ancient, the Justiniani, Cor-
nari, Bragadini and Bembi, signed with them
the act of foundation of the great church of St.
George Major, in the year 800 : — 2d, The fa-
milies whose ancestors names are found in the
Golden Book or register of nobility, drawn up by
Gradenigo at the revolution in 1 298 : — 3d, The
eighty families who purchased their nobility:—
4th, The foreign families aggregated to the nobi-
lity, as the Bentivogli and Pici. The families
whose ancestors held a share in the government
before 1298, and great merchants, lawyers, phy-
sicians, &c. were called Cittadini. Churchmen

( 21 )
were excluded from all share in the government.
(See Travels through France and Italy in 1 745-6,
by the Reverend Alban Butler, London, 1 803,
8vo. p. 350.)

NOTE V. p. 81.

The Genoese imitated, and at one time
rivalled, the Venetians in trade and conquest.
They established factories at Caffa, in the Tauri-
can Chersonesus ; at Asoph, on the mouth of the
Don ; at Smyrna, and in the suburbs of Con-
stantinople. They conquered the islands of Scio,
Mitelene and Tenedos : the kings of Cyprus
were tributary to them ; they reached the East
Indies before the Venetians. In the city of Pisa,
they found a formidable rival, but finally over-
powered her.

It would have been fortunate for the happi-
ness and prosperity of Venice and Genoa, if a
spirit of rivalship had not been carried on be-
tween them too far ; and the former had confin-
ed her enterprizes in the Mediterranean to its
eastern, and the latter to its western, coasts. But
in 1376, they broke out into open war : at first,
the Genoese were successful, and once threat-
ened Venice with total destruction; but the
superior wisdom and firmness of the Venetians
prevailed, and at the sea-fight at Chiozza, gave
Q 3

( 22 )

the Genoese a total overthrow. They acquired
by itj the complete command of the Hadriatic,
the Archipelago, and almost the whole of the
Mediterranean. From that time Genoa dates
her decline. The politics of the Genoese have
always fluctuated : — with some intervals of ra-
tional liberty, under the forms of her old consti-
tution, Genoa, in general, has been either in a
state of anarchy, or subject to the dukes of
- Milan, the kings of France, or the marquises of
Montferrat. Her misfortunes have been equally
owing to the turbulent disposition of the people,
and the contentions of the great families, the
Dorias, Spinolas, Grimaldi, Fiesqui, Adorni and
Fregosi.

NOTE VI. p. 81.

Florence was included in the celebrated do-
nation of the countess Mecthildis to the popes.
It has been mentioned, that the validity of this
donation was contested by the emperors, on the
ground, that, as the countess died without issue,
her possessions reverted to the emperor, by es-
cheat. Florence submitted to the emperors, and
remained constant to them, till the beginning of
the thirteenth century, when, in consequence of
the tyranny of Frederic II, she threw off their
yoke. For a century from that event, she was

( 23 )
prosperous and happy under twelve magistrates,
chosen out of the general body of the people, and
called Ancients. Dissentions then arose among
the citizens, which ended in the usurpation of the
Medici : from that time the history of Florence
is familiar to every reader. The Florentines con-
quered many cities of Tuscany, and finally an-
nexed Pisa, already weakened by the Genoese,
to their territory. They traded extensively, in
the East, and carried on a considerable inland
commerce.

NOTE VII. p. 81.
Some of the Italian Princes preserved

THEIR TERRITORIES FROM THE EFFECTS OF
THE GENERAL REVOLT OF THE ItALIAN CI-
TIES ; — among them the counts of Savoy held a
distinguished rank.

Savoy was the country of the Allobroges,
Piedmont the country of the Salassi, Libyci, and
Taurini : they were all vanquished by the Ro-
mans, and made a province of the empire, under
the appellation of the Cottian Alps. The kings
of Savoy derive their origin from Humbert with
the White-hands, a son of Beroald, a Saxon
prince, better known in romance than history, and
said by some to descend from Wittikind. He
was called Count of Savoy, Maurienne and the
Q4

( 24 )

Alps. By his marriage with Adelaide, the
daughter and heiress of Manfredi, Marquis of
Italy, and Count of Susa, Odo the grandson of
Hubert acquired the marquisates of Susa, the
dutchy of Turin, Piedmont and the valley of
Aosta. From him thirteen princes, with the
ducal title, proceeded. Victor-Amadeus, the
thirteenth in succession to him, was crowned king
of Sicily in 1713, and king of Sardinia in 1719.
The marriage of Amadeus the third, duke of
Savoy, with Charlotte, the only daughter and
heiress of John, the third king of Cyprus, brought
into the house of Savoy the titular kingdoms of
Jerusalem and Cyprus. The famiHes of Ne-
mours, Carignan and Soissons, branched from
this house. The first ended in the fifth genera-
tion ; the second still subsists ; — the late unfortu-
nate princess de Lamballe belonged to it ; the
third ended in prince Eugene, the friend and rival
of Marlborough,

It is observable that, if the princes of Savoy
had not been excluded by the Act of Settlement
from the throne of England, they would have
been next in succession to it on the demise of the
late cardinal York ; as they are lineally descended
from Henrietta Maria, the wife of the duke of
Orleans, and she was the only child of Charles the
first, of whom on the death of the cardinal, there
was issue living.

To face p. (24) in sig. Q.

GDOM OF GREAT BRITAIN and IRELAND.

&An'm, Henrietta-]VIaria:==Philii' Duke of Orleans,
ut Issue.

li'iiiice George
of Denmark, died
without surviving
Issue.

ANNE-MARYrzVlCTOR-AMADEUS II.

King of Sardinia.

Charles Emanuel III.

Victor-Amadeus III.

ictor-Emanuel-Cajetan,
now King of Sardinia, 1811.

Other Children.

TABLE XIII.

Tcf.ce f. (24) i.. sig. Q.

SARDINIAN TITLE (exdu.kd by the Act ofSettI

emenl) to the UNITED KINGDOM of GREAT BRITAIN and IRELAND.

K. CHARLES I.

K. Cii»i.i..s II. K. ,Ia„e. II.

irr^ — I

Hekov, W,L,.I«„=.MAnv. El,z.,omb\ .4sx,, Hsnrie

]3ukc "f Gloucester, Princ

di.dS. P. o..n,

JAMF.8,ClK-vali.-r Q NUn^zrK. William

de St. GporKt;.

Prince of Oiange,
died «i[lioui Issue

HiMIV,

Cariliual York.

I of Ucnniarl, d

.-M*nI»=P„,Mi. Duke of Oi leans.

AK»E-lMinY=VlCTOB-AllADEOS II.

King ofSardiola.

CllAnLM iImanuei. III.

VlCIOn..A.M»DEUS III.

Charles Emanubl IV.
Resigned HI favou.- of
hia Brother.

V,.IOr,-EMAN„EL.CAJETA»,

Jiow King of Sardinia, 1811.

Olhcr Clnldren.

( 25 )

NOTE VIII. p. 82.

After the princes of Savoy, the Dukes op
Milan should be mentioned. They profess to
descend from Desiderius, the last king of the
Lombards. Boniface, count of Milan and An-
gleria, was in the eighth line of descent from De-
siderius : he had two sons, Azo and Eliprand ;
the latter obtained the Marquisate of Milan, and
is the patriarch of the dukes of Milan. The
name of Visconti, (like our Viscount), at first
denoted an office and dignity immediately sub-
ordinate to the count, but afterwards became
the surname of the family.

In a contest between the nobles and the people
of Milan, Atho Visconti their archbishop, was
compelled to take part with the former. He
gave the command of the military force, and
afterwards resigned the whole civil power, to his
great nephew, Matthew, surnamed the Great.
John, a descendant from Matthew, was created
duke of Milan in 1396, by the emperor Winces-
laus. His second son Philip-Mary, the third
duke of Milan, had no lawful issue, but, by a
mistress, had a daughter, Bianca-Mary Visconti,
whom he legitimated, and declared heiress of the
dukedom of Milan. She married Francis Sforza,
the son of Mutius Attendulus, a soldier of fortune,

( 26 )
and carried the duchy of Milan into his family.
It comprised considerable territories on each side
of the Po ; but in latter times they have not been
nearly so considerable as they were in the first
erection of the dutchy.

NOTE IX. p. 82.

The republics and principalities which have
been mentioned, lie in the northern part of Italy ;
its southern part belongs to the kingdom of
Naples.

1. The extremity of Italy was planted by
colonies of Greeks : from this circumstance, it
acquired the appellation of Magna Graecia. — It
submitted to the arms of the Romans, and, shar-
ing in the misfortunes of the empire, was succes-
sively ravaged by the Visigoths and Vandals.
After Italy was reconquered by the arms of Be-
lisarius, Naples was governed by the exarch of
Ravenna. In 589, Autharis, king oi the Lom-
bards, conquered the dutchy of Beneventum.

When, in 774, the kingdom of the Lombards
was extinguished by Charlemagne, the dutchy of
Beneventum survived its downfall ; and, during
two centuries from that period, was governed by
princes of Lombard blood, who were feudatories
to the emperor of Germany. The dutchies of
Naples, Gaieta and Amalphi, and the provinces

' ( 27 )
of Puglia and Calabria continued subject to the
emperor of Constantinople : the Saracens were
masters of Bari, Tarentum and Sicily.

2. In 1016, an inconsiderable body of Nor-
mans arrived at Salernum, engaged in the ser-
vice of the Lombard prince, and, about twenty
years after, obtained from him a grant of the
town of A versa, (distant about nine miles from
Capua) and of the adjacent territory.

In 1035, the sons of Tancred of Hauteville in
Normandy arrived in Italy, and were soon placed
at the head of the Norman adventurers. Their
brothers and successors, William, Dreux and
Humphry, extended their conquests, and became
dukes of Apulia and Calabria. But Robert
Guiscard, their eldest brother, was the founder
of the dynasty of Norman sovereigns of Naples.
Pope Nicholas II. granted him, what it is hard to
prove he had any right to dispose of, the title of
Duke of Apulia, with the perpetual sovereignty
of that country and of Sicily, if he could conquer
it. In performance of the condition, he subdued
Sicily ; and the earldom of it was assigned to
his brother. Then, carrying his arms into Italy,
he successively conquered Salernum, Amalphi,
Tarentum and Beneventum. Robert was suc-
ceeded by Roger his son; Roger, by William,
his son, and William by his cousin Roger, who
assumed the tide of king, and thus became

( 28 )
founder of the kingdom of Naples, or both the
Sicilies.

3. In consequence of a failure of issue male of
these princes, the kingdoms of Naples and Sicily
passed to Frederic the second, the son of the em-
peror Henry VI, by the princess Constantia, the
aunt and heiress of William II, the duke of Apu-
lia. Thus it vested in the SuabianLine of Empe-
rors; they lost it, in consequence of their disputes
with the popes. Availing himself of the minority
of Conradine, pope Innocent seized both king-
doms, excommunicated the infant, caused or con-
nived at his being beheaded, and offered the throne
to any person who should expel the possessors.

4. Charles of Anjou accepted and succeeded
in the enterprize ; he was invested with both
kingdoms by the pope, under an obligation of
homage and fealty, an annual payment of 8000
ducats, and an annual delivery of a white horse :
thus he became the founder of the Aiyevine line
of Neapolitan monarcks. '•^The French yoke be-
came so galling to the Sicilians, that on Easter
Tuesday, in the year 1282, the whole island rose
and massacred every Frenchman but one : an
event, known in history by the name of the Sicilian
Vespers. The insurgents offered the crown to
Peter the third, of Arragon ; a long war ensued,
in the course of which Charles of Anjou died of
a broken heart. Charles, his son, was at that

7-»>«p.(!9)insig.Q.

NORMAN I.TNE.

Tancred of Hauleville

+- 10(6. I

Hobikt Ooiscihd,
Duke of Fuglia and
Cniabriu, + 1085.

Itoocn, Dirke ot
Puglia sod Culnbria,
I + IHl.

Wii'liam. Dulcof
Puglia and Calabria,

+ lli7.

TABLE XIV.
KINGS OF NAPLES.

EarlofSicilv,
I + ItOl.
1. ROGIH. Kiti- of

Sl'ABIAN LINE.

8 M

Fl,

!■

''6.

■ Kn

fllii

'y-

1.'

I-.'.

i!L

llu

,bnr,d.

Mr {llegilimafe
son, an usurper,
I + 1192.

ANOEVINE LINE.
10. Cm

7. CoNn
I

9. CONH

+ 1254.
+ li69.

.,.1.,„

lii

+ H14.

She
Liw

1435.

of AbJou.

8. iMa

NrnFD, a natural child.

+ 1265.

ARRAGONESE LINE.

Constantia^iPeteh III, King ot'Arrngo
+ 1300. 1 + 1285.

jAMts 11, King of Atraf^uii.
+ 1327. 1

Alimionsvs IV, Kiiif^ul Arrugon.
+ 1336. 1

Pk,,,b IV, King ,.r A..ag„„.
+ 1387. 1

.Ion» = ELEANOR,

of Castile 1 + 1382.

Ffedinand, 1st King .,f Arragun.
+ 1416. j

17. A
Ii

LPUONStlS Vth.
whom the Crown) of both the Sicitie

( 29 )
time a prisoner in Sicily ; he soon recovered his
liberty, and, after ineffectual attempts to drive the
Arragonese out of Sicily, made a peace with them.
Thus the kingdom was divided into two mo-
narchies, the Anjevine monarchy of Naples, and
the Arragonese monarchy of Sicily.

5. Charles was succeeded by Robert, his second
son ; Robert, by his granddaughter Joan : she
died without children, and instituted Charles of
Durazzo, her heir. On her death, he possessed
himself of the kingdom ; from him it descended
to his son Ladislaus ; on the decease of Ladis-
laus, it descended to Joan II, his sister ; and on
her decease, Alphonsus V. king of Arragon and
Sicily, conquered Naples ; and thus the Crowns
of the Two Sicilies'' zvere re-united.

The accompanying genealogical table will show
more clearly the devolutions of the Neapolitan
crown during this period.

NOTE X. p. 95.

To obtain a general notion of the electo-
ral Families, — it may be proper to consider
Germany as divided into the Ancient Electorates
on the North, the Ancient Electorates on the

^ The Two Sicilies denote the territory on each side of the
Streights, Siciliam extra et ultra Pharum. It became a com-
mon expression after their union in Roger I ; but Gianone,
(1. 11. c. iv.) shows that the territory from Capua and Naples
to the Streights, had, before that event, been called Sicily.

( 30 )
South, and the Palatinate and Bohemia as hold-
ing central positions, — the former in the west,
and the latter in the East of Germany.

Bohemia may be first considered, then passing
the ridge, where the Erzeburgh and Sudetic
chains of mountains meet, we shall advance into
Brandenburgh ; thence, keeping in a western
direction on the north of the Mayne, the electo-
rates of Saxony, Brunswick-Lunenburgh, and the
Palatinate may be successively considered in
their geographical order, — from the Palatinate
we may cross into Bavaria, and thence into
Austria, the term of the inquiry.

X. 1.

Bohemia takes its name from the Boii, a
Gallo-Germanic tribe, who settled on it about the
time of Tarquinius Priscus. Soon after the death
of the emperor Augustus, they were expelled
from it by the Marcomanni, a more western tribe
of the Germans ; and those were expelled by the
Sclavi, a Scythian horde, who, about the year 450,
invaded the east of Europe under their chiefs
Lecus and Czercus. The former conquered
Poland ; from him it was long called the country
of the Leeks. Czercus conquered Bohemia ;
from him it was, for some time, called Ches-
car^me ; but its ancient appellation of Bohemia

( 31 )
or Behem was afterwards restored to it. Little
of its history is known till the reign of duke Bor-
zivoi of the Chescar6man family, who in 894
embraced Christianity. After him,the country was
governed by hereditary dukes : the old line of
them, as it is called, terminated in Wratislas the
first : his son was honoured with the regal title
by the emperor Henry the fourth, in 1086; the
same title was occasionally conferred on his suc-
cessors ; but the constant title of King dates only
from Premislas the second, in 1199. On the
death of Winceslas the fifth, in 1 306, the male
line of the Chescareman dynasty failed. After a
short interval, John count of Luxemburgh, who
had married Elizabeth, the sister of Winces-
las, succeeded him in the throne. At the battle
of Cressy, he was slain by the Black Prince, who
took the ostrich feathers which were on the
helmet of the King, and placed them on his own ;
since which time, ostrich feathers have always
been used as the device or badge of his suc-
cessors, Princes of Wales.

The king of Bohemia does not contribute to
the army of the empire, and is considered to be
almost, if not entirely, independent of the em-
peror. It is remarkable, — 1st, that, at the elec-
tion of the emperor in 1 745, the late empress
Maria-Theresia, in quality of queen of Bohe-
mia, was unanimously admitted to vote ; which

( 32 )

is supposed to have settled the point, that an
electoral female voice is valid ; and 2dly, that
her imperial majesty declared, in a rescript of
1769, " that the crown of Bohemia, by virtue of
" the rights of majesty, originally granted as its
" peculiar property, acknowledged no judge, and
" consequently was under no obligation to justify
" its conduct to any person whomsoever."

X. 2.

The Varini and Naithones occupied, in ancient
times, the territory of Brandenburgh. They
were expelled from it by the Winithi, a Sclavic
horde : from them, in 920, it was conquered by
the emperor Henry the first, and he gave it, with
the title of Margrave, to Sigefred earl of Rengel-
heim, a great-grandson of Wittikind the great.
From him, the margraviate descended to Dietri-
cus or Thieny, the eighth margrave of Branden-
burgh of the Wittikindian stem.

The emperor Rudolph deprived him both of
the territory and the title, and gave them to
Sigefred, the margrave of Stade and Dithmarsh.
In that family they continued, till the twelfth
century, when, with the dignity of an elector of
the empire, they became vested in Albert, a prince
of the Ascanian blood. From him they descend-
ed to Sigismond the emperor, the sixteenth mar-

( 33 )

grave of Brandenburgh of this family. He, in
1415, sold it for 400,000 crowns to Frederick,
the eleventh count of Hohenzollern, and mar-
grave of Nuremburg. For high antiquity, or
splendid descent and alliances, few famihes in
Europe can contend with the Hohenzollerns. If
they cannot prove their descent from Phara-
mond king of France, they can shew that Bar-
thold, their patriarch, was count of ZoUern, and
considered among the most illustrious famiUes in
Germany in the beginning of the eleventh cen-
tury. To him, Frederick count of Zollem, the
purchaser of the electorate of Brandenburgh,
was eleventh in succession.

From him ten margraves descended, in a re-
gular succession of males through males — John-
Sigismond, the eighth of them, married Ann, the
heiress of Prussia, Cleves and Juliers : she was
the grand-daughter of Albert, the Grand Master
of the Teutonic Order, who seized Prussia in
1525. George-Wilham, the son of John Sigis-
mond, was singularly unsuccessful in all his en-
terprizes. Frederick- William, his son and im-
mediate successor, restored the fortunes of the
family: he was called the Great Elector. .His
son assumed the title of king of Prussia. The
ceremony was performed at Koningsbergh, on
the 1 8th of January 1701, he himself placing the
crown on his own head. He had previously
R

( 34 )
secured the concurrence of the emperor, to whom,
m the wars for the Spanish succession, he had
rendered essential services : his title was acknow-
ledged with little reluctance, by all the sovereigns
of Europe. The last king of Prussia was his
grandson. — The accompanying Table contains
an outline of the HohenzoUern descent, so far as
relates to the subject of these sheets.*^

X. 3.

The electors of Saxony profess to derive
their descent from Wittikind the duke of
Saxony, who (it has been already mentioned)
was conquered, after a war of thirty years, by
Charlemagne. The same descent is claimed by
several of the most illustrious houses of Europe :
the nature of their pretensions will appear in
Table XVI. which shews what are called by
foreign genealogists, the Four fruitful Branches
of the JVittikindian Trunk.

The electors of Saxony are traced from Her-
man Billung, created duke of Saxony by the em-
peror Otho the first, in 960. Magnus was the
fiftli^nd last duke of Saxony of this line.

On the failure of issue of his body, the ducal
honours passed to Otho the rich, a count of the
house of Ascania, who had married Elicke the
^ See Table XV.

To face p. (34) sig. R.

L E R N.

IT + 1361.

rgh + 1440.

s of Prussia, + 1619.

ia, + 1713.

Wit.T.iAM AuousTrs + 1755

4. Fredkrick WitLiAM + 1797.

5. FUEDERICR WlLLlAiM,

The reigning Sovereiga.

TABLE XV.

HOUSE OF HOHENZOLLERN.

, lint Bttrgrave of Neuburgh,

+ 1-J91

r : 1 1

Joan . . . + 13S7. 5. CONKJDE + 1354. 6. AlBEIir + 1361.

r FnrniB.c, + 139!

S. JoiiM + 1420. 1. Fredihick, /rll EffCloro/ BrajiiimturgJ + 1440.

3. Albfut + 1486.

4. JoHV + 1499.

5. Jo;>CBiM I + 1532.

6. JoACHiu II + 1571.

7. Jobi.Gf.oboe . . . + 1598.

I
8.JojobimF«edektci! + 1608.

9.Job.vSio«jio»d=Anv, Hdms f Pnisiia,
10. George -William + 1640.
II.FiiedeiiiceWillum + 1689.
, 1. lueonBiofi, firil King «f Pmai^, + 1713.

S. Frederick William + 1740.

T»/.«p. (34)!ig.R.

S. Frederick tbe Great +

4. FeidhRICE WllLIAU + 1797.

5. r«.llERICBWllLIA«,

To follow Table XV, between
p.(3'i)undp. (33) in sig. R.

[ITTIKINDIAN TRUNK-

L, his second Wife,
iiiau extraction.

BRANCH OF WETTIN.

WhiTI IKIND.

I
DiETREMUS.

Sax (

SaJCquiscs of Misnia;

Ea>«iuraves ot T'lUfingia ;

Saxaiiues ot Saxony ■

ot kois and JJukes of Saxonj ;

S'^ -graves of tirandenburgh.

the

BRANCH OF LIPPE.

EvERARD.
I

Whittikind.

Robert the Strong,
Count of Paris.

I
E U D o.

Hugh Magnus.

Hugh Capet.

. (
Kings of France ;
Aiigevir.e King of Sicil
Dukes of Burgundy.

- TABLE XVI.
FOUR FRUITFUL BRANCHES OF THE WHITTIKINDIA N TRUNK-

To frlhw Table XV. Sel»«<n
p.(34;iinil;i. (35) in sig. li.

Geva his first Wire=WHlTTIKIND=SB»T*Ni, his

BRANCH OK SAXONV.

Great, U

......

(

)
(

)

(
)

(
)
(

BHAN'CH or RKNGI.KllEIM.

)
(
)
(
)
Dukes of
Sk-.w,tti

(

)

Kings

(

Dukc!

ISRANCn OF WETriN.

Laild::raves of Tliuiingia;
Pallilmes ot Sason^ ■
Eluit'iis and Uukea .if Saioiij j
Mai^rrivea of Brandeobitrgb.

BRAXCII OF LIPPE.
-~1

RoDEiiT the Strong,
Count ot Patii.
. I

Kings of France ;
Ai.gtvine King of Sicilj;
Dukua ol Burgundy.

( 35 )
youngest daughter of Magnus. The Ascanian
princes (if fables may be mentioned), derive their
origin from Ashkenaz, the grandson of Japheth,
and first king of the Germans. A more proba-
ble, but still a suspicious, account, traces them to
Bernwald, a Saxon chieftain, on whom, in 514,
Thierry bestowed the towns of Ballendstadt and
Atcherstoben. From him Otho the rich deriv-
ed his descent : Bernard, his grandson, was the
first elector of Saxony.

The emperor Sigismond, on the decease of
Bernard, conferred the electorate on Albert, his
son : Albert was succeeded by his younger son,
whose grandson Albert the third was the last
elector of Saxony of the Ascanian line.

After him, the electorate was successively en-
joyed by Frederick the warlike, and Frederick
the wise, of the Thuringian branch of the Witti-
kindian stem : the last had two sons, Ernest and
Albert ; the former is the patriarch of the Ernes-
tine, the latter is the patriarch of the Albert'me
line, of the Saxon princes. The protestant re-
ligion has the greatest obligations to the princes
of the Ernestine line : Frededck, the eldest son
of Ernest, was Luther's first patron and de-
fender ; John, the second son of Ernest, was the
greatest promoter of the protestation against the
church of Rome, irom which the protestants have
derived their appellation.

R 2

( 36 )

In 1 547, Charles the fifth deprived John-Fre-
derick, the son of Ernest, of his electorate, and
"conferred it on Maurice, the grandson of Albert
the younger brother of Ernest, and the patriarch
of the Albertine line. John-George, the younger
nephew of Maurice, celebrated three jubilees ;
the first, in 1617, in memory of Luther; the
second, in 1630, in memory of the Augsburgh
confession : and the third, in 1 G^^i, in memory
of the peace of Passau. In 1697, Frederick-
Augustus, then the hereditary prince, afterwards
elector of Saxony, embraced the Roman Catholic
religion ; but neither he nor his successors have
attempted to constrain the consciences of their
subjects.

The accompanying Table shews the descent
of this Electoral House of Saxony.*

X. 4.

From Saxony, we pass into The Electorate
OF Hanover. An English reader naturally
dwells on every thing, which relates to the for-
tunes and fates of the princes of this dynasty.

It has been said that not fewer than one thou-
sand works have been written on the Genealogy
and History of the Guelphs : the points to be
particularly attended to in it, are their Italian
" See Table XVII.

T./««p.(37)m>lg.I'- TABLE XVIII.

The following is Svheidiiis's Scheme of the Guelphic Genealogy down lo the Marriage of Azo with Cunegusda.

1st W.fe 0
Azo II.

FuLli,
Ancc.tot of
Ihe House
of Modens.

S<i Wife of
Azo 11.

on,
of

Htire.s
the Ho
ofBillo

NRY Ihe Proud

nRY the LioD.

TABLE X

THE DUKES OF

THE BRANCH OF

1. Hermann, +

2. Ben NO, . . -J-

3. Bernard, +

4. Ordulph, -J-

5. Magnus, +

I I

TABLE XVII.
THE DUKES OF SAXONY.

r. fuc p. (36) in sig. R.

THE BRANCH OF BILLUNG.

1. HEKMiNN, + 988.

S. Benvo, . . + 1003.

TirE .ASC^NIAN BRANCH.

THE THURINGIAN BRANCH.

On the death of the last Albekt without issue — ^Tli
Emperor SigismunJ cyoferreii the electoral dignity o

9. FsEDiiiicK the Watlilie,

Margrave of Thuringia ; + 1426.

10. FnEDBntCK tbeMild; -)- UM

I, firn Elfclor + 1212.

IHE ERNESTINE BIIANCH.

Ens- [SI, + U86.

13. loiiK the Constant. . . + 1532.

THE ALBERTINE ERANCHi

ii££lOt;lte ll^

Jonti-FBiniriJCK,
Facriareh of the Huti
of Saxe-Cobourgh.

Jons-WiLLiJM,
Patriarch of the House
of Saxe-Weimar.

r the Spirited, +| l.jOO.

HiNnv IhcMoi

18. CnlisiiAN, +

19. Joiib-Ceohoi, + le.ie.

I
•M. JoifN-GEonOE, + 1680.

•-'1. JoiiN.GroBCE, + 1691.

. Jon^-GfOI.l.l, + 1694.
I

,„or,.,c.i

mSTI.lN.I.EOfOLD, + 1793.

( 37 )
Origin, German Principality, and English
Monarchy.

I. The Italian Descent of this illustrious fa-
mily from Azo, who married Cunegunda, the
heiress of the Guelphs of Altorp, is unquestion-
able : with great learning and clearness, Schei-
dius, in his Origines Giielphicce, has attempted to
shew the Guelphic extraction of Azo/

According to him, two brothers, Ethico and
Guelph, were princes of the Skyrri, a nation in
Holsace, not far from the southern bank of the
Eider. The former was a general of Attila's
army ; .and had two sons, Odoacer, who, by his
conquest of Italy, put an end to the Roman em-
pire of the west, and Guelph, who settled in the
Tyrol. Odoacer, with Thilanes his only son,
were killed in 493. A count of Bavaria, whose
name is not known, and who died in 687, was
seventh in succession to Guelph. He had issue
two sons, Adalbert count of Bavaria, and Patri-
arch of the marquisses of Tuscany, and Ruthard,
an Alemannian count. Azo the second, was
ninth in succession to Adelbert ; Cunegunda was
heir and ninth in succession to Ruthard. Azo
and Cunegunda intermarried about 1050, and
thus, if Scheidius's scheme be relied on, the two
branches of the Guelphic stem were re-united,
after a lapse of more than three centuries.
* See Table XVII I.

»3

' ( 38 )

A son, called Guelph, M^as the issue of Azo
and Cunegimda. After the decease of Cune-
gunda, Azo married Gersenda, a daughter of
Hugh count of Maine, and had issue by her a
son called Fulk, from whom the dukes of Mo-
dena are lineally descended. Guelph, -the son
of Azo, by Cunegunda, had two sons, Guelph,
and Henry the black : the former married the
princess Mechtildis, the heiress of the elder
branch of the house of Este, renowned for her
celebrated donation, (which has been men-
tioned) to the see of Rome. She died with-
out issue, but her husband retained some part
of her hereditary possessions, and died without
issue.

II. Henry the black was the founder of the
German Prmcipalities possessed by his family.
He married Wolphildis, the sole heiress of Her-
man of Billung, the duke of Saxony, and of his
possessions on the Elbe. His son Henry the
proud, married Gertrude, the heiress of the
dutchies of Saxony, Brunswick, and Hanover.
Thus Henry the proud,

1st. As representing Azo, his great grand-
father,— inherited some part of the Ita-
lian possessions of the younger branch
of the Estesine family: they chiefly lay
on the southern side of the fall of the Po
into the Adriatic :

( 39 )
2d. As representing count Boniface, the
father of the princess Mechtildis, — he
inherited the Itahan possessions of the
elder branch of the Estesine family : they
chiefly lay in Tuscany: — some part of
the possessions of the princess Mechtildis
also devolved to him :
3d. As representing Cunegunda, his grand-
mother,— he inherited the possessions of
the Guelphs at Altorf.
4th. As representing his mother, the sole heiress
of Herman of Billung, — he inherited the
possessions of the Saxon family on the
,Elbe:
5th. And through his wife, — he transmitted
the dutchies of Saxony, Brunswick, and
Hanover.
All these possessions descended to Henry the
lion, the son of Henry the proud. He added
to them Bavaria, on the cession of Henry Josse-
margott, — and Lunenburgh and Mecklenburgh
by conquest. Thus he became possessed of an
extensive territory, — he himself used to describe
it in four German verses, which have been thus
translated :

Henry the Lion is my name :
Through all the earth I spread my fame.
For, from the Elbe, unto the Rhine,
From Hartz, unto the sea, — All's Mine.
R 4

( 40 )

In other words, his possessions filled a con-
siderable portion of the tenitory between the
Rhine, the Baltic, the Elbe, and the Tyber.

Unfortunately for him, in the quarrels be-
tween the pope and the emperor Barbarossa,
he sided with the former. The emperor con-
fiscated his possessions; but returned him his
allodial estates in Brunswick, Hanover, and Lu-
nenburgh : he died in 1195. By his first wife,
he had no issue male : his second wife was Maud,
the daughter of Henry the second, king of
England. By her, he had several sons ; all
of whom died, except William, called of
Winchester, from his being born in that city.
W^illiam of W inchester had issue Otho, called
puer, or the boy.

At the decease of Otho puer, the partition
of this Illustrious House commences. An out-
line of it will appear in the accompanying ^ table,
which shews the Guelphic genealogy, from the
marriage of Azo with Cunegunda to the pre-
sent time.

The subject of these sheets leads only to the
Lunenburgh branches of the Guelphic shoot of
the Estesine line.

On the death of Otho the boy, Brunswick
^nd Lunenburgh, the only remains of the splen-
did possessions of his grandfather, William the
« See Table XIX.

( 41 )
proud, were divided between his two sons, John
and Albert : Lunenburgh was assigned to the
former, Brunswick to the latter. Thus the for-
mer became the patriarch of, what is called, the
Old House of Luncnhurgh. Otho his son, re-
ceived Hanover, as a fief from William-Sige-
fred the bishop of Hildesheim. Otho had four
sons ; Otho his first son, succeeded him ; and
dying without issue, was succeeded by his bro-
ther William with-the-large-feet. He died in
1364^, without male issue; the two other sons of
Otho the father, also died without male issue.

Thus there was a general failure of issue male
of John, the patriarch of the old house of Lunen-
burgh. By the influence of the emperor Charles
the fourth, Otho elector of Saxony, who had
married Elizabeth, the daughter of William, suc-
ceeded to the dutchy. He died without issue,
and left it, by his will, to his uncle Winceslaus,
elector of Saxony. It was contested with him
by Magnus Torquatus duke of Saxony ; — the
contest ended in a compromise ; under which
Bernard, the eldest son of Torquatus Magnus,
obtained it, and became the patriarch of the
Middle House of Limenburgh : he died in 1 434.
After several descents, it vested in Ernest of Zell,
who introduced the Lutheran religion into his
states.

After his decease, his sons Henry and Wii-

( 42 )
liam for some time reigned conjointly ; but
William persuaded his brother to content him-
self with the country of Danneburgh ; while he
hiinself reigned over all the rest, and thus be-
came the patriarch of the New House of Bru?is-
'wick-Lt(7ienburgk.

He left seven sons ; they agreed to cast lots
which should marry, and to reign according to
their seniority. The lot fell to George, the
sixth of the sons : Frederick was the survivor
of them.

On his decease, the dutchy descended to
Ernest Augustus, the son of George, with whom
the El€Cto7'al House of Luncnburgh commences.
His reign is remarkable for two circumstances ;
— his advancement to the electoral dynasty, and
his wife Sophias being assigned, by an act of the
British parliament, to be the royal stem of the
protestant succession to the throne of Great
Britain and Ireland.

in. On the demise of queen Anne, George
his son, in virtue of this act of parliament, suc-
ceeded to the British Mo72mxhy.

The house of Brunswick- Lunenburgh is now
divided into two branches, the German and the
English. The former, under the title of Bruns-
wick-Lunenburgh and Wolfenbuttel, possesses
the dutchies of Brunswick and Wolfenbuttel,
and the countries of Blanckenburgh and Reinskin,

( 43 )
and reckons 160,000 subjects: — the English,
under the title of Brunswick- Lunenburgh and
Hanover, and with the electoral dignity, possesses
the electorate of Hanover, the dutchies of Lunen-
bargh, Zell, Calemberg, Grubenhagen, Deepholt,
Bentlieim, I.awenburgh, Bremen, and Verdun ;
and counts 740,000 subjects.

The most remarkable events in the history of
the English line of the house of Lunenburgh, are
thus summarily mentioned by Mr. Noble, in his
Genealogical history of the present royal families
of Europe :

" Ernest Augustus, duke of Brunswick-Lu-
*' nenburgh, married, 1650, to Sophia, grand-
" daughter of king James the first, and daugh-
" ter of Elizabeth, Princess-Royal of Great Bri-
" tain. By the treaty of Westphalia he ob-
" tained, that one of his family should be elected
" bishop of Osnaburgh alternately with one of
" the Roman catholic religion ; and, accordingly,
" upon the death of cardinal Wirtemberg in
" 1668, he became bishop of that see : in 1692,
" he was raised to the dignity of elector, which
" was to descend to his family ; the office of
" great standard-bearer was to have been added
" to it by the emperor Leopold, but he was pre-
" vented doing it by the ducal house of Wirtem-
" berg's protesting against it; the house of
" Hanover now is the only electoral family with-

( 44 )

*' out an hereditary office ; but they have as-
" sumed that of arch-treasurer of the empire.
" He died at Herenhausen, February 3, 1698.

" George-Lewis succeeded his father in the
" electorate of Hanover and dutchy of Bruns-
" wick-Lunenburgh ; and upon the death of his
*' uncle and father-in-law, George William, to
^' that of Zell, and upon that of queen Anne, to
" the kingdom of Great Britain : he died sud-
" denly at Osnaburgh, June 11th, 1727. He
" was one of the most fortunate princes that has
" lived in Europe, which his prudence and va-
" lour entitled him to : his predilection for
" Hanover, though natural, was much disliked
" by his other subjects.

" George-Augustus II, created Prince of
" Wales 1714, succeeded to Great Britain and
" Hanover, and died suddenly, October 25,
" 1760, in the height of glory: he was a just
" and merciful prince, but resembled his father
" in his too great attachment to his electoral
" dominions.

" Frederick-Lewis, prince of Wales, came
" into England 1729, died March 20th, 1750,
" universally regretted.

" George the third, created prince of Wales
" 1751, succeeded October 25, 1760, crowned
*' September 22, 1761, gave peace to Europe
" 1762, to the blessings of which he devoted

TABLE XI

in sig. R.

r»/o« f. (4i) in sig. R

TABLE XIX.
GENEALOGY OF THE GUELPHS, FROM THE MARRIAGE OF AZO WITH CUNEGUNDA.

First Wife.

Second Wife.
=.Gersenda

I
FuLK — from whom the Dukes of Mod£na descended.

=GiTEi.rH I!. + 1119.

Henhv the Black :=WoLFulLD.S,_H.™e,i of Heri.ian of Billong, and
+ 1125. j bis posscsiioiis of Lu.,cul,iirgli. ic. on ihe Elbe.

HeNBVlhc Proud— G iinTBcnK._Heirpis of Saxonv,
I + 1138. Brui,>„ick, and Hoiiuver.

Henry Itie Lion :— Matild.. Dangliler of Henry II.

+ 1195. KiiiK of England.

Loses bj proscription, all li,, |,;iii,.ssi.nB, except his allodial
3 of Lunenburglt, Brunswick, and Hanover.

ITHO, Emperor of Germany ; defeatfl i
ai tlie battle of Bouvinei. He die.l

NUT, Count Palatine in fight
f his Wife Agnes, daughter
r Conrade, Count Palatine.

rt of Wincliestor, or Long Sword, + 1213.

Otho the Boy. + le'ij.

1 Created Duke ot llnj.iswickand Lunenburgh bvtlit
Emperor Ftederictt, 1235.

TTie Patriarch *'" the Old
Hoaie of Luneihitr^h,
+ 1277.
J

Hekkv the Wonderful,

us I, + 1363.

■■! ir. Torquulin.
''"H^Ji IJ the Otd- tioaie of
Lttnej^urgh; + 1373.

Bernaho, + 1400 ;— The second son of
Torquatu s, and Patriiirc/l of the Middte Home of
UaeabHTgh. |

Eheoerics, . . . + 1478.

James I, King of England and Scotland

HENRTtheyoongct + 1532.

Ernest of Zell, . + 1546.
embraced the Lutheran reiigic

:-'

1. Henry, + 1598

= F.i1ierickV. Elector
I'alume. King of Bo-
henU, + 1632.

i. William,— T
+ 139-. 1

Georg

4EaL.oonsre,

+ 1(598.

3. Hehry; — ^The youngest
Palriorc/i ./ the Ntddlt

e of Bruntwick, Lancnbut

ikc if Hanover,
<i ^^ithout Mait

or, leso.

GEORGE L— First Elector of Hanover, + 1727.=

=S0,„'...Do„0YHY,

only child.

Heiress of Zelle.

bII, + 1760.

Rtci-LEwis Prince i-f Wales, + I7i».

( 45 )
his reign till it was fatally disturbed by the
rebellion in America. France and Spain hav-
ing espoused their cause, a war was declared
against them, and lately his majesty found it
expedient to commence hostilities with Hol-
land, for her perfidious conduct to her old ally.
His Majesty is, in an eminent degree, religious,
just, and merciful ; his conjugal and paternal
tenderness ; his taste for and patronage of
the fine arts, are universally known and ac-
knowledged."

X. 5.

From the electorate of Hanover, we descend
into THE Palatinate. It derives its name
from the office of Count- Palatine, which, in the
middle age, the emperors used to confer on those
Avho, in his name, administered justice to the
empire. Originally there were two : one towards
the Rhine, to whose jurisdiction Franconia, and
the neighbouring provinces were subject ; — the
other in the North, to whom the administration
of justice in Saxony, and in the rest of the coun-
tries, governed by the Saxon law, was confided.
At first they were personal offices, afterwards
they became hereditary, and the possessors of
them made great acquisitions by purchases,
agreements, imperial donations and marriages ;

( 46 )
and thus formed by degrees considerable priii-
cipalities.

1st. At first, the palatines of the Rhine were
the dukes of Bavaria of the house of WitUesbach,
a castle in the dutchy of Bavaria, near Aicha on
the Paar, which runs into the Danube near In-
goldstadt. The last of this family, in whom these
dignities were united, was Lewis the severe, who
died in 1294. He had two sons, Lewis and
Rudolph. The first obtained the duchy of Ba-
varia for his portion, and was afterwards elected
emperor. Rudolph obtained the palatinate for
his portion, he is the patriarch of the Rudolphine
or Old Electoral Line of the palatine family ;
he died in 1319.

2d. Upon the decease and failure of issue of
Otho-Henry, the twelfth elector of this line, the
palatinate passed to Frederick of the house of
Simmeren. With him the Middle Line of the
palatine family is supposed to begin. Frederick,
his great-grandson, was deposed, and the Upper
palatinate, with the electoral dignity, was be-
stowed upon Maximilian, duke of Bavaria. After
his decease, Charles-Lewis, the surviving son of
Frederick, was re-established in the Lower pala-
tinate. At the treaty of Westphalia, he was
created eighth elector of the empire, under the
title of Great Treasurer of the empire.

3d. Charles, his son, died without issue ; on

( 47 )
his death the electorate descended to prince'
WilHam of the Newburgh branch of the family
of Deux-ponts, and thus he became the founder
of The palatine Line of the House of Nexvburgh,
or the New Electoral Line of the Palatine family.
He had several sons ; John-AVilliam- Joseph, the
eldest of them, died without issue ; Charles-
Philip, the second of them, left no issue male,
but had three daughters ; the two eldest of whom
died without issue ; Sophia-Augusta, the youngest
of them, married Joseph-Charles-Emanuel, the
hereditary prince of the Sultzbach line of the
house of Newburgh : they had issue one child,
Mary-Elizabeth, who married Charles-Philip-
Theodore, who was son and heir apparent of
John-Christian-Joseph, her father's brother, and
who consequently was her first cousin. In her
right he succeeded to the palatinate : he suc-
ceeded also, as will be afterwards mentioned, to
the electorate of Bavaria.

This will appear by an inspection of the
genealogical table at the end of the next article.''

X. 6.
Bavaria, was anciently inhabited by the
Vindelici : — they were dispossessed of the coun-
try by the Boii.

I. All historians agree, that the house of
Bavaria is one of the most ancient and illus-
" See Table XX.

( 48 )
trious of the German families. Several princes,
with the title of duke of Bavaria, are men-
tioned before the time of the emperor Charle-
magne. Thassillo, the last of them, was con-
quered and deposed by that emperor. Lewis the
debonnaire, the son of Charlemagne, united
Pannonia and Bavaria, and confeiTed them, as
a dutchy, with the title of Bavaria, on his second
son. From him the dutchy passed, through
a series of princes, to Henry the lion. In his
time it comprised a much greater extent of
territory than the modern Bavaria, as from
east to west, it extended from the mountains
of Franconia to the frontiers of Hungary, and
from north to south it extended from the pala-
tinate to the Adriatic Gulph. Ancient Bavaria
also comprehended the Tyrol, Carinthia, Car-
niola, Styria, Austria, and other states. What at
present is called Bavaria, lies between Bohemia,
Austria, Franconia, and the Tyrol.

2. When Henry the lion was proscribed by
Frederick Barbarossa in 1 1 80, the emperor gave
that part of his territory, which forms the Mo-
dern Bavaria, to Otho, a prince of the house of
Wittlesbach, and created him duke of Bavaria.
From him the territory and title descended to
Maximilian, who succeeded to them upon his
father's resignation in 1597. In 1620, the em-
peror Ferdinand conferred on him the electoral

r./<.«p.(49)iii..ig.s.

TABLE XX.
DUKES OF BAVARIA, AND PALATINES OF THE RHINE, OF THE HOUSE OF WITTLESBACH.

TIM! RUDOl.PUINE OR ELECTOR.AI, LINE OF THE
i'AEAIINE FAMlU.

I. Otho + 1183.

Duke of Bavaria of the house of Wittlesbach ; advanced to this honour on the proscription of Henry the Lioi

Duke of Bavaria and Elector Palatine of the Rhin

4. Liiivi!. the Severe . . + 1294.
Duke of Bavaria and Elector Palatine of the Rhin

HOUSE OF BAVARIA.

S. Aooini, + 13'J7. 3. UuooLi-n, + 1953.

RurEnT, + 1390.

6. Ryi'^iiT. elected Em-

I perot in MOO.

+ 1410.

7. Li wu, + 1119,
I

8. Lin'n, + M49. 9. FneocnicK, 1(76

9. r H 1 1, ir, + 1508.

10. Lewis, + lil9.

Stephen, . . + \iU.

THE DEUX-PONTINE, OR NEW ELECTORAL
LINE OK THE PALATINE FAMILY OF THE
NEU'ULRGH BRANCH.

13.Fni

14. Lew

+ 1500.

+ 1557.

+ 1576.

+ 1583.

+ 1610.

17. CR,ini,BS-LBW»>l- 1680.

I "

18. Cb.hi.e + 168.5

Aivi.Nnt. 4- 1514 THE SULTZB.ACH BRANCH

Le»i8, + 1532.

WOIEASO, + 1569.

Puiiti.-LEivi», . . . + 1614.

WotMrro Wil-tiAM, + 1653.

. Philip William, . + 1690.

AuoosTii!, + 1632.
PalatineiofSultzbuch.

CnaisTi.N Aoot.

TuEon

Cn*ni£5Pni..p, + 174.'.
I

SopniA.AuClJ3TA=Jo3EHi.CHAnLlS-EjIANOrL. Jobn Cri i.ISTI AN-JoSl

I I

Mary ELizA»tTB=;22. CHAnLES-PniLip-THionoiii ,

11. Aim

12. WiL

6. Stephen, + 1375.

?. J 0 a N, + 1397.

»■ Ebnest, + 1438.

9. Albert, + 1460.

ALBEnr,
I

\Vi

14. MAxiMiLiAN,lhe first Elector,

15. Feudinand-Mary

16. Maxijiiliav, ....

17. Charllj-Allert

18. Cuabies-Maaimilian-Jojepi

+ ISnJ.

. + 1550,

+ 1579.

+ I6-.'6.

+ 1651;

+ 1679.

+ 1726.

+ 1745.

!, + 1777.

22. Maximilian, + 1799. '

He died wilbKUt issue, and was succeeded b;
Maxiniilian-Josepb, Duke of Deuxponts, now
King of Bavaria.

( 49 )
dignity. At first it was conferred on him for his
Hfe only ; but, at a diet held at Prague, it was
conferred on him and his heirs for ever. In
1777, this line expired in the person of Charles-
Maximilian- Joseph, the fourth in descent from
him, who died without male iffue. — This will
appear in the accompanying table/

Upon the death of Charles-Maximilian- Joseph,
without male issue, Charles-Phihp-Theodore, the
palatine elector, asserted his right of succession,
as nearest relation, under duke Lewis the
severe, who died in 1294, and was the common
ancestor of both families, in virtue of family
compacts concluded in the years 1706, 1771, and
1774. By the court of Vienna, a considerable
part of the territory was claimed as an escheat.
Other claims were urged : a war actually broke
out ; — it was concluded by the peace of Teschen,
in 1779; by which, with a small exception, the
Palatine-Electoral house was allowed to retain
the Bavarian territories, and to vote in the Diet
as elector of Bavaria.

Charles-Philip-Theodore died in 1799, with-
out issue. He was succeeded in the electorate by
Maximilian Joseph, the duke of Deuxponts, now
king of Bavaria.''

' See Table XX.

^ There arose a contest between the elector Palatine and
duke of Bavaria, respecting the rij^ht to the post of Vicar
of the Empire : Ex : Spanheim supported the former, Bib.
Bret: App, 164.

( 50 )

NOTE XL p. 114.

The possessions of five powerful fa-
milies CENTERED IN ChARLES THE BoLD,

the father of Mary, the wife of the emperor
IMaximiHan.

1. Burgundy and Franche-Comte may be
considered as his Patrimonial Estates :

•2. From Margaret, the heiress of the Counts
of Flanders, and the wife of Phihp the bold,
his great-grandfather, he inherited Flanders,
Artois, Mechlin, Namur, and Antwerp : the
latter, which included Brussels, Louvain, and
Niville, was called the Marquisate of the Sacred
Empire :

3. From Johanna, the heiress of the Dukes
of Brabant and Limburgh, he acquired those
dutchies :

4. From Jacob(Ea, the heiress of the Counts of
Holland, he acquired Holland, Friesland, Zea-
land, and Hainault :

5. And from Elizabeth, the heiress of the
Dukes of Luxemburgh, he acquired that
duchy.

These twelve provinces, — Flanders, Artois,
Mechlin, Namur, Antwerp, Brabant, Limburgh,
Holland, Friesland, Zealand, Hainault, and
Luxemburgh, descended to the emperor Charles

( 51 )
the fifth, the grandson of Maximilian : he pur-
chased Utrecht, Overyssel, Groningen, Guel-
dres, and Zutphen. These seventeen provinces
formed the Netherlands : Charles the fifth an-
nexed them to the crown of Spain, and resigned
them, with that monarchy, to Philip the second,
his son.

In 1581, the provinces of Holland, Zealand,
Utrecht, Friesland, Groningen, Overyssel, and
Gueldres, revolted from Philip, and proclaimed
themselves free. They formed themselves into
a confederacy, which, from the number of pro-
vinces composing it, is called the Seven United
Provinces ; and from Holland, the chief of
them, is called the Republic of Holland. In the
time of Tacitus, these territories were chiefly
possessed by the Batavi.

The ten remaining provinces were preserved
to Spain, by the ability of the duke of Parma,
the hero of Strada's history. Philip the second,
gave them, in marriage with his daughter, the
Infanta Isabella, to archduke Albert, the son
of Maximilian the second, but on condition
they should revert to Spain, if she died without
issue : — that event having taken place, they
reverted to the crown of Spain.

They were often the theatre of the wars be-
tween France and Spain ; and once France had
nearly made an entire conquest of them : but,
s 2

( 52 }
first by the peace of Radstadt, and afterwards
by the peace of Aix-la-Chapelle, they were
assigned to Austria, with the exception of Artois,
the Cambresis, part of Flanders, part of Hainault,
and part of Luxemburgh. The adjacent towns
and territories of Menin, Tournay, Funics, Wi-
noque, Loo, Dixmude, Ypres, Roussellar, Pep-
peringen, Warneton, Comines, and Werwick,
were also assigned to the emperor. Soon after
the beginning of the French revolution, France
made an easy conquest of them all : and, under
the name of Belgium, they now form a part of the
one and indivisible Empire. Speaking generally,
the Austrian Netherlands, in their original extent,
were filled by the IMenapii of Tacitus.

NOTE XII. p. 176.

The following miscellaneous observations on
Roman, German, French, and English
Nobility, and the sixteen quarters of
Nobility, may not improperly accompany the
preceding genealogical deductions.

1. The ROMANS -were divided into Ingenut
and SerTi, or Freemen and Slaves : the lowest
class of the Ingenui, were those who, themselves
had always been free, but whose parents had
been slaves : the class immediately above
them was composed of those, whose families,

(53)

for several descents, had been free : on this
account they were said to have Gentem et Fa-
mil'iam: the next and highest class consisted
of the Nobiles. At first, the Nobiles consisted
entirely of the Patricians, who descended from
the two hundred Senators chosen by Romulus,
and the hundred chosen by Tarquin : to them,
in subsequent times, were added those, who were
raised to the Curule magistracies, and the Sena-
tors. These were noble during their lives ; but,
if both the son and the grandson of such a
magistrate, or of a senator, filled any of these
magistracies, or were senatoi-s, the grandson's
title to nobility was perfect, and he transmitted
it to his descendants. The nobles had Jus
Imaginum, or a right to have their images placed
in a conspicuous place in their houses, and borne
in processions ; but the first acquirer of nobility
Avas entitled only to his own image, and was,
therefore, called Novus Homo.

2. The general division of the ANCIENT
GERMANS was into Freemen and Slaves.
Among the freemen, those, who commanded the
armies, or took a lead in the councils of the
state, were particularly distinguished : from them,
the prince was usually elected. In the middle
age, the same division was continued, the
Nobiles being distinguished from the Ingenuu
or general body of freemen. The bishops and

( 54 )
other ecclesiastical dignitaries ranked among the
former ; the other churchmen, among the latter.
From the former, the king naturally chose his
guards, officers, advisers and companions ; from
among their followers, the chiefs naturally selected
theirs. At all times the dignity of the parent
reflects on his issue ; among the Germans it gave
the descendants of illustrious parents an here-
ditary consequence, and insensibly an hereditary
rank : this produced the three-fold distinction, of
lineage royal, lineage noble, and lineage purely
free.

The first was composed of Prmces, or those
who claimed royal descent ; the second, of
Dukes, Counts, Marquises, Barons and Knights.
The Knights were divided into Knights Banneret,
who had the right of carrying a banner, to which
fifty soldiers, at least, were attached, and Knights
Batchelors, who served under another's banner:
— After the Knight, came the Esquire, who
carried his shield, and he also was noble. — After
the Esquire, came the mere freeman.

Such was the ancient nobility of the Ger-
mans, and of the Francs, their descendants.
Afterwards it was acquired, ist, by the grant
of a noble fief, or a fief which immemorially
had conferred nobility on its possessor ; — 2dly,
by filling any of the great offices of state, or
any of the great offices in the king's household,

( 55 )
or any high office of magistracy; — and, 3dly,
by letters of nobility.

It should, however, be observed, that it was
in early times only, that the possession of a
Noble Fief conferred nobility. The Ordon-
nance of Blois, (article 258), expressly provided,
that non-nobles should not be ennobled by the
acquisition of a Noble Fief.

After the extinction of the Carlovingian
dynasty, Germany was partitioned by a multi-
tude of princes, bishops, abbots, and male and
female Nobles, who under the various names
of Dukes, Princes, Counts, Marquises, Lords,
Margraves, Burgraves, Rhingraves, and other
more or less known denominations, possessed the
rights appropriated to sovereigns : but all of them
recognized the emperor as their Feudal Lord,
and all were obhged to furnish him with a cer-
tain number of soldiers. They were principally
divided into the Primitive States, or those which
had uniformly been held of the emperor, as the
dutchies of Saxony and Bavaria, the Palatinate,
and several bishoprics : — those, which arose on
the ruin of the Guelphic family, in consequence
of the confiscation of the possessions of Henry
the lion ; those, which arose from the ruins of
the Suabian family ; and, those which, (prin-
cipally during the long InteiTegnum), arose from
other causes.

■ ■ ( 56 )

3, A similar division of nobility took place in
FRANCE, but, from the time of the accession
of Hugh Capet to the throne of France, it was
the uniform endeavour of the French monarchs
to lower the territorial power and local influence
of the nobility : their privileges, the French
monarch always respected.

By degrees, all the great fiefs were annexed
to the crown ; and the inferior nobility Avere
curtailed of their territorial power and influence.
— Insensibly they became a privileged and
favoured order of the state ; enjoying many
splendid prerogatives, but wholly dependent on
the king, and subject to the law.

They were divided into three classes; the
Nobles of Name and Arms,— the Nobles of
Race and Extraction, — and the Ennobled. — The
Nobles of Name and Arms, were those, who
could prove their nobility from the time when
fiefs became hereditary, which in Germany was
the accession of the Suabian line ; in France,
the accession of Hugh Capet : — The Nobles of
Jlace and Extraction were those, who could
prove a century of nobility in their family ;
— in respect to the Ennobled, three distinctions
were observed ; High Offices, as those of Chan-
cellor, or Keeper of the Seal, immediately
conferred nobility on the persons to whom they
were granted, and the immediate transmis-

( 57 )
sibility of it to their descendants. Certain in-
ferior offices conferred an inchoate or initiate
nobihty, which, if both the son and the grand-
son of the party held such an office, vested a
complete nobility in the grandson, and it then
became transmissible to the lineage of the first
grantee ; — Nobility acquired by Magistracy, was
called Nobility of the Robe.

In France, and all military countries, Mi-
litary Nobihty stands much higher than Nobility
of the Robe : the Robe did not, however,
degrade the military nobleman. Consequently,
a nobleman of name and arms, by filling . an
office of magistracy, did not lose or taint, in
the slightest degree, his military nobility.

Dukes, ]\Iarquises, Counts, Viscounts and
Barons, as such, were not noble. Almost always,
they were of noble birth ; but the King might
create them from the non-nobles ; and when he
intended to confer such a dignity on a non-noble,
he previously ennobled him, The princes of
the blood were out of the line, and preceded
all.

At court, and at ceremonies and assem-
blies, held by the officers of the crown, in
that capacity, the dukes and peers, and the
hereditary dukes, had precedence ; and a pre-
cedence was there allowed to the Marechaux
de France, to the knights of the order of the

( 58 )

Holy Ghost, and to those, who commanded
nobility, as Governors of Provinces, and Lieu-
tenants-General. With this single exception,
all the nobility of France, whether Dukes,
Marquises, Counts, Viscounts, or Barons, were,
in all respects, of the same degree. — Public
opinion made a difference among them ; — it was
founded on the antiquity of their rank, and the
illustration of their families by dignities and
alliances. — Thus, in public opinion the Baron
de Montmorenify was, at an immeasurable
space, above the Duke de Luynes; and the
Count de Rieux ranked much higher than the
Prince de Poix.

In England, it is often said, that, among the
French, noblemen and gentleman were converti-
ble terms, every noWeman being a gentleman,
every gentleman being a nobleman. But the
expression is inaccurate ; — every French gentle-
man was a nobleman, but every French noble-
man was not a gentleman. A person, to whom
nobility was granted, or who was appointed to
a charge conferring nobility, the transmissibility
of which was suspended till it vested in his
second descendant, was noble : but neither he nor
his son was a gentleman ; the grandson was the
first gentleman of the family. Thus, in France,
gentleman was an higher appellation than noble-
man : — Francis the first, styled himself the first

( 59 )
gentleman of his kingdom : the king's brother,
was Monsieur, the first gentleman among the
subjects of the French king.

In France, trade in general, and farming the
lands of another, derogated from nobility. At
any time, within a century after the first act
of derogation, the derogated nobleman, unless
he had been bankrupt or otherwise disgraced,
might easily obtain letters of relief or rehabilita-
tion. After that term, he could only be ennobled
by a new title.

In Britanny, when a nobleman engaged in
trade, his nobility was said to sleep ; the instant
he quitted trade, paid his debts, fulfilled all
his mercantile engagements, and entered this
on the public registers, he was restored to his
nobility. Under these circumstances, a noble-
man of Britanny was considered noble, not only
within Britanny, but in every other part of the
French dominions.

The privileges annexed to nobility in France
were veiy considerable : the principal of them
were, an exclusive right to assist at the assem-
blies of the nobility ; to be admitted into certain
orders and chapters ; 2. Exemption from banna-
lite and corv^es, personal servitudes, the taille,
quartering of soldiers, and the duty of franc-
fief. 3. A right to carry arms, to wear coat-
armour with a crest, and to be judged, in cri-

( 60 )
minal matters, by the Tournelle, and the Great
Chamber of ParHament. — The dukes and peers
were entitled to a seat in parhament, and to be
tried by their peers.

In France, nobihty had become very venal ;
but this was not peculiar to France : in 1750,
the court of Vienna published at Milan, a tarif,
fixing the price at which the title of prince, duke,
marquis, or count, might be purchased.

The Germans carried their notions of nobility
farther than the French ; — the Spaniards farther
than the Germans. " We," said the Justiza
of Arragon, in the name of the nobility, to the
king, when they swore allegiance to him, " we,
" who are each of us as good as you, and who
" are altogether more powerful than you, pro-
" mise obedience to your government, if you
" maintain our rights and liberties ; but if not,
*' not." — When the duke of Vend6me made the
Spanish nobility sign a declaration of allegiance
to Philip the fifth, most of them added to their
names, the words, " Noble as the King." — The
duke bore this with tolerable patience ; but could
not contain himself, when one of them, after these
words, added " And a little more" — " Heavens !"
exclaimed the duke, " You don't call in question
" the nobihty of the house of France, the most
" ancient in Europe." — " By no means," replied
the Spaniard, " but, my lord duke, please to

( 61 )
" consider that after all, Philip the fifth is a
" Frenchman, and I am a Castilian/'

4. From what has been mentioned, the
difference between French and ENGLISH
NOBILITY is obvious. While in France, a
gentleman is a nobleman's highest appellation,
an English nobleman, both in law and public
opinion, holds a splendid pre-eminence over the
English gentleman.

This is principally owing to the distinction
which, about the reign of Henry the third,
took place in England, between the great and
small barons.

In all countries where the feudal polity has
been established, a national council, under the
name of States-General, Cortez, the Grand
Assize, or the Pariiament, has been introduced.
It generally consisted of three states, the Lords
Spiri<-ual, the Lords Temporal, and the Third
Estate, or the Commonalty. In almost every
country, except England, the Third Estate was
originally distinguished from the nobility, and
consisted of the Commonalty alone. In Eng-
land all the Barons, or the Lords of Manors^
held immediately of the King, were entitled to
a seat in the National Council. In the course
of time they became numerous, and the estates
of many of them became very small. This
introduced a difference in their personal im-

( 62 )

portance. — In consequence of it, the great
Barons were personally summoned to parlia-
ment by the King, but the small Barons were
summoned to it, in the aggregate, by the
Sheriff. They assembled in distinct chambers.
The King met the great Barons in person, but,
except when he summoned their personal at-
tendance, left the latter to their own deliberations.
— These and some concurrent circumstances,
which it is needless to mention, elevated the
great to a distinct order from the small Barons,
and confounded the latter with the general body
of freeholders.

In the mean time, a considerable revolution
took place in the right to peerage. From being
Territorial it became Personal ; — in other words,
instead of conferring on a favoured subject a
territory, which being held of the King, made
him a Baron, and, of course, a Peer of Parlia-
ment, it often happened that the King conferred
on him the peerage, with reference to a territory,
but without conferring on him any interest in it.
— The same revolution took place in respect to
the high offices of Dukes, Marquises, Earls,
and Viscounts. They were originally territorial,
offices, which were exerciseable within certain dis-
tricts, and entitled the possessors of them to a
seat in the national council. By degrees, these
also became mere personal honours, the Kings

( 63 )
frequently granting them to a person and his
heirs, with a nominal reference to a district, but
without the slightest authority within it : and,
whenever they were granted in this manner, if
the party had not a Baronial Dignity, the King
conferred it on him, and thus entitled him to a
seat in the higher house : — but, where the dignity
was hereditary, if he had more than one male
descendant, his eldest son only took his seat
in the house : and the brothers and sisters of
that son were commoners. Thus a separate rank
of nobility, and of personal and legislative
nobility, unknown to foreigners, was introduced
into England ; and thus, in opposition to a
fundamental principle of French law, that every
gentleman in France is a nobleman — it became
a principle of our law, that no English gentle-
man is a nobleman, unless he is a Peer of Par-
liament.— In Doctor Moore's Viezv of the Causes
and Consequences, of the French Revolution, vol.
i. c. 6, the reader will see the difference between
French and English nobility clearly pointed
out. '

5. On the Continent, several ecclesiastical,
civil, and military preferments, were open only
to the nobility, and it was therefore required of
the Postulant of them, that he should prove the
nobility of his paternal and maternal ancestors
for a given number of descents, or, in the Ian-

( 64 )
guage of heraldry, that he should produce his Coat-
armour, with a certain number of paternal and
maternal Quarterings. On ordinary occasions
a Coat-armour of four Quarterings sufficed ;
sixteen were sometimes required : the greatest
number ever required in France, was thirty-
two; in Germany, sixty-four.

To establish his title to SIXTEEN
Q UARTER S the Postulant must shoAv,

1. The nobility of his father and paternal

grandfather, and of his paternal grand-
father's father, and paternal grandfather's
paternal grandfather ; this entitles him to
one quartering :

2. The nobility of his mother, and maternal

grandfather, and of his maternal grand-
father's father, and maternal grandfather's
paternal grandfather ; this entitles him to
a second quartering :

3. The nobility of his paternal grandmother,

and of her father and paternal grand-
father ; this entitles him to a third quar-
terincp :

4. The nobility of his maternal grandmother,

and of her father and paternal grand-
father ; this entitles him to a fourth quar-
" taring :

( 65 )

5. The nobility of his paternal grandfather's

mother, and her father ; this entitles him
to a fifth quartering :

6. The nobility of his paternal grandmother's

mother, and her father ; this entitles him
to a sixth quartering :

7. The nobihtv of his maternal grandfather's

mother, and her father ; this entitles him
to a seventh quartering :

8. The nobility of his maternal grandmother'*
'^" mother, and her father ; this entitles him

to an eighth quartering :
9- The nobility of his paternal grandfather's
paternal grandmother; this entitles him
to a ninth quartering : • '''

10. The nobility of his paternal ■ grandfather's

maternal grandmother ; this entitles him
to a tenth quartering :

1 1 . The nobility of his paternal grandmother's

paternal grandmother; this entitles him
to an eleventh quartering : *

12. The nobility of his paternal grandmother's

maternal grandmother; this entitles him
to a twelfth quartering :

13. The nobility of his maternal grandfather's

paternal grandmother ; this entitles hiii^
to a thirteenth quartering :

14. The nobility of his maternal grandfather's

( 66 )
maternal grandmother ; this entitles him
to a fourteenth quartering :

15. The nobility of his maternal grandmother's

paternal grandmother; this entitles him
to a fifteenth quartering :

1 6. The nobility of his maternal grandmother's

maternal grandmother ; this entitles him

to a sixteenth quartering :
To be a Knight of Malta, four quarterings
were required from a French, and eight from
a German, or Spanish, postulant : for a canoni-
cate of the cathedral church of Strasburgh,
sixteen were required. It being frequently found
convenient to repair a shattered patrimony, by
a mercantile or financial marriage, few French
families about, the court could produce that
number. When all the quarterings were per-
fect, it was said, that the House was Full ; a
defective quartering was called a Window. On
account of the non-noble descent of Mary of
Medicis, the wife of Henry IV, the Escutcheon
of Lewis XIV, their grandson, had its window.
But the provinces abounded with families from
whom Knights of Malta, and even canons of
Strasburgh might be chosen.''

Most of the sovereign families of Europe
affect to trace their origin to a very ancient

* See Table XXI.

To face p. (66 ) in sig.T.

16.

ODOAnDUS,~DonoTHEA-

Duke of
Bavaria.

Sophia,
Princess .
Palatine.

Diilc of
Burgundy,
Duuphln of

TABLE XXI.
THE SIXTEEN QUARTERS OF NOBILITY,

EXHIBITED BY THE DUG D'ANGOULEME, GRAND-PRIF.UR DE FRANCE.

11- 12. 13.

0«n Joseph I.=WllHiluIK4 Vic-

T<./oeep. (66)insig.T.

Princess
Poland.

Kmg

Sardinia

=AN»-CiiiriSTii

of
Sultzbacb.

King
Spain.

-aartmu

( 67 )
period : but probably the families of Venice,
who elected the Doge in 697, and, from that
circumstance are called the electoral families,
produce a pedigree, supported by certain and
positive evidence, of more remote antiquity than
any sovereign, or, perhaps, any private family.
The certain pedigrees of the Houses of Guelph,
Savoy, Lorraine, Hohenzollem and Baden, reach
to the eleventh century ; but the pedigree, equally
certain, of the house of Capet extends to the
ninth. The difficulty of tracing pedigrees beyond
the twelfth arises from the want of surnames.
Before that time, the greatest princes, in their
public acts, mentioned only their christian names,
and sometimes, their dignities; in the twelfth
century, they began to mention the place of their
residence. To the same period, in consequence
of the Crusades, coat-armour is to be traced.
It originated in the marks or signs, by which
the heads of the crusaders distinguished their
vassals ; these, they preserved after their return to
Europe, and they became general. The Fleurs-
de-lys on the crown and mantle of the Kings of
France are not traced beyond Lewis the seventh,
or 1146. (See Blondel, G6nealogie de France,
torn. 2, p. 163.) In antiquity and illustrations,
the Irish, Scottish and English families, are, at
least, on a level with whatever is most dis-
T 2

( 68 )
tinguished on the continent, and their legislative
character confers on the Peers of the Imperial
Parliament of the United Empire, a dignity
peculiar to themselves.

NOTE XIII. p. 187.

The Taille^ in its origin, was a pecuniar}'
imposition on those, who were not liable to
military duty ; the nobility were of course ex-
empt from it. This, while feudalism prevailed,
was perfectly just ; for the nobility then served
in the ranks as common soldiers ; and, as every
subject should contribute to the wants of the
State, it was reasonable that those, who did
not serve the state by their persons, should
serve it by their purse. But, after the intro-
duction of standing armies, the nobility ceased
to serve in the ranks ; and of course the original
reason of their exemption from the taille no
longer existed. From that time, the tax of
the taille was highly objectionable : it was une-
qually borne, and strongly marked both to the
public and to their own feelings, the inferiority
of the class, which was liable, to the classes
which were exempt from the payment of it—
The same observation applies to several other

( 69 )
privileges of the nobility. — See M. Mounier's
Recherches sur les causes qui ont empSdie les
Frangais de devenir libres, torn. I. c. 1 2.

But, both the clergy and the nobility contri-
buted largely in taxation : they were necessarily
subject to excise, to custonis, and to every other
imposition levied on the consumer. The nobility
paid the capitation, and a land-tax, under the
name of Vingtiemes, of about four shiUings in the
pound : from those, the clergy, except in the
conquered provinces, were exempt; but they
made free gifts, and were liable to other burdens.

NOTE XIV. p. 194.

" In 1791," said Brissot, writing to his cor-
respondents in 1793, " there were only three
" republicans in France, Buzot, Petion, and
" myself." " A thousand similar confessions/*
says JMallet du Pan, " have escaped from the
" Republicans, during their quarrels among
" themselves." But a more just representation
of the state of the public mind, at the commence-
ment of the revolution, is given by M. Mounier.
By his account. One party, (which included a great
part of the nobility, of the higher ranks of the
clergy, and many of the princes of the blood
royal), wished to preserve the states-general in
their ancient form. Another party wished to

( 70 )

establish two deliberative assemblies in imitation
of the English house of parliament; a third
wished to establish in France, the federative re-
publics of America ; a fourth, nowise formidable
by their numbers, but very formidable by their
resources, foreseeing great troubles, were deter-
mined to avail themselves of them, to fix the
royal power in the hands of some one whom
they could manage at will. " The two last of
*' the parties," says Mounier, " or rather those
" two wicked factions, the existence of which I
'* did not know, till after the assembly of the
" states-general, had, for many months before,
" established committees and their secret corre-
" spondencies : they were alike disposed to flat-
" ter the populace, to arm it with torches and
" daggers, in order to strike terror into the
" friends of the throne and of good order ; to
" destroy the sentiments of love and respect of
" the people for the King, and to propagate the
" most horrid calumnies. They sought to turn
'' to advantage all the imprudences of the court,
" at a time when the difficulty of its position
" precipitated it into imprudent measures."

NOTE XV, p. 196.

The best account of the exertions of the
French philosophers to produce a new order of

( 71 )
things in church and state, is to be found in the
first volume of the Memoirs pow servir d rimtoire
du Jacobinisme, of the Abb6 Baruel.

He has been accused of exaggeration ; but
his account appears to be fully confirmed by the
following extracts from the works of two cele-
brated persons, neither of whose testimony can
be refused.

The first is Condori^et. " There was a class
" of men," says that writer, " which soon
" formed itself in Europe, with a view not so
" much to discover and make deep research
" after truth, as to diffuse it ; whose chief object
" was to attack prejudices, in the very asylums,
" where the clergy, the schools, the governments,
" and the ancient corporations had received and
" protected them ; and who made their glory to
" consist rather in destroying popular error, than
" extending the Hmits of science : this, though
" an indirect method of forwarding its progress,
" was not, on that account, either less dangerous
" or less useful.

" In England, Collins and Bohngbroke; in
" France, Bayle, Fontenelle, Voltaire, Montes-
" quieu, and the schools formed by these men,
" combated in favour of truth. They alternately
" employed all the arms with which learning,
" philosophy, wit, and literary talents could fur-
** nish reason. Assuming every tone and every

T 4

( 72 )
^' shape, from the ludicrous to the pathetic, from
"the most leawied and extensive compilation to
" the novel, or the petty pamphlet of the day,
" covering truth with a veil, which sparing the
" eye, that was too weak, incited the reader's
" curiosity by the pleasure of letting him surmise
" what was meant, insidiously caressing prejudice
" in order to strike it with more certainty and
" effect ; seldom menacing more than one at a
" time, and then only in part, sometimes flatter-
" ing the enemies of reason, by seeming to ask
" but for a half toleration in religion, or a half
^* liberty in polity ; respecting despotism, when
" they impugned religious absurdities, and re-
^' ligion when they attacked tyranny ; combating
" these two pests in their principles, though ap-
" parently inveighing against ridiculous and dis-
" gusting abuses; — striking at the root of those
" pestiferous trees, whilst they appeared only to
" wish to lop the straggling branches ; at one
" time marking out superstition, which covers
" despotism with its impenetrable shield, to the
" friends of liberty, as the first victim which they
" were to immolate, the first Hnk to be cleft
" asunder ; at another, denouncing religion -to
" despots as the real enemy of their power, and
" frighiening them with its hypocritical plots and
" sanguinary rage; but indefatigable when they
" claimed the independence of reason and the

( 73 )
*' liberty of the press, as the right and safeguard
" of malikind ; — inveighing with enthusiastic
" energy against the crimes of Fanaticism and
" Tyranny, reprobating every thing which bore
" the character of oppression, harshness, or bar-
" barity, whether in religion, administration, mo-
" rals or laws ; commanding kings, warriors,
" priests, and magistrates, in the name of nature,
" to spare the blood of men ; reproaching them
" in the nK>st energetic strain with that, which
" their policy or indifference prodigally lavished
" on the scaffold or in the field of battle ; in fine,
" adopting reason, toleration, and humanity, as
"their signal and watchword.
, ,^* Such was the modern philosophy, so much
" detested by those numerous classes, whose
*' very existence was drawn from prejudices ; —
" its chiefs had the art of escaping vengeance,
" though exposed to hatred, of hiding them-
*' selves from persecution, though sufficiently
" conspicuous to lose nothing of their glory*" :

The testimony of M. Mallet du Pan, {Con-
siderations on the Nature of the French Re-
volution, and on the Causes xvhich prolonged its
Duration, p. 91, note), is equally decisive of the
nature and extent of the Jacobin conspiracy.
• " The conspiracy of the Jacobins," he says,
" is not a being of fancy. The actors in insur-
'' rections, in conflagrations, in massacres, really

( 74 )
'* form a confraternity. Systematically organized,
" they have their catechism, their slang, their
" colonels, their majors, their captains, their
" profession and their noviciate, their points of
" correspondence, their respective tasks, their
" departments, their customs, and the laws of
" their order. Even in foreign countries this
" infernal society has its affiliated clubs ; it has
" excited all the master crimes of the Revolution,
" and has attempted, in twenty parts of Europe,
*' commotions similar to those which it has raised
" in France. It had its origin in the Palais-
" royal, and has been the right hand of the lead-
" ing conspirators. Rotondo, Fournier, (an Ame-
" rican) Estienne, formerly a captain of the Sans
" Culottes, at Brussels; L'HuiUier, Procureur-
" general of the department of Paris ; Maillard,
" formerly a bum-baihff; the leading men of the
" club of the Cordeliers, have been the principal
" officers of this regiment. M. de la Fayette
" knew it and dreaded it ; but never had the
" courage to attack it in earnest. The last en-
" terprize plotted by Rotondo was at Geneva,
" where he has been arrested some months
" since. I could add some most extraordinary
" details to these few lines ; but I confine myself
" to merely assuring the pubhc, that they have
" as yet but a very superficial knowledge of the
" Revolution in its present state, and that one

( 75 )
" cannot too much lament the improvidence of
" those who think they sufficiently secure them-
" selves against it, by raising some walls about
" its territories."

But no work, perhaps, contains so perfect a
view of the designs and ultimate tendency of
the Jacobin conspiracy as the Abbe de Mably's
Doutes proposes aiLV Philosophes economistes sur
Vordre naturel et essentiel des SocietSs politiques ;
and his Treatise des Droits et Devoirs des Ci-
toyens. The reader will find them a complete
code of Jacobin principles : of the means they
were to employ to accomplish their object ;
and a full view of the ultimate state of thing's
which it was their great end and aim to pro-
duce.

It would, however, be a great injustice to con-
found together, all the writers, whose works have
contributed to the French revolution. They
may be divided into three classes : — under the
first, may be ranked those, who were satisfied
with pointing out to sovereigns, the duties, which
they owe to their subjects, and the motives which
religion and reason suggest to excite sovereigns
to a faithful discharge of them. Those writers,
though by making subjects feel their rights, they
co-operated remotely in producing the general
ferment which led to the revolution, are not only
free from blame, but are entitled to the thanks of

( 76 )
mankind. Such were Fenelon and Massillon :
the general duties of a sovereign, the wickedness
and infamy of an oppressive, extravagant and
voluptuous reign, are no where more eloquently,
more pathetically, or more forcibly exposed than
in the Telemachus of the former, or the Petit
Careme of the latter. So much was this the
case, that, during the contests of Lewis XV with
the parliaments, large editions of the Petit Careme
of Massillon were repeatedly printed and circu-
lated throughout the kingdom.

The same, (if allowance be made for some
indiscreet expressions), may be said of Montes-
quieu ; and he had the additional merit of point-
ing out the general revolution of opinion which
the diffusion of knowledge had produced, and
was every day producing in France, and the
necessity of appeasing it by the sacrifice of some
abuses. Those, who are acquainted with that
great man's writings, must be surprised to see
him ranked among the conspirators against
monarchy.

The general body of writers called the French
Philosophers, then come for consideration ; they
may be divided into two classes, — at the head
of one of them we may place Voltaire, at the
head of the other, Rousseau. .
, From a settled plan, and even a serious wish
of overturning the monarchy, justice requires us

( 77 )
to acquit the former : a slight limitation of the
arbitrary power of the crovt^i, and the privileges
of the nobility, would have satisfied him : but the
utmost he would have left to the church, was a
decent maintenance for her ministers. — On the
other hand, Rousseau thought mankind could not
be happy till every distinction of rank was abo-
lished, and propert^was held in common.

In the different Assemblies each of those
classes of writers had their disciples. The ve-
nerable bishop of Aries, the bishops of Clermont
and Nancy, and a few more of the royalists, may
be reckoned among the disciples of Fenelon and
Massillon : M. Malouet, M. Mounier, M. Lally,
and the general body of Monarchists and Consti^
tutionalists, may be reckoned among the disciples
of Voltaire: the Abbe Sieyes, Danton, Marat,
Robespierre and the general body of Jacobins,
-may be reckoned among the disciples of Rous-
seau. alJ'j^ei

When the hour of action came, the spirit of
the masters appeared in their disciples. Like
Fenelon and Massillon, the bishop of Aries, and
the royalists of his character, thought it a sa-
crilege to touch either the altar or the throne.
Like Voltaire, the Malouets, Mouniers, and
Lallys, wished much alteration in the church,
and some in the state; but like himj they wished
these alterations effected without violence ; and

( 78 )
were ready to fly at the first beat of a demo-
cratic drum : — to use an expression attributed
to Mirabeau, they wished une Revolution a la
Gi^andison. — The Jacobins, despised half re-
forms and half measures, they thought nothing
would be quite right till the church and state
were destroyed, and the golden year should
arrive, when, according to^ the expression at-
tributed to Diderot, the last king should be
strangled with the guts of the last priest. — In
the schemes of the Jacobins, the monarchists and
constitutionalists unfortunately co-operated ; but
it was unintentionally; they were the first to
appeal to the people, but their appeal was cer-
tainly accepted beyond their wishes.

NOTE XVI. p. 208.

In the Notes at the end of some of the
Sections of this compilation, mention has been
made of several works consulted in it
BY THE writer. It may be added, that in
the part of it which relates to the history of
Germany, during the middle age, he frequently
tunied to Jacobi Caroli Speiieri Notitia Genna-
nuB Antiqu^y cut accedit conspectus Germanice
Mediae ; cum tabulis Geographicis. Hala Mag-
deburgicce, 1717, 2 vol. 4to. In every part of
the compilation he consulted the same writer's

( 79 )
Historia Germanice Universalis et Pragmaticay
LipsicE et Halce 1716, 2 vol. 8w. — Heineccius's
Elemenia Juris Germanici, Halce, 1 736, 2 vol.
^vo. — Pfefelfs Nouvel Abrege Chrmiologique de
fHistoire et du Droit Public d" Allemagne, Paris
1777, 2 vol. %vo. — Mr. Donrford's translation of
Mr. Professor Putter's Historical Development
of the present political Constitution of the Ger-
manic Empire, London, 1790, "^vol. 8w. — And
Histoire des Allemands traduite de rAllemand
de Smidt ; par I. C. de la Veaux, a Liege, 1 784,
<^ seq. 8 vol. ^vo.

In the genealogical part of the compilation,
he particularly consulted Anderson's -Royal Ge-
nealogies, a work of surprising labour and re-
search. It is to be wished that the author had
mentioned his sources of information. If, (what
is much wanted), a new edition of it should be
undertaken, it will greatly enhance its value,
that an Introduction should be prefixed to it,
containing an history of the rise and progress
of Genealogical and Heraldic Learning, and an
account, in the nature of a French Catalogue
Raisonn^, of the principal writers consulted in
it ; and that, at the head of each Genealogy,
the work, from which it is extracted, should
be mentioned.— The writer consulted also the
Theatrum Gemahgicum of Henninges, 6 vol. fol.

( 80 )
1598, a work of curious and recondite learning,
and probably the stock of all subsequent works
on Genealogy ; — The Notitia S. R. Imperii Pro-
cerum of Imhoff, Stutgardice, fol. 1699; and
Le Sages and V Avoisnes useful Genealogical
and Historical Charts.

In his account of the House of Austria, the
writer consulted Krafft's Histoire Genealogique
de la Maison d'Autriche, Bru.velles, 1744, and
^745> 3 "i^oL fol., and Mr. Coxes valuable Me-
moirs of that illustrious house.

On the Guelphic Dynasty, he consulted
Rimiuss Memoirs of the House of Brunszvick,
and Mr. Gibbons Antiquities of the House of
Brunswick. It is much to be lamented that
Mr. Gibbon left it unfinished, and that it
abounds with so many obscure passages. — A
person, to whom the subjects are familiar, Mill
frequently be instructed and generally enter-
tained with it, and with The Digression concern-
ing the House of Courtenay : but those, to whom
the subjects are new, will seldom derive pleasure
or instruction from them. — On the same subject
he had the assistance of the Origines Guel-
fccE of Scheidius, Hanover<s, 17.50, 2 vol. fol. —
a model of Genealogical History. After a
fruitless search for it among the English book-
sellers, the author was indebted for the loan

( 81 )
tf it, to the Earl of Leicester. The general
scarcity, in London, of works of foreign his-
tory, and foreign literature, has long been a
subject of wonder and complaint : but it should
appear incredible, that, in the greatest capital
in the world, there should not be on Sale a
single copy of a work of so much consequence
to the family history of its Sovereign. — This
circumstance shows how desirable it is, that
access to the public libraries of London should
be made as easy as possible.

In what he has said on the Revolutions of
France, the writer found great use in the
Theorie du Monde Politique, ou de la Science du
Gowcernement consider ee come Science exacte^par
Ch. Hiss. 8w. Paris, 1 806 ; and La France pen-
dant Quatorze Siicles, ou Preuves de la Consti-
tution de la Monarchic Frangoise dans differens
Ages, par M. de Blaire, Londres, 1796, octa'vo.
A chain of historical writers on the French
Revolution might be supposed : — on its first link
we might place the writings of Durosoi and
Montjoye, as possessing the utmost degree of ve-
neration for the ancient regime, compatible with
any thing like a wish for rational reform : — on the
last the Histoire de la Revolution de 1789 par
deu.v amis de la libertS, as expressing the most
ardent admiration of the new order of things
compatible with any thing like respect for ancient

( 82 )
forms. — Not' far from the last we might place
Toulangeon and Desdeards, and between them
and the centre link the more moderate La Cretelle:
on the other side of the centre link we might
place Bertrand de Moleville and the Count
de Puisayey as writers warmly attached to the
persons and government of the Bourbons ; not
insensible of their faults, though they wish to
hide them ; like our Clarendon, more partial in
their account of characters, than in their relation
of facts ; and therefore more partial in appear-
ance than reality. Nearer still to the centre link
we should place Mallet du Pan: most of his
judgments on men and things will probably be
ratified by posterity. The Memoir es of the
AbM Baruel abound with curious matter. He
asserts a threefold conspiracy of the French
philosophers, against Christianity, monarchy, and
civil government in general. His proofs of the
first are decisive ; his proofs of the latter have
been warmly contested by M. Mounier : but the
dispute between them is almost verbal ; it may
be conceded to M. Mounier that the French
philosophers never had a serious thought of
overturning the monarchy, but the disorganising
effect of their writings and cabals, however un-
intentional on their part, must be admitted to the
Abbe. In respect to their alleged conspiracy
against civil government in general, some wild

( 83 )

notions on a general equalization of rank and
community of property may be found in the
writings of the Abbe de Mably and Rousseau,
but it is not shown that any thing of the kind
entered into the views of any actor in the French
Revohjtion, until long after its commencement.
The most curious part of the Abbe's work is
that which relates to the Illumines, particularly
the deduction of them from the ancient Mani-
chees through the Knights Templars, the Albi-
genses, and the Freemasons. He certainly shows
that the ultimate tendency of the principles of
the Illumines was subversive of civil government,
and contributed much to the disorganization
of Germany. This is almost conceded by M.
Mounier, who says the Illumines were illegal,
and ought to be suppressed : but the intercourse
of the Illumines with the French philosophers is
not shown : and they were so far from being even
one of the efficient causes of the French Revo-
lution, that it would have had the same rise,
and made the same progress, if Illuminisni had
not existed.

The Templar extraction of the Mason was a
fanciful conception of some German writers, but
it seems completely disproved by the late re-
searches of Professor Moldenhaver and Miinter.
An account of these, with observations of the
author's own researches, is given in the Mcmoire^

u 2

( 84 )
Historiques sur les TempUers, par Ph. G. Paris,
1805, &c. in which the origin and fate of the
knights are discussed with learning and candour.
The result appears to be that, after the death of
Manes, the European Manichees retreated, and
carried their doctrines with them into the East ;
that they made a second appearance in Europe
about the beginning of the ninth century, and
that during the following centuries they, and their
disciples under various appellations, as Pauli-
cians, Albigenses, Bogards, Brethren of the Free
Spirit, spread over Europe, into several sects
hostile to church and state ; that the Knights
Templars were much infected by them, that they
had, generally, lost the spirit of their order, and
led dissolute lives : and that in some houses the
worst of abominations were committed ; that their
wealth and power were enormous ; that Philip the
fair set the persecution on foot from motives of
personal animosity and avarice, and that the pope
was his creature ; that from the tortures inflicted
on them, and the rewards held out to them, to
.extort the acknowledgment of their guilt, little
reliance can be placed either on their own con-
fessions, or on the sentences of their Judges.
Finally, that whatever opinion may be formed of
the degree of corruption which prevailed in the
Order, there is no proof that apostacy from
Christianity, or an opinion of the lawfulness of

( 85 )
sensual practices imputed to them, was either
general, or a secret doctrine of the Order. — On
that very desirable object, the Re-union of
Christians, he had the advantage of perusing,
the interesting, though sly, Essay of M. Bonald,
de VUnite Religieuse. — The free use, which the
Honourable Robert Clifford gave him of his in-
valuable collection of Maps, was of the greatest
advantage to the writer : — Sic siti IcEtantur
lares, — the literary lares are never so pleased,
as when they preside over a collection made
with so much science, and communicated with
so much liberality.

THE END.

Printed by Luke Hansard & Sons,
near Lincoln's-Inn Fields, London.

H0R7E JURIDICiE SUBSECIViE;

BEING A CONNECTED

SERIES OF NOTES

RESPECTIXG

THE GEOGRAPHY, CHRONOLOGY,

LITERARY HISTORY

PRINCIPAL CODES AND ORIGINAL DOCUMENTS

GRECIAN, ROMAN, FEUDAL

CANON LAW.

VOL. II.

Quare quis tandem me reprehenclat, si quantum ceteris ad festos dies
ludorura celebrandos, quantum ad alias voluptates, ct ad ipsam requiem
animi et corporis conceditur temporis: quantum alii tempestivis conviviis,
quantum alese, quantum pilse, tantum mihi egomet, ad haec studia reco-
lenda, sumpsero.

Crc. PRO Archia.

I->e changemeut d'etude est toujours un delassement pour moi.

D'Aguesseau.

The following sheets contain a series of Notes
on the Grecian, Roman, Fuedal and
Canon Law.

What is said in them, on The Grecian

Law, may be found to contain some

account of

Page
L The Geographical Limits of Greece 1

Before ^^' Of its Legislation

Christ.

1970. 1. In its fabulous 2

1586. 2. Heroic 3

1202. 3. And Historical Age 7

926. IIL 4. (y^/ie Zrtws o/Lycurgus . . 8

694.. IV Draco. ... 10

^Q4. and Solon . . . . ih.

490. V. And of the Decline of the Laws of

Athens and Lacedcemon ... 16

What is said on the The Roman Law,
may be found to contain some account

\. Of the Degree of Credit due to the
Histories ivhich have reached usy
of the Five First Ages of Rome 29

iv CONTENTS.

II. Of the Geographical Limits of
chHsT. ^^^ Countries in tahich the

Roman Law has prevailed :

1. Italy 24

2. The Roman Conquests in Europe 20

3. And the Roman Conquests out of

Europe 27

III. Of the different Classes of Roman

Subjects . . t . . . . ib»

1. Citizens, or those who had Jus

Civitatis 28

2. Latins, or those who had Jus

Latii . . *, 30

3. Italians, or those who had Jus

Italicum 31

4. And of the Provinciag, Municipia,

Praefecturae & Civitates Foede-
ratae ib,

IV. Of the Government and Form of

Roman Legislation. . » . 32

1. As originally constituted ... 33

2. And as successively altered . . 36

3. Of the Titles of their Laws . . 39

V. Of the History of the Roman Law ib.

CONTENTS. V

Before

Clirist. P^ge

753. V. 1. Its First Period. —

From the Foundation of
Rome, till the iEra of
the Tv/elve Tables . . 40
509- Jus Civile Papyrianum . . 41

453. V. 2. Second Period. —

451. The Twelve Tables . . . 42

V. 3. Third Period.—

The Laws of Rome dur-
ing the remaining Pe-
riod of the Republic . 45.

1. Jus Honorarium ib.

2. Actiones Leges & Solemnes Le-

gum Formulae 49

3. Disputationes Fori & Responsa

Prudentum 50

V. 4. Fourth Period. —
4(5. Julius Caesar 53

After y. 5. jpjm Period.^

Christ. ^

Adrian bb

120. Edictum Perpetuum . . 56

284. Codex Gregorianus . . . ih.

Codex Hermogenianus . ih.

vi CONTENTS.

Page
Christ. V. 6. Sixth Period. —

306. • Constantine the Great . . 55

V. 7. Seventh Period. — ,

Theodosius the Younger . 57
438. Codex Theodosianus . . ib.

506. Breviarum Aniani ... 59

V. 8. Eighth Period. —

Justinian 60

528. 1. Codex Primas Praelectionis . . . ib,

533. 2. Digestum, or Pandectae .... ib,
3. Institutiones ib.

534. 4. Codex Repetitae Praelectionis . . 61

566. 5. Novellae ib.

568. 6. Volumen Authenticum .... ib,

7. Libri Feudorum, and other Ar-

ticles forming the Decima Colla-
tio 62

8. General Merit of Justinian's Col-

lection ib.

V. 9. Ninth Period, —

The fate of Justinian's
Law.
753. 1. In the Western Empire .... 64
2. In the Eastern Empire . , . . Q5
906. The Basilica ib.

CONTENTS. vii

After
Christ. • Page

1453. The Extinction of the Roman Law

in the East, in consequence of
the taking of Constantinople by
Mahomet the Second .... 65

V. 10. The Tenth Period.—

Revival of the Roman Law in the
West, in consequence of the
Discovery of the Pandects at
Amalphi QQ

Collations and Editions of the
Pandects ib.

VI. Principal Schools of the Civil

Law 70

1. School of Imerius 72

2 Accursius 73

3 Bartolus and Baldus . . ib.

4. . . And Cujas ib.

VII. Influence of the Civil Law on the

Jurisprudence of the principal
States of Europe .... 74

viii CONTENTS.

Pag-e

auSt ^^^^^ ^^ ^^^^ ^*^ the Fe u D A L L A w, may
■ be found to contain some account

I. Of the original Territories of the
Nations hy whom it 7vas esta-
blished.

1. Scythians 80

2. Celts 81

3. Sarmatians ib.

4. Scandinavians ib,

5. Germans ib.

6. Huns 82

7. Sclavonians ib.

II. Of the gradual Extension and
Dates of the principal Conquests
inade by them 83

111. And of the principal written Do-
cumetits of the Learning of Fo-
reign Feuds.

1 . Codes of Law 89

2. Capitidaries 93

3. Customary Law 95

CONTENTS. ix

Page

After W^hat is said on The Canon Law, may

Christ.

be found to give some account

1 . 1 . Of the Ancient Religion of Rome 1 05

2. Of the Gods worshipped by the

Romans 106"

3. And of the Colleges of Priests de-

dicated to their Service . . . 107

II. Of their Toleration of Foreign

Worship .....*. 109

III. Of the Christian Hierarchy . . Ill

IV. Of the General Materials of the

Canon Laio 113

y. Of the Historij of the Canon Law 114

V. 1. The Ancient Period of the

Canon Law «6.

200. 1. Canons of the General Church . .

300. The Apostohc Constitutions . . 115

2. Canons of particular Churches . . 11(5

After
Christ.

385.
451.
560.

CONTENTS.

Page
" Codex Ecclesiae Orientalis . . . 116
Codex Ecclesiae Universas . . . 117
Nomo-Canon of Johannes Scholas-

ticus ib.

692. o Synod in TruUo 118

Nomo-Canon of Photius .... ib,

3. Vetus Canonum Latinorum Edi-

tio, by Dionysius Exiguus . . 119

4. Collection of Canons of the Afri-

can Church ib.

V. 2. The Middle Period of the
Canon Lato.

760. 1. Isidore Peccator, or Mercator's

Collection of Decretals . . . 120
845, Capitularies of Adrian .... 122

906. Collection of Rheginon Abbot of

Prumia ib.

1000. Burchardus's Magnum Decreto-

rum seu Canonum Volumen . ib.
1100. Decretum Canonum, and Panno-

mia of Ivo ib.

1150. 2. Decretum Gratiani ib.

Breviarum Bernard! Papiensis . . 124
Collections of Johannes Galensis
and Peter Beneventanus . . . ib.

After
Christ.

1230.

CONTENTS.

Libri quinque Decretalium Gre-

Page

gorii Noni

125

1298.

Liber Sextus Decretalium . .

. ib.

1313.

Liber Septimus Decretalium .

1340.

Extravagantes Johannis xxii. .

. 126

1483.

Extravagantes Communes . . .

ib.

1590.

Collection of Matthaei . . . .

ib.

Institutiones Lancellotti . . .

127

V. 3. Of the Modern Period of
Canon Law ;

1. Transactions and Concordats be-

tween Sovereigns and the See

of Rome 128

2. Councils of Basil, Pisa, Constance

and Trent ih.

3. BuUarium 130

4. Regulas Cancellarise Romanae-^

Decrees and Ordinances of the
various Congregations of Car-
dinals at Rome; and Decisions
of the Rota ib.

5. Legantine and Provincial Consti-

tutions 131

W. Authority of the Canon Law . 132

APPENDIX.

Page
Note I. On the Right of the Crown of Eng-
land to the Exclusive Dominion and
Property of the British Seas . . . 135

Note II. On the Geographical Division of the

Alps 139

Note III. On the Praetor's Judicial Power, from
Dr. Bever's History of the Legal
Polity of the Roman State . . . 141

Note IV. On the Modes of quoting the Civil and
Canon Laws, from Dr. Halifax's
Analysis of the Roman Civil Law 144

THE GRECIAN LAW.

When the space, which Greece fills in history^
is considered, it is impossible to view, without
surprize, the small extent of its GEOGRA-
PHICAL LIMITS.

In the largest sense of the word, Greece de-
notes the territories between Illyricum and
Moesia, to the north ; the Ionian Sea, to the
west : the Cretan, to the south ; and the ^Egean,
to the east. It is divided into the Regnum Ma-
cedonicum, which, in the time of Philip, con-
sisted of Macedon, Thessaly, Epirus, and
Thrace ; and of the Graecia Vera, which w^as
divided into three parts, Achaia, Peloponnesus,
and the Islands. It is highly probable that
Greece was originally peopled by the Pelasgi, an
Asiatic Horde, who, in successive emigrations,
passed the Caucasus, the Don, the Neister, and
the Danube, and spread themselves over a great

VOL. II. Y

^ THE GRECIAN LAW.

part of Greece. At subsequent periods, it was
peopled by various colonies from /Egypt and
Phoenicia. For a considerable time, all its in-
habitants lived in a wild and barbarous state.
Afterwards its fabulous, heroic, and historical
ages successively follow.

II.

II. 1. Its legislation may be traced
to its Fabulous Age.

In the mythology of the Greeks, Chaos was
the first of beings, and gave birth to Coelum and
Tellus, to Erebus and Nox : Coelum and Tellus
were the parents of Jusjurandum and Themis ;
Erebus and Nox were the parents of Nemesis.
Jupiter had Astraea and Dice by Themis ; — when
the deities resided on earth, in the golden age,
A streea presided over the administration of justice ;
and when, in consequence of the vices of men,
the deities fled to heaven, she was the last of
them who remained on earth ; but, at length,
quitted it, and was translated into the sign A^ir-
go, next to Libra, her balance. Ceres, the
daughter of .Saturn and Ops, taught mankind
tillage, the worship of the Gods, the use and
rights of separate property, respect to parents,
and tenderness to animals : on this account, both
in the Greek and Latin writers, she is called the
law-bearing Ceres ; and both in Greece and Rome,

THE GRECIAN LAW. 3

she was worshipped, and had temples dedi- Before
cated to her, under that name.

The earhest account of the fabulous age,
on whicli any reliance can be placed,
commences about nineteen hundred and
seventy years before Christ; when Argos,
from which the north-eastern territory of
Peloponnesus received its denomination,
first began to acquire political eminence.
It is said to have been founded by Inachus,
in 1970

His descendants filled the throne, till
Gelanor, the 10th of them in succession,
was expelled by Danaiis, a prince of
.^gypt 1586

He is mentioned by some writers, as the
first legislator of the Greeks ; from him,
the people of the peninsula, till then called
Pelasgians, received the name of Danaans,
which they retained in Homer's time.

11. 2. From that period, some appear-
ance of real history being discernible in the
accounts we have of what is generally
called the fabulous age of Greece, it is sup-
posed to verge to a conclusion, and the
Heroic Age of Greece, is supposed to be-
gin. The regular history of Grecian legis-
lation commences with Theseus, one of the

Y 2

4 THE GRECIAN LAW.

celebrated persons, from whom that age received
its appellation.

In a military expedition to the kingdom of
Crete, undertaken by him, to deliver the Athe-
nians from an ignominious tribute, paid by them
to the monarch of that island, he had become
acquainted with the laws of Minos. The ex-
cellence of those laws is highly celebrated by
the writers of antiquity: to us, they are chiefly
known, as the foundation on which Theseus,
and after him Lycurgus, built their respective
systems of legislation. In the public education
of the children, the public repasts of the people,
at which the rich and poor promiscuously at-
tended, the division of the inhal)itants into free-
men and slaves, and some other institutions of
Minos, we trace the general system of legisla-
tion, adopted by the Spartan legislator. It is
observable, that Minos ^vas the first sovereign,
to whom the splendid prerogative of the Domi-
nion of the Sea^ was assigned ; but probably it
Avas confined to the Cretan and a small part of
the yEgean Seas. On his death it was assigned
to the princes of Argos.

On the return of Theseus from Crete, he
abolished private jurisdictions, and subjected the
whole territory of Athens to one common sys-

* See Appendix, NOTE I.

THE GRECIAN LAW. 5

tern of lesrislation ; he divided the common- Before

^ , , _ Christ.

wealth into nobility, husbandmen, and ar-
tificers ; and established an uniformity of
religious rites and sacrifices. To the no-.
bility and husbandmen he appropriated the
executive powers, with thesuperintendency
of religion : but a share in the legislation
was given to all; no distinction prevailed,
as in every other Grecian province, and
afterwards in the Roman world, between
the people in the capital, and the rest of the
people ; all were united, under the general
name of Athenians, in the enjoyment of
every privilege of Athenian citizens, and
the monarch was rather their first magis-
trate than their sovereign. Inconsequence
of these wise regulations, the Athenians
seem to have acquired more civilized man-
ners than the rest of the Greeks ; they were
the first who dropt the practice of going
constantly armed, and thus introduced a
civil dress in contradistinction from the,
military.

The subject leads to the mention of no-
thing of importance before the taking of
Troy 12S5

In his description of the shield of
Achilles, Homer giv^es a striking account
of a trial at law, in his times.

» THE GRECIAN LAW.

" The people were assembled in the market- .
' place, when a dispute arose between two men,
' concerning the payment of a fine for man-
•' slaughter ; one of them addressed himself to
•' the by-standers ; asserted that he had paid the
" whole; the other insisted, that he had received
'•' nothing ; both were earnest to bring the dispute
" to a judicial determination. The people grew
" noisy in favour, some of the one, some of the
" other ; but the heralds interfering, enforced
" silence ; and the elders approaching, with
" sceptres of heralds in their hands, seated them-
" selves on the polished marble benches in the
" sacred circle. Before them, the litigants, ear-
" nestly stepping forward, pleaded by turns,
" while two talents of gold lay in the midst, to
" be awarded to him, who should support his
" cause by the clearest testimony and the clearest
" argument."

We find from Homer's writings, that, in his
time, the rights of primogeniture were conside-
rable ; that, murder was punished rather by pri-
vate revenge than public justice ; that, conjugal
infidelity, on the woman's part, was esteemed an
heinous oflfence ; that, on the man's, it was little
regarded ; and that, the breach of virgin honour
was scarcely thought a crime.

It is observable that Homer makes no mention
either of a pure republic, or of the absolute rule

THE GRECIAN LAW, 7 '

of one man : he is supposed to have been favour-
able to monarchical government ; but it is said to
be discoverable from his works, that, when he
wrote, the general tendency of the public mind
of Greece was democratic.

In the course of time, democracy obtained a
complete victory over monarchy, in every part of
Greece. The Heraclidae, having acquired a set-
tlement in Doris, invaded and made themselves
masters of all Peloponnesus, except Arcadia.
At first, they established a limited monarchy in
the different provinces they conquered ; but,
having quarrelled among themselves, and confu-
sion universally prevailing, monarchy was almost
every where abolished, and the words, Tyrant
and King, became synon^^nous.

II. 3. Here the heroic age of the history of
Greece draws to a conclusion, and we perceive
the dawn of its Historical Mra.

From this time, Greece must be considered as
formed of a multitude of independent states, ex-
ercising complete sovereignty within their re-
spective territories ; bound together by no federal
union, but connected by language, by their no-
tion of a descent from a common stock, by a
similitude of religious behef, and by frequent
meetings at public games.

But nothing contributed to this general union
more than the council of the Amphictyons : it is

* 8 THE GRECIAN LAW.

supposed to have been instituted by Am- Before
phictyon, the son of Deucahon. It met
sometimes at Thermopylee, sometimes at
Delphi ; the members of it were chosen by
the principal cities of Greece. The object
of the institution was to decide the differ-
ences, which happened among the Grecian
states. Their determinations were always
held in great veneration ; and their influence
is supposed to have continued till the reign
of Antoninus Pius.

During the whole of the historical aeraof
Greece, except when some singular event
raises a particular state into notice, Lace-
daemon and Athens alone engage the
attention of the historian or civilian.

III.

The aera of Grecian legislature begins
with the LAWS OF LYCURGUS, the
most singular institution recorded in his-
tory 926

He established two Kings, and a Senate
of twenty-eight members, appointed for
life ; the Kings were chosen by the people,
were hereditary senators, high priests of
the nation, and commanders of their ar-
mies ; but they were controuled, in the
exercise of their power, by five Ephori,

THE GRECIAN LAW. 9

created annually. With the senate, all laws
^vere to originate ; the general assembly of the
people had the power of confirming them ; but
public debate w^as wholly forbidden the general
assembly. Lycurgus effected an equal division
of land among all the citizens ; he abolished the
use of gold and silver ; and ordained, that all
children should be educated in public : every ci-
tizen was to be a soldier ; all sedentary trades,
and ev^en agriculture, were forbidden them ; the
ground was cultivated by the Helotae, a kind
of slaves, whom the Lacedaemonians treated
with the greatest cruelty.

Thus, Lycurgus effected a total revolution of
law, property, and morals, throughout the whole
of the Spartan territory : no legislator ever at-
tempted so bold a plan. It has been observed,
that, if he had merely been a legislator in specu-
lation, his scheme would have been thought more
visionary than Plato's ; it may be added, that, if
the existence and continuance of his institutions
were not proved, beyond argument, by the highest
degree of historical evidence, the relations of
them would be pronounced a fiction, on account
of, what would be termed, their evident imprac-
ticability. Yet, the first establishment of them
was attended with little resistance, and with no
political convulsion ; they remained in vigour
longer than any political institution of antiquity

10 THE GRECIAN LAW.

known to us, and were respectable even in ^^f"'*"

Christ

their decay.

IV.

I. DRACO was the first legislator of
ATHENS : of his laws, we know litttle
more, than that their extreme severity was
proverbial 624

He made all crimes capital, on the ground,
that a breach of any positive law was a trea-
son to the state.

Solon framed for his countrymen, a new
and milder system of law 594

Mr. Ty tier's Elements of Ancient His-
tory, 1st vol. 49 — 52, give us the following
concise and clear view of Solon's Legis-
lation.

" Solon, an illustrious Athenian, of the
" race of Codrus, attained the dignity
" of Archon 594 B.C.; and was intrusted
" with the care of framing, for his country,
" a new form of government, and a new
*' system of laws. He possessed exten-
" sive knowledge, but wanted that intre-
" pidity of mind, which is necessary to
" the character of a great statesman. His
*' disposition was mild, and temporising,
" and, without attempting to reform the
" manners of his countrymen, he accom-

THE GRECIAN LAW. 11

" modated his system to their prevaihng habits
" and passions.

" The people claimed the sovereign power, and
" they received it : the rich demanded offices
" and dignities : the system of Solon accom-
" modated them to the utmost of their wishes.
" He divided the citizens into four classes, ac-
" cordino- to the measure of their wealth. To
" the three first, (the richer citizens,) belonged
" the offices of the commonwealth. The fourth,
" (the poorer class,) more numerous than all the
" other three, had an equal right of suffrage with
" them, in the public assembly, where all laws
" were framed, and measures of state were de-
"- creed. Consequently the weight of the latter
" decided every question.

*' To regulate, in some degree, the proceed-
" ings of their assemblies, and balance the
" weight of the popular interest, Solon insti-
" tuted a senate of 400 members, (afterwards
" enlarged to 500 and 600,) with whom it was
" necessary that every measure should originate,
" before it became the subject of discussion in
" the assembly of the people.

" To the court of Areopagus he committed
" the guardianship of the laws, and the power
'• of enforcing them, with the supreme admi-
"■ nistration of justice. To this tribunal be-
*' longed, likewise, the custody of the treasures

13 THE GRECIAN LAW.

" of the state, the care of rehgion, and a tu-
" toral power over all the youth of the republic.
" The number of its judges was various, at dit-
" ferent periods, and the most immaculate purity
" of character was essential in that hioh office.

" The authority of the Senate and Areopagus
" imposed some check on the popular assemblies ;
" but, as these possessed the ultimate right of
" decision, it was ever in the power of am-
" bitious demagogues to sway them to the worst
" of purposes. Continual factions divided the
" people, and corruption pervaded every depart-
" ment of the state. Their public measures,
" the result of the interested schemes of indi-
" viduals, were often equally absurd as they
" were profligate. Athens often saw her best
" patriots, the wisest and most virtuous of her
'' citizens, shamefully sacrificed to the most de-.
" praved and most abandoned.

" The particular laws of the Athenian state
*' were more deserving of encomium than its
" form of government. The laws relating to
" debtors were mild and equitable, as were those
" which regulated the treatment of slaves. But
" the vassalage of women, or their absolute
" subjection to the control of their nearest re-
" lation, approached near to a state of servitude.
" The proposer of a law, found on experience
" impolitic, was liable to punishment ; an enact-

THE GRECIAN LAW. 13

" ment apparently rigorous, but probably neces-
" sary in a popular government.

" One most iniquitous and absurd peculiarity
" of the Athenian, and some other governments
" of Greece, was the practice of the ostracism,
" or a ballot of all the citizens, in which each
" wrote down the name of the person in his
" opinion most obnoxious to censure ; and he
" was thus marked out by the greatest number
" of voices, and, though unimpeached of any
" crime, was banished for ten years from his
" country. This barbarous and disgraceful in-
" stitution ever capable of the grossest abuse,
" and generally subservient to the worst of pur-
" poses, has stained the character of Athens
" with many flagrant instances of public ingra-
" tude." A full account of the laws of Athens
may be found in Archbishop Potter's Archaeo-
logia Graeca, B.I. The fragments of them were
published by Petitus, with an excellent com-
mentary. A splendid edition of this work, with
his own notes and those of Palmerius, Salvinius,
and Duker, was published by Wesseling, in
174-2.

lY. 2. This may be considered a succinct
view of the constitution of Athens, as it was
established by Solon. The following is a short
account of their Forensic Proceedings in the civil
administration of justice.

14 THE GRECIAN LAW.

All cases, respecting the rights of things, be-
longed to the jurisdiction of the Archon : he
had six- inferior magistrates, of the same name
for his assessors. The person who sought re-
dress in a court of justice, denounced the name
of his adversary, and the cause of his com-
plaint to the sitting magistrate ; and, if the sit-
ting magistrate thought the cause of action main-
tainable, he permitted the complainant to sum-
mon the defendant : if the defendant disobeyed
the summons, he was declared infamous ; if he
obeyed it, the parties were confronted, and were
at liberty to interrogate one another. If the ma-
gistrate thought there was a probable cause of
action, he admitted the cause into court ; here
the pleadings began, and were continued till the
parties came to some ftict, or some point of law,
asserted on one side, and denied by the other ;
this brought them to issue : then, all the plead-
ings and evidence in the causes were shut up in
a vessel, which was carried into court. The Ar-
chon then assigned the judges to try the cause,
and they decided not only upon the fact, but
upon the law of the case.

One mode of process in use at Athens, bears a
resemblance to the modern practice of trying the
title to the freehold by ejectment. That, in its
original state, was an action brought by a lessee
for years, to lepair the injury done him by dis-

THE GRECIAN LAW. 15

possessing him of his term. To make it serve
as a legal process for recovering the freehold, the
law now supposes, that the party dispossessed
has entered on the land ; that he has executed a
lease of it ; and that his lessee has been dispos-
sessed ; for this injury, the lessee brings his ac-
tion of ejectment to recover the term granted by
the lease : now, to maintain his title to the lease,
he must shew a good title in his lessor : and
thus incidentally and collaterally the title to the
freehold is brought before the court. In the ju-
risprudence of Athens, the guardian and ward
were so far identified, that the latter could not
maintain an action against the former ; so that,
for any injury done to his property, the ward,
during the term of pupilage, was without remedy.
For his relief, the law authorized the Archon to
suppose a lease had been executed by the ward
to a stranger; then, the stranger, a kind of next
friend, was to bring his action against the guar-
dian, for the injury done to his property during
the term ; and, if he recovered, he became trus-
tee of what he recovered for the ward. Thus, in
each case, a fictitious lease was used as a legal
process for bringing the real merits of the case to
trial.

Sir Matthew Hale, in his History of the Com-
mon Law, and Sir William Jones, in the Notes

16 THE GRECIAN LAW.

to his translation of Isaeus, make parti- Beforef

• r> 1 1 f • Christ.

cular mention of the law of succession at
Athens. It is observable, that, though a
general equality of property was one of
the principal objects of Lycurgus's legis-
lation, he assigned to the eldest son almost
the whole of his parent's property, with an
obligation of providing for his sisters and
younger brothers.

With the death of Solon, the aera of
Grecian legislation finishes, and the aera of
her military glory begins. But early in 490
this brilliant period of her history, THE
DECLINE OF THE LAWS OF
ATHENS AND LACED^MON is
discernible.

With respect to Athens^ it has been
mentioned, that, by the laws of Solon, the
lowest class of citizens had been excluded
from offices of state. These, on the mo-
tion of Themistocles, were opened to them !
this lessened the general dignity of the
magistrature, and introduced venality and
disorder into every department of the ad-

THE GRECIAN LAW. 17

ministration. Here, however, the mischief did
not rest. As the poor were under a neces-
sity of giving ahnost the whole of their time to
the labour, on which their daily sustenance de-
pended, they had scarcely any opportunity of
attending the public assemblies of the people ;
but, on the motion of Pericles, every Athenian,
who assisted at a public assembly, received three
oboli for his attendance ; this increased the tu-
mult and corruption of the public assemblies ;
and this was not the only instance in which Pe.
ricles sacrificed much of Solon's law to the ca*
price of the people.

In respect to Lacedcsmon^ the victories of Ly*
sander and Agesilaiis carried the Spartans into
foreign countries, and brought the wealth of
foreign countries into Sparta. The consequence
was, that what the Lacedaemonians gained by
their military successes, they lost in consequence
of the- decline, which those very successes oc-
casioned, of the principles and habits of heroic
virtue, which the legislation of Lycurgus had
inculcated among them, and which had made
them the wonder of Greece.

Insensibly the glory of Athens and Lace-
daemon expired. At the battles of Leuctra and
Mantinaea, they received a check, from which
they never recovered.

18 THE GRECIAN LAW.

At the battle of Cheronaea, king Philip Jj[?^^
of Macedon obtained a complete triumph 337
over the Athenians ; and, by degrees, the
laws of Solon fell into disuse.

By the direction of Antipater, to whom
the general superintendance of the affairs
of Greece was committed by Alexander the
Great, when he set out on his expedition
to Persia, they were restored, with some
modifications, by Demetrius Phalareus, and
continued in that state, while Greece was
subject to Alexander's successors. . . . 280

When the Romans conquered Greece,
they allowed to the different states the use
of their laws; insensibly the Romans ac-
quired a taste for the arts and literature of
Greece, and this particularly recommended
the Athenians to them.

On a complaint by the Athenians, that ^^*f
too many changes had been made in the
laws of Solon, the Emperor Adrian ac-
cepted the office of Archon, and restored

the ancient law 130

The Emperor Constantine was not so
favourable to the Athenians ; — in the Em-
peror Julian they had a zealous friend. . 360

By an edict of the Emperor Justinian,
the schools of Athens were shut up : this

THE GRECIAN LAW. 19

is generally assigned as the aera of the ex- After
tinction of Paganism, and of the absolute
decline of the philosophy and jurispru-
dence of Athens 529

With the history of the decline of the
Laws of Lycurgus, we are less acquainted.
Though in a state of decay, their appear-
ance was venerable in the time of Poly-
bius : perhaps they suffered less than the
Laws of Athens, during the Macedonian
influence in Greece ; and probably they
engaged less of the attention of the Ro-
mans ; but we have no reason to suppose
they long survived the Athenian Law.

On the division of the empire between
the sons of Theodosius, Greece was allotted
to the Emperor of the East : it suffered
much from the incursions of the Goths 39^
under Alaric.

Li the twelfth century, the emperor Ma- 1 100
nuel divided Peloponnesus among his se-
ven sons : before this time, from the re-
semblance of its shape to that of a mul-
berry tree, called Morea in Greek, and
Morus in Latin, it had received the appel-
lation of the Morea. In the next century, 1200
when Constantinople was taken by the
Western Princes, the maritime cities of Pe-
loponnesus, with most of the islands, sub-

z 2

20 THE GRECIAN LAW.

mitted to the Venetians. In the fifteenth ^^^?^^
century, the whole Morea fell an easy prey 1460
to Mahomet II, after his conquest of Con-
stantinople. Towards the close of the
seventeenth century, the Ottomans were
expelled from it by the Venetians, and it
was formally ceded to them by the Porte,
at the treaty of Carlowitz: but, about fif-
teen years afterwards, it was regained by 1699
the Porte, and now forms a part of their
empire, under the appellation of the Beg-
lergbeg of Greece. It is governed by a
military officer, called a Sangiac, who re-
sides at Modon.

Such have been the rise, progress, and
decline of the Laws of Greece.

The great influence of the Roman Law
on the jurisprudence of modern nations
is strikingly discernible, in every part of
their laws : — if it be true, that Rome de-
rived her law from the Athenian code, the
" Graecia capta ferum victorem cepit," is
as applicable to the legislation as it is to
the arts of Greece.''

*• This article is principally extracted from Ubbo
Emmius's Vetus Grcecia lllustrata, 3 vol. 8vo.
the best Geographical account of Greece, which
has yet appeared ; from Archbishop Potter's
Antiquities of Greece, a work of great learning;

THE GRECIAN LAW. SI

from Bruning's Compendium Antiquitatum Gne-
carum ; Francoferti ad Mcenum, 1 vol. 8vo. 1735,
an useful abridgment of the Archbishop's
work ; from various treatises of Meursius, par-
ticularly his Themis Attica ; from Mr. Mitford's
and Dr. Gillies' s Histories of Greece; and
from Sir William Jones's Translation of [scbus
a lasting- monument of his industry, and his
w^onderful quickness in the acquisition of ac-
curate and extensive know^ledge, even of the
abstrusest kind.

THE ROMAN LAW.

Those, who wish to trace the ROMAN LAW

to its origin, almost immediately find themselves
obliged to form an opinion on a point which has
been the subject of much discussion, and a de-
cision upon which is not very easy, the degree of
credit due to the histories, which have reached W5,
of the Jive first ages of Rome. The credibility of
them was ingeniously attacked by M. de Pouilly,
and as ingeniously defended by L*Abbe de Salier,
in their dissertations on this subject, in the Me-
moires de I'Academie. In his discourses Sur
r incertitude des cinq premihes siecle de I'histoire
Ro7naine, M. de Beaufort seems to have deter-
mined the question. By a variety of arguments,
drawn from the scantiness of the materials, from
which these histories appear to have been framed,
from the romantic nature of several of the ex-
ploits recorded in them, the improbability of
many, and evident falsehood of some of their
relations, and from the contradictions and ab-
surdities, with which they frequently abound, he
shews that, at least, where they descend into

THE ROMAN LAW. 23

particulars, they should be read with a consi-
derable degree of distrust. What they mention
of the populousness of Rome, which, before the
end of her second century, contained, by their
accounts, 500,000 persons, appears incredible ;
but a smaller number would not have sufficed to
construct the public works, with which, even
then, Rome abounded. This circumstance has
struck some modern writers so forcibly, that, to
account for it, they have supposed, that Rome
was raised on the ruins of a city, which, though
now wholly forgotten, was once populous and
magnificent, and the seat of a powerful empire.
In pursuing this research, some have found such
an empire among the Hetruscans. With the
particulars of the history of that people, we are
little acquainted ; but we have certain informa-
tion, that, long before the aera of the foundation
of Rome, they were a flourishing state, excellent
in arts and arms.'

* See the Appendix to the ancient Universal History,
vol. 18. p. 187, and Maffei's Verona Illustrata,
B. I. The expression of Livy, B. I. c. 2, is very
strong, " Tanta opibus Etruria, ut jam non
" terras solum, sed mare etiam per totam Italiae
" longitudinem, ab Alpibus ad fretum Siculum,
" fama nominis sui implesset." On the other
hand, the silence of Herodotus may be thought
a strong argument against the existence of such
a city in his time.

34 THE ROMAN LAW.

11.

The first object in the study of the Roman
Law, is to obtain an accurate view of the LI-
MITS OF THE COUNTRIES, in which it
prevailed, before the dismemberment of the em-
pire. They may be divided into Italy, the con-
quests of the Romans in the other parts of Eu-
rope, and their conquests out of Europe.

11. 1, Italy \\es 7. 19. East long, and 38. 47.
North lat. : the Alps divide its northern part from
France, Switzerland, and Germany ; on every
other side, it is washed by the Mediterranean.
Its natural separation is into its northern, central,
and southern divisions. Its northern division
contains the modern Lombardy and the territories
of Venice and Genoa, and reaches on every side
to the Alps, from a line which may be supposed
to be drawn from the Rubicon on the eastern, to
the Macra on the western side of Italy .^

Its central division extends from the Rubicon
to the Trento, near the Fortori, on the eastern
sea, and from the Macra to the Silaro, on the
western; and comprises Etruria, Umbria, Pice-
num, Sabinia, Latium, Lavinium, and Campania,
or Tuscany, the Ecclesiastical State, and the
territory of Naples : its southern part contains

•^ See Appendix, NOTE II.

r
THE ROMAN LAW. 25

the remainder of Italy, the Marsi, the Samnites,
the Apuhans, and the Lucanians. Before the
Roman conquests of it, the northern division of
Italy had been occupied b}^ a colony of Gauls :
on that account, it was known to the Romans,
by the name of Gallia Cisalpina ; and, from its
being intersected by thePo, the northern division,
made by that river, was called by them the Trans-
padanan, the southern was called the Cispadanan
Gaul. The southern part of Italy was peopled
by colonies from Greece ; on that account it was
called Magna Graecia, by the Romans : — the part
between Gallia Cisalpina and Magna Graecia, was
called Italia Propria, or Proper Italy. The part
of the Mediterranean, on the eastern side of the
peninsula, was called the Higher, and afterwards
the Hadriatic Sea ; the part on its western side,
was called the Lower or Tyrrhenean Sea.

With respect to its Antient State, it is proba-
ble, that the greatest part of Italy was in posses-
sion of the Hetruscans, when, about the year
964 before Christ, Evander arrived in Latium,
and built a small town called Palantium. It is
supposed, that Latinus reigned there, about the
time of the Trojan war; that, in his reign, J^neas
landed in Italy, married Lavinia his daughter,
and built Lavinium ; that Ascanius, the son of
iEneas, built Alba ; that Romulus descended
from him, and laid the foundation of Rome 75^
years before Christ.

26 THE ROMAN LAW.

The monarchical government of Rome sub-
sisted about 250 years ; during the whole of this
time, Rome was engaged in war with her neigh-
bours ; and perhaps the utmost extent of her con-
quests did not exceed a circumference of fifteen
miles. In the next 250 years, the Romans con-
quered the remaining part of Italy, from the Alps
to its southern extremity : then the conflict be-
tween her and Carthage commenced. From the
destruction of Carthage, the aera of her foreign
conquests may be dated ; in the reign of Au-
gustus, they reached the Atlantic, on the west ;
the Euphrates, on the east ; the Rhine and the
Danube, on the north ; and Mount Atlas and the
Cataracts of the Nile, on the south : under Do-
mitian, they were carried to the Frith of Forth
and the Clyde; and, under Trajan, over the Da-
nube into Dacia, and over the Euphrates, into
Mesopotamia and Armenia.

II. 2. The European part of this spacious con-
quest contained Plispania, or the kingdoms of
Spain and Portugal : — Gaul, which comprised the
whole country between the Pyrenees, the Ocean,
the Rhine, and the Alps, or the present territory
of France, with the addition of Switzerland : —
Britannia, which comprised all England, Wales,
and the lowland parts of Scotland, up to the
Frith of Forth and the Clyde : — the Rhoetian and
Vindelician provinces, which nearly comprised

THE ROMAN LAW. 27

the Grisons, the Tyrolese, and a part of Bava-
ria:— the Norican, Pannonian and Dahnatian
provinces, which, under the general name of Illy-
ricum, filled the country between the Danube
and the Hadriatic, up to ancient Greece — Moesia,
which comprised Servia and Bulgaria : — and Da-
cia, which comprised Temeswar and Transylva-
nia, the only part of the Roman territory beyond
the Danube ; and Thrace, Macedonia, and
Greece, the Roumelia of the Turks.

II. 3. The Romayi conquests out of Europe
reached over Minor Asia, Syria, Phenicia, and
Palestine ; over i^],gypt, as far as Syene ; and
over the whole northern frontier of Africa. It
should be added, that the countries on the north-
ern shores of the Euxine, from the Danube on
the west to Trebizond on the east, were tributary
to the Romans, received their Kings from Rome,
and had Roman garrisons.^

' This article is chiefly extracted from the second
chapter of the first volume of Mr. Gibbon's his-
tory ; the geography of that work is unquestion-
ably entitled to the highest praise.

III.

These were the limits of the Roman empire ;
her subjects may be classed under the following-
divisions.

28 THE ROMAN LAW.

III. 1. The highest class of subjects was that
of Roman citizens, or those who had the Ju&
Civitatis.

At a distance of about fourteen miles from the
sea, the city of Rome stands on a cluster of
small hills, contiguous to each other, rising out
of an extensive plain, washed by the Tiber. At
first, it was confined to the Palatine Hill ; the
Capitol was added to it by Titus Tatius ; the
Quirinal, by Numa ; the Celian, by TuUus Ho-
stilius; the Aventine, by Ancus Martins ; and
the Viminal and Esquinai by Servius Tullius.
The city was surrounded by a wall ; a slip of
ground, on each side of it, was called the Po-
moerium ; the walls and Pomoerium were sacred ;
whoever extended the limits of the empire, had a
right to extend the walls of the city ; its last and
greatest extension, was in the time of the empe-
ror Aurelian : he inclosed the Mons Pincius and
Campus Martins within its walls. In 850, Pope
Leo added to it the Mons Yaticanus. At first,
it was divided into four districts or regions ; Au-
gustus divided them into fourteen ; modern Rome
is divided into the same number ; but the scites
of the ancient and modern districts or regions,
considerably differ.

At first, all Avho fixed their residence in any
part of the Roman territory, had the Jus Civita-
tis, or the ri2;hts of Roman citizens : afterwards

THE ROMAN LAW. 29

the Jus Civitatis was conferred on few, and ge-
nerally with limitations ; in the course of time,
it was granted to all of the Latin name. After
the civil war, it was conferred on all the inhabi-
tants of Italy, south of the Rubicon and Lucca :
then it was granted to the Cisalpine Gaul, which,
from this circumstance, was called Gallia Togata :
finally, Caracalla communicated it to all the in-
habitants of the Roman world.

The Jus Civitatis attached to those, who pos-
sessed it, the public rights and obligations attend-
ing the census, or enrolment in the censors'
books ; the Militia, or serving in the army ; the
Tributa, or taxation ; the Suffragium, or voting
in the different assemblies of the people ; the
Honores, or public offices of the state ; and the
Sacra, or a participation in the sacred rites of the
city : it conferred on them the private rights and
obligations of liberty, family, marriage, parental
authority, legal property, making a will, succeed-
ing to an inheritance, and tutelage or wardship.
The citizens of Rome were divided into Pa-
tricians or nobles, and Plebians or inferior per-
sons, and the middle order, called the Equites.
At an immeasurable distance beneath the Plebians,
were the slaves : their masters might set them
free, they were then called freed-men ; but, even
after they were set free, their masters retained
some rights over them.

30 THE ROMAN LAW.

The Romans were divided into gentes or clans ;
their clans into families ; their families into indi-
viduals.. Each individual had a praenomen, by
which he was distinguished from others ; a no-
men, which denoted his clan ; and a cognomen,
which denoted his family ; sometimes an agnomen
was added, to denote the branch of the family to
which he belonged. Thus, in respect to Aulus
Virginius Tricostus Coelimontanus, — Aulus, the
prsenomen, denoted the individual ; Virginius,
the nomen gentilitium, denoted that he was of
the Virginian clan ; Tricostus, the cognomen,
denoted, that he was of the Tricostan family of
that clan; and Coelimontanus, the agnomen, de-
noted, that he was of the Coeiimontan branch of
that family : sometimes a further name was ac-
quired, as Cunctator by Fabius, and Africanus
by Scipio, in consequence of an illustrious
deed.

III. 2. Next to the Citizens of Rome, were
the Latins, or those who had the Jus Latii.
Ancient Latium contained the Albani, Rutuli,
and yEqui ; it was afterwards extended to the
Osci, Ausones, and V olsci : the difference be-
tween the right of the city and the right of Latium
is not precisely ascertained : the principal privi-
lege of the Latins seems to have been, the use of
their own laws, and their not being subject to the
edicts of the Praetor ; and that they had occa-

THE ROMAN LAW. 31

sional access to the freedom of Rome, and a
participation in her sacred rites.

III. 3. The Itahans, or those who had the
Jus Itaiicum, followed. All the country, except
Latium, between the Tuscan and Hadriatic seas,
to the rivers Rubicon and Macra, was, in this
sense of the word, called Italy: the Italians had
not access to the freedom of Rome, and did not
participate in her sacred rites ; in other re-
spects, they were nearly on a footing with the
Latins.

III. 4. Those countries were called Proyzwccs,
which the Romans had conquered, or, in any
other way, reduced to their power, and which
were governed by magistrates, sent from Rome.
The foreign towns, which obtained the rights of
Roman citizens, were called Municipia. The
cities or lands, which the Romans were sent to
inhabit, were called Colonice ; some consisted of
Citizens, some of Latins, and some of Italians,
and had therefore different rights.

PrcBfecturcB, were conquered towns, governed
by an officer called a Praefect, who was chosen in
some instances by the people, in others by the
Praetors.

Civilates FaderatiB, were towns in alliance
with Rome, and considered to be free. All who
were not Citizens, Latins, or Italians, were called

32 THE ROMAN LAW.

Peregrini or foreigners ; they enjoyed none of
the privileges of Citizens, Latins, or Itahans/

^ This article is extracted from the first Appendix
to Heineccius' s Autiquitatum Romanarum Syn-
tagma ; and Gravinas ivork, De Orlu et pro-
gressu Juris Cicilis, and his Liber singularis de
Romano Imperio: — it will be found difficult to
mention many works, which a practical lawyer,
who wishes to relieve his mind from his profes-
sional labours by the perusal of a work of taste,
on a subject connected with them, will read
with so much pleasure as these three treatises :
— 2i\\Aiiovii Spanheim^ s Orhis Romanus.

IV.

Such were the limits of the Roman empire,
and the different classes of Roman subjects ; —
with respect to its GOVERNMENT AND
FORM OF LEGISLATION :

The ROMAN LAW, in the most extensive
import of thosi3 words, denotes the system of ju-
risprudence, by which the Roman empire was
governed, from its first foundation by Romulus,
to its final subversion in the East, in consequence
of the taking of Constantinople by Mahomet II.
THE CIVIL LAW denotes that part of the
Roman Law, which consists of the body of law,
compiled by the orders of the Emperor Justinian,

THE ROMAN LAW. S3

and of the laws subsequently enacted by him,
and called his Novells.

The writers on the History of the Roman Law,
generally divide it into three aeras, — the Juris-
prudentia Antiqua, Media, and Nova. The first
commences with the foundation of Rome, and
extends to the aera of the twelve tables ; the se-
cond extends to the reign of the emperor Adrian ;
the third to the reign of the emperor Justinian.

IV. 1 . As it was constituted by Romulus, the
Roman government consisted of an elective
King ; a Senate or Council, first of one hundred,'
and afterwards of two hundred nobles ; and a
general assembly of the people. The command
of the army, the administration of justice, the
superintendence of religious concerns, with the
office of high priest, belonged to the King ; the
Senate deliberated on all public business, and
prepared it for the people ; to them, the right of
final determination upon it belonged. The num-
ber of Senators was successively increased, to
three hundred, by Tarquinius Priscus ; to six
hundred by Sylla ; to nine hundred by Julius
Caesar ; Augustus reduced it to six hundred.
That, during the monarchy, the King had the
right of appointing the Senators, is clear: how
they were chosen during the aera of the republic,
has been the subject of much dispute : some?
with ^L de Vertot, M. de Beaufort, and Lord

A A .

34 THE ROMAN LAW*

Herve}^ contend that, as the Consuls succeeded
to the royal power, they enjoyed the royal pre-
rogative of filling up the Senate, till the creation
of the Censors, to whom it then devolved :
others, with Dr. Middleton, and Dr. Chapman,
contend that the Kings, Consuls, and Censors,
only acted in these elections, ministerially and
subordinately to the supreme will of the people ;
with whom the proper and absolute power of
creating Senators always resided.

The people were divided by Romulus into three
Tribes, and each tribe into three Curiae. Their
public assemblies were called the Comit'ia Curiata :
every member had an equal right of voting at
them ; and the votes were reckoned by the head.
Thus, the issue of all deliberations depended on
the poor, as they formed the most numerous
portion of the community. To remedy this, Ser-
vius Tullius, the sixth King, divided the people
into six classes, according to a valuation of their
estates, and then subdivided the classes into an
hundred and ninety-three centuries, and threw
ninety-eight of the centuries into the first class ;
twenty-two, into the second ; twenty, into the
third ; twenty-two, into the fourth ; thirty, into
the fifth ; and the remaining part of the citizens
into the sixth. The first class consisted of the
richest citizens ; the others followed in a propor-
tion of wealth ; the sixth consisted wholly of the

THE ROMAN LAW. 35

poorest citizens. Each century, except the last,
was obHged to furnish an hundred men in the time
of war ; the sixth was exempt from all taxes ;
and, to compensate this privilege to the rich, Ser-
vius enacted that, in the assemblies of the people,
they should no longer count the votes by head,
but by centuries, and that the first century should
have the first vote. This arrangement, while it
seemed to give every citizen an equal right of
suffrage, as all voted in their respective centuries,
virtually gave the richer classes the sole authority :
but it was generally acceptable, as it conferred
power on the rich, and immunity from taxes and
the other burdens cf the state, on the poor.
These assemblies were called the Comitia Cen-^
turiata. For some purposes, however, particu-
larly for the choice of inferior magistrates, and, in
the time of the repubHc, for vesting military
power in the Dictator, the Consols, and the
Praetors, the Comitia Curiata continued neces-
sary.

On the expulsion of the last Tarquin, the Se-
nate seems to have been permitted to retain, for
some time, the constitutional power, under the
regal state, of the monarch s whom they had de-
throned : and to have used all means v.ithin their
reach to perpetuate it in themselves. — Duriii':^
this period, the form of Roman legislation ap-
pears to have been, 1st, that the Senate should

A A '^

S^ THE ROMAN LAW.

convene the Assembly, whether of Curiae, or
Centuriae ; 2dly, that the Consul should pro-
pound to them the matter to be discussed ; 3dly,
that the Augur should observe the omens, and
declare whether they were favourable or unfa-
vourable ; — in the last case the Assembly was dis-
solved ; 4thly, that the Assembly should vote ;
5thly, that the Consul should report the resolu-
tion of the people to the Senate ; and, 6thly, that
the Senate should confirm or reject it.

1V\ 2. These were the rights of the Consuls,
the Senate, and the people, at the commence-
ment of the republic ; several alterations succes-
sively took place, in favour of the people, at the
expence of the Consuls and the Senate.

With respect to the Consuls, their dignity and
power were, by degrees, parcelled out among va-
rious magistrates : — thus their power of deciding
in civil matters was assigned to the Praetors ;
their power of setting criminal prosecutions on
foot was assigned to the Public Accusers ; their
care of the police, to the Ediles ; their general
superintendence of morals and manners, to the
Censors. After this, little more remained to the
Consuls, than their right to assemble the Senate,
convene the Comitia, and command the armies
of the republic. The Consuls and higher magi-
strates were chosen by the people ; at first, their

THE ROMAN LAW. 37

choice was confined to the Patrician order ; after
much contest, it was extended to the people.

The influence of the patricians on the delibera-
tions of the Comitia Centuriata was soon thought
a grievance by the people : hence, upon every
occasion which offered, they endeavoured to
bring the business before the Comitia Curiata:
but with this, they were not satisfied ; for, as a
patrician magistrate only could preside at the
Comitia Curiata, and before the Assembly pro-
ceeded to business, the omens were to be con-
sulted, and none but Patricians were admitted to
the rank of Augur, the Comitia Curiata, though
in a less degree than the Comitia Centuriata,
were still subject to Patrician influence. To
make the people entirely independent of the Pa-
tricians, at their general assemblies, the Tribunes
insisted, that the public deliberations should be
brought before the assemblies of the tribes, at
which every Roman citizen had an equal right to
vote, and at which neither the presence of a mar
gistrate, nor the taking of the omens was essential.
To this, the Senate and Patricians found it ne-
cessary to submit. At first, they contended that
they were not bound by the laws passed at these
assemblies, but they were soon forced to acknow-
ledge their authority. These assemblies were
called the Comitia Tributa.

Some important privileges, however, still re-

38 THE ROMAN LAW.

mained to the Senate : they had the direction of
all concerns of religion, the appointment of am-
bassadors, of governors of the provinces, of the
generals and superior officers of the army, the
management of the treasury, and, speaking-
generally, they had the direction of all the reli-
gious, civil, and military concerns of the state,
subject to the controul of the people, and subject
also to the controul of any tribune of the people,
who, by his Velo^ might, at any time, prevent
the resolution of the Senate from passing into a
decree : but, when the people did not interfere,
the Senatus-Consulta generally were obeyed ; and
it seldom happened that, in matters of weight,
the people enacted a law, without the authority
of the Senate. Thus the constitutional language
of ancient Rome was, that the Senate should de-
cree, and the People order. By the senators
themselves, it was deemed an heinous offence,
that any of their body, without their leave, should
propose a measure to the people: but, in the
decline of the Republic, the leading men of Rome
and their creatures, paid no attention to this
notion, and frequently obtained from the people,
what they kncAv would be refused them by the
Senate. The writings of Cicero abound with
complaints against this practice. The determina-
tion of the people, at the Comitia Centuriata,
Comitia Curiata, or Comitia Tributa, was equally

THE ROMAN LAW. 39

Lex^ or a Law of the state ; but when it passed
in the Comitia Tributa, as it originated with the
people, it was called Plehiscitum : the decrees of
the Senate, were called Senalus-Consulta.

IV. 3. The laws tvcre distinguished, sometimes
by the name of the person v/ho proposed them,
as the law ^Emilia : sometimes, by the names of
the Consuls, if they were proposed by both the
Consuls, as the law Papia Poppgea ; and some-
times, a mention of the nature of the law was
added, as the Lex Fannia Sumptuaria.^

8 See M. de Beaufort^ La Repuhlique Romaiiie ;
Paris, 1767, 0 vol. 8vo. Letters between Lord
Hervey and Dr. Middleton co?icerning the J?o-
VJan Senate; Londoji 1778, 4^o. and the 12, 13,
J4, and 15 Chapters of Montesquieu ^ 1. 11.

For obtaining an exact view of the HISTORY
OF THE ROMAN LAW, it may be divided
into nine periods, severally beginning with the
following epochs ; 1st, the foundation of Rome ;
2d, the Twelve Tables ; 3d, the abolition of the
Decemvirs ; 4th, the reign of Augustus ; 5th,
the reign of Hadrian ; 6th, the reign of Con-
stantine the Great ; 7th, the reign of Theodosius
the Second ; 8th, the reign of Justinian ; 9th, the
reign of his successors, till the fall oftlie Empire
of the East ; and 10th, the revival of the study

lae.

40 THE ROMAN LAW.

of the civil law, in consequence of the dis- Before j Anno

,^1 1^ , * , , • * Christ. Urbis

CO very or the randects at Amalphi. A condi-

ghort view should be had of the principal
schools in which the civil law has been
taught, and a short account of its influence
on the jurisprudence of the modern states
of Europe.

V. 1.

V. 1. THE FIRST OF THESE PE-
RIODS contains the state of Roman ju-
risprudence from the foundation of Rome, 7 j^
till the sera of the Twelve Tables. As
Rome was a colony from Alba, it is pro-
bable that her laws originated in that city.
Several of them are actually traced to her
first kings; particular mention is made of
laws enacted by Romulus, Numa, and Ser-
vius Tullius. Historians ascribe to Ro-
mulus the primitive laws of the Romans,
respecting marriage, the power of the father
over his child, and the relation between
patron and client : to Numa, their primitive
laws respecting property, religion and in-
tercourse with foreign states ; to Servius
Tullius, their primitive laws respecting
contracts and obligations. It is supposed
that, in the reign of the last of these kings,
a collection of their laws was promulgated

THE ROMAN LAW. 41

by public authority. The scanty materials Before
which have reached us, of the regal juris-
prudence of Rome, lead to a conjecture
that the Romans had attained a high degree
of legislative refinement before the abolition
of royalty.

Tarquin, the last king of Rome, was ex-
pelled in 509

Not long before or after his expulsion,
a body of the Roman law, as it then stood,
was collected by Fapyrius, and from him
was called Jus Civile Papyrianum. The
president Terasson, in his Hisloire de la
Jurisprudence Romaine^ Paris, 17-50, in
folio, p. 22 — 73, professes to restore the
original of this compilation, as far as the
materials which have reached us, allow :
he has given us thirty-six laws, — fifteen of
them as original texts, and twenty-one as
the substance or sense of texts which are
lost.

V. 2.

The second PERIOD OF THE
HISTORY OF THE ROMAN LAW,

is the aera of the Twelve Tables.

During the first half century which fol-
lowed the expulsion of the Tarqyins, the
civil s:overnment of the Romans was in

Anno
Urbis
Condi-
tae.

245

42 THE ROMAN LAW.

great confusion : on their expulsion, much Before
of the ancient law was abrogated or fell
into disuse, and some new laws were en-
acted by the Consuls.

The arbitrary and undefined power of the
Consuls in framing laws growing very
odious, three persons were sent into Greece,
and probably to some of the most civilized
states of Magna Graecia or Lower Italy,
to obtain copies of their laws and civil in-
stitutions 453

They returned in the third year after their
mission. Ten persons, called from their
number Decemvirs, were then appointed
to form a code of law for the government of
the state, both in private and public con-
cerns. This they effected, and divided
their code into ten distinct tables : two were
added to them in the following year. They
were a mixture of the laws of other nations,
and of the old Roman law, adapted to the
actual circumstances of the state of the
people 451

They were inscribed on twelve tablets of
brass ; and, from that circumstance, were
-called the Laws of the Twelve Tables. The
twelve tablets were exposed to the view of
every person, in a public part of the market
place. In the sack of Rome, by the Gauls,

Anno
Urbis
Gondii
tae.

301

303

THE ROMAN LAW. 43

they perished: immediately after the expulsion
of the Gauls, they were restored, aud the whole
text of them was extant in the time of Justinian :
fragments only of them have reached us. Gotho-
fred's edition of these fragments, in his work in-
tituled Fnntes Qnatuor Juris Civilis, Geneva,
16^3, in octavo, has obtained the universal ap-
plause of the learned : the fragments of them have
also been published by the president Terasson ;
and Pothier has inserted them in his Pandects
JustimanecB, with an interpretation, and an excel-
lent commentary.

The legislative wisdom of the Twelve Tables
has been highly praised ; but it has been thought,
in some instances, immoderately severe. Thus,
in respect to an insolvent debtor, — after the debt
was proved or admitted, they allowed him thirty
days to raise the money, or fmd surety for its pay-
ment : at the end of the thirty days, the law deli-
vered him into the power of his creditor, who
might confine him for sixty days in a private
prison, with a chain of fifteen pounds weight, on
a daily allowance of one pound of rice : during
the sixty days, he was to be thrice exposed in
the market place, to raise the compassion of his
countrymen : at the end of sixty days, if he was
sued by a single creditor, the creditor might sell
him for a slave beyond the Tyber ; if he was sued
by several, they might put him to death, and

44 THE ROMAN LAW.

divide his limbs among them, according to the
amount of their several debts. Nothing can be
urged in defence of this savage provision, if, as
appears to be its true construction, the division,
which it directs to be made, is to be understood
literally of the body, and not of the price
of the debtor : but if, before the Twelve Ta-
bles, an insolvent debtor became the slave of
the creditor, so that his liberty and life were im-
mediately in the power of the creditor, the ulti-
mate severity of the provisions of the Twelve Ta-
bles should be ascribed to the harsh spirit of the
people, and the intermediate delays in favour of
the debtor should be ascribed to the humane policy
of the Decemvirs. It may be added, that about
two hundred years afterwards, the Petilian law
provided that the goods, and not the body of the
debtor, should be liable to his creditor's demands ;
and that, at a subsequent period, the Julian law
provided, in favour of the creditor, the Cessio
Bonorum, by which the debtor, on making over
his property to his creditors, was wholly liberated
from their demands. Upon the whole, if we
consider the state of society, for which the laws
of the Twelve Tables were formed, we shall find
reason to admit both their wisdom and their hu-
manity.

The journey of the Decemvirs into Greece has,
been questioned by M. Bonamy, Mem. de I'Aca-

THE ROMAN LAW. 45

demte, vol. xii. p. 27, -SI, 7<5 ; and his doubts have
been adopted by Mr. Gibbon ; but the fact is
either related or alluded to by almost every Roman
author, whose works have come down to us : and
some writers have professed to track the jurispru-
dence of Greece, even in the legislative provisions
of the Preetors, Consuls, and Emperors.

. V. 3.

V. Ix proportion as Rome increased in arms,
arts and the number of her citizens, the insuffi-
ciency of the laws of the Twelve Tables was felt,
and new laws were passed. This insensibly pro-
duced, during the remaining part of the period
of the repubhc, which forms THE THIRD
PERIOD OF THE HISTORY OF THE
ROMAN LAW, that immense collection of
laws, "from which the civil law, as the Justinianean
body of law is called, was extracted, and which,
on that account, deserves particular consideration.

It was divided, like the law of Greece, into
the written and unwritten law. The written
comprehended the Leges, Plebiscita, and Sc-
natus-Consulta, which have been mentioned.

1 . The first, and most important branch of the
unwritten law of Rome was the Jus Honora-
rium, the principal part of which was the Edic-
tum PrcEloris. During the regal government of
Rome, the administration of justice belonged to

46 THE ROMAN LAW.

the king ; on the estabUshment of the repubhc, it
devolved to the Consuls, and from them, to the
Praetor, At first, there was but one Praetor ; after-
wards, their number was increased to two ; the
Praetor Urbanus, who administered justice among
citizens only ; and the Praetor Peregrinus, who ad-
ministered justice between citizens and foreigners,
or foreigners only : the number of Praetors was
afterwards increased, for the administration of
justice in the provinces and colonies. When the
Praetor entered on his office he published an edict,
or system of rules, according to which he pro-
fessed to administer justice for that year. In
consequence of his often altering his edicts, in
the course of the year, laws were passed, Avhich
enjoined him not to deviate from the form,
which he should prescribe to himself, at the be-
ginning of his office. All magistrates who held
the offices, which w^re ranked among the honours
of the state, had the same right of publishing
edicts ; and, on this account, that branch of the
law, which was composed of the edict of the
Praetor, and the edicts of those other magistrates,
was called the Jus Honorarium : but the edicts
of the Praeter formed by far the most important
part of this branch of the Roman law. Such
were his rank and authority in Rome, and such
the influence of his decisions on Roman juris-
prudence, that several writers on the Roman law

THE ROMAN LAW. 47

mention his edicts in terms, which seem to im-
port that he possessed legislative, as well as ju-
dicial power ; and make it difficult to describe
with accuracy, what is to be understood by the
Praetor's edict. Perhaps the following remarks
on this subject will be found of use, and shew
an analogy between some parts of the law of
which the honorary law of Rome was composed,
and some important branches of the law .of Eng-
land.— 1st. By the Praetor's edict, as those words
apply to the subject now under consideration,
civilians do not refer to a particular edict, but
use the words to denote that general body of law,
to which the edicts of the Praetors gave rise. — •
2dly, It is to be observed, that the legislative
acts of any state, form a very small proportion of
its laws : a much greater proportion of them con-
sists of that explanation of the general body of
the national law, which is to be collected from
the decisions of its courts of judicature, and
which has, therefore, the appearance of being
framed by the courts. A considerable part of
the law, distinguished by the name of the Prae>
tor's edict, was of the last kind ; and, as it was a
consequence of his decisions, received the ge-
neral name of his law. In this respect, the legal
policy of England is not unlike that of Rome ;
for, voluminous as is the statute book of England,
the mass of law it contains bears no proportion

4S THE ROMAN LAW.

to that, which lies scattered in the volumes of
reports, which fill the shelves of an English
lawyer's library : and perhaps it would be diffi-
cult to find, in any edict of a Praetor, a more
direct contradiction of the established law of the
land, than the decisions of the English judges,
which, in direct opposition to the spirit and lan-
guage of the statute de donis, supported the effect
of common recoveries in barring estates tail. —
3dly. Experience shews, that the provisions of
law, on account of the general terms, in which
they are expressed, or the generality of the sub-
jects to which they are applicable, have frequently
an injurious operation in particular cases, and
that circuip.stances frequently arise, for which the
law has made no provision. To remedy these
inconveniences, the courts of judicature of most
countries, which have attained a certain degree
of political refinement, have assumed to them-
selves a right of administering justice in particu-
lar instances, by certain equitable principles,
which they think more likely to answer the ge-
neral ends of justice, than a rigid adherence to
law ; and, where law is silent, to supply its de-
fects by provisions of their own. These privi-
leges were allowed the Praetor by the law of
Home ; in virtue of them, he pronounced de-
crees, the general object of which had sometimes
a corrective, and sometimes a suppletory opera-

THE ROMAN LAW. 49

lion on the subsisting laws. Tliey were inno-
vations: but it may be questioned, whether any
part of the Praetor's law was a greater innovation
on the subsisting jurisprudence of the country,
than the decisions of English courts of equity on
the statute of frauds. — 4thly. The laws of every
country allow its courts a considerable degree of
power and discretion in regulating the forms of
their proceedings, and carrying them into effect ;
further than this, the Praetor's power of publish-
ing an edict, signifying the rules by which he in-
tended the proceedings of his courts should be
directed, does not appear to have extended. — »
These observations may serve to explain the na-
ture of the Praetor's jurisdiction, and to shew
that the exercise of his judicial authority was not
so extravagant or irregular as it has sometimes
been described.**

2. A second source of the unwritten law of
Rome was, the Actiones Legis, and Solemnes
Legum Formula, or the Actions at Law, and
Forms of Forensic proceedings, and of transact-
ing legal acts. These, for some time, were kept
a profound secret by the Patricians ; but, Appius
Claudius having made a collection of them for
his private use, it was published by Cnaeus Fla-
vins, his secretary. The Patricians then deviced

See Appendix^ NOTE IIL

B B

50 THE ROMAN LAW.

new forms, and those were made public by Sextus
^liiis. These pubHcations were called the Fla-
vian and iElian Collections ; all we have of them
is to be found in Brisson's celebrated work, De
Formulis et Solemnibus Popiili Romani Verbis.

3. A third source of the unwritten law of
Rome was derived from the Dispuiationes Fori,
and the Respofisa Prudentmn. Mention has
been made of the relation introduced by Romu-
lus between patron and client ; — to give his
client legal advice was among the duties of the
patron ; insensibly, it became a general practice,
that those, who wanted legal assistance, should
apply for it to the persons of whose legal skill
they had the greatest opinion. This was the
origin of the Jurisconsulti or Civilians of Rome ;
they were, generally, of the Patrician order ; and,
from succeeding to this branch of the duty of
patronage, received the name of patrons, while
those, by whom they were consulted, were called
clients. The patron received his client with a
solemnity bordering on magisterial dignity ; and
generally delivered, in a few words, his opinion
on the case which was submitted to his consi-
deration ; but he sometimes accompanied it with
his reasons. These consultations usually took
place at an early hour in the morning : the broken
slumbers of the Civilians are mentioned by every
Roman poet whose muse has led him to describe

THE ROMAN LAW. 51

the inconveniences which at^^end distinction and
fame. Legal topics were often subjects of the
conversations of Civihans ; and the forum, from
their frequent resort to it, being the usual scene
of these friendly disputations, gave its name to
them. They also published treatises on legal
subjects. Their opinions and legal doctrines
were highly respected ; but, till they were ratified
by a judicial decision, they had no other weight
than what they derived from the degree of public
estimation, in which the persons who delivered
them were held. The Civilians are commonly
divided into three classes ; those, who flourished
between the sera of the Twelve Tables, and the
age of Cicero ; those who flourished from the
age of Cicero, to the reign of Severus Alexan-
der; and those who flourished from the begin-
ning of his reign, to that of the Emperor Jus-
tinian, The second, is the golden period of An-
tejustinianean jurisprudence. From the fragments
which have reached us, of the works of the Ci-
vilians who flourished during that period, modern
writers have thought themselves justified in de-
scribing them as men of enlarged minds, highly
cultivated understandings, and great modesty. —
In their judicial studies they availed themselves
of the learning and philosophy of the Greeks,
carried the disputes of the schools of Athens
into the Forum; and, early in the period of

n B 2

52 THE ROMAN LAW.

which we are speaking, branched into two sects,
whose opposite tenets were founded on prin-
ciples, not unhke those, which gave rise to the
distinctive docrines of the disciples of Zeno and
Epicurus. Antistius Labeo was the founder of
the former sect ; Ateius Capito of the latter :.
from Proculus and Pegasus, two eminent fol-
lowers of Labeo, the former were called Procu-
leians or Peo^asians ; from Masurius Sabinius and
Casius Longinus, two eminent followers of Ca-
pito, the latter were called Sabinians or Cassians.
The former contended for a strict adherence to
the letter and forms of the laM^ ; the latter for a
benign interpretation of it, and for allowing great
latitude in the observance of its formxS. At-
tempts were made to compromise the difference
between them : they gave rise to a third sect, the
Jurisconsulti Erciscundi, or Miscalliones. Some-
thing of the difference which subsisted between
the disciples of Labeo and Capito, has long sub-
sisted in the jurisprudence of England ; but the
good sense of the English bar has prevented the
maintainers of the different opinions from form-
ing themselves into sects. Till the reign of
Augustus every person was at liberty to deliver
judicial opinions ; Augustus confined this privi-
lege to particular persons, with a view, it is sup-
posed, of their propagating those doctrines of law,
which were favourable to his political system :

THE ROMAN LAW. 53

Anno
Urbii
Con-
dita.

the Emperor Adrian restored the oeneral Jf'*"*^ tt u-

^ ® Christ. Urbis

liberty: the Emperor Severus xAlexaiider c**"-

assisfned it the hmits within which it had
been circumscribed by Augustus.

These are the materials of which the
written and unwritten law of Rome was
principally formed.

V. 4.

THE FOURTH PERIOD OF THE
HISTORY OF THE ROMAN LAW,

is that which fills the space between the
time when Julius Caesar was made perpe-
tual Dictator, and the reign of the Emperor 46 708
Adrian. The power of Julius Caesar, in
consequence of his perpetual dictatorship,
placed him above law ; but it does not ap-
pear that he made many innovations, of a
general nature, in the Roman jurispru-
dence. That was left to Augustus, his
heir and successor. At different periods
of his reign, the people conferred on Au-
gustus the various titles of Perpetual Tri-
bune, Consul, Proconsul, Censor, Augur,
and High Priest: thus, in effect, he ac-
quired both the civil and military power of
the state : but, as he professed to exercise
it in virtue of those offices, his acts had
the appearance of being the acts of the

54 THE ROMx\N LAW.

different mao^istrates, whose offices had been ^f^.^^ n"u?

o Christ 1 *^""

conferred on him. Finally, in the year of
the city, 735, power was given him to
amend or make whatever laws he should
think proper. This was the completion of
the Lex Regia, or of those successive laws,
>which, while they permitted much of the
outward form of the republic to remain, in-
vested the emperor Avith absolute power.

During the whole of Augustus's reign,
the forms of the Leges and Senatus-con-
sulta, those vestiges of dying libert}^, as
they are called by Tacitus, were preserved.
For the Senate, Augustus uniformly pro-
fessed the greatest deference ; he attended
their meetings, seemed to encourage their
free discussion of every subject, which came
before them ; and, when a law was ap-
proved of by them, he permitted it, agree-
ably to the ancient forms of the republic,
to be referred to the people. The refer-
ence of laws to the people was abolished
by Tiberius ; so that, from his time, the
laws of Rome originated and were com-
pleted in the senate. At first their deh-
berations had an appearance of free dis-
cussion ; by degrees, even that vanished,
and insensibly the Senate served for little
niore than a nominal council of the

THE ROMAN LAW. 55

Emperor, an office to register his ordinances,
and a court of judicature for great public
causes.

V. 5.

This memorable revolution in the functions
of the Senate, with which even the forms of
Roman liberty expired, must be dated from the
Emperor Adrian, and forms the FIFTH PE-
RIOD OF THE HISTORY OF THE RO-
MAN LAW. He was the first of the Emperors
who exercised, without disguise, the plenitude
of legislative power. With him, therefore, the
Imperial Constitutions^ under the various names
of Rescripta, Epistolae, Decreta, Edicta, Prag-
maticae Sanctiones, Orationes and Annotationes,
originated ; they had the force of law in every
part of the Roman state. Under his reign, Ju-
lian, a lawyer of great eminence, digested the
Praetor's edicts, and other parts of the Jus Ho-
norarium, into a regular system of law, in fifty
books. This compilation was much esteemed ;
it was referred to as authority, and obtained the
title of Edictmn Perpetuum ; all the remains of
it, which have come down to us, are the extracts
of it in the digest ; they have been collected
with great attention, by Simon Van Leeuwen,
at the head of the Digest, in his edition of

56 THE ROMAN LAW.

Gothofred^s Corpus Juris Civdlis, Lugd. cinbt.
Batav. 1663 120

It was a remarkable effect of the Edictum
Perpetuum, to put an end to the legal
schism of the Sabinians and Proculians.
By countenancing the former, in the
Edictum Perpetuum, the Emperor Adrian
terminated the dispute.

After this came the Codex Grcgorianus;
a collection of Imperial constitutions, from
Adrian to Dioclesian, by Gregorius or
Gregorianus, Praetorian Praefect to Con-
stantinethe Great 284

This was succeeded by the Codex Hermo-
genianus, a continuation of the former
code, by Hermogenes, a contemporary of
Gregorius or Gregorianus,

V. 6.

The sixth PERIOD OF THE
ROMAN LAW extends from the reign of
Constantine the Great to that of the Em-
peror Theodosius the Second. It is par-
ticularly remarkable for having furnished
many new articles of great importance to
the jurisprudence of Rome . . . . . 306

They chiefly arose from the foundation of
Constantinople, the new forms of civil and

THE ROMAN LAW. 57

military government introduced by Con- After
stantine, the legal establishment of Chris-
tianity, and the division of the empire be-
tween the sons of Theodosius the Great.
To the first may be referred numerous
laws, respecting the privileges and police of
the imperial city ; to the second, an abun-
dance of legal provisions, respecting the va-
rious officers of the empire, and the cere-
monial of the Byzantine court; to the
third, a succession of imperial edicts, by
which Christianity was first tolerated, then
legalized, and afterwards became the esta-
blished religion of the state.

The division of the empire between the
sons of Theodosius, in 395, was attended
Avith still more important effects on Roman
jurisprudence 395

V. 7.
The variety of laws, principally occa-
sioned by the circumstances which have
been mentioned, introduced a considerable
degree of confusion into the Roman juris-
prudence. To remedy it, Theodosius the
Second, the Emperor of the East, pub-
lished, in 438, the celebrated code of law,
called from him the Tlicodosian Cof/e, which
forms THE SEVENTH PERIOD OF

68 THE ROMAN LAW.

THE HISTORY OF THE ROMAN After

Christ.

LAW. It comprises all the imperial con-
stitutions from 312, the year in which Con-
stantino was supposed to have embraced
Christianity, to the time of its publication. 438
It has not reached us entire : an excellent
edition of the remains of it was published
by James Gothofred, at Lyons, in 1668,
in six volumes folio, generally bound in
four. It is accompanied with Prolegomena,
introductory chapters, a perpetual com-
mentary and notes ; the labour of thirty
years ; and no one, as Doctor Jortin justly
remarks, ever thought the time thrown
away. No work perhaps can be mentioned,
which contains more information on the an-
tiquities of the early ages of the lower em-
pire. In addition to the Theodosian Code,
it comprises the subsequent novells of the
Emperors Valentinian, Martian, Majorian,
Severus and Anthemius.

Immediately after the publication of the
Theodosian Code in the eastern empire, it
was received into the empire of the west, by
an edict of Valentinian the Third. In the
east, it retained its force, till it was super-
seded by the Justin ianean collection.

It retained, but indirectly, its authority
longer in the west. The Barbarians, who

THE ROMAN LAW. 59

After
Christ.

invaded the empire, permitted the Romans
to retain the use of their laws. In 506 506
Alaric, king of the Visigoths in Gaul, or-
dered a legal code to be prepared, in which
the Roman and Gothic laws and usages
should be formed into one body of law, for
the general use of all his subjects ; this was
accordingly done in the twenty-second year
of his reign ; and from Anianus, his Refe-
rendary, or Chancellor, by whom it was
either compiled or published, it was called
the Breviarium Aniani. It is an extract
from the Gregorian, Hermogenian, and
Theodosian Codes, the novells of the sub-
sequent Emperors, the sentences of Paul-
lus, the Institutes of Gains, and the works
of Papinian. It superseded the use of the
former laws so far, that, in a short time,
they ceased to be cited in the courts, or by
writers on subjects of law ; and Anianus's
collection, under the name of the Roman
or Theodosian law, became the only legal
work of authority'*.

To this period also, must be ascribed the
celebrated Collatio Mosaicarum et Romana-
rum Legiim: the object of it is to shew the

•• See the learned Prolegomena ad Codicem TheodO'
sianum of Gothofred.

60 THE ROMAN LAW.

resemblance between the Mosaical institu- After

Christ

tions and the Roman law ; the best edition
of it is F. Desmare's in 1689.

V. 8.

The eighth, AND MOST IM-
PORTANT, PERIOD, of the history of
the Roman law, comprises the time in
which the body of law, compiled by the
direction of the Emperor Justinian, was
framed.

1. By his order, Trebonian, and nine
other persons of distinction, in the first
year of his reign, made a collection of the
most useful laws, in the Codex Theodo-
sianus, the two earlier codes of Gregorius
and Hermogenes, and the constitutions of
some succeeding emperors. It was im-
mediately published by Justinian, and is
called the Codex Justinianeus Primce FrcB-
lectionis 528

2. But his srreat work is his Digest or
Pandects. By his direction, Trebonian,
with the assistance of sixteen persons,
eminent either as magistrates or professors
of law, extracted from the works of the
former civilians, a complete system of law,

and digested it into fifty books 533

3. Previously to its publication, an ele-

THE ROMAN LAW. 61

mentarv treatise, comprisins: the oeneral ^j^7
principles of the system of jurisprudence,
contained in it, was promulgated, by the
Emperor's direction, in four books. From
its contents, it was called The Institutes.

Thus the Digest and Institutes were
formed into a body of law, by the autho-
rityof the Emperor. He addressed them,
as imperial laws, to his tribunals of justice,
and to all the academies, where the science
of jurisprudence was taught: they were to
supersede all other law, and to be the only
legitimate system of jurisprudence through-
out the empire.

4. In the following year, he published
a corrected edition of the code, under the
the title Codex Repetitae Prelectionis. —
This wholly superseded the first code ; and,
except so far as it has been preserved in

the latter, it is wholly lost. . . . . . 534

5. The edicts which he promulgated,
after the new edition of the Codex, were
collected into one volume, in the last year
of his reign, and published under the name

of Novellce 566

6. Most of the Novellas were written in
the Greek lansruaue. In the last vear of
Justinian's life, a Latin translation was.
made of them ; and, by the fidelity with

62 THE ROMAN LAW.

which it was executed, obtained the appel- ^*"^<''"
htion of the Voliwien A uthenticum. .. . 568

Other translations of the NovellcE have
appeared : that, pubhshed at Marbiirgh, in
1717, by John Frederick Hemburgh, has
the character of being extremely well exe-
cuted, and is accompanied with a valuable
commentary and notes.

7. In most editions of the Corpus Juris
Civilis, the Novells are followed by the
Books of Fiefs, the Constitutions of Con-
rade the Third, and the Emperor Frede^
rick, under the title of Decima Collatio,
and some other articles. But these make
no part of what is called the Corpus Juris
Civilis : that consists solely of the Pan-
dects, the Institutes, the Codex Repetitae
Praelectionis and the Novells.

8. On the general merit of Justinian s
Collection, as' a body of written law, able
judges have differed : the better opinion
seems to be that it is executed with great
ability, but that it is open to much objec-
tion, the Responsa Prudentinii sometimes
being unfaithfully given in it, contradictory
doctrines having found their way into it, its
style being often too flowery, and its inno-
vations on the old law, sometimes being in-
judicious. Heineccius, whose testimony,

THE ROMAN LAW. 63

in this case, is of the greatest weight, at first
judged of it unfavourably : but afterwards changed
his opinion : he mentions, in high terms of com-
mendation, the defence of it by Huberus and the
Cocceii, and asserts that the cause must now be
considered as decided in its favour. Hist. Juris
Romani, Lib. I. §. cccc.

The very attempt to lessen, by legislative pro-
visions, the bulk of the national law of any
country, where arts, arms and commerce flourish,
must appear preposterous to a practical lawyer,
who feels how much of the law of such a country
is composed of received rules and received ex-
planations. What could an act of the Imperial
Parliament substitute in lieu of our received ex-
planations of the rule in Shelly 's Case ? The
jurisprudence of a nation can only be essentially
abridged by a judge's pronouncing a sentence
which settles a contested point of law, on a legal
subject of extensive application, as Lord Hard-
wicke did by his decree in the case of Wil-
lougby versus Willoughby ; or by a writer's pub-
lishing a work on one or more important branches
of law, which, like the Essay on Contingent Re-
mainders, has the unf|ualified approbation of all
the profession.

One circumstance, however, may be urged, as
an unquestionable proof of the Justinianean Col-
lection's possessing a very high degree of in-

64 THE ROMAN LAW.

trinsic merit. Notwithstanding the different
forms of the governments of Europe, and the
great variety of their poHtical and judicial sys-
tems, the civil law has obtained either a general
or a partial admittance into the jurisprudence of
almost all of them : and, where it bias been least
favouarbly received, it has been pronounced a
collection of Avritten wisdom : this could not
have happened, if it had not been deeply and
extensively grounded on principles of justice and
equity, applicable to the public and priv^ate con-
cerns of mankind, at all times, and in every si-
tuation.

V. 9.

9. The fate of tliis venerable body of law,
promulgated with so much pomp, and posses-
sing so much intrinsic merit, is singular, and
forms THE NINTH PERIOD OF THE
HISTORY OF THE ROMAN LAW.—
The reign of the third successor of Justinian,
was the last, in wiiich it maintained its autho-
rity in the west. After that time, all law and
regular government wxre rapidly destroyed by
the Barbarians who invaded and overturned the
Roman empire. The Exarchate of Ravenna,
the last of their Italian victories, was conquered

THE ROMAN LAW. G3

by them in 7o3 ; and that year is assigned ^ftcr^
as the aera of the final extinction of the
Roman law in Italy 7«53

It lingered longer in the east : in strict-
ness even, it cannot be said to have wholly
lost its authority, in that part of the em-
pire, till the taking of Constantinople, by
Mahomet the Second. In the life time of
Justinian, the Pandects were translated
into Greek by Thaleleus ; a translation of
the Code was made, perhaps, by the same
hand, and the Institutes were translated by
Theophilus.

The successors of Justinian published
different laws, some of which have reached
us. In the reign of Basilius the Macedo-
nian, and his sons Leo the philosopher,
and Constantine Porphyrogeneta, an epi-
tome, in sixty books, of Justinian's Code,
and of the constitutions of succeeding em-
perors, was framed, under the title of Ba-
silica. Forty-one of the sixty books were 90G
splendidly published by Fabrotti, at Paris,
in 1647, in seven tomes in folio ; four more
have been published in Meerman's The-
saurus.

That the Basilica superseded, in the eastern
empire, the immediate authority of the Jus-
linianoan collection, is true ; but, that the

c c

6(5 THE ROMAN LAW.

Justinianeaii collection formed a consi- J^^^^^^

Christ.

derable part, and was, in fact, the ground-
work of the Basilica, is unquestionable.
Thus, through the medium of the Basilica,
the code of Justinian, in a great degree,
directed or influenced the jurisprudence of
the eastern empire, to the latest moment of
of its existence.' 1453

' See Appendix, NOTE IV.

V. 10.

The text of the Pandects being almost
wholly lost, accident led, sometime about
the year 1 1 37-, to the discovery of a com-
plete copy of them, at Amalphi, a town
in Italy, near Salerno. This forms the
TENTH PERIOD OF THE HIS-
TORY OF THE ROMAN LAW.
From Amalphi the copy found its way to
Pisa ; and Pisa having submitted to the Flo-
rentines, in 1406, the copy was removed in
great triumph to Florence. By the direction 1 406
of the magistrates of the town, it was imme-
diately bound, in a superb manner, and de-
posited in a costly chest. This copy of it
is generally called the Florentine Pandects.
Formerly they were shewn only by torch

THE ROMAN LAW. 67

light, ill the presence of two magistrates, and
two Cistercian monks, with their heads unco-
vered. They have been successively collated by
Politian, Bolognini, and Antonius Augustinus ;
an exact copy of them ^vas published, in 1553^
by Franciscus Taurellus ; for its accuracy and
beauty, this edition ranks high among the orna-
ments of the press : it should be accompanied,
with the treatise of Antonius Augustinus, on the
proper names in the Pandects, published by him
at Tarragona, in 1579. About the year 1710,
Henry Brenckman, a Dutchman, -was permitted,
at the earnest solicitation of our George the First,
to collate the manuscript. He employed ten
years upon it, and in the investigation of various
topics of literature connected with the Juslinia-
nean Code. His elegant and curious Historiii
Pandecfariwi, published at Utrecht, in 1712,
gives an interesting account of his labours ; and
shews, like the labours of Wetstein and Mill,
that great fire of imagination, exquisite taste,
minute and patient investigation, and the sound-
est judgment, may be found in the same mind.
— Some have supposed that the Florentine ma-
nuscript, is the autograph of the Pandects ; for
this opinion there is no real ground or authority ;
but Brenckman refers it to the sixth century, a
period not very remote from the aera of Justinian,
Brenckman's work forms a small part of an ori-

c 'i

68 THE ROMAN" LAW.

ginal design, and is so ably executed that all
must lament his having left any part of his design
uiifinished. — See Georg'ii Christiani Gebaveri
Narralio de Henrico Brenknianno^ et de Manu-
scriptis Brenkmcmniatiis, Gottingce 1764. The
possession of Brenckman's Manuscripts would
be a valuable acquisition to a Public Library.

Three editions of the Pandects are particularly
distinguished, — the Norican Edition published by
Moloander, at Nuremburgh, in 1529, in three
volumes, quarto : the Florentine, published by
Taurellus, at Florence, in 1553, in two volumes
folio, often bound in three ; and the Vulgate,
under which name every edition is comprised,
which is not taken from the Norican or Florentine
edition. The best editions for general use ap-
pear to be Pothier's Pandects Justinianeae, pub-
lished at Lyons in 1782, in three volumes folio;
and that of Dionysius Gothofred, published by
Simon Van Leeuwen at Leyden in 1663, in one
large volume, generally bound in two : — It con-
tains the Institutes, the Digest, the Code, the
Fasti Consulares, Freher's Chronologia Imperii
Utriusque, Gothofred's Epitome of the Novells
of Justinian, various other edicts and novell con-
stitutions, Frederici II. I-mp. Extra vagantes,
Liber de Pace Constantiae, Gothofred's Epitome
of the books of the Fiefs, an extensive synopsis
of Civil Law, the fragments of the Twelve Ta-

THE ROMAN LAW. 69

bles, the Titiili of Ulpian, and the opinions of
Paukis, with notes, and copious indexes to the
whole ■".

"" This article is extracted from Pomponius's short,
treatise de Or/'gine Juris et omnium magistra-
tuum et successione prudentum. Dig. Tit.Q ; the
Preface to the Institutes: the first, second, and
third Prefaces to the Pandects; the first and
second Prefaces to the Code ; Heineccius' s His-
toria Juris Civilis Romani ac Germanici, Li/g.
Bat. 1740, Svo. the Antiquitatum Romanarum
Syntagma, of the same author, Strashurgh 17-4,
Svo. — The writings of Heineccius are a striking
proof of the truth of Mr. Gibbon's observation,
vol. 4. 395, note 160, " that the universities of
" Holland and Brandenburgh, in the beginning
" of the last centur\', appear to have studied the
" civil law on the most just and liberal princi-
"' pies :" — the works of Gravina, on the Civil Law,
Leipsics 1717, in three volumes 4^6». parlicularhj
his Origines Juris Civilis; Gravina's account of
the Leges and Senatus Consulta is particularly
interesting: BrunqueUus's Historia Juris Ro-
mano-Germanici, Ams. 1730, Svo. perhaps the
completest historical account extant of the civil
law ; Struvius's Historia Juris Romani, Jencc,
171S, 4to. Pothiers Prolegomena tohis Pandectce
Justinianecc, Lyons, 3 vols. fol. Terassons His-
toirc de la Jurisprudence Romaine, Paris, 1750,
said by Mr. Gibbon, 4th vol. note 9, to be " a
** work of more promise than performance ;"

THE ROMAN LAW.

VI.

These lead to an inquiry respecting THE
PRINCIPAL SCHOOLS, IN WHICH
THE CIVIL LAW HAS BEEN
TAUGHT since its revival in Europe.

Thomasius' s Dellneatio HistorUe Juris Romani
et Germanici, Erfurdia, 1750, 8vo. and his Ncc-
varum Jurisprudentio; Romance Libri duo, Halm
Magdeburgicce,n07,Svo. — they contain a severe
attack on the Justinianean collection, the em-
peror, and all other persons concerned in it: Mon-
tesquieu's Esprit des Loix, a work entitled to all
the praise it has received; no one, w^ho has not
travelled through the Corpus Juris and the Ca-
pitularies, can form an idea of the comprehen-
sive brevity and energy with which it is written.
Dr. Bever's History of the Legal Polity of the
Roman State, Lond. 1781, 4?o. Dr. Taylors
Elements of the Civil Law, Camb. 1755, 4to.
a v/ork, if we acquiesce in Mr. Gibbon s opinion
of it, 4th vol. note 132, " of amusing, though
" various reading ; but which cannot be praised
" for philosophical precision ;" The four Books
of Justinian, translated by the late Dr. Harris,
with notes and a preface ; the translation is ex-
cellent, and it is much to be lamented, that the
preface is not longer, and the notes more copi-
ous ; Ferriere's Histoire du Droit Romaine, Pa-
7/5, 17S3, 8fo. BeafiforCs Kcpublique Romaine,

THE ROMAN LAW. 7I

In the early days of the repubhc, it was usual
for such as desired to gain a knowledge of the laws
of their country, to attend on those, who were
consulted on legal subjects, at the hours, in which
these consultations generally took place. Tibe-
rius Coruncanius is said, by Cicero, to have been
the first among the Romans, who professed to
give regular instructions on legal subjects. After-
wards, public schools of jurisprudence were esta-
blished ; the most celebrated were those at Rome
and Constantinople ; Justinian founded a third
at Berytus, and used all means in his power, to
promote its success : he gave the professors large
salaries, and advanced some of them to offices of
high distinction in the state ; — as the authority of
his law decreased, they fell into decay.

With the discovery of the Pandects at Amalphi,
the study of the civil law revived : — it was intro-
duced into several universities, and exercises wei-e
performed, lectures read, and degrees conferred in
this, as in other branches of science, and several

Paris, 1767, 6 vols. Svo. an excellent constitu-
tional History of the Roman Government: — The
44th Chapter of the Ath Volume of Mr. Gibbon s
History ; M. Bouchaud's Rechcrches Historiques
sur les Edits des Magistrals Romains, Quatrieme
Memoir e, Mem. de V Academie, 4\st Vol. p. 1,
and Mr. Schomberg s Elements of Roman Laic,
London, 1786, Svo.

f2 THE ROMAN LAW.

nations of the continent, adopted it, as the basis
of their several constitutions. From this time,
there has been a regular succession of civil lawyers,
distinguished by some circumstance or other into
different classes, or as it is usually expressed, into
different schools.

1 . The first, is the school of Irnerius, a learned
German, who had acquired his knowledge of the
civil law, at Constantinople. He taught it at
Bologna, with great applause : the legal schism
which had divided the Sabinians and Proculeians,
was revived, in some degree, among his scho-
lars : one of them, was the celebrated Azo, a Pro-
culeian, whose writings, Montesquieu is said to
have preferred to all other on the subject of civil
law. A more important subject, the contest be-
tween the emperors and popes, produced a more
serious warfare between the disciples of Irnerius.
The German emperors, who pretended to suc-
ceed to the empire of the Caesars, claimed the
same extent of empire in the west, and with the
same privileges, as it had been held by the Csesars ;
to this claim, the spirit and language of the civil
law being highly favourable, the emperors en-
couraged the civilians ; and, in return for it, had
their pens at command. The popes were sup-
ported by the canonists, and the canonists found,
in the dfecree of Gratian, as much to favour the
pretensions of the popes, -^s the civilians found,

THE ROMAN LAW. 73

in the law of Justinian, to favour the pretensions
of the emperors. Thus, generally speaking, the
civilians were Ghibelins, the name given to the
partisans of the emperors, and the canonists were
Guelphs, the name given to the partisans of the
popes. But this distinction did not prevail so far,
as to prevent many canonists from being Ghibe-
lins, or many civilians from being Guelphs ;
those among the civilians, who sided with the
canonists in these disputes, were called from the
decree of Gratian, Decretistae, in opposition to
the rest of the body, who assumed the appellation
of Legistae, from their adherence to the supposed
Ghibelin doctrines of the civil law.

2. A new school began with Accursius : — his
Gloss is a perpetual commentary on the text of
Justinian : it was once considered as legal autho-
rity, and was therefore usually published with the
text : — it is even now respected as an useful
commentary. Accursius had many disciples,
whose glosses had great celebrity in their day, but
are now wholly forgotten.

3. JBartolus, and Baldus his disciple and rival,
gave rise to a new school, famous for copious
commentaries on Justinian's text ; for the idle
subtleties with which they abound, and their
barbarous style.

4. Andrew Alciat was the first who united the
study of polite learning and antiquity, with the

74: THE ROMAN LAW.

study of the civil law : he was the founder of a
new school ivhich is called the Ctijacian from Cn-
jas, the glory of civilians. Of him, it may be
said truly, that he found the civil law of wood,
left it of marble. That school has subsisted to
the present time ; it has never been without
writers of the greatest taste, judgment and eru-
dition ; the names of Cujacius, Augustinus, the
Gothofredi, Heineccius, Voetius, Gravina, and
Pothier, are as dear to the scholar, as they are to
the lawyer. An Englishman however, must re-
flect with pleasure, that his countryman, Mr.
Justice Blackstone's Commentaries on the Laws
of England, will not suffer in a comparison with
any foreign work of jurisprudence ; — perhaps it
will be difficult to name one of the same nature,
which will bear a comparison with it."

" This article is chiefly taken from the cited works
of Gravina and Brunquellus.

VIL

It remains to give some account of THE IN-
FLUENCE OF THE CIVIL LAW ON
THE JURISPRUDENCE OF THE MO-
DERN STATES OF EUROPE.

On the degree of its influence on the law of
Germany, the German lawyers are not agreed:
but it is a mere dispute of words ; all of them

THE ROMAN LAW. 75

allow that more causes are decided in their courts,
by the rules of the civil law, than by the laws of
Germany ; and that, where the laws of Germany
do not interfere, the subject in dispute must be
tried by the civil law ; after these concessions, it is
not material to inquire, whether, to use the lan-
guage of the German lawyers, the civil law be
the dominant law of Germany, or subsidiary
to it.

The same may be said of its influence in Bo-
hemia, Hungary, Poland and Scotland.

At Rome, and in all the territories of the pope,
it is received without limitation ; in most other
parts of Italy, including Naples and the two Si-
cilies, it has nearly the same influence ; except
where the feudal policy intervenes.

Its influence in Spain and Portugal is more
qualified ; but it appears to be admitted, that
where the law of the country does not provide the
contrary, the civil law shall decide : and it is the
settled practice, that no person shall be appointed
a judge or received an advocate in an}^ of the courts
of law, who has not been a student in some aca-
demy of civil or canon law for ten years.

The provinces of France, which lie nearest to
Italy, were the first conquered by the Romans,
and the last conquered by the Francs. At the
time of the conquest of them by the Francs,
they were wholly governed by the Roman la^v :

76 THE ROMAN LAW.

ihey are the provinces of Gu^^enne, Provence,
Dauphine, and speaking generally, all the pro-
vinces, under the jurisdiction of Toulouse, Bour-
deaux, Grenoble, Aix, and Pau ; the Lyonnois,
Forez, Beaujolois, and a great part of Auvergne.
Their Francic conquerors permitted them to re-
tain the Roman law ; where it has not been al-
tered, they are still governed by it : and, from this
circumstance, they are known under the general
name of the Pays du Droit Ecrit. The remain-
ing part of France is governed by the different
laws and customs of the provinces of which it
is composed, and from this circumstance, is called,
Pays Coutumier.

The Venetians have always disclaimed the au-
thority of the civil law.

It was introduced into England b}^ Theobald,
a Norman Abbot, who was elected to tlie see of
Canterbury. He placed Roger, sirnamed Va-
carius, in the miiversity of Oxford : — students
flocked to him in such abundance, as to excite
the jealousy of government, and the study of
the civil law was prohibited by King Stephen.
It continued, however, to be encouraged by the
clergy, and became so favourite a pursuit, that
almost all, who aspired to the high offices of
church or state, thought it necessary to go through
a regular course of civil law, to qualify them-
selves for them :— ^it became a matter of reproach

THE ROMAN LAW. 77

to the clergy, that they quitted the canon for the
civil law ; and pope Innocent prohibited the very
reading of it by them. Notwithstanding this
opposition, the study of the civil law has been
encouraged in this country : — in each of our uni-
versities there is a professor of civil law, and, by
general custom and immemorial usage, some of
the institutions of the civil law have been re-
ceived into our national law. In the spiritual
courts, in the courts of both the universities, the
military courts, and courts of admiralty, the
rules of civil law, and its form of legal proceed-
ing greatly prevail. But the courts of common
law have a superintendency over these courts,
and from all of them, an appeal lies to the King
in the last resort. " From these strong marks
'■'■ and ensigns of superintendency it appears be-
'' yond doubt," says Mr. Justice Blackstone,
" that the civil and canon laws, though ad-
•' mitted in some cases by custom, and in some
" courts, are only subordinate and lege sub gra-
" viore lege." — The short but very learned trea-
tise of Arthur Duck, de Usu et Aucloritate juris
civilis in Dominiis principum christianoriini^ con-
\eys, in elegant language and a pleasing manner,
complete information on the nature and extent
of the influence of the civil law, on the juris-
prudence of the mod Tu states of Europe.

THE FEUDAL LAW.

An attempt will be made in the following sheets
to give some account, I. Of the original terri-
tories of the nations by whom THE FEUDAL
LAW was established; II. Of their first pro-
gress and chief settlements in the Roman terri-
tories ; and III. Of the principal written docu-
ments of the Feudal Jurisprudence of foreign
countries. It is principally taken from a note of
the Editor, in that part of the 14th edition of
Coke upon Littleton, which was executed by
him. That note contains also some observations
on the peculiar marks and qualities of the feudal
law; some account of the principal events in the
early history of the feuds of foreign countries ;
and of the revolutions of the feud in England.
But, as the researches which gave rise to that
note were chiefly made with a view to the law
of real property, the observations in it are prin-
cipally directed, through every branch of the in-
quiry, to the influence of the feud on that species

THE FEUDAL LAW. 79

of property, particularly where the writer treats
of the feudal jurisprudence of England. Under
that head some general observations are offered,
on the time when feuds may be supposed to
have been first established in England : on the
fruits and incidents of the feudal tenure ; and on
the feudal polity of this countr}^, with respect to
the inheritance and alienation of land : under this
head an attempt is made to state the principal
points of difference between the Roman and
feudal jurisprudence in the articles of heirship,
tlie order of succession, and the nature of feudal
estate ; an attempt is then made to shew the
means by Avhich some of the general restraints
upon the alienation of real property, introduced
by the feud, have been removed ; some account is
then given of entails, and of the means by which
the restraints created by entails were eluded or
removed. Having thus treated of that species of
alienation, which, being the act of the party
himself, is termed voluntary alienation, notice is
taken of that species of alienation, which, being
forced on the party, is termed involuntary. —
Under that head are briefly considered the attach-
ment of lands for debt ; first, in regard to its
effect upon them, Avhile they continue in the
"possession of the party himself; then, in respect
to its effect upon them, when in possession of
the heir or devisee : and afterwards, in respect to

80 THE FEUDAL LAW.

the prerogative remedies for the recovery of
Crown debts. Some observations are then of-
fered on testamentary ahenation : and an account
of some of the principal circumstances in the
history of the dechne and fall of the feud in
England.

In respect to the ORIGINAL TERRITO^

RIES of the nations who introduced the feudal
law : — they may be considered under the names
of Scythians, Sarmatians, Scandinavians, Ger-
mans, Huns and Sclavonians, which they ac-
quired as they extended their conquests. Till
lately, the inhabitants of the shores of the Baltic
vv^ere considered to be their parent stock ; subse-
quent researches seem to have traced it to the
spot where the common stock of all nations is
found, — the Plain of Sennaar.

L 1. For the early state of the Northern na-
tions we must look to Herodotus. Of the north-
western parts of Europe, he seems to have had
little knowledge: the word Germany does not
occur in his writings : Scylliia is a general name
given by him to the north-eastern parts of Eu-
rope, and to all he knew of the north-western
parts of Asia, till he reached the Issedones, a na-
tion who, by Major Rennel's account, occupied
the present seat of the Oigur or Eluth Tartars.

I'he European part of this extensive territory

THE FEUDAL LAW. 81

lies on the western, its Asiatic part on the eastern
side of the Volga. On the south, the European
Scythia extended to the Carpathian mountains
and the mouths of the Danube ; and the Asiatic
Scythia to the Caspian and the country on its
east. As it was intersected by the great chain
of mountains called the Imaus or Caff, the
Asiatic Scythia was distinguished into the Scy*
thia within, and the Scythia without the Imaus.
L 2. Under the general denomination of Celts^
LTerodotus included all the parts of Europe
which were not occupied by the Scythians.

I. 3. In the course of time, the name of Scy^
thia was applied to the eastern part only of the
original Scythia ; but the division of it into tlie
part within and the part without the Imaus was
preserved ; the western Scythia, or the part of
the original Scythia, which lies on the western
side of the Yo^-a, then received the name of
Sarmada, and was divided into the European
and Asiatic Sarmatia ; the former coiitained the
country between the Vistula and the Tanais or
Don, the latter extended from the Tanais to the
Volga.

"■ I. 4, Of the countries on the north of the
Baltic, Herodotus seems to h.ave known nothing ;
to the Romans they were known by the name of
Scafidinavia.

I. J. The tribes who occupied tlie country

D D

m THE FEUDAL LAW.

between the Baltic and the Danube, the Rhine,
and the Vistula, were equally unknown to He-
rodotus ; to the Romans they were known by
the name of Germans.

\. 6. At a very early period, a division of Scy-
thians had advanced to the eastern shore of the
central part of Asia, and established themselves
in the present country of the Mongous : by the
Chinese writers, they are called Hiongnous, by
the Romans, to whom they were long- unknown^
they are called Hans.

\. 7. At a later period several tribes of these
nations spread themselves over different territo-
ries, in the European and Asiatic parts of Mo-
dern Russia, and over Bohemia, Poland, Servia,
Bosnia, Croatia and Slavonia : by the historians
of the fall of the Roman empire, they are called
Slavi or Slavones."

" Major RenneVs Geosrraphical System of Hero-
dotus, Lond. 4to. 1803; D' Anville, Etats formts
en Europe aprcs la chute de Vempire Romain,
4to. Paris, mi; and Ids Geographie ancienne
abregee, Paris, 3 vol. 8vo. 176S. Cellarius,
Geographia Antigua, Leipsice, 2 vol. 4to. 1758;
— Observations Historiqnes et Geographiqties
sur les peuples barbares qui ont habile les bords
du Danube (Sf du Pont Euxin. Par M. de Peys-
sonneJi Paris, Ato. 1765. Modern Universal
History, vol. 4, p. 313 — 379, and Mr. Pinkertons

THE FEUDAL LAW. S3

THE GRADUAL EXTENSION AND
DATES OF THE PRINCIPAL CON.
QUESTS MADE BY THESE NATIONS
next come under consideration.

In the reign of Augustus they were powerful
enemies to the Romans ; they had not, however,

Dissertation on the Origin and Progress of the
Scythians or Goths, Svo. 17S7. Some of his
facts, arguments or conclusions, may be denied,
but neither his learning nor his ingenuity can
be disputed. — There is not, perhaps, in geogra-
phy, a Avord, which denotes so large a surface of
the globe as Slavonia, in its largest sense; or
which, as it is variously applied, denotes so
many portions of general territory. 1. In its
least extensive sense, it denotes the modern Sla-
vonia, or the country between Croatia and Bel-
grade, bounded by the Drave and the Danube
on the north, and the Save on the south : 2. In
a more extensive sense, it denotes the country
betw^een the Hadriatic and the Danube, and the
countries between the A^istula, the Carpathian
mountains, the Nieper and the Black sea,- 3. In
a more extensive sense, it extends to the Irtish :
4. That seems the utmost boundary on the east,
which can justly be assigned to it, but some au-r
thors suppose the whole northern front of Asia
is filled by Sclavonic tribes.

D D 2

84 THE FEUDAL LAW.

made any impression on their territory, when
Tacitus wrote ; but he pronounced them, " more
*' formidable enemies than the Samnites, Car-
" thaginians, or Parthians." He seems to inti-
mate an apprehension, that the preservation of
the Roman empire depended on the quarrels of
the Barbarians among themselves. " The Bruc-
" tori," these are his remarkable expressions,
" were totally extirpated by the neighbouring
" tribes, provoked by their insolence, allured by
" their hopes of spoil, and perhaps inspired by
*•' the tutelar deities of the empire. Above sixty
" thousand Barbarians were destroyed : not by
" the Roman arms, but in our sight ; and for our
" entertainment. May the nations, enemies of
*' Rome, ever preserve this enmity to each other !
" We have now attained the utmost verge of
" prosperity, and have nothing left to demand of
" fortune, except the discord of the Barbarians."
In the reign of Marcus Antoninus, all the na-
tions of Germany and Sarmatia, entered into a
league against the Romans ; he dissipated it. —
In less than a century the Germans invaded the
empire in every part of its territory, on the Rhine
and the Danube.

■ Of all the tribes, who invaded the empire, the
Goths are the most remarkable. The universal
tradition of the nations of the north, and the
universal language of their ancient writers, place

THE FEUDAL LAW. 85

ihe Goths, as early as general history reaches,
among the nations on the Baltic, and assigns the
denomination of Visigoths or western Goths, to
those tribes of them, which inhabited that part
of Scandinavia whidi borders on Denmark, and
the denomination of Ostrogoths or eastern Goths,
to those, which inhabited the more eastern parts
of the Baltic. In all their emigrations and settle-
ments, they preserved their names, and the same
relative situation. Towards the end of the first
century of the Christian aera, a large establish-
ment of them is found on the Vistula, and nu-
merous tribes of the same origin, but known by
the appellation of Vandals, are found on the
Oder. — History then shews their emigrations to
the Euxine, the settlements of the Ostrogoths in
the southern parts of Asia Minor, and the settle-
ments of the Visigoths in Thrace. At the battle
of Adrianople, the Goths obtained over the em^
peror Valens, a victory, from which the empire
of the west never recovered.

The irruptions of the northern nations, which
ended in their permanent settlements in the
territories of the Roman empire, may be traced
to the final division of the empire between Ar-
cadius and Honorius, the sons of Theodosius
the great, in 39.'3. The empire of the east, com_
prising Thrace, Macedonia, Greece, Dacia, Asia
Alinor, Syria, and yEgypt, v/as assigned to the

86 THE FEUDAL LAW.

former ; the empire of the west, comprising J^f'.^'
Italy, Africa, Gaul, Spain, Noricum, Pan-
nonia, Dalmatia, and Moesia, was assigned

to the latter 395

In the year 406, the Vandals, Siievi, and
Alani, who inhabited the comitries bor- 406
dering on the Baltic, made an irruption into
Gaul ; from Gaul they advanced into St>ain,
about the year 415; they were driven from
Spain by the Visigoths, and invaded Africa,
where they formed a kingdom. . . . . 415

About the year 4:3 1 , the Franks, Ale-
manni and Burgundians penetrated into
Gaul. Of these nations, the Franks be-
came the most powerful, and having either
subdued or expelled the others, made them-
selves masters of the whole of those exten-
sive provinces, which from them, received
the name of France. . » 431

Pannonia and Illyricum, were conquered
by the Huns : Rhoetia, Noricum, and Vin-
delicia, by the Ostrogoths ; and these were
some time afterwards conquered by the
Franks.

In 449, the Saxons invaded Great Bri- 449
tain. The Herulians marched into Italy,
under the command of their King Odoacer ;
and in 476 overturned the empire of the
west . 476

THE FEUDAL LAW. 87

From Italy, in 493, they were expelled ^^JJ^J^
by the Ostrogoths 493

About the year 56S, the Lombards, is-
suing from the INIarck of Brandenburgh in-
vaded the Higher Italy, and founded an
empire, called the kingdom of the Lom-
bards. After this, little remained in Eu-
rope of the Roman empire, besides the
Middle and Inferior Italy. These, from
the time of the emperor Justinian's con-
quest of Italy by the arms of Belisarius
and N arses, belonged to the emperor of
the east, who governed them by an Exarch,
whose residence was fixed at Ravenna, and
by some subordinate officei-s, called Dukes. 66S

In 7«52, the Exarchate of Ravenna, and
all the remaining possessions of the Em-
peror in Italy, were conquered by the Lom-
bards. This, as it was the final extinction
of the Roman empire in Europe, was the
€ompletion, in that quarter of the globe,
of those conquests which established the
law of the feud 752

The nations by whom these conquests
were made, came, it is evident, from dif-
ferent countries, at different periods, spoke
different lanouaoes, and were under the
command of separate leaders ; yet appear
to have established, in almost everv state,

88 THE FEUDAL LAW.

where their pohty prevailed, nearly the same sys-
tem of law. This system is known by the ap-»
pellation of the Feudal Law. — Modern researches
have shown that something very like feudalism
has immemorially prevailed in India.

The principal written documents, which are
the sources from which the learning of foreign
feuds is derived, may be divided into Codes of
Laws, Capitularies, and Collections of Customs.

With respect to FEUDAL LEARNING in

general, it was long after the first revival of let*-
ters in Europe, that the learned engaged in the
study of the laws or antiquities of modern na-
tions. When their curiosity was first directed
to them, the barbarous style in which they ai'e
written, and the rough and inartificial state of
manners they represent, were so shocking to
their classical prejudices, that tiiey appear to have
turned from them with disgust and contempt.
In time, however, they became sensible of their
importance. They were led to the study of them,
by those treatises on the feudal laws, which are
generally printed at the end of the Justinianean
Collection, These are of Lombard extraction,
and naturally gave rise to the opinion, that fiefs

THE FEUDAL LAW. 89

appeared first in Italy, and were introduced by
the Lombards. From Italy, the study of juris-
prudence was exported into Germany ; and this
opinion accompanied it thither. At first, it ap-
pears to have universally prevailed : but, when a
more extensive knowledge of the antiquities of
the German empire was obtained, there ap-
peared reason to call it in question. Many
thought the claims of other nations, to the honour
of having introduced the feudal polity, were
better founded : some ascribed them to the
Franks ; others, denying the exclusive claim of
any particular nation, ascribed them to the Ger-
man tribes in general, and asserted, that the out-
line of the law of feuds is clearly discoverable in
the habits, manners, and laws of those nations,
while still inhabitants of the Llercy nian wood. The
time, when feuds first made their appearance, has
equally been a subject of controversy. The word
itself is not to be found in any public document
of authenticity beforethe eleventh century.

III.— 1.

The most ancient, and one of the most im-
portant, CODES OF LAW, in use among the
feudal nations, is the Saiic Law. It is thought
to derive its appellation from the Salians, who in-
habited the country from the Leserto the C arbor-

90 THE FEUDAL LAW.

narian wood, on the confines of Brabant and
Hainaiilt. It was probably written in the Latin
language, about the beginning of the fifth cen-
tury, by Wisogastus, Bodogastus, Salogastus and
Windogastus, the chiefs of the nation. It re-
ceived considerable additions from Clovis, Chil-
debert, Clotaire, Charlemagne, and Lewis the De-
bonnaire. There are two editions of it : they
differ so considerably, that they have been some-
times treated as distinct codes.

2. The Franks, who occupied the country upon
the Rhine, the Meuse, and the Scheldt, were
known by the name of the Ripuarians, and were
governed by a collection of laws, which from them
was called the Ripuarian Law. They seem to
have been first promulgated by Theodoric, and
to have been augmented by Dagobert. The
punishments inflicted by the Ripuarian are more
severe than the punishments inflicted by the Salic
law ; and the Ripuarian law mentions the trial
by judgment of God, and by duel.

Theodoric also appears to have first promulgated
the law of the Alemanni., a people, who came
originally from the country, near the sources of
the Danube; and who, some time before the
reign of the emperor Caracalla, incorporated them-
selves with the Suevi of Tacitus. They were
joined by other German tribes, and from their
union, the general body of them acquired the

THE FEUDAL LAW. 91

appellation of Alemanni, from two Teutonic
words, Al, and mann, which signify, a multitude
of persons. The country inhabited by them
was called iVlemannia. A supposed line from
Spires to Ratisbon divided it from the Francia
Orientalis, on the north ; it was bounded by the
Riiine, on the west, by the Lech on the east, and
by the country between Basle, and the sources of
Lech, on the east. It nearly corresponded with
the Roman Alemannia, and the modern Circle
of Suabia.

3. The law of the Burgimdians is supposed to
have been promulgated about the beginning of the
fifth century ; that nation occupied the country
which extends itself from Alsace to the Mediter-
ranean, between the Rhone, and the Alps.
This was the most flourishing of the Gallic pro-
vinces invaded by the Germans ; they established
themselves in it, with the consent of the emperor
Honorius. An alliance subsisted a considerable
time, between them and the Romans ; and some
parts of their law appear to be taken from the
Roman law.

4. One of the most ancient of the German
codes is that by which the Angliones and the fVe-
rini were governed. The territories of these na-
tions were contiguous to those of the Saxons ; and
the Angliones are generally supposed to be the

92 THE FEUDAL LAW.

nation known in our history by the name of*
Angles.

A considerable portion of the Law of ike
Saxons has reached us.

The Goths also had their laws, which ^vere
promulgated by the Ostrogoths in Italy ; by the
Visigoths in Spain.

5. The Goths were dispossed of their conquests
in Italy by the Lombards. No ancient code of
law is more famous than the law of the Lombards ;
none discovers more evident traces of the feudal
polity. It survived the destruction of that em-
pire by Charlemagne, and is said to be in force
even now, in some cities of Italy.

These were the principal laws, which the fo-
reign nations, from whom the modern govern-
ments of Europe date their origin, first established
in the countries, in which they formed their re-
spective settlements. Some degree of analogy
may be discovered between them and the general
customs, which, from the accounts of Ceesar and
Tacitus, we learn to have prevailed among them,
in their supposed aboriginal state. A considera-
ble part also of them is evidently borrowed from
the Roman law, by which, in this instance, we
must understand the Theodosian code. This
was the more natural, as, notwithstanding the
publication of the Ripuarian and Salic codes, the
Roman subjects in Gaul were indulged in the

THE FEUDAL LAW. 93

tree use of the Theodosian laws, especially in
the cases of marriage, inheritance, and other im-
portant transactions of private life. In their esta-r
blishments of magistrates and civil tribunals, an
imitation of the Roman polity is discoverable
among the Franks ; and, for a considerable time
after their first conquests, frequent instances are
to be found, in their history, of a deference,
and, in some instances, even of an acknowledg-
ment of territorial submission to the emperors of
Rome.

III. 2.

In the course of time, all these laws were, in
some measure at least, superseded by the CA-
PITULARIES. The word Capitulary is gene-
ric ; and denotes every kind of literary compo-
sition, divided into chapters. — Laws of this de-
scription were promulgated by Childebert, Clo-
taire, Carloman, and Pepin : but no sovereign
seems to have promulgated so many of them as
Charlemagne. That monarch appears to have
wished to effect, in a certain degree, an uniformity
of law throughout his extensive dominions.
With this view, it is supposed, he added many
laws, divided into small chapters or heads, to the
existing codes, sometimes to explain, sometimes
to amend, and sometimes to reconcile or remove
the difference betw^een them. They were gene-

94 THE FEUDAL LAW.

rally promulgated, in public assemblies, com-
posed of the sovereign and the chief men of the
nations, as well ecclesiastics as secular. They
regulated, equally, the spiritual and temporal
administration of the kingdom. The execution
of them was intrusted to the bishops, the counts,
and the missi regii. Many copies of them were
made, one of which was generally preserved in
the royal archives. The authority of the Capitu-
laries was very extensive ; it prevailed in every
kingdom, under the dominion of the Francs, and
was submitted to in many parts of Italy and Ger-
many.

The earliest collection of the Capitularies is
that of Angesise, abbot of Fontenelles, It was
adopted by Lewis the Debonnaire and Charles the
Bald, and was publicly approved of, in many
councils of France and Germany. But, as Ange-
sise had omitted many Capitularies in his collec-
tion, Benedict, the Levite or Deacon of the
church of Mentz, added three books to them.
Each of the collections was considered to be au-
thentic, and of course appealed to as law. Sub-
sequent additions have been made to them. The
best edition of them is that of Baluze in 1697:
a splendid republication of this edition was begun
by M. de Chiniac in 1780; he intended to com-
prise it in four volumes. Two oiily have yet made
their appearance.

THE FEUDAL LAW. 95

In the collection of ancient laws, the capitu-
laries are generally followed by the Formularia,
or forms of forensic proceedings and legal instru-
ments. Of these, the formulare of Marculphus
is the most curious. The formularia generally
close the collections of ancient laws. With the
Merovingian race, the Salic, Burgundian and
Visigothic laws expired. The capitularies re-
mained in force in Italy longer than in Germany ;
and in France, longer than in Italy. The incur-
sions of the Normans, the intestine confusion and
weakness of government under the successors of
Charlemagne, and, above all, the publication of
the Decretum of Gratian, which totally super-
seded them in all religious concerns, put an end
to their authority in France.

III. 3.

They were in some measure succeeded by the
CUSTOMARY LAW.

1. It is not to be supposed, that the codes of
law, of which we have been speaking, entirely
abrosfated the usasfes or customs of the countries
in which they were promulgated. Those laws
only were abrogated by them, which were abro-
gated by the regulations they established. In
other respects, the codes not only permitted, but,
in some instances, expressly directed, that the
Ancient Customs should remain in force. Thus.

96 THE FEUDAL LAW.

in all the countries governed by the ancient codes.
there existed at the same time, a written body of
law, sanctioned by public authority, and usages
or customs, admitted to be of public authority, by
which those cases were frequently governed, for
which the written body of law contained no pro-
vision. After the ancient codes and capitularies
fell into desuetude, these customs were multiplied.
2. By degrees Written Collections of them
■were made by -public authority; others, by indi-
viduals, and depended theretbre, for their weight,
on the private authority of the individuals, by
whom they were made, and the authority ^\hich
they insensibly obtained in the courts of justice.

Collections of this nature committed to writing
by public authority form a considerable part of the
law of France, and are a striking feature of the
jurisprudence of that kingdom. The origin of
them may be traced to the beginning of the Ca-
petian race. The monarchs of that time, in the
charters by which they granted fiefs, prescribed
the terms upon which they were to be held.
These, they often abridged, enlarged and ex-
plained, by subsequent charters : they also pub-
lished charters of a more extensive nature. Some
of them contained regulations for their own do-
main ; others contained general regulations for the
kingdom at large. In imitation of their monarch,
(he great vassals of the crown granted their char-

THE FEUDAL LAW. 97

ters for the regulation of the possessions held of
them. In the same manner, when allodial land
was changed to feudal, charters were granted for
the regulation of the fiefs : and, when villeins
were enfranchised, possessions were generally
given them, and charters were granted to regulate
these possessions. Thus, each seignory had its
particular usages. Such was their diversity, that
throughout the whole kingdom, there could hardly
be found two seignories, which were governed,
in every point, by the same law.

3. With a view more to ascertain than to pro-
duce an uniformity in these usages, though the
latter of these objects was not quite neglected,
Charles the Seventh and his successors caused to
be reduced to writing the different local customs.
In 1453, sometime after Charles the Seventh had
expelled the English from France, he published
an ordonnance, by which he directed that all the
customs and ordonnances should be committed
to writing, and verified by the practitioners of each
place, then examined and sanctioned by the great
council and parliament ; and that the customs,
thus sanctioned, and those only, should have the
force of laws. Such were the obstacl(?s in the
way of this measure, that fortj^-tvvo years elapsed
before the customs of any one place were verified.
From that time, the measure lingered, but it
wasresimied in the reign of Lewis XII, and about
» P

Vn tliE FEUDAL LAW.

the year 1609, was completed. The customs of
Paris, Orleans, Normandy, and some other
places, were afterwards reformed. Those of
Artois and St. Omer were reformed within the
last hundred years.

The manner of proceeding, both in reducing
the customs and reforming them, was, generally
speaking, as follows^ The king, by his letters
patent, ordered an assembly of the three states
of eacJi province. When this assembly met, it
directed the royal judges, greffiers, maires, and
syndicSj to prepare memoirs of all the customs,
usages, and forms of practice, they had seen in
use, from of old. On receiving these memoirs,
the states chose a certain number of notables,
and referred the memoirs to them^ with direc-
tions to put them in order, and to frame a cahier
or short minute of their contents* This was read
at the assembly of the states ; and it was there
- considered whether the customs wert such as they
were stated to be in the cahier; — at each article,
any deputy of the state was at liberty to men-
tion such observations as occurred to him ;— the
' articles were then adopted, rejected, or modified,
' at the pleasure of the assembly, and, if they wei^e
sanctiont^d, were taken to parliament and regis-
tered. The customs of each place, thus reduced
to writing and sanctioned, were called the Coutu-
mier of that place :— -they were formed into one

THE FEUDAL LAW. m

collection^ called the Coutumier de France, or
the Grand Coutumier. The best edition of it is
Richebourgh's, in four volumes, in foho. It
contains about one hundred collections of the
customs of provinces, and tvv^o hundred collec-
tions of the customs of cities, towns, or villages.
Each coutumier has been the subject of a com-
mentary : five and twenty commentaries, (some
of them voluminous), have appeared on the cou-
tumier of Paris. Of these commentaries, that
of Dumoulin has the greatest celebrity, Les
Etahlissements de St. Louis^ hold a high rank
for the wisdom with which they are written, and
the curious matter they contain. The Coutumier
de Normandie^ for its high antiquity, and the re-
lation it bears to the feudal jurisprudence of Eng-
land, is particularly interesting to an English
reader : Basnage's edition, and his learned com-
mentary upon it, are well known.

4. These are the principal sources of the Feu-
dal Jurisprudence of France ; it remains to take
some notice of the chief compilations, by whicfi
the feudal policy of other kingdoms is regulated.
The most curious of all collections of feudal law
is that entitled Assizes de Jerusalem. In 1099,
the object of the fu'st crusade was effected by the
conquest of Jerusalem. Godfrey of Bouillon,
who was elected king of Jerusalem, but refused
the title, called an assembly of the states of his

E E 2

im THE FEltDAL LAW.

new kingdom. The patriarch, the chief lords,
their vassals, and their arriere-vassals attended.
With general consent, the collection in question
was formed, under the title of " Les Loix^ Sta-
*' tuts, 6f Coulumes, accordees au Royaume de
" Jerusalem, par Godefroi de Bouillon, Van
'' 1099 ; par Vavis dti Patriarche et des Barons'^
As this collection was made at a general assem-
bly of feudal lords, it may naturally be supposed
to contain some of the wisest and most striking
rules, by which the feudal polity of Europe was
then regulated. But, as the principal personages
who engaged in that crusade came from France,
it may be considered as particularly descriptive of
the laws and usages of that country.

6. The next to these, in importance, are the
Books of Fiefs, which, probably in the reign of
Frederick the Second, Hugolinus, a Bononian
lawyer, compiled from the writings of Obertus
of Otto, and Gerhardus Niger, and the various
customary laws then prevailing in Italy ; they
are sometimes added, under the title Decima
Collatio, to the Novells ; and are to be found in
most of the editions of the Corpus Juris Civilis*
In the edition of Cujas they consist of five
books ; the first, contains the treatises of Ger-
hardus Niger ; the second and third, those of
Obertus of Otto ; the fourth, is a selection from
various authors ; the fifth, is a collection of con-

THE FEUDAL LAW. loi

stitutions of different emperors respecting feuds.
To these, the Golden Bull of the emperor Charles
the Fourth is often added. Authors are by no
means agreed, either as to the order, or the divi-
sion of this collection. Several editions have
been made of it.

6. In that published by Joannes Calvinus or
Calvus, at Frankfort, in 1611, there is a collec-
tion of every passage in the canon law, (hat seems
to relate to the law of fends. As this edition is
scarce, and it may happen, that some English
reader may be desirous of seeing all these pas-
sages, the following short account of Calvinus or
Calvus's selection of them, is transcribed from
Hoffman's Disscrtatio de Unico Juris Feudalis
Longobardici Libro. — " Jurisprudentiam feuda-
" lem, sex libris comprehensam, sive potius
" consuetudines feudorum, secundum distribu^
*' tionem Ciijacianam, edidit, et sub titulo libri
" feudorum VL addidit, quidquid alicujus de
*^ hac materia momenti, in universo corpore ju-
*' ris canonici expressum invenerat ; hoc est to-
" tum titulum decretahum Gregorii IX, sive ca-
'* pitula, Insinuatione 1. Et ex parte tua 2. X.
" de feudis porro cap. caeterum, 5. et novit ; 13
*' de Judiciis, cap. Quae in Ecclesiarum, 7 de
'•' Constitutionibus, cap. Ad dures, 10 in qui-
*' busdam, 12 et Gravem, 63 de Sent, excomm,

102 THE FEUDAL LAW.

''' cap. Ex transmissa, 6 et veniiTi, 7 de foro
" coiT^petente eorumque summaria."

7- The next treatise to be mentioned is, the
Treatise de Benejiciis, generally cited under the
appellation of Aucior letus de Betic/iciis, It
was first published by Thomasius at Halle, 1708,
with a dissertation on its author, and the time
when it was written. He considers it to be cer-
tain that it was written after the year 800, and
before the year 1250, and conjectures that it was
not written before the emperor Otho, and that it
was written before the emperor Conrad the Se-
cond. To these must be added the Jus Feudale
Saxonicum^ which seems to be a part of, or an
appendix to, a treatise of great celebrity in Ger-
many, intitied the Speculum Saxonicum. The
Jus Feudale Saxonicum^ is said by Struvius to
have been translated by Goldastus from the Ger-
man into the Latin language, for the benefit of
the Poles. It is supposed to have been published
between the year 1215, and the year 12j0. The
Speculum Suevicum seems to have been com-
posed, in imitation of the Speculum Saxonicum,
probably between the year 1250 and the year
1400. To this is added the Jus Feudale Alema-
nicum, composed about the same time, and pro-
bably by the same author. But none of these
collections acquired the same authority as the

THE FEUDAL LAW/ lOS:

Books of the Fiefs. Those were known by the
name of the Lombard Law ; by degrees they
were admitted as authority by most of the courts,
and taught in most of the academies of Italy and
Germany.

8. Like the civil and canon law, they became
the subject of innumerable Glosses. Those of Co-
lumbinus were so much esteemed, that no one,
it is said, published any after him. About the
end of the thirteenth century, James of Arde-
zene published a new edition of the gloss of
Columbinus, and added, under the title of Ca-
pitula Extraordinaria, a collection of adjudged
cases on feudal matters. This is inserted in some
of the latter editions of the Corpus Juris. About
the year 1430, Mincuccius de Prato veteri, a
Bononian lawj^er, by the orders of the emperor
Sigismond gave a new edition of the books of
the fiefs, with the gloss of Columbinus. These
were confirmed by the emperor Sigismond, and
afterwards by the emperor Frederick the Third,
and publicly taught in the university of Bologna. "^

•* This article is extracted from the Ristoria Ju-
ris Romano-Germanici of Brunquellus ; the
Historia Juris Cicills Romarn et Gennanici of
Heineccius, alreadt/ cited ; from Lindenhrogius's
Prolegomena to his Codex Leg/nn Anliquaruni^
Frankforti, 1 vol. fol. 1613; Baluzius's Pre-
face to his Capitularia Rcgum Francorum, 1677

104 THE FEUDAL LAW.

ani 17S0; the Thesaurus Feudalis of Jenichen,
published at Frankfurt on the Main^ 3 vol. Ato.
■ 17o0; Struv'ius^s Bistoria Juris, Jencc, Ato.
1728 ; Selecta Feudalia of Thomasius, HaVle^
Sto. 1728 ; Fleury^s Histoire du Droit Fraugais,
PariSy 2 vols. Siw. generally prefixed to the lu'
stitution au Droit Frarigais d" Argau ; and the
article, Coutu7ne, sent by M. Henrion to th^
t French Encyclopedia,

105

THE CANON LAW.

J HE following sheets, after some introductory
matter respecting, I. the religious worship and
hierarchy of Pagan Rome ; II. respecting the rise
and progress of Christianity, from its being the
most persecuted sect, to its becoming the esta-
blished church of the Roman empire; and III.
respecting the principal orders of the Christian
hierarchy; will contain, IV. a mention of the
general materials, and V. an historical account
of the particular documents, of which the CA-
NON Law is composed.

I. 1. It seems generally understood that the-
ANCIENT RELIGION OF ROME was of

Celtic extraction, without images, without temples,
and with few religious rites ; that Numa esta-
blished many ceremonies, and built a temple for
sacrifices to the one eternal God ; that, in other
respects, he left the religion of Rome in its ori-

106 THE CANON LAW.

ginal simplicity ; and that Tarquinus Priscus in-
troduced into it the superstitions of the Greeks
and Hetruscans.

I. 2. THE GODS, whom the Romans wor-
shipped, were divided into the Dii Majorum
Gentiinn, or the great coelestial deities, with the
Dii Selecli, and the Dii Minorum Ge?itium, or
the inferior gods. The coelestial deities were
twelve in number: Jupiter, the king of gods and
men ; Juno, his sister and wife ; Minerva, the
goddess of wisdom ; Vesta, the goddess of fire ;
Ceres, the goddess of corn and husbandry ; Nep-
tune, the god of the sea ; Venus, the goddess of
love and beauty ; Vulcan, the god of fire ; Mars,
the god of war ; Mercury, the god of eloquence
and trade ; Apollo, the god of music, poetry,
medicine and augury ; and Diana, the goddess of
the woods. The Dii Selecti were Saturn, the
god of time ; Janus, the god of the year, and
Rhea his wife ; Pluto, the king of the infernal
regions ; Bacchus, the god of wine ; Sol, the
sun ; Luna the moon ; and Genius, each man
and each place's tutelary god. The Dii Mino-
rum Gentium were the Dii Indigetes, or heroes
ranked among the gods on account of their heroic
virtues, as Hercules, Castor and Pollux, ^Eneas
and Romulus ; the Dii Semones, or Semihomi-
nes, less than gods and greater than men, as Pan,
Pomona, Flora, Terminus, the Nymphs.

THE CANON LAW. lOT

I. 3. To the service of these gods several col'
leges of priests were dedicated : — Fifteen Pon-
tiffs, whose office it was to judge and determine
on all sacred things ; fifteen Augurs who, from
the flight, chirping or feeding of birds, and fif-
teen Aruspices who, from the entrails of victims,
derived omens of futurity ; the Quindecemviri,
^vho had the care of the Sibylline books ; the
Septemviri, who prepared the sacred feasts ; the
Fratres Ambarvales, who offered up sacrifices for
the fertility of the grounds ; the Curiones, who
officiated in the Curiae ; the Feciales, or sacred
persons employed in declaring war and making
peace ; the Sodales Titii, whose office it was to
preserve the sacred rites of the Sabines ; and the
Rex Sacrorum, to whom that title was given
from his performing certain sacred rites, which
could only be performed by royal hands.

In addition to these, each god had his Flamines,
or particular priests. The six vestal virgins had
the care of the sacred fire in the temple of Vesta,
and the secret pledges of the eternal duration of
Rome were intrusted to them. Every part of
the empire abounded with temples and statues,
and in every temple and statue a divine some-
thing was supposed to reside.

When we consider the general absurdity of
the pagan creed, we find it difficult to suppose,
that any rational mind could seriously beUeve its

108 THE CANON LAW.

doctrines, or that it should become the national
rehgion of a great and sensible people. Those
doubts increase on us, when we see how often
the religious prejudices of the Romans were
used by the leading men of Rome, as an engine
for political purposes ; when we consider the
ridicule with which the less and even the greater
deities were treated by their poets, philosophers,
and historians ; and when we read the passages
in the works of Cicero and other writers, in
which, often indirectly, and sometimes in the
most direct terms, they deliver it as their opinion,
that, in religion there are many truths, which it
is not expedient the vulgar should know ; and
many falsehoods, which it is useful for the people
to receive as truths. But their is reason to be-
lieve, that till the Greek philosophy found its
way into Rome, the general body of the Ro-
mans was sincere in the worship of their gods ;
and that, even after the introduction of the Greek
philosophy, the number of those who gave up
the whole of the national creed was very small,
A freedom, even from the lowest kind of super-
stition, is often mentioned by their writers as a
great effort of the human mind : and the writings
of Cicero demonstratively prove, that those who
rejected the popular superstition, had no settled
system of religious belief to substitute in its
place. The total extirpation of pagan supersti-

THE CANON LAW. 109

tion, which pagan philosophy could not effect, it
is the triumph of Christianity to have accom-
plished ; and to have introduced at the same
time, a simple and sublime religion, accommodated
to all persons, all times, and all circumstances,
on which the weak and the strong may equally
rely."

• Beaufort, Rep. Rom. 1. 1. Adams's Roman An-
tiquities, 281 — 303.

II.

By the law of Athens, the act of introducing
foreign deities was punished witli death. The
law of Rome was not so severe : Mosheim and
Bynkershoek seem to prove, that though the
Romans would not allow any change to be made
in the religions which were publicly professed in
the empire, nor any new form of worship to be
openly introduced, yet that, except when it
threatened danger to the state, they granted a
FREE TOLERATION OF FOREIGN
WORSHIP, not only to individuals but to bo-
dies of men.

The Christians, whose mild, unassuming, and
benevolent morality entitled them to universal
good will, were alone denied the benefit of this
general toleration. From the reign of Nero, till

110 THE Cx\NON LAW.

the triumph of Constantine the Great over his
rival Licinius, they were always treated with
harshness, and repeatedly suffered the severest
persecutions.

The favour of Constantine to them was, imme-
diately after his first successes, shown by his re-
pealing of the laws enacted against them. By
the edict of Milan he restored them to all their
civil and religious rights, and allowed them, in
common with the rest of his subjects, the free
choice and exercise of their religion. In the ge-
neral dispensation of his favours, he held, with
an impartial hand, the balance between his
christian and heathen subjects. His successors,
except during the short interval of Julian's reign,
strongly encouraged Christianity and discounte-
nanced heathenism ; and finally, by the edicts of
Theodosius, the ancient worship of Rome was
proscribed, and Christianity became the established
religion of the empire. Till those edicts, the
spirit of polytheism, had lingered among the
principal nobility of Rome ; after them, it lin-
gered among the Grecian philosophers : but by
his edict in 529, Justinian silenced the schools of
Athens ; and to that aera, the final extinction of
Paganism is always assigned.?

•• Francis Balduinus, Commentarins ad edicfa Jm^
peratonim in Christianos, Edit. Gudling; Byn'

THE CANON LAW. Ill

III.

•In respect to the CHRISTIAN HIER-
ARCHY, the Roman empire, at the time when
Christianity obtained in it a legal establishment,
under Constantine the great, had reached its ut-
most limits. It was divided into four Prsefec-
tures : the Eastern, which comprised the country
between Thrace and Persia, the Caucasus and the
Cataracts of the Nile ; the Praefecture of Illyri-
cura, which comprised Pannonia, Dacia, Mace-
donia, and Greece ; the Praefecture of Italy,
which comprised Italy, Rhoetia, the Islands of
the Mediterranean, and the part of Africa from
the westernmost mouth of the Nile to Tingitana ;
and the Prefecture of the Gauls, which comprised
Spain, Britain, and the part of Africa from Tin-
gitana to the western ocean. Each praefecture
was divided into several dioceses ; each diocese

kcrshoek, Dissertatio de Cidlu Peregrina Reli"
gionis apud Romanos, in Opusculis, Lngd. Bat,
17U). Mosheim, da Rchns Christianoruvi ante
Constantinum Magnum, Commentarii, Eelmsta^
dii, 4to. 1753, c. 1. sect. 8: Seculum primum,
27 — 32. In his Six Letters on Intolerance,
London, 1791, Sir Geo. Colehroolce has collected
many curious facts to show, that the religious
toleration of the Ptomans was by no means so
perfect as is generally thought

'11» THE CANON LAW.

into several provinces ; and in each province there
Was one, and sometimes more than one mother-
town, on which other towns depended. The
dioceses were thirteen in number, the provinces
one hundred and twenty.

In the estabhshment of her hierarchy, the
Christian church, particularly in the east, appears
to have conformed very much to this model.
Before the translation of the seat of the Roman
empire to Constantinople, the church had the
three Patriarchates of Rome, Antioch, and iVlex-
iandria ; after its translation, the bishops of Con-
stantinople acquired importance; by degrees they
obtained ecclesiastical jurisdiction over Thrace,
Asia, and Pontus, and were elevated to the rank
of patriarch : afterwards, the same rank was con-
ferred on the bishop of Jerusalem : and, accord-
ing to Mr. Gibbon's observation, (vol. vi. p. 378),
the Roman bishop was always respected as the
first of the five patriarchs. Thus, speaking ge-
nerally, the patriarchs corresponded in rank with
the prefects ; in each diocese there was a primate ;
in each province, one or more than one metropo-
litan ; and each metropolitan had under him a
certain number of suffragan bishops. Regular
funds, proportioned to their respective ranks,
were appropriated for their support, except in
cases of singular enormity they were exempted
from the civil jurisdiction of the magistrate ; and,

THE CANON LAW. 113

in many other important articles a distinction be-
tween the clergy and the laity, wholly unknown
in the law of heathen Rome, was admitted into
the Codes of the Christian emperors.**

IV.

The liberty of holding ecclesiastical assemblies
was one of the most important privileges of the
dignified members of the clergy. Occasional
assemblies were convened of all the bishops in
the Christian world, or of all the bishops within
the limits of a patriarchate : and, generally in the
spring and autumn of every year, the metropolitan
convened the bishops of his province to debate on
its religious concerns. From Concilium, which,
among the Romans, denoted a select meeting in
contradistinction to Comitia, which they used to
denote general meetings, these assemblies received,
in the Latin church, the appellation of councils ;

*i Frederici Spanhemii, Geographia Sacra, Distrihu-
tio DiiBceseon et Provincianim, inde a Tempori'
bus Constantini Magni in orbe vtroque, onentali
et occidentali ; inter Opera Omniay Lugduni
Batavorum, fol. 1 vol. 75 — 204 ; Bingham's
Antiquities of the Christian Church, London,
1726, fol. 2 vol. lib. 9; Du Pin, de Antiqua
Ecclesice Disciplina, Par. 1686 ; Petrus de la
Marca, Concordia Sacerdotii atque Imperii, fob
PariSy 1704.

F r

114 THE CANON LAW.

in the Greek church they were called synods ; at
a subsequent time, the word council still retaining
its original import, the word synod was used, in
the Latin church, to denote the assembly of a
bishop and his clergy* The Scripture is the first,
the decrees of the councils are the second source,
from which THE MATERIALS OF THE
CANON LAW are drawn. The decrees and
decretals of the popes are the third ; the works of
the fathers and other respectable writers are the
fourth. By the decrees of the popes are meant
their decrees in the councils held by them in
Italy ; the decretals are their answers to questions
proposed to them on religious subjects.

Those, who profess to give an HISTORI-
CAL ACCOUNT OF THE CANON
LAW, divide it into three periods : the ancient,
the middle, and the modern : — the ancient, be-
gins with the first, and ends with the eighth cen-
tury, when Isidore Mercator's collection of ca-
nons made its appearance ; the middle, begins
with that century, and ends with the council of
Pisa, in 1409; the modern, begins with that
council, and extends to the present time.

V. I.
The ANCIENT PART OF THE HIS-

THE CANON LAW. 115

TORY OF THE CANON LAW is remark-
able for several Collections of Canons.

1. Some are CANONS OF THE GENE-
RAL CHURCH.

The first collection of these canons is called
the Apostolic Cations. They have been ascribed
to the apostles ; and it has been said, that St. Cle-
ment, the immediate successor of St. Peter, w^as
the collector of them. If the apostles had really
promulgated them, it is difficult to assign a reason
for their not having been admitted to a place in
the writings which form the New Testament ;
but, of the ancient fathers, St. John Damascene
alone has done them that honour. From their
being omitted in the canon of the New Testa-
ment^ from the universal silence of the fathers of
the three first ages respecting them, from the
mention in them of many offices and customs,
which there is every reason to suppose of a later
origin, from no appeals having been made to them
in the controversies which arose in times subse-
quent to them, and on which their language is
decisive, and from no mention having been made
of them in the synod held at Rome in 496, which
mentions all the writings of the Old and New
Testament, they are now considered to have been
fabricated. BishopBeveridge, who has published
them with learned notes, supposes they were
framed under the sanction of bishops, who held

F F 9

116 THE CANON LAW.

the sees founded by the apostles, and After
that they were collected towards the end of
the, second or beginning of the third cen-
tury. The first regular mention of them is
found in the second council of Constanti-
nople.

The Greek church, at least since the sy-
nod in TruUo, in 692, has singularly re-
spected them, and considered the 85 first of
them as authentic : the Latin church seems
to have admitted the 50 first of them.
They were first printed at Venice in 1563,
in 4to, and have often been reprinted . . 200

The Apostolic Constiliitioiis are of high
antiquity, have been much interpolated,
and are of no authority. It is supposed
that they first appeared in the fourth cen-
tury 300

2. Hitherto, the canons spoken of are
the canons of the general church : there
also are CANONS OF PARTICULAR
CHURCHES.

In respect to the Greek Church, the first
collection of canons which has come down
to us from the Greek church, is the Codex
EcclesicB Oriental'is. It is supposed to have
been first published in 385

This collection contains 165 canons:
20 of them are canons of the general coun-

THE CANON LAW. 117

cil of Nice ; 24, are canons of the council After

Christ,

of Ancyra; 14, are of the council of Neo-
cesarea ; 20, of the council of Gangris ; 25,
of the council of Antioch ; 59, of the coun-
cil of Laodicea ; and three of the first coun-
cil of Constantinople. The council of
Chalcedon mentions this collection with
approbation.

The second collection of canons of the
Greek church is, the Codex EcclesicB Uni-
verse 451

It comprises the canons in the preceding
collection, with the addition of some
omitted canons of the council of Constan-
tinople, some of the council of Ephesus,
and some of the council of Chalcedon.

Both these collections are confined to the
canons of the councils of the oriental
churches ; but they by no means include
all the canons of all the councils of
those churches.

About the middle of the sixth century,
John, then a priest of Antioch, afterwards
patriarch of Constantinople, published a
collection of the Greek canons, digested
under fifty heads, according to the subjects
of them. He afterwards published an
abridgment of it: the first is called his
Collection of Canons ; the second his Nomo-

lis THE CANON LAW.

Canon : he is generally called Joannes ^ftw
Scholasticus 560

We know little more of the canons of
the Greek church till the Synod in Trullo.
By that synod, a code was formed of the
canons framed at it, of those framed at the
synods of Carthage, and at the council of
Constantinople, held by Nectarius, and
of some writings of the fathers. To those
were added the twenty-two canons ot the
second council of Nice, and the fourth
council of Constantinople 69^

Here, before the schism, which separated
the Greek from the Latin church, the code
of .the Greek canon law rested. Under
Photius, two councils were held at Con-
stantinople : the canons of those councils
were received by the schismatic churches
of the east, and were published by Photius
in his Nomo-Canon, or modern collection
of canons, in

With the Commentaries of Balsamon,
ZonaraSf and Aristenus, and other curious
articles, and with a learned preface, all
these collections of canons were pubhshed,
at Oxford, by Dr. Beveridge, afterwards
Bishop of St. Asaph, under the title,
" Faiidectce Canonum Sanctorum Aposto^

THE CANON LAW. 119

'' loriim et Conciliormn ah Ecclesid GrcBca recep-
" torum." " Those, says Van Espen, who will
" read with attention, the notes of the learned
" editor, will find much very learned exposition
" of the canon law, and much instructive matter
" on other subjects, connected with the learning
*' of the canons." " Bishop Beveridge's works,"
says L^Advocat, " are written with so much
*' dignity, majesty, learning, and modesty, that
" he is thought, with reason, to be one of the
** greatest and most learned men whom England
" has produced." An epistolary correspondence
was carried on between him and Bossuet.

3. In the LATIN CHURCH, frequent men-
tion is made of the Vetus Canonum Latinorum
Editio. It was superseded by the collection
made by Dionysius Exiguus^ about the beginning
of the sixth century. That collection was after-
wards enlarged by the decrees of Pope Symma-
chus. Pope Hormisdas, and Pope Gregory the
Second. This collection was of great authority
both in the Greek and the Latin churches.

4.. Other Churches had their Collections of
Canons. The CHURCH OF AFRICA had
hers : the Breviatio Canonum of Fulgentius Fer-
randus, and the Breviarium and Concordia Ca-
nonum of Cresconius are added to it.

The CHURCH OF SPAIN also had her
collection of canons. It is attributed to St. Isi-

120 THE CANON LAW.

dore, Bishop of Seville ; from his diocese, After

. . . Chri.t.

he is frequently distinguished by the ap-
pellation of Hispalensis.

In 790, Pope Adrian presented Charle-
magne with a collection of canons. It was
composed of the collection of Dionysius
Exiguus, and the epistles of several popes.
At the council held at Canterbury in
873, a book of canons was produced and ap-
proved of ; but we do not know what ca-
nons it contained.

V. 2.
1. The MIDDLE PERIOD OF THE
HISTORY OF THE CANON LAW

commences with the ninth century, at the
beginning of which, or towards the end of
the preceding century, the collection of Isi-
dore Peccator or Mercator probably made

its appearance 760

It was brought from Spain into Germany
by Riculphus^, the bishop of Mayence.
Who the compiler of it was, and why he
assumed the name of Peccator or Merca-
tor, are merely matters of conjecture. It
sets out with describing the manner in
which a council should be held ; then, the
fifty first of the canons of the apostles fol-
low : " Deinde,"' sa^^s the author, " qua-

THE CANON LAW. 121

" rumdam cpistolarum decreta viroriim apos-
" tolicorum inseruimiis, id est, Clementis,
" Anacleti, Evaristi, et caeterorum apostolico-
" rum, quas potuimus hactenus reperire, epistolas
" usque ad Sylvestrem Papam."

These are the celebrated decretals, concern-
ing which, since the beginning of the sixteenth
century, there has been so much dispute among
the learned. They seem to have made their
first appearance in Germany: afterwards, to have
been received in France, and, by degrees, in
every part of the western church. For seven
centuries after their first appearance, neither their
authenticity nor their authority appears to have
been questioned.

They were first attacked by Marcilus of Padua,
then, by Cardinal Nicholas of Cusa, during the
Council of Basil, and afterwards by Erasmus.
In the celebrated Centuriators of Magdeburgh,
in Blondel, and, lastly, in Van Espen, they
have met ^vith most powerful adversaries : in the
author of the celebrated treatise, " Quis est Pe-
" trus,'* they have found both a zealous and
an able advocate : but he seems to concede, that
so much spuriousness is proved on them as to
make them, when they stand alone, of no au-
thority.

122 THE CANON LAW.

They were followed by what are called ^ft^r

" •^ Christ.

the Capitularies of Adrian 845

The tenth century was famous for the
Collection of Rheginoii^ Abbot of Prumia . 906

The eleventh, for the collection of Bur-
chardus, bishop of Wormes, entitled 3Iag-
num Decretorumseu CanoniimVolumeH . 1000

The twelfth, for the collection of St,
Ivo, the good lawyer. Two works are at-
tributed to him : the Decretum Canojium,
certainly belongs to him ; his right to the
second, the Pawowu'a, is uncertain . . .1100

2. We now come to the celebrated De-
cretum Gratiani^ or the Concordia Dis-
cordaiitium Canonum. Gratian was a Be-
nedictine monk, in a monastery of Bologna.
His work is an epitome of Canon Law,
drawn from the decrees of councils, the
letters of pontiffs, and the writings of an-
cient doctors. Pope Eugenius the third
was extremely satisfied with the work : and
it was soon adopted in every part of the
western church . 1150

It is divided into three parts : the first
contains 101 distinctions or heads, and
treats of the origin and different kinds of
law, and particularly of the sources of ec-

THE CANON LAW. 123

clesiastical law, of persons in holy orders, and
the hierarchy. The second contains thirty-six
causes, as they are called, or particular cases,
on which questions of difficulty arise : the third
is divided into five distinctions, and contains a
collection of canons relating to the consecration
of churches, the sacraments, and the celebration
of the divine office. The whole contains about
3000 canons or capitularies. Some are intitled
Paleoe, the meaning of which word is not yet
ascertained by the learned.

This celebrated collection abounds with er-
rors. Towards the middle of the sixteenth cen-
tury, Antonius Demochares and Antonius Con-
tius, the former a divine, the latter a canonist,
published a corrected edition of it.

A more correct edition of it we owe to the
council of Trent. By a decree of that council,
it was ordered that correct editions of missals,
breviaries, and other books relating to eccle-
siastical matters should be published.

In consequence of this decree, pope Pius the
fourth engaged several learned men in the cor-
rection of the decree of Gratian. The work
was continued through the pontificate of Pius
. the fifth. Gregory the thirteenth, the imme-
diate successor of Pius the fifth, when a car-
dinal, had been employed on the work : under

124 THE CANON LAW.

his auspices, it was finally published about chritt
the year 1580

Several faulty passages still remain in the
work. Many of them have been pointed
out by Antonius Augustinus, the Arch-
bishop of Tarragon, in his learned and en-
tertaining dialogues on the Emendation of
Gratian.

Such is the celebrated decree of Gratian,
which for 800 years, has, in every country
in Christendom, been considered a valuable
repository of Canon Law. — To the compi-
lations of Isidore and Gratian, one of the
greatest misfortunes of the church, the
claim of the popes to temporal power by
divine right, may in some measure be at-
tributed. That a claim so unfounded and
so impious, so detrimental to religion, and
so hostile to the peace of the world, should
have been made, is strange — stranger yet,
is the success it met with.

It was soon observed, that the author had
omitted in his collection several important
articles. This gave rise to subsequent
collections. The principal of them are the
JSreviarimn of Bernardus Papiensis^ and
the Collections of Johannes Galensis and
Peter Beneventanus. Of these, the last

THE CANON LAW. 135

only was formally approved by the see of ^^^^
Rome. Pope Innocent the third published
a collection of his own decretal epistles.
His example was followed by Honorius the
third, his immediate successor.

From these five collections, and from
some decretals of his own, pope Gregory
the ninth commissioned St. Raymond of
Pennafort, a Dominican, to form a new
collection of canons. He executed the
work greatly to the satisfaction of his holi-
ness ; and, under his auspices, it was pub-
lished about the year 1230, under the title
Libri quinque Decretalmni Gregorii Noni.
It contains all the decrees of the council of
Lateran, and the decisions of many popes
on particular cases. It is divided into five
books 1230

A further addition to the code of Canon
Law was made by pope Boniface the
eighth. It contains the decretals of all the
popes, subsequent to Gregory the ninth,
and the decretals of that pope. It is called
Liber Sextus Decretalium, and was pub-
lished in 1298

On account of the differences between
pope Boniface and Philip the Fair, it was
not received in France.

The Liber Sextus Decretalium is fol->

U6 THE CANON LAW.

lowed by the collection, called sometimes After
Liber Septimus Decretaliuni, and sometimes
dementis Papa: Constitutiones. It was
framed by pope Clement the fifth ; and
consists of his own decretals, particularly
the canons of the council of Vienne, at
which he presided. He promulgated it in 1313^

The last article in the code of Canon
Law is the Extravagantes. At first, every
collection of Canon Law, except the decree
of Gratian, was ranked among the Extra-
vagantes. In the course of time, that
name remained only to the collection of
which we are now speaking. It is divided
into two articles, ^he JEx'travagantes Joannis
XXII. or the decretals of that pope, pub-
lished by him about the year 1340

And the Extravagantes Communes., con-
sisting of the decrees of popes from Urban
the sixth to Sixtus the fourth. It was
published about the year 1483

Neither of them is considered to be of
authority. The first, (published under the
name of pope John the twenty-second,)
was never formally approved of or sanc-
tioned by him, and the author of the latter
collection is wholly unknown.

A collection by Peter Matthoei was pub-
lishedin 1590

THE CANON LAW. 127

In some modern editions of the Corpus Juris
Canonici, it is inserted under the title of the
Liber Septimus Decreialium.

With these, what is called the Corpus Juris
Canonici and the middle period of the history of
the Canon Law closes.

But mention should also be made of the Insti'
iutiones Juris Canonici^ a compendium of Canon
Law, published by Lancellot, a lawyer of Peru-
gium, in 1563. By the direction of pope Pius
the fifth, but without any confirmation of it by
him, it was subjoined to the Corpus Juris Ca-
nonici, and has been published with it. " The
" Roman pontiffs," says Arthur Duck, (de Auc-
toritate Juris Civilis, lib. 1. c. 6. tit. 8.) " ef-
*' fected that, in the church, which Justinian
*' effected in the Roman empire : they caused
" Gratian*s Decree to be published in imitation
" of the Pandects ; the Decretals, in imitation
" of the Code ; the Clementinae and Extrava-
" gantes, in imitation of the Novells ; and to •
*' perfect the work, Paul the fourth ordered Lan-
*' cellot to compose the Institutes ; and under
" Gregory the thirteenth, they were published at
*' Rome, and added to the Corpus Juris Ca-
" nonici." In the edition of the Institutions of
Lancellot, pubhshedin 1584, and in several sub-
sequent editions, it is accompanied with a perpe-
tual gloss, and followed by a commentary, written

128 THE CANON LAW.

by Lancellot, which gives an account of the rise
and progress of the work ; and by a comparison
of the Civil and Canon Law, also written by him.

V. 3.

THE MODERN PERIOD OF THE
CANON LAfV begins with the Council of Pisa,
and extends to the present time.

The principal articles of canonical learning,
which have appeared during this period, are,

1. The various Transactions and Concordats
between Sovereigns and the See of Rome; — a suc-
cinct and impartial history of them is wanting :
the papal arrangements with Bonaparte would
not be the least curious parts of such a work.

2. The Councils of Easily Pisa, Constance^ and
Trent.

Separate histories have been written of the
councils of Basil, Pisa ^ind Constance, by
M. L'Enfant, a Lutheran minister : that of the
council of Constance is best executed ; it contains
an account of a fact of importance to the English
nation, but not generally mentioned by her his-
torians,— that the French ambassadors contended,
before the council of Constance, that Christen-
dom was divided into the four great nations of
Europe, Italy, Germany, France, and Spain :
and that all the less nations, among which they
reckoned England, were comprehended under

THE CANON LAW. 12(9

one or other of them ; but the Enghsh asserted,
and their claun was allo^vcd by the council, that
the British Islands should be considered a fifth
and co-ordinate nation, and entitled to an equal
vote with the others.

In the different atmospheres of Venice and
Rome, the history of the council of Trent has
been written by the celebrated Fra Paolo, (the
translation of whose work, with notes by Dr.
Conrayer, is more valued than the original), and
by cardinal Pallavicini. The Cardinal does not
dissemble, that some of the deliberations of the
council were attended with intrigues and passion,
and that their effects were visible in various inci-
dents of the council : but he contends, that there
was an unanimity in all points w-hich related to
doctrine, or the reformation of manners: and Dr.
Courayer, in the Preface to his translation, con-r
cedes, " that, in what regarded discipline, several
-' excellent re2:ulations were made according: to
*' the ancient spirit of the church ;'• and ob-
serves, that, " though all the disorders were not
" reformed by the council, yet, if we set aside
" prejudice, we may with truth acknowledge,
" they are infinitely less than they were before."
The classical purity and severe simplicity of the
style in which the decrees of the council are ex-
pressed, are universally admired, and are greatly
superior to the language of any part of J^istini^n'^

G ft

130 THE CANON LAW.

law. Ill what concerns faith or morals, the de-
crees of the council of Trent have been received,
without any restriction, by every Roman Catholic
kingdom : all its decrees have been received by
the Empire, Portugal, the Venetians, and the
Duke of Savoy, without any express limitation ;
they have been received by the Spaniards, Nea-
politans, and Sicilians, with a caution, as to such
points of discipline as might be derogatory to
their respective sovereignties ; but the council
was nev^er published in France. No attempt lias
ever been made to introduce it into Ens-land.
Pope Pius the Fourth, sent the acts of the coun-
cil to Mary Queen of Scots, with a letter dated
the thirteenth of June loG^, urging her to have
the decrees of the council puljlished in her domi-
nions ; but nothing appears to have been done
in consequence of it. See Histoire clc la Rccep-
tion clu Concile da Trente, dans les differens Etats
Callioliqucs ; Paris, 2 vol, 8vo. 1766.

3. The Biillariiim, or the collections which
have been made of the Bulls of Popes ; — the best
of these collections is that printed at Luxen-
burgh or Geneva in 1771. It extends to the
year 17-53.

4. To these are to be added, Rcgulce Cancel-
lari(B Romans, or the Rules of the Roman Chan-
cery, a court instituted by the see of Rome, for
preparing and transmitting the receipts and let-

THE CANON LAW. 131

ters of the pope ; the sentences and ordinances of
the various congregations of cardinals at Rome ;
and the decisions of the Kola, the supreme tri-
bunal of justice at Rome, both for its spiritual
and its temporal concerns.

5. These complete the body of the Canon
Law, — It should be observed, that, in addition
to it, every nation in Christendom has its ovs^n
national Canon Law, composed of Legantifie,
Provincial^ and other Ecclesiastical Constitutions,
The Legantine Constitutions of England are the
ecclesiastical laws enacted in national synods,
held under the cardinals Otho and Othobon, in
the reign of Henry the Third. The Provincial
Constitutions are principally the decrees of pro-
vincial synods, held under divers Archbishops of
Canterbury, and adopted by the province of
York, in the reign of Henry the Sixth. *' At
" the dawn of the Reformation," (Sir William
Blackstone, Comm. 1 vol. Inst, sec, 3,), ^' in the
■ ' reign of King Henry the Eighth, it was enact-
" ed in parliament that a review should be had
" of the Canon Law ; and, till such review
•' should be made, all canons, constitutions, ordi-
^' nances and synodals provincial, being then,
" already made, and not repugnant to the law of
'■'■ the land, or the king's prerogative, should still
*' be used and executed. And, as no such re-
'^ view has yet been perfected, upon this statute
cj a 2

13-2 THE CANON LAW.

" now depends the authority of the Canon Law
"in England.

".As for the canons enacted by the clergy
" under James the First, in the year 1603, and
" never confirmed in parliament, it has been so-
" lemnly adjudged, upon the principles of law,
" and the constitution, that where they are not
" merely declaratory of the ancient Canon Law,
" but are introductory of new regulations, they
" do not bind the laity ; whatever regard the
" clergy may think proper to pay them."

VI.

With respect to the AUTLIORITY OF
THE CANON LAW, from which, in the
present case, the part of it anterior to Gratian's
decree, and subsequent to the Extravagantes
Communes, must be excluded ; it is composed
of texts out of the Bible, passages from the
writings of the fathers, the canons of general and
particular councils, the decrees and rescripts of
popes, and various other insertions and extracts.
In each of these particulars, it possesses all the
authority which the extract itself has ; besides
which, it possesses all the weight and authority,
which it has acquired, by its having been so
much adopted by courts, appealed to in disputes,
taught in the schools, and praised and com-
mented upon by the learned men of every state

THE CANON LAW. 133

of Christendom. With more or less hmitation,
it forms the basis of the ecclesiastical law of
every country, where the Roman Catholic reli-
gion is professed ; and, speaking- generally, in
protestant countries, it has the force of law,
when it is not repugnant to the law of the land.^

* Tk-e works, principally used in framing this account
are, Fleurifs Institutions da Droit Ecclesias-
ti;jue ; his Discours sur V Histoire Ecclcsias-
tiqne ; bishop Gibson s learned but very high-
church Preface to his Codex Juris Ecclesiastici
Anglicani ; lord Hardwicke's argument in the
-case of Middleton v. Crofts, <2 Atlc. (5.50; Pehems
Pralectiones in Jus Ecclesiasticum Universurn,
Lovanii,A vol. Sco. 1787; Boehmer, Jus Eccle-
siasticum Protestantium, Halce Magdeburgicce^
Q vol. Ato. 17o(); Gerhard Von Mastricht His-
toria Juris Ecclesiastici et Ponlificii, Duisburgii
ad Rhenum, Oct. 107(3; Doujafs Histoire du
Droit Canonique, Paris, 8vo.. 1077.; Van Es-
■peris Jus Ecclesiasticum. Universurn, Lovanii,
6 vol. fol. 1753, a work, which, for depth and
■extent of research, clearness of method, and
perspicuity of style, equals any work of juris-
prudence which has issued from the press; but
which, in some places, where the author's dreary
Jansenism prevails, must be read with disgust: —
a methodical and learned work v/ith this title,
■" Quis est Petrus ? Seu Qualis Petri Pr'i-
" matus 9 Liber Theologico-Canonico Catho-
" liens. Editio secunda, correctior ct cmendatior^

134 THE CANON LAW.

*' cum Approhatione, Ratisbonw, 17S)1 ;" the
ablest work, in support of the papal prerogatives
against the doctrines of the Sorbonne, which
has come to the writer's knowledge. The ac-
count, given in it, of Isidore's Decretals is par"
ticularly interesting. The Religionis Naturalls
et Revelalo; Principia of Doctor Hook, Paris,
3 vols. Svo. 1771; the third volume of this
work is, perhaps, the best treatise extant, on
the ecclesiastical polity of the church, according
to the notions of the Sorbonnists. It deserves
to be more known in this country ; it must have
given the French divines an high opinion of the
perspicuity and precision of English writing.

APPENDIX.

NOTE I.

The exclusive dominion and pro-
perty OF THE BRITISH SEAS is one of the
most splendid and valuable prerogatives of the Crown
of England. — The following account of it is taken from
a note to that part of the 14th edition of Coke upon
Littleton, which was executed by the present writer.

" The Jus Maris of the king maybe considered
under the two-fold distinction, of the right of jurisdic-
tion, which he exercises by his admiral, and his right
of propriety or ownership.

With respect to the right of jurisdictiok,
the subject is elaborately discussed by Mr. Selden, in
his Mare Clausum, a noble exertion of a vigorous
mind, fraught with profound and extensive erudition.
In the first part of it, he attempts to prov^e, that the sea
is susceptible of separate dominion. In this, he has to
combat the opposite opinion of almost all civilians, and
particularly the celebrated declaration of one of the
Antonines, (L. 9. D. De Lege Rhodia) " Ego (juidem
mundi dominus, lex auiem maris, c^t." by which the
emperor has been generall}'' considered to have dis-
claimed any right to the dominion of the sea. For a
riifferent interpretation of this law, Mr. Selden argues
with great ingenuity. In this, he is followed, in some

i36 APPENDIX.

measure, by Bynkersboock, in his treatise De Lege
Rhodia de Jactu, Liber Singularis, in the 2d vol. of the
edition" of his works published by Vicat, Col. Allob*
1761.— ^Mr. Selden, in the second part of his work,
attempts to shew, that in every period of the British
History, the kings of Great Britain have enjoyed the
exclusive dominion and property of the British seas, in
the largest extent of those words, both as to the passage
throuoh and the fishing within them. — He treats his
subject methodically, and supports his position with
the greatest learning and ingenuity. — The reader will
probably feel some degree of prepossession against the
extent of this claim ; but he will find it supported by
a long i?.nd forcible series of arguments, not only from
prescription, from history^ from the common law, and
the public records of this country, but even from the
treaties and acknowledgments of Other nations. Here.
he is t)pposed by Bynkershoock, in his Dissertatio de
Dominio Maris, also published in the second edition of
his works. But it will be a great satisfaction to the
the English reader to find, how much of the general
argument used by Mr. Selden, is conceded to him by
Bynkershoock. Even on the most important part of
the argutnent, the acknowledgment of the right by
foreign princes, Bynkershoock makes him consider-
able concessions: " Plus momenti," says he, " adferre
" videntur gentium tesimonia, quae illud Anglorum
" imperium aghovere. De coiifessionibus loquor non
" injuria eXtortis, sed libere et sponte factis. Esse
'■ autera hlijusmodi quasdam confessionis, neutiquam
" negari poterit." — After this acknowledgment, corro-
borated as it is by other arguments used by Mr. Selden,
toany will think his positions completely established^

APPENDIX. 137

The chief objection made by Bynkershoock to the right
of the crown of England to the dominion of the sea is,
the want of uninterrupted possession, as he terms it,
of that dominion, " So long as a nation has possession
" of the sea, just so long," says Bynkershoock, " she
" holds its dominion. But to constitute this possession,
" it is necessary that her navies should keep from it
" the navies of all other nations, and should themselves
" completely and incessantly navigate it avowedly in
" the act or for the purpose of asserting her sovereignty
" to it." This he contends, has not been done by the
English ; on this ground therefore he objects to the
right of dominion of the English sea ; and on the same
ground he objects to the right of the Venetians to the
dominion of the Adriatic, and to the right of the Ge-
noese to the dominion of the Ligustic. But this seems
carrying the matter too far. If it be admitted, (of
which there unquestionably are many instances), that
the sovereign power of a state may restrain her own
subjects from navigating particular seas, she may also
engage for their not doing it, in her treaties with other
nations. It can never be contended, that after such
a treaty is entered into, the acts of possession mentioned
by Bynkershoock are necessary to give it effect and
continuance, unless this also niake a part of the treaty.
It is sufTicient, if the acts of possession are so often
repeated, as is necessary to prevent the loss of tiie right,
from the want of exercise of it. In those cases, there-
fore, where the treaty itself, establishing the exclusive
dominion we are speaking of, is produced, the conti-
nued and uninterrupted possession mentioned by Byn-
kershoock cannot be necessary. But public rights,
even the :-.iost certain and incontestiblc, depend often

13S APPENDIX.

on no other foundations than presumption and usage.
The boundaries of territories by land, frequently de-
pend on no other title. Then, if Bynkershoock be
right in his position, that the sea is susceptible of do-
minion, should not mere prescription and usage in this
as in any other cast, be sufficient to constitute a right ?
Upon what ground are the continued and uninterrupted
acts of possession, mentioned by Bynkershoock, re-
quired to constitute a title in this, more than in any
other case of public concern ? — If this be thought a
satisfactory answer to the objection made by Bynker-
shoock, the remaining difference between him and
Mr. Selden, respecting the right of the British monarch
to this splendid and important royalty will be inconsi-
derable.— It is to be added, that Mr. Selden's treatise
was thought so important to the cause, in support of
which it was written, that a copy of it was directed to
be deposited in the Admiralty. Those who wish to
procure it, in an English translation, should prefer the
translation published in 1633, by a person under the
initials of J, H. to that by Marchemont Needham. On
this subject (with the exception of Sir Philip Medows)
subsequent writers have done little more than copy
from Selden. The subject, however, is far from being
exhausted. The system adopted by Sir Philip j\Ie-
dows, in his Ohsercalions concerning the Dominion and
Sovicrcigniy of the Seas, printed in 1G8.0, is more mo-
derate than Mr. Selden's. — He calls in question, at least
indirectly, a material part of Mr. Selden's positions, and
places the right of the kings of England to the dominion
of the sea upon a much narrower ground. He confines
it to a right of excluding all foreign ships of war from
passing upon any of the seas of England, without spe-

APPENDIX. 139

cial licence foi' that purpose first obtained; to the sole
marine jurisdiction, within those seas ; and to an appro-
priate iishery. He denies that the salutation at sea, by
the flag and top-sail, has any relation to the dominion
of the sea ; and he asserts, that, it was never covenanted
in any of the pubHc treaties, except those with the
United Netherlands, and never in any of these till the
year 1()54 ; he contends it is not a recognition of sove-
reignty, but at most an acknowledgment of pre-emi-
nence. His treatise is deservedly held in great esti-
mation."

NOTE n.

The alps begin with Col del Angentera, which
lies to the west of a supposed line from Monaco to the
Mons Visulus, or Monte Viso. Thence, they proceed,
in a semicircular line of about 500 miles, first on the
south-eastern limits of France, afterwards on the south-
ern limits of Swisserland, the Grisons, and the Tyro!,
and then on the western limits of Styria, Carinthia and
Carniola to the Sinus Flanaticus, or the Gulph of Cor-
nero on the Hadriaticv

1. The Alpes Maritimce take their name from tiie
sea of Genoa, and extend from it up to Mons Visulus
or Monte Viso. The most noted mountains in this
part of the Alps are the Camellon and the Tende.

2. The Cottian Alps reach from Monte Viso to
Mount Cenis ; they received their appellation from a

140 APPENDIX.

territory of that name, of which Siiza was the metro-
poHs; they contain the Mons Matrona, or the Mont
Genevre, where the river Durance springs.

3. The Alpes Graice extend over Le Petit St. Ber-
nard, the scene of the martyrdom of the Theban legion,
to the Mons Jovis, or Le Grand St. Bernard. Hitherto
the direction of the Alps is to the north.

4. On the northern side of that part of the Rhone,
which flows over Valais into the lake of Geneva, are
the Alpes Heloetica: ; on its southern side are the Alpes
Penninfe, the eastern chain of which is called Alpes
Lepontince : they extend to the Mons Summits, or
Mont St. Gothard.

5. The Alpes Rhceticce extend from Mont St. Go-
thard over the Mons Adula, or the Adule, where the
two fountains of the Rhine arise, to the source of the
Drave. A mountainous country to the south of them,
where the town of Trent lies, was called the Alpes Tri-
dentincc.

Q. The Alpes Noricce lie on the north of the
Drave, and. extend over parts of Austria, Styria, and
Carinthia; not far from the close of them the Alpes
Painiofiicic or Kahlemburgh mountains rise. The
Alpes Bastarnicce are the Carpathian mountains, the
boundary of Hungary on the north and east.

7. The Alpes Caniicce lie on the south of the Drave,
and reach to Nauportus or Leyback, where the Alpine
heights of Italy properly close. I' wo ranges of moun-
tains proceed from them; the Alpes Venetce, which
extend into the Venetian possessions on the Terra
Firma, and Alpes Juluv, which are spread over the
country from Forum Julii, or Friuli, to the eastern ex-
tremity of the Hadriatic.

APPENDIX. 141

Where the Alpes Carnicse end, the Mons Albius
begins: the Alpes Behiance, or the Welebitchian, or
Murlakan mountains proceed from it, and extend
southerly in a line of about 300 miles over lUyricum to
Mons Orbelus, whence they branch into the Rhodope
and Haemus.

Such is the chain of the Alps : the Appenines are of
equal celebrity. They rise in the Col della Tende ;
after stretching on the east of the supposed line from
the Portus Monaeci to Mons Vesulus, along the Gulph
of Genoa, at no great distance from the coast, they
proceed eastvvardly to the centre of Italy, and after-
wards to the south, always approaching nearer to the
eastern than to the western coast. After they arrive
at the Mons Gargamus, they take a south-westernly
direction, and reach the Calabrian extremities of Italy.
This account of the Alps is taken from Cluverius's
Ital. Ant. lib. I. ch. 30, 31, 32; Cellarius's Geog. Ant.
lib. 2; Busching's Geography; Chauchard's Map^
published by Stockdale ; Bergier's Histoire des Grands
Chemins de V Empire Romain, 2 vol. 4to. Brussellcs,
1738; and Mr. Pinkerton's Geography.

NOTE III.

THE following account of the PR^TOR'S JUDI-
CIAL POWEiR, and its variations, is given by Doctor

142 APPENDIX.

Bever, in his Histoiy of the Legal Pohty of the Roman
State, B. ii. c. 6.

" Originally, no more than one prastor was appoint-
ed; but, as the splendour and reputation of this illus-
trious city daily drew to it a vast conflux of strangers,
the judicial business increased beyond the power of a
single magistrate to dispatch. This demanded, there-
fore, the creation of a second, to preside over the causes
of foreigners; from whence he was called " Pr^rtor
Peregrinus," to distinguish him from the former, who
from the particular objects of his magistracy, was
styled " Urbanus." When the empire received a
further augmentation from the conquered provinces,
each of these was allowed its provincial judge, with
similar title and power.

Another century introduced a new refinement upon
this institution. As the objects of judicature, both
criminal, and civil, multiplied apace, and a great variety
of new causes arose, very distinct, in their nature from
each other, for the more easy and expeditious adminis-
tration of justice, it was found necessary to throw them
into distinct classes, called " Quasstiones," and to assign
particular jurisdictions and judges to each who were
intituled Pra2tors and Quaesitors, These were obliged
to exercise their respective jurisdictions within the city
for the space of one year, after which they were dis-
missed into their several provinces, under the charac-
ter of Propraetors. These great officers, of whatever
rank or denomination, were first elected by the people,
in the " comitia centuriata ;" but the right of assign-
ing them to their particular provinces belonged to the
senate.

APPENDIX. 143

The praetorian edicts, which constitute that branch
of the old civil law now under consideration, were cer-
tain rules or forms, published by every prajtor at the
entrance upon his office, on the calends of January,
signifying' the methods whereby he proposed to admi-
nister justice durino- that year. These were hung up
in the public court in a white table for the inspection
of suitors and practitioners ; but the authority of them
lasted no longer than the office itself, unless they re-
ceived a fresh ratification from the successor, and in that
case they were called " Edicta Translatitia."

The praetor had no power to abrogate or alter the
laws, but only to temper them with equity, to apply
them to the particular cases before him, according to '
his own ideas of justice, and to supply whatever was
wanting to give them their full and proper effect. His
edicts, therefore, was considered only as the voice of the
law, but not law in its most comprehensive meaning,
unless they happened to be adopted and continued by
succeeding magistrates ; under which qualified charac-
ter only they are considered by Justinian himself. But
notwithstanding their inferiority of rank in the scale of
legislation, they were yet held in the highest esteem by
some of the greatest princes and statesmen in after
times, and by none more than himself, as appears
from his inserting so large a number of them in the
Digest.

In process of time, indeed, as the age grew more cor-
rupt, and as these judges were more intent upon their
own private views and emolument than upon a punc-
tual and faithful administration of justice, they were
very apt to vary even from their own edicts, when it

144 APPENDIX.

happened to suit the convenience and interest of their
friends or themselves. This opened a door to many
shameful acts of injustice, and once more called forth
that truly patriotic tribune, Caius Cornelius, under
whose influence a law was enacted, to oblige the praetors
to adhere to certain established rules, and not to depart
from those which they themselves had laid down, at
the entrance upon their respective magistracies."

NOTE IV.

THE following account of THE MODES OF
OUOTING THE CIVIL AND CANON LAWS is
taken from Dr. Halifax's Analysis of the Roman Civil
Law, Camb. 1775, Note on page 2.

" It may not be amiss, for the sake of Beginners, to ex-
plain here the method oi quoting the several parts, which
now compose the Corpus Juris Romano-Civilis.
The Institutions are contained in Four Books: each
Book is divided into Titles ; and each Title into Para-
graphs ; of which the first, described by the Letters pr.
or princip. is not numbered. The Digests or Pan-
dects are in Fifty Books : each Book is distributed into
Titles ; each Title into Laws ; and, very frequently,
Laws into Paragraphs, of which the first is not num-
bered. The Code is comprized in Twelve Books;
each of which is divided, like the Digests, into Titles
and Laws ; and, sometimes, Laws into Paragraghs.

APPENDIX. 145

The Novels are distinguished by their Number,
Chapter and Paragraph.

The old way of quoting was much more troublesome,
by only mentioning the Number, or initial Words of
the Paragraph or Law, without expressing the number
either of Book or Title.

Thus § si adversus 12 Inst, de Nuptiis, means the
12th Paragraph of the Title in the Institutions de
Nuptiis, which Paragraph begins with the Words si
adversus ; and which a modern Civilian would cite
thus, 1. 1. 10. 12. So /. 30 D. de R. J. signifies the 30th
Law of the Title in the Digests de Regnlis Juris : ac-
cording to the modern way, thus, D. 50. 17. 30. Again,
/. 5. § 3.ff. de Jurejur. means the 3d Paragraph of the
5th Law of the Title in the Digests de Jurejurando :
better thus, D. 12. 2. 5. 3. And here note, that the
Digests are sometimes referred to, as in the last in-
stance, by a double/; and at other times by the Greek
n or TT.

The method of quoting the Roman Canon Law is
as follows. The Decree, as said above, consists of
Three Parts ; of which the first contains 101 Distinc-
tions, each Distinction being sub-divided into Canons :
thus 1 dist. c. 3. Lex (or 1 d. Lex) is the first Distinc-
tion, and 3d Canon, beginning with the word Lex. The
second part of the Decree contains 3Q Causes ; each
Cause comprehending several Questions, and each Ques-
tion several Canons: thus 3. qu. 9. c. 2. Caveant is
Cause the 3d, Question the 9th, and Canon the 2d, be-
ginning with Caveant. The third part of the Degree
contains 5 Distinctions, and is quoted as the first j)art,
with the addition of the words de Consecratione, thus

II H

140 APPENDIX.

de Consecr. dist. 2 can. Quia corpus (or can. Quia
corpus 35 dist. 2. d. Consecr.) means the 2d Distinc-
tion, and the 35th Canon, of the Treatise de Consecra-
tione, which Canon begins with Quia corpus.

The Decretals are in Three Parts ; of which the
first contains Gregory's Decretals in 5 Books; each
Book being divided into Titles, and each Title into
Chapters: And these are cited by the name of the
Title, and the number of the Chapter, with the addi-
tion of the word Extra, or the capital letter X : thus
c. 3. Extra de Usuris ; is the 3d Chapter of the Title
in Gregory's Decretals, which is inscribed de Usuris ;
which Title, by looking into the Index, is found to be
the 19th of the 5th Book. Thus also, c. cmn contingat
36. X. de Offic. ^ Pot. Jud. Del. is the 36th Chapter,
beginning with Cum contingat, of the Title in Grego-
ry's Decretals, which is inscribed de Officio et Potes-
tate Judicis Delegati ; and which, by consulting the
Index, we find is the 29th Title of the 1st Book. The
Sixth Decretal, and the Clementine Constitutions, each
consisting of 5 Books, are quoted in the same manner
as Gregory's Decretals ; only, instead of Extra or X,
there is subjoin'd in sexto or in 6. and in Clementinis or
in Clem, according as either part is referred to : thus c.
Si gratiose 5. de Rescript, in 6. is the 5th Chapter, be-
ginning with Si gratiose, of the Title de Rescriptis, in
the 6th Decretal ; the Title so inscribed being the 3d of
the 1st Book : And Clem. 1. de Sent, et Re Judic. (or
de Sent, et R. J. ut calumniis. in Clem.) (or c. ut cu-
lumniis, 1. de Sent, et R. J. in Clem.) is the 1st Chap-
ter of the Clementine Constitutions, under the title de
Sententia et Re Judicata; which Chapter begins with

APPENDIX. 147

Ut calumniis, and belongs to the xith Title of the 2d
Book.

The Extra VAGANTS of John the 22d are contained
in one Book, divided into 14 Titles : thus Extravag. Ad
Conditorem. Joh. 22, de V. S. means the Chapter, be-
ginning with Ad Conditorem, of the Extra vagants of
John 22d; Title, c?e Verhorum Signijicationihus. Lastly,
the Extravagants of later Popes are called Communes ;
being distributed into 5 Books, and these again into
Titles and Chapters : thus Extravag. Commun. c. Sal-
vator. de Prcehend. is the Chapter, beginning with
Salvator, among the Extravagantes Communes ; Title,
de Prcebendis.

( 149 )

AN ESSAY

ON THE LIFE

MICHEL BE L'HOPITAL.

CHANCELLOR OF FRANCE.

Vol. II. li

" The principles of religious toleration, which it was the constant object
«•' of the Chancellor I'HOpital to establish, were the same as those expressed
" in the excellent preface prefixed by his friend, the President de Thou,
" to his Universal Histor\-, which Lord Mansfield, in his celebrated speech
" in the case of the Chamberlain of London against Mr. Allen Evans,
" declared he never read without admiration." p. 30.

CONTENTS.

Chap.

I. Some mention of the Principal Worhs, from xvhick

this Account of the Chancellor de I'Hopital is
taken --_.----_- page 153

II. A succinct Viero of the Revolutions of the Jurispru-

dence of Europe before the time of the Chancellor de
I'Hopital ----------- 156

III. Birth and early years of VHopital - - - - 161

IV. State of the Parliament of Paris ; the public and

private habits of its Members in the time of
VHopital ----------^ 162

V. L'Hopital is successively appointed Counsellor of the
Parliament of Paris, Ambassador to the Council of
Trent, Maitre des Requites, Superintendent of the
Finances, a7id Chancellor of France : — First disputes
between the King of France and his Parliaments : —
Difference between the Office of Chancellor iii France,
and the Office of Chancellor in England - - 166

W. The noble principles of the Chancellor de THSpital on
religious Freedom -------- 24

VII. The Chancellor de I 'Hopital puts into practice his prin-
ciples of Religious Freedom, in his public conduct in
regard to the French Huguenots. — Its salutary

effects - - 170

li 2

CONTENTS.

Chup.

VIII. The Chancellor de r Hopital opposes the reception of the
Council of Trent in France _ - - page 1 76

IX. The Chancellor de V Hopital wishes to abolish the Vena-
lity of Latu Offices hi France - - - - - 1 85

X. The Chancellor V Hopital toishes to abolish the Epifes igi

XI. The Chancellor de r Hopital supports the Independence

of the French Bar __-_-_-> 1^5

XII. The Chancellor de V Hopital tvas unfavourable to the

extension of Law by too great a latitude in its inter-
pretation;— to sumptuary Laws ; — to allowing Inte-
rest on pecuniary Loans ; — ■J'avoured the Erection of
Commercial Tribunals, and public Schools for the
Education of Youth ; — was equally zealous for the
Rights of the Crown and the Rights of the Subject,
according to the true Constitution of the French
Monarchy - - - - - -196

XIII. The Chancellor de I 'Hopital resigns the Seals : his last
Years ; his Will ; his Death ; his Works ; his Cha-
racter by Brantome, and the President Henaut 201

Miscellaneoiu Facts respecting the Order ofAvocdts in
France - - -- - - 2H

( 153 )

Tllfi

LIFE OF L'HOPITAL.

INTRODUCTORY CHAPTER.

Some mention of the principal works from which this
account of the Chancellor cle VHopital is taken.

-i ANEGYRICS and funeral orations fill a con-
siderable space in the literature of France ; and
those, who are most disposed to contest her claim
to universal pre-eminence in the Belles Lettres,
acknowledge that, in those branches of eloquence,
she has considerably excelled all her literary rivals.
Few works of taste or genius are more admired than
the funeral orations of Bossuet : those of Flechier
are of an inferior cast ; but, after its twentieth
perusal, his oration on the death of Turenne will
again be perused with pleasure. The eloges of
distinguished academicians, by Fontenelle and
d'Alembert do not aspire to eloquence ; they pro-
fess no more than to give a short view of the lives
of the authors whom they celebrate, a very sum-

Ii3

154 ^^^^ ^^ l*h6pital.

mary account of their principal works, and a sliglit
mention of the events in the literary world, with
which, in some manner or other, they were con-
nected. The former are reproached for too fre-
quent prettiness ; the latter for a general tameness
of manner ; but both of them occasionally abound
in touches of great delicacy, and are so agreeably
written, that we doubt whether any reader has pe-
perused a single eloge composed by either of those
writers, without lamenting its brevity.

With these works, however, our praise of French
panegyric must close. About the middle of the last
century a new field was opened to it, by the prizes,
which the academy then began to hold out to those,
who should produce the best panegyric of the hero
(for they were never less than literary heroes),
whom the academy assigned for the theme of praise.
This set all the wits of France at work : but the
event was not very favourable to their reputation.
The number of works, which obtained the appro-
bation of the public, was very small ; if any of them
are now read, they are the eloges composed by
M. Thomas. The notes, v^ith which he has accom-
panied them, are interesting ; and, if his incessant
attempts, in the text, at the sublime, generally fail,
they also sometimes succeed. Thus, in his eloge
of the emperor Marcus Aurelius, he mentions the
celebrated expression of the emperor Titus. — " I
*' have lost a day, for, during this day, I have done
♦' good to none." — What dost thou say ?" exclaims

LIFE OF L HOPITAL. I55

t^e orator. — " The day, in which those words were
*' pronounced was not lost ; on no day wast thou so
*' great, or so useful to the world, as when thou
** gavest that eternal lesson to kings/* — In this
passage there is both sense and grandeur ; but in
the writings of its author such passages are not
often found.

The magistrate, whose life is the subject of the
present pages, was proposed by the French academy
in the year 1777, for the subject of an el6ge.
M. Guibert and I'abbe Remi contended for the
prize. Jt was adjudged to the latter, but he had
the good sense not to print His work. M. Guibert
was less prudent ; his performance appeared in
print soon after the prize was assigned to it ; but
though it was evidently the production of a scholar
of Voltaire, both Voltaire, and la Harpe, his echo,
expressed their contempt of it. The celebrated
Condorcet afterwards entered the lists, but with
equal want of success. In 1807, M. Bernardi pub-
lished his " Essai sur la Vie, les Ecrits, et les Loix
de Michel de I'Hopital, Chancelier de France,'*
in one volume octavo. It is written with taste and
judgment ; and places the celebrated magistrate,
who is the subject of it, both in an amiable and a
respectable point of view ; but it relates more to
his private and literary life, than his public character.
Of that, a very good account had been given in the
*' Vie du Chancelier I'Hopital," published by an
anonymous French writer, in 1764. Many inte-

I i 4

156 LIFE OF l'h6pITAL.

resting particulars of I'Hopital are to be found in
Brantome ; and Bayle assigned to him an article in
his dictionary. — From these publications, the ac-
count of the Chancellor de 1 *H6pital, wl^ich we
have now the honour to submit to the reader, is prin-
cipally extracted.

CHAP. II.

A succinct Viezo of the Revolutions of the Jurispwdence
of Europe before the time of the Chancellor de
riiopital.

O N E of the most striking differences in the con-
stitutions of the ancient and modern governments
of Europe appears in the strong, and almost im-
passable line of demarcation, w]iich, in the latter,
separates the officers employed in the administra-
tion of justice, not only from the military, but
from all the other officers of state ; and segregates,
from the general body of the community, a nume-
rous and respectable description of persons, exclu-
sively devoted to the practice of the law, in the
courts of justice. In Greece, such an order of
society was little known. In the earliest days of
the Roman republic, the law recognized the rela-
tion between patron and client. To give his client
legal advice, and to assist him with his knowledge
and eloquence, in the courts of justice, was the duty

LIFE OF l'hoPITAL. 157

o£ the pair 071. Soon after the extinction of the
repubHc this rehition began to subside ; and, about
the reign of Alexander Severus, the civilians, a
new order of men, arose in the state, and liKe our
modern lawyers, were exclusively employed in the
practice of the law. They were divided into the
orators, who pleaded the cause ; the advocates,
who attended to instruct the orators on points of
law ; and the procurators, or cognitores, who
nearly resembled the attornies of our courts of
justice. In addition to these, the juris-consul ti gave
their opinions and advice on legal questions, and
resembled the avocats consultants of France, and
our chamber council. Till the time of Augustus,
every person had this liberty ; he confined it to some
individuals, whom he selected ; and made a regu-
lation, that, in future, no one should enjoy that
privilege, except under the authority of the Prince.
The opinions of the juris-consulti, called the res-
ponsa pruclentum, were of great weight, and a
considerable part of the Roman law is founded
on them. Dr. Taylor, in his Elements of the
Civil Law, finds a resemblance between the Re-
sponsa Prudentum and our Reports ; but there is
this important distinction between them, that the
mass of law, furnished by our reports, owes its
authority to the decisions of the courts of law, ot
which it consists ; but the responsa prudentum,
though admitted as law, were nothing more than
the private opinions of individual lawyers.

158 LIFE OF l'h6pITAL.

In the ruin of the Roman empire, her laws were
lost in the general wreck. During the two hundred
years, which followed the reign of Constantine the
great, Europe was a scene of every calamity, which
the inroads of barbarians inflict, either on the
countries through which they pass, or on those
in which they settle. About the sixth century,
Europe obtained some degree of tranquillity, in
consequence of the introduction of feudalism, the
most singular institution which is found in the
annals of history. At first it produced a general
anarchy ; but the system of subordination upon
which it was grounded, carried with it the germ of
regular government, and even of jurisprudence.
Its effects were first visible in the various codes of
law which the barbarous nations promulgated.
Such are the Salic, the Ripuarian, the Allemannic,
the Burgundian, the Visigothic and the Lombard
laws. A complicated or refined system of jurispru-
dence is not to be looked for in them ; but, if they
are considered with due regard to the state of
society for which they were calculated, they will be
found to contain much that deserves our praise.
The capitularies, or short legislative provisions,
propounded by the sovereign, and adopted by the
public assemblies of the nation, were a further
advance in legislation. By degrees there was so
much regularity in judicial proceedings and legal
transactions of every kind, that they were regulated
by established formularies ; and, in addition to

LIFE OF l'h6pital. i5g

those provisions, there was, in every nation, a col-
lection oF unwritten usages on customs, which had
the force of law. The natural tendency of these
institutions to introduce regularity and peaceful
habits into society, was great j but it was so much
counteracted by the turbulent spirit of eveiy class
of men, that it was not till the end of the four-
teenth century, that the effect of them became
generally discernible.

From that time the governments of Europe
sensibly improved. A better spirit of legislation
showed itself, the administration of justice became
more regular, trade and husbandry were protected,
several of the arts were encouraged, and a general
wish for a better order of things prevailed every
where. While the public mind of Europe was in
this state of improvement, an event fortunately
happened, which gave it a very salutary direction.
About the year 1137, accident led to the discovery
of a complete copy of the Pandects of Justinian
at Amalphi, a town in Italy, near Salerno. From
Amalphi it found its way to Pisa, and in 1406 it
was carried to Florence, where it has since remained.
Of all the Italian republics, Florence was, at that
time, the most advanced in commerce, and its
concomitant refinements. It contained many en-
lightened men ; they felt the value of the pandects,
and made them generally known.

Few events in history can be mentioned which
have conduced more to the welfare of Europe than

i6o lifp: of l'hopital.

this discovery. The codes, the capitularies, the
formularies, and the customs, by which, till that
time, the feudal nations had been governed, fell
very short of affording them the legal provisions
which society, in the improved state of civilization,
to which it was then advancing, evidently required.
Unexpectedly a system of law presented itself,
which seemed to contain every thing that the
wisest men of those times could have desired. The
wisdom and justice of the system of law expressed
in the pandects seem to have been universally felt.
The study of it was immediately pursued with
ardour. It was introduced into several universi-
ties ; exercises were performed, lectures read, and
degrees conferred in that, as in other branches of
science, and most of the nations of the continent
adopted it, if not as the basis, at least as an im-
portant portion, of their civil jurisprudence. A
regular succession of civil laxi'yers followed. At
first they rather incumbered the text with their
subtleties, than illustrated it by learning and discri-
mination. Andrew Alciat was the first of them
who united the study of polite learning with the
study of the civil laws. He was founder of a school
called the Cujacian, from Cujas, the glory of civi-
lians. Of him, it may be truly said, that he found
the civil lav>^ in wood and left it in marble. Till
his latter years he was pursued by envy. It is an
honourable circumstance in the life of the illustri-
ous magistrate whose life is the subject of the

LIFE OF L'hoPITAL. i6i

present work, that when Cujas was persecuted in
Italy, he found under the patronage of I'Hopital an
honourable reception in France. But the mention
of this circumstance makes us feel that we have
wandered too long from the particular subject of the
present pages.

CHAP. III.

Birth and earli/ Years of I 'Hopital.

iVliCHEL DE l'H6pital was born in the year
1 505, at Aigneperse in Auvergne. John de I'Hopital
his father, was attached, in quality of physician,
to the celebrated Connetable de Bourbon, whose
defection from his monarch, and the important
consequences to which it led, are related with
so much elegance by the historian of the emperor
Charles the fifth. Michel de I'Hopital, when that
event happened, was a student in the civil law, in
the city of Toulouse. On his father's flight from
France, he was put under arrest, but was soon libe-
rated, and even permitted to join his father. After
making some stay with him, he went to Milan, and
thence to Padua, to complete his studies. When he
had completed them, he went to Rome, and was
appointed auditor of the congregation, called the
congregation of Rota. But he soon returned to
France, married the daughter of John Morin, the

l62 LIFE OF L*h6pITAL.

lieutenant-criminal, and, in consequence of his mar-
riage with her, obtained in 1537, ^ charge of coun-
sellor in the parliament of Paris.

CHAP. IV.

State of the Parliament at Paris ; the •public and private habits
of its Members in the time qfl'Hopital.

Here, our readers must be cautioned against
confounding the constitution of the parliament of
France, with that of the parliament of England.
The origin of each is traced to the great national
assemblies of the tribes who conquered the Rolnan
empire. In almost every country where the fuedal
institutions have been established, a national council
under the name of States-general, Cortez, Plaids,
Great Assizes, or Parliament, or under some other
name, was introduced, and gradually became com-
posed of three states, the Lords Spiritual, the Lords
Temporal,* and the Commons. Their functions
were not only judicial, but, as their consent was
necessary to give to the ordinances of the king the
effect of law, they were also legislative. In the
course of time, the parliament of England became
divided into its two houses, the Lords and Com-
mons, and, together with the King, constituted the
Legislature of the nation : but its judicial power
generally fell into disuse, except in causes which

f<i

LIFE OF l'hOPITAL. 163

are brought before the House of Lords by appeal.
The reverse happened in almost every country on
the continent ; in them, the parliament gradually
lost its legislative authority, and subsided into a
high court of justice for the last resort, and a court
of royal revenue. It generally consisted of a
fixed number of ecclesiastical peers, a fixed number
of lay peers, and a fixed number of counsellors.
All were equally judges, and had an equal right of
giving their opinions, and an equal voice in the
decree.

Such was the constitution of the French Parlia-
ment when l*H6pital was received into it. But, at
that time, it had somewhat degenerated from its
ancient splendor. The close of the preceding
century is described by French writers as the golden
era of the French magistracy. It is every where
said, that the knowledge, which the members of it
possessed of the law, was at once extensive and
profound ; that they were equally conversant in its
theory and its practice j that they respected their
profession ; were aware of the importance of a
proper discharge of their duty, and that, while their
undeviating attention and gravity assured the lowest
class of subjects that justice would be fully and
impartially administered to them, it intimated to
persons in the highest order of life, that, in the
scales of justice, rank was of no account. At six
o'clock in the morning, both in winter and in sum-

l64 LIFE OF l'hOPITAL.

mer, they took their seats in court. At ten o'clock,
the beadle entered the court, and announced the
hour, and they retired to dine. After dinner, they
returned to their seats ; at six o'clock the business
of the courts was closed ; the rest of the day was
devoted to their families, and literary pursuits were
their only relaxation. " To feel," says the abbe
Gedoyn, in one of his entertaining memoirs, "that
" magistrates were, in those days, more addicted,
" than they are in our times, to professional and
" literary studies, it is sufficient to compare the
" state of Paris at that time with its present state.
" At the time we speak of, the police of Paris was
" very bad ; the city was ill built, and had not
** half either of the houses or the inhabitants which
'' it now contains. The streets were ill laid out,
'* excessively dirty, never lighted, and therefore,
" after dusk, very unsafe. The only public specta-
" cles were vulgar farces, after which the populace
" ran with avidity, but which all decent persons
*' avoided. Their meals were very frugal ; there
" was nothing in them to attract company ; the
" fortunes of individuals were small, and parsimony
*' was the only means of increasing them. A
" coach of any kind was hardly seen ; persons of
** high rank walked on foot, in galoches, or in
" small boots, which, when they paid a visit of
" ceremony, they left in the antichamber, and
" resumed when they quitted it. The magistrates

LIFE OF L IIOPITAL. l^^

rode on mules when they went to the courts of
justice or returned from them. It follow^ed that
when a magistrate, after the sittings of the court,
returned to his family, he had little temptation
to stir again from home. His library was neces-
sarily his sole resource ; his books, his only com-
pany. Speaking generally, he had studied hard
at college ; and had, acquired there a taste for
literature, which never forsook him. To this
austere and retired life, we owe the chancellor
de I'Hopital, the president de Thou, Pasquier,
Loisel, the Pithous, and many other ornaments
of the magistracy. These days are passed ; and
they are passed because the dissipation of Paris is
extreme. Is a young man of family now destined
for the law ? Before he attains his sixteenth year,
a charge is obtained for him, and he sports a
chariot. With such facilities of going and coming,
what a wish must there be to be in every place
where pleasure calls ! Consider only the time
given, even by persons of decent habits of life,
to music, and the opera ! What a subtraction it
is from that portion of time, which the magis-
trates of old gave to professional study and
literature I'*

VOL. II. K K

l66 LIFE OF l'hoPITAL.

CHAP. V.

L'Hopital is successively appointed Counsellor of the Parliament
of Paris, Ambassador to the Council of Trent, Maitre des
Requetes, Superintendent of the Finances, and Chancellor
of France : — First disputes between the King of France and
his Parliaments : — Difference between the Office of Chan-
cellor in France, and the Office of Chancellor in England.

In a poetical epistle to the cardinal de Tournon,
one of his protectors, I'Hopital describes his habits
in the period of his life, during which he was
counsellor of the parliament of France. He rose
at a very early hour, and, in the autumnal, winter,
and spring sessions, was often in the court of justice
before day-break, and reluctantly rose from his seat
when the beadle, at ten o'clock, announced the
breaking-up of the court. He says, that he made
it a rule to listen to all with patience, to interrupt no
one, to express himself as concisely as possible, and
to oppose unnecessary delays. He mentions, with
evident satisfaction, the joy which he felt when the
vacations allowed him to quit Paris, and breathe
in the country. The cares of magistracy, he then
banished, wholly from his thoughts, and endea-
voured by harmless relaxation, to enable himself,
on his return to the discharge of his functions, to
resume them with fresh vigour. " But,*' says he,
" there is nothing frivolous in my amusements :
*' sometimes Xenophon is the companion of my
*' walks : sometimes the divine Plato regales me

LIFE OF l'hoPITAL, l^J

"• with the discourses of Socrates. History and
*' poetry have their turns ; but my chief delight
*' is in the sacred writings: what comfort, what
" holy calm, does the meditation of them confer!'*
After holding the office of counsellor of the
parliament of Paris, during twelve years, I'Hopital
was appointed by Henry the second to be his am-
bassador at the council of Trent, which was then
fitting at Bologna. By his own desire, he was soon
recalled from that honourable employment, and on
his return experienced, at first, some coldness from
the court, but was soon restored to the royal favour,
and appointed Maitre des Requetes. In the begin-
ning of the year 1554 he was appointed superin-
tendent of the finances. He held this employment
during six years ; and it was universally acknow-
ledged that he displayed, in the discharge of it,
great talents and inflexible integrity.

This is a remarkable era in the history of France,
as it was during THopital's administration of the
■finances that the French monarch first attempted
to check that spirit of resistance to the royal will,
which the parliament of Paris had for some time
showed, and which at different times afterwards it
exerted with so much effect, as frequently to para-
lyse the government, and ultimately to precipitate
jt into the revolution. According to the ancient
forms of the French governments, the royal edicts
were registered in the records of the parliament of
Paris. Originally, as a matter of favoui-, and after-

K K 2

i6'8 LIFE OF l*h6pital.

wards, as a matter of right, the parliament clamied,
and were allowed, the privilege of remonstrating
against them. This often interfered with the
monarch's wishes, and in times, when the govern-
ment was weak, conferred much power on the
parliament. Henry the second experienced its
effect ; and to deliver himself from it was advised
to divide the members of the parliament into two
distinct classes, who should sit alternately during
the half of every year. The object of this measure
was, to throw such of the members as were likely
to prove most pliant to the royal views, into one
ckss, and to pass all the edicts to which any re-
sistance was apprehended, in the half year, during
which that class should remain in office. This
arrangement was accompanied by some salutary
regulations. On that account it was patronized by
I'Hopital, and in general favourably received by
the nation ; but it soon became odious, and was
repealed.

At the end of six years I'Hopital was removed
from the office of superintendent of the finances ;
he had filled it with such disinterestedness, that
when he was removed from it, his situation was so
little above that of honourable poverty, that he had
not the means of portioning his daughter and only
surviving child. The monarch kindly stept in to
his aid, and conferred the charge of Maitre des
Requetes on Robert Huralt, a member of the great
council, who sought her in maxriage ; and he granted

LIFE OF l'hoPITAL. iGq

to I'Hopital, but at a heavy rent, an estate at
Vignay, near Estampes.

Not long after his daughter's marriage I'Hopital
Avas advanced to the rank of chancellor. This was
in France, as it is in England, the highest dignity
which a subject could attain ; but in the nature of
those offices, as they were finally constituted in the
two kingdoms, there is a considerable distinction.
In both, the chancellor is the first dignitary of the
state ; the guardian of his majesty's conscience, and
generally has the custody of the great seal. In
addition to which, the chancellor in England is, in
right of the king, visitor of all hospitals and colleges
of the king's foundation, is patron of all the king's
livings under a certain yearly value, is general
guardian of all infants and lunatics, and has the
general superintendence of all the charitable foun-
dations in the kingdom. Several of these impor-
tant functions belong, in some manner, to the
chancellor of France ; but over all these, the chan-
cellor of England exercises, in a judicial capacity,
a vast and extensive jurisdiction in the court of
chancery, partly as a court of common law, but
principally as a court of equity. The chancellor
of France had no such exclusive court ; but he had
the universal superintendence over all that related
to the administration of justice in the kingdom ; a
controlling power to correct any abuses which found
their way into the courts of judicature ; to form
new regulations for their proceedings, to detennine
K K 3

IJO LIFE OF l'hoPITAL,

questions of jurisdiction between them, to settte
differences among the members of them, to appoint
tlie higher offices of justice, and to frame the royal-
ordonnances and edicts, which in anywise related
to the legal polity of the kingdom, or the adminis-
tration of justice. It is obvious that an office of
such high dignity and extensive influence must give
the distinguished personage by whom it is held, a
considerable political consequence in the state^

CHAP. VI.

The nolle principles of the Chancellor de VHopitalon
religious Freedom.

The religious troubles in France had just begun
when I'Hopital was appointed to the office of chan-
cellor. Soon after the introduction of the doctrines
of Luther into the north of Germany, the doc-
trines of Calvin were introduced by his followers
into the south of France, and made a number of
proselytes. Government was alarmed ; and by a
mistaken policy, the ministers of Francis the first
and Henry the second attempted to restrain the
further progress of them by persecution. The usual
consequences of persecution followed ; the favourers
of the new opinions rapidly increased ; the spirit
of fanaticism became general, and the whole king-
dom was divided into the odious distinctions of

LIFE OF L'hoPITAL. I7I

Papist and Huguenot. The king of Navarre and
the prince of Conde, were at the head of the
Huguenots ; the princes of Guise, an illustrious
branch of the house of Lorraine, were their declared
enemies.

Henry the second was succeeded by Francis the
second, a weak prince, and wholly guided by his
mother, the celebrated Catherine of Medicis. She
threw herself into the arms of the Guises. They soon
engrossed all the powers of the state ; and the queen
found that a defence against them was absolutely
necessary. With this view she prevailed on her son to
appoint I'Hopital to the dignity of chancellor. She
found the less opposition from the Guises to his
appointment, as the cardinal of Lorraine had been
one of the earliest patrons of I'Hopital, and the
Guises therefore naturally expected much from his
gratitude ; but it was not long before they found
that they were not to experience from him that
unbounded subserviency to their politics, which
they had expected.

The earliest care of I'Hopital after his appoint-
ment to the office of chancellor was to assemble the
states-general, *' The king," he said, " and his
*' subjects, ought to be acquainted. The last
" princes of the house of Pharamond lived like
" the last Assyrian princes, in a state of invisibility,
" and both princes lost their kingdoms. Let those
*' who wish to engross the favour of the monarch
" keep him aloof from his people. I wish them
K K 4

172 LIFE OF L'HOPITAt.

" to meet, and to meet often." The states-general
met at Orleans, and several excellent laws, formed
afterwards into an ordonnance, were passed, enjoin-
ing residence to the clergy, protecting the people
against the oppression of the feudal laws, and regu-
lating the administration of justice.

One of the favourite projects of the Guises was
to introduce the Inquisition into France. In the
accounts which have been published of that tri-
bunal there probably is some exaggeration ; but,
after every reasonable deduction from them is made
on this supposition, enough will remain to justify our
considering the inquisition as one of the greatest
triumphs, which mistaken religion and sanguinai-y
policy have ever achieved over humanity. Every
candid roman-catholic makes this confession. One
of the best accounts which have been published of
the inquisition is the Ilistoire des Inquisitions by
Marsoillier, canon of Uses, and the most eminent
of French biographers. After a dispassionate ex-
amination of the proceedings of the inquisition, he
concludes, that '* there is nothing so different from
" the spirit and conduct of the church during the
*' thousand first years of her establishment as the
*' proceedings of the inquisition in the countries in
*' which it is established." The Guises succeeded
so far in their project of introducing it into France
as to obtain a resolution of the royal council in its
favour. In this stage of the business I'Hopital inter-
fered. He thought much good is obtained, when.

LIFE OF L HOPITAL. 1 73

by permitting a small mischief a great evil is avoided.
He therefore prevailed on the king to publish the
edict of Romorantin, which declared that the cog-
nizance of heretics should remain with the bishop
of the diocese ; and directed the bishops to proceed
in the usual manner against them. This was too
great a sacrifice to intolerance j but it gave the
bishops no new power, and completely eluded the
project of the inquisition. Such, however, was the
general spirit of the nation against conferring any
temporal power on the clergy, that it was found
very difficult to prevail on the parliament to register
the edict.

In his pacific views, PHopital was seconded by
many persons of distinction ; they formed a kind
of third party, of which PHopital was confessedly
the head. The members of it adhered to the roman-
catholic religion, but wished its discipline altered
in those instances, to which the separatists from her
particularly objected ; and, even on points of doc-
trine, recommended that decision should be delayed,
as they thought the minds of men were, at that time,
in too great a ferment to give a fair hearing to argu-
ment ; and that decision might therefore prevent
discussions of the subjects in controversy, in times,
when the people w^ould be disposed to give them a
more dispassionate consideration. In the interval,
they wished that the fullest toleration should be
granted to every sect. " God alone,'* they said, " is
** the judge of hearts ; he alone can discern that

174 ^I^JE OF L HOPITAL.

•V wilful obstinacy in error, which it is proper to
" punish in heretics, or that real attachment to
" truth, which it is proper to reward in the faithful.
" All citizens," they said, " who obey the laws,
" and performed their duties to their country and
*' their neighbour, have an equal right to the advan-
" tages which civil society confers ; those only de-
" serve punishment who break her laws. The vir-
*' tuous catholic and virtuous protestant equally
" deserve the protection and rewards of law ; the
** wicked catholic and wicked protestant are equally
** deserving of legal punishment. The intolerance
" which makes us look with an evil eye on those
" who hold religious opinions, different from our
" own, is a principle destructive of virtue. It cer-
" tainly is very desirable that no cause whatever of
" division should exist among the citizens of the
" state, and of course, that there should be no here-
" tics. But to bring back heretics to the fold,
" charity, patience, and prayer, are the only arms
*' which the Divine Founder of our religion, him-
" self used to draw nations to him. The thunder
" of heaven was at his command, but he refused it
" to the prayer of the two unwise disciples who
** wished it hurled on the unbelieving Samaritans.'*
Such, we learn from the biographers of PHopital,
was his constant language. Such too, is the lan-
guage of that admirable preface, prefixed by his
friend, the president de Thou, to his Universal
History, which lord Mansfield, in his celebrated

LIFE OF L'H6prTAL. I75

speech In the case of the chamberlain of London
against Mr. Allen Evans, declared he never read
without admiration. L'Hopital acted up to his prin-
ciples ; from his elevation to the office of chancellor
till the moment when the seals were taken from him,
he laboured incessantly in the glorious cause of
religious toleration. As it usually happened, he
oiFended the zealots of each party ; but he perse-
vered : and though he met with great opposition, his
efforts were not wholly without success. Through
his influence, many edicts were procured which
protected the lives and fortunes of protestants, and
ensured to them, under certain restrictions, the free
exercise of their religion. On one occasion, when
it was agitated in council, whether war should be
declared against the huguenots, and I'Hopital spoke
against it with much eloquence, " It does not,'*
" the connetable de Montmorency said to him,
" become you, gentlemen of the long robe, to give
" your opinions on matters of war." " It is true,'*

' replied I'Hopital, *' that we are ignorant of the art
** of war ; yet we may know when it is wise or
" prudent to declare it." But, while I'Hopital pro-
tected the huguenots against oppression j he blamed
their occasional indiscretions and excesses, and that
republican spirit, with which, in his. Avis mix Re-

fugics, they were afterwards reproached by Bayle.

176 LIFE OF L*h6p1TAL.

CHAP. VII.

The Chancellor de I' Hopital puts into practice his Principles cj^
religious Freedom, i% his public conduct in regard to the
French Huguenots. — Its salutary effects.

A SHORT account of the Edicts of Factfication,
as they are called by the French historians of those
times, will show the address and wisdom of I'Hopi-
tal's counsels in favour of religious freedom, and
their good effect. (Daniel, Hist, de France, An.
1561, 1562, 1563, Esprit de la Ligue, ]iv. i. 11.)
In the beginning of the year 1561 an edict was pub-
lished, by his advice, by which the king directed
that all persons, who had been imprisoned for their
religion, should be set free ; and enjoined all the
magistrates of his kingdom to restore, to the lawful
proprietors, all the real and personal property of
which they had been deprived in consequence of
their religious principles. He exhorted all his sub-
jects to conform to the rites and usages of the national
church, and inflicted the penalty of death on ail,
who, under the pretence of supporting the interests
of religion, should disturb the public tranquillity.

Finding this ordonnance was not a sufficient pro-
tection to the calvinists, his majesty, in the following
April, caused another ordonnance to be promulgat-
ed by which he revived all the salutary provisions
of the former edict, and forbade all his subjects
to revile one another with the odious appellation of

LIFE OF L*HuPITAL. I77

papist and huguenot ; he forbade them to assemble
in bodies, or to make domiciliary visits, under the
pretence of discovering religious practices contrary
to law; and he recalled to the kingdom all who
had been forced to quit it in consequence of any law
against the calvinists, and who were willing to con-
form externally to the catholic religion. Those who
would not submit to those regulations, had liberty
to sell their property, and quit the kingdom.

People were divided in their sentiments on these
edicts : — To tranquillize the public mind on them,
I'Hopital prevailed on the king to refer them to the
parliament of Paris. The meeting was held in July
1562, and was very solemn : the king, the queen-
mother, and the principal nobility attended it. The
chancellor opened the assembly by a wise and con-
ciliatory discourse : " We are not met," he said, " to
*' discuss points of doctrine. Theonly subject of our
^* discussion is, what are the best means of prevent-
" ing the dissentions, which the difference of re-
** ligious opinion occasions in the state ; and to put
" an end to the licentiousness and rebellion of which
" it hath hitherto proved a continued source." The
assembly was split into three parties : the first party
contended that the edicts against the protestants
should be wholly suspended till a national council
should be called j the second contended that all
huguenots should be capitally punished ; and the
third contended that the cognizance of heresy should

lyS LIFE OF L'llOriTAL.

be assigned to the bishops, and that a severe punish-
ment, but short of death, should be enacted against
huguenots who should assemble, even peaceably, for
their religious worship. The second of these opinions
had very few votes : the chancellor strenuously sup-
ported the first ; but the third opinion was carried
against him by a majority of three votes. He con-
tended that, on such a question, so small a majority
was a defeat ; and that no one could say that it did
not make further deliberation necessary. But the
partisans of the measure declared that it was regu-
larly carried, and pressed for its execution.

L*H6pital, however, was steady in his views. The
■queen-mother, by his advice, addressed to the pope
a letter, strongly pointing out the expediency of
conciliatory measures ; she entreated him to look
with compassion on those who had the misfortune
of being separated from him on religious points.
** They are not," said the queen, " the anabaptists
*' of Munster, or libertines ; they believe the twelve
** articles of the creed. Many persons of piety
** think that, in condescension to their weakness,
** they should be permitted to have churches without
** images; to admit some ceremonies in the adminis-
'* tration of the safcraments; to communicate under
*• both kinds ; to celebrate the divine service in the
** language of the country ; and all this, they say,
** may be done, without any innovation in the doc-
** trine of the church or its hierarchy, and without

LIFE OF L HOPITAL. 179

" any want of submission to the sovereign pontiff."
Eut the suggestions of the queen-mother were not
attended to by the pope.

The chancellor's next measure was to prevail on
the king to call an assembly of the notables. It
consisted of the principal officers of state, deputies
from every parliament of the kingdom, and many
of the most respectable magistrates. The assembly
met in January 1562. The chancellor addressed
the members of it in a speech of great good sense
and eloquence. He called their attention to the
actual state of the calvinists, their number and
strength. He showed the injustice and impolicy
of those, who wished the king to put himself at
the head of one party of his subjects, and to esta-
blish peace by the destruction of the other. *' In
*' such a war, where is the king to find his sol-
" diers ? Among his subjects. Against whom is
*' he to lead them ? Against his subjects. A triumph
*' and a defeat is equally the destruction of his sub-
** jects. I abandon to theologians, controversies
" on religion ; our business is not to establish ar-
" tides of faith, but to regulate the state. With-
*' out being a catholic, a person may be a good
" subject. I see no reason why one is not to
" live in peace with those, who do not observe
" the same religious ceremonies as ourselves."
The majority of voices was in favour of toleration j
and the king published an edict in the following
January, which ordered the huguenots to restore

iSo

to the catholics the churches and other property
which they had taken from them; and, on that
Condition, gave the huguenots ample toleration,
except that it prohibited their holding their assem-
blies within the precincts of any walled town. The
public mind, however, was in too great a ferment
to be immediately tranquillized by the provisions,
however wise or salutary, of this edict : and, soon
after its promulgation, an event, called by the
French historians the massacre of Vassy, (the par-
ticulars of which are foreign to the subject of these
pages), took place, which threw the parties into
open civil war ; but, by the incessant exertion of
I'Hopital, peace was made between them ; and the
ground of it was, an edict of the month of March
in the same year, by which almost a general liberty
of holding their religious assemblies in any place
they should think proper was conferred on the
calvinists ; and they were declared to be good sub-
jects to his majesty.

Such were the salutary effects of toleration, that
the political adventurers among the leaders of the
calvinists could not conceal the vexation which this
edict gave them. *' This single stroke of a pen,'*
they said, " is the ruin of more of our churches-
" than armies would have destroyed in ten years.'^

The salutary effects of the edict were immedi-
ately observed. The insurgents returned to their
duty, ami catholics and protestants vied in demon-
strations of loyalty to their royal master, and in

LIFE OF l'hoPITAL. i8i

zeal for his service. The English having taken the
town of Havre, the king and queen-mother pro-
ceeded in person to the siege. They were received
with acclamations of joy. On one occasion, the
chancellor remarked to them the ardour and bra-
very of the troops in mounting a breach : — " Which
" of them," he asked the monarch, " are your
•' catholic, which your protestant subjects? Which
" among the troops whom you behold are your
" bravest soldiers, your best servants? All are
*' equally brave and good. This is the effect of
" the edict, so much blamed by some ! See how it
*' re-unites the royal family; restores to us our bro-
*' thers, our relations and friends; it leads us out,
" hand in hand, against our common enemy ; and
*' makes him feel how respectable we are for virtue
*' and power, when united among ourselves."

The triumph of I'Hopital was now complete : but
some years after this event, the troubles of France
again broke out. The history of them does not
belong to these pages. After thirty-five years of
civil war, with all its horrors, the edict of Nantes
in 1598, restored peace to the distracted nation;
and the catholics remarked that the terms of it
were much more favourable to the calvinists than
those given to them by the edict of March 1563,
for which I'Hopital had been so greatly blamed.

VOL. II. L L

l82 LIFE OF l'hOPITAL.

CHAP. VIII.

The Chancellor de I'Hopital opposes the reception of the Council
of Trent in France.

An important event in the public life of I'HopItal
is the opposition which he gave to the reception of
the Council of Trent in France. — The leading
distinction between protestants and catholics is,
that, in matters of religion, the protestant acknow-
ledges no law but that of the scriptures, no inter-
preter, but his own conscience ; the catholic ac-
knowledges the scriptures, and, in addition to them,
a body of traditionary law, and receives both scrip-
ture and tradition under the authority and with the
interpretation of the church. It follows, that in
all matters of doubt the catholics refer the question
to the church ; and generally, in concerns of mo-
ment, the pastors of the church assemble to consult
and decide upon them. When only the pastors
of a particular territory assemble, the assembly, as
the case happens, is called a provincial, or a na-
tional council', when all the pastors of Christen-
dom are summoned to it, it is called a general or
oecumenical council.

In an early stage of the reformation, the expe-
diency of assembling such a council was sensibly
felt. After many delays it was assembled in 1 543,

LIFE OF l'hoPITAL. 183

lit Trent, a town on the confines of Germany, but
did not hold its first sitting till the beginning of
the year 1 546. From Trent it was transferred to
Bologna, but returned to Trent ; and, with seve-
ral interruptions, continued its sittings in that city
till its conclusion in 1564. All its doctrinal deci-
sions have been received, without any qualification,
by every catholic state of Christendom ; but several
states objected to some of its decisions in matters of
discipline. It met no where with more resistance
than in France. L'Hopital was at the head of
those, who opposed the unqualified acceptance of
it. He thought, that in some matters of discipline,
greater concessions should be made to protestants ;
-that in other points of discipline, the decrees of the
council trenched on the acknowledged liberties and
privileges of the church of France; and that in
some there was an express, and in others an implied,
admission of the right of the church to temporal
power. The most strenuous and powerful advocate
for its reception was the cardinal of Lorraine ; and
warm discussions upon it took place between him
and I'Hopital. One of the grounds on which the
latter objected to its reception was that it would
irritate the huguenots, and probably produce a
civil war. The cardinal appearing not to be struck
with this objection, I'Hopital pointed out to him,
with great eloquence, the horrors of the late wars:
" Are we,*' he boldly asked the purpled prelate,
" to be indifferent to these scenes of carnage and
LL 2

184 LIFE OF l'HOPITAL.

*' blood ? Are we to consider them as trifles ? If
" all who advise measures leading to war were them-
*' selves obliged to fight in the ranks, the advocates
*' of war would not be numerous." His opinion
partially prevailed. In all doctrinal points, the
authority of the council was admitted in France,
universally and without any qualification ; in matters
of mere ecclesiastical discipline, it bends occasion-
ally to the discipline of the church of France ; where
it affects temporal power, it has no weight.

In the different atmospheres of Venice and Rome,

the history of the Council of Trent has been written

by the celebrated Fra. Paolo, (the translation of

whose work, with notes, by Dr. Courayer, is more

valued than the original,) and by cardinal Palla-

vicini. The cardinal does not dissemble that some

of the deliberations of the council were attended

with intrigues and passion, and that their effects

were visible in various incidents of the council j

but he contends that there was an unanimity in all

points which related to doctrine, or the reformation

of manners ; and Dr. Courayer, in the preface to

his translation, concedes that, " in what regarded

" discipline, several excellent regulations were

*' made, according to the ancient spirit of the

*' church ;" and observes, that " though all the

*' disorders were not reformed by the council, yet,

" if we set aside prejudice, we may with truth

" acknowledge, they are infinitely less than they

" were before." The classical purity and severe

LIFE OF l'hOPITAL. 185

Simplicity of the style in which the decrees of the
council are expressed are universally admired.

CHAP. IX.

*ilie Chancellor de I 'Hopital wishes to abolish the Venality of
Latv Offices in France.

Cane of the objects of 1 'Hopital was to establish
a speedy and cheap administration of justice. With
tJiis view he laboured, but without success, to effect
tlie repeal of the laws, which allowed the sale of
offices, or, as it is technically termed, the venality
of charges. — An Englishman will hear with sur-
prize, that in France, from the age of Lewis the
twelfth, to the time of the revolution, offices of
justice were both hereditary and saleable ; he will
hear, with greater surprize, that this was a point, on
which respectable opinions were divided at the first,
and continued divided to the last.

In 1467, offices which to that time had been
simple commissions, revocable at the king's plea-
sure, were by an edict of Lewis the eleventh ren-
dered peq)etual and hereditary. This edict gave
rise both to the heirship and the sale of offices. In
1493, Charles the eighth published an edict, wliich,
while it prohibited the sale, by one subject to another,
of offices that regarded the administration of justice,
was silent on the sale of other offices, and was there-
fore supposed to legalize their sale. An edict of

L L ^

l86 LIFE OF l'iIOPITAL.

Lewis the twelfth allowed the sale even of offices
of justice. Till 1522, the whole of the money
paid for the purchase of offices was received by the
crown ; but in that year an edict of Francis the
first permitted the individuals, possessed of such
offices, to sell them, on paying a certain propor-
tion of the purchase-money into the royal treasury ;
and from that time, venality of offices became an
important article of the French constitution. In
the course of time, it underwent many modifica-
tions. For several centuries before the French
revolution it was conducted on the following plan.—
When the king established a new court of justice,
the edict of its creation fixed the number of the
magistrates or judges, and the specific sums to be
paid by them for grants of the offices which they
should fill. The candidates petitioned the king
for them ; the grants of them were made by letters
under the great seal ; and, from that time, the
offices were hereditary in the family of the grantee.
Where a court was already established, the posses-
sor of any of the offices of which it was composed,
might in his life-time, and his heirs might, after his
decease, dispose of it by sale ; or he might direct
by will that it should be sold. When the sale of
an office took place, the purchaser petitioned the
crown for a grant of it ; and, when the grant was
signed, he paid, besides the price which the vendor
was to receive for it, a sum of money into the royal
treasury. The amount of that sum varied from

LIFE OF l'h6pITAL. 187

one thousand to two tliousand French crowns. The
sum, which he paid into the royal treasury, was on
a subsequent sale of the office returned to him or
his heirs. Thus the purchaser of an office virtually
paid for it no more than the accruing interest of the
purchase-money from the time of its payment till
the return of it on a re-sale. But great care was
exerted to ascertain that the person, to whom the
office was granted, should be properly qualified for
the discharge of its duties. It was always required
that he should have taken the degree of licentiate
both in the civil and the canon law ; and the taking
of such a degree, in a French university, was far
li'om being a matter of course. As soon as the
grant of the office was delivered to the purchaser,
he presented it to the tribunal to which the office
belonged, with a petition, stating generally his qua-
lifications, and expressly averring that the money,
which he had paid for the office, was his own
money, and had not been borrowed by him for the
purpose. Then a commission issued, composed of
lay and ecclesiastical lawyers and other persons of
condition, who were to inquire and report upon
the purchaser's learning, morals and political con-
duct. The procureur-general of the parliament,
within whose resort the office lay, presided over the
commission. If the inquii-y was favourable to tlie
purchaser, they chose, out of the digest or code,
some point of law, upon which, at the end of
eight days, he was to come prepared with complete

L L 4

l88 LIFE OF L IIOPITAL.

legal information; and he was also then expected
to answer, with general sufficiency, on the civil
and canon law, and on the ordonnances and custo-
mary law of the country. Sometimes he was de-
clared incapable of the office ; sometimes a term
for further probation was allowed him. Till the
middle of the last century these examinations were
conducted with great strictness. Sometimes the
chancellor himself examined the persons appoint-
ed to offices, on their competency. " One day,"
says Brantome, ** I called on M. le chancelier
" de I'Hopital, with Mareschal Strozzi, who was
•' among his favourites, and he invited us to dine.
*' For our dinner he gave us an excellent bouUie,
" and nothing more ; but his conversation was ex-
*' cellent ; fine words, fine sentences in abundance,
" and now and then a gentle joke. After dinner,
" a couple of counsellors, just chosen into their
" offices, were announced; he ordered them in,
** and, without desiring them to sit down, called
" for the code, and questioned the two gentlemen,
*' who were trembling all the while as a leaf, on
" different articles in it. Their answers did not
" show much knowledge ; and he gave them such
" a lecture ! Though the youngest of them was
*' fifty years old, he sent them back to their studies.
" Strozzi and I stood by the fire-side highly diverted
" with the scene, and particularly with the rueful
" countenances of the two magistrates; they had
" all the appearance of men going to be hanged.

UFE OF l'hC;PITAL. 189

" At length the chancellor packed them off with
*' a frown ; and assured them that he would in-
*' form the king how ignorant they were, and
*' would see that their charges should be given to
" others. As soon as they were out of hearing
" he told us they were two great asses ; and that
" it was against conscience that the king should
*' name such persons for judges. We suggested
*' to him that the game which he had offered them
" was too strong for their palates. Far from it,
" said the chancellor; I questioned them on no
" point, on which a tyro in the law should not be
*' fully infonned."

It should be added, that, in general, the magis-
trates were chosen from families of great respecta-
bility, and of a fortune which placed them consi-
derably above want. No one was admitted into the
parliament of Brittanny who could not prove that
he was noble by race and extraction, or in other
words, who could not prove a century of nobility
in his family.

The advocates for the venality of offices of justice
are proud to reckon among them the cardinal de
Richelieu and Montesquieu. " The venality of
" charges," says the latter, (Espjit des Loia^,
1. v. c. 19.), " cannot exist in despotic states; as
** it is essential to despotism, that every officer should
*' be liable to be instantaneously placed, and instan-
** taneously displaced, at the mere will of the prince.
*' It is proper for monarchies, as it makes the study
" of the law a kind of qualification, which otherwise

igo LIFE OF l'hopital.

" the party would not be at the pains of acquiring
*' for a family dignity. It gives an early direction
*' to duty ; and tends to confer permanence on an
** order of great public use in the state. It is a
*' just observation of Suidas," continues Montes-
quieu, " that, by the sale of offices, the emperor
" Anastasius converted the empire into an aristo-
*' cracy : Plato could not endure it. He declares
" that it is the same, as if persons on ship-board
" should choose a pilot for money. But Plato is
*' speaking of a republic, the basis of which is
*' virtue ; we are speaking of a monarchy. There,
*' if the sale of the offices were not allowed bylaw,
** the greediness and avarice of the courtiers would,
'* in spite of the law, make them saleable. As the
*' sales of them are now regulated by our laws, the
*' chance of having them properly filled is greater
" than if the nomination of them depended on the
*' mere will of the courtiers. Finally, such a
** method of advancing one's self by wealth, both
" inspires and sustains industry ; and, in a mo-
*' narchy, every thing which incites noble families
*' to industiy is to be encouraged." These obser-
vations are excellent ; but the intelligent reader
will immediately perceive, that little of what is
urged in them for the venality of charges in France
can be applied to the venality of them in England.
A reflection, highly honourable both to the wisdom
and purity of the English constitution, will perhaps
here suggest itself to him.

LIFE OF l'h6pITAL. l^l

CHAP. X.

The Chancellor V Hopital ivishes to abolish the Epiges.

Another reformation in the administration of
justice, which 1 'Hopital wished to effect, was the
abolition of the epiges, or presents made, on some
occasions, by the parties in a cause, to the judges
by whom it was tried.

A passage in Homer, (24 II.), where he de-
scribes a compartment in the shield of Achilles, in
which two talents of gold were placed between two
judges, as the reward of the best speaker, is gene-
rally cited to prove, that even in the earliest times,
the judges were paid for their administration of
justice : but an attentive reader will probably agree
wdth Mr. Mitford in his construction of this passage,
that the two talents were not the reward of the
judge who should give the best opinion, but the
subject of the dispute, and were to be adjudged to
him, who established his title to them by the best
arguments. — Plutarch mentions, that, under the
administration of Pericles, the Athenian magis-
trates were first authorized to require a remunera-
tion from the suitors of their courts. In ancient
Rome, the magistrates were wholly paid by the
public ; but Justinian allowed some magistrates of
an inferior description to receive presents, which he
limited to a certain amount, from the suitors before

192 LIFE OF L HOPITAL.

them. Montesquieu (^Esprit des Loid\ 1. xxviil*
<^h' 35)j observes, that " in the early ages of the
*' feudal law, when legal proceedings were short
" and simple, the lord defrayed the whole expense
" of the administration of justice in his court. In
*' proportion as society became refined, a more com-
" plex administration of justice became necessary;
" and it was considered that not only the party who
" was cast, should, on account of his having insti-
'* tuted a bad cause, but that the successful party*
" should, on account of the benefit which he had
" derived from the proceedings of the court, con-
*' tribute, in some degree, to the expenses attend-
*' ing them J and that the public, on account of
*' the general benefit which it derived from the
*' administration of justice, should make up the
" deficiency." To secure to the judges the pro-
portion which the suitors were to contribute
towards the expense of justice, it was provided,
by an ordonnance of St. Louis, that, at the com^
mencement of a suit, each party should deposit in
court, the amount of one-tenth part of the property
in dispute : that the tenth deposited by the unsuc-
cessful party should be paid over to the judges on
their passing sentence ; and that the tenth of the
successful party should then be returned to him.
This was varied by subsequent ordonnances. Insen-
sibly it became a custom for the successful party to
wait on the judges, after sentence was passed, and,
as an acknowledgment of their attention to the

LIFE OF l'hoPITAL. I93

cause, to present them with a box of sweetmeats,
which were then called epiges^ or spices. By de-
grees, this custom became a legal perquisite of the
judges ; and it was converted into a present of
money, and required by the judges before the cause
came to hearing : — Non deliberetur donee sol-
ventur speeies, say some of the ancient registers
of the parliaments of France. That practice was
afterwards abolished; the amount of the epices
was regulated ; and, in many cases, the taking of
them was absolutely forbidden. Speaking generally,
they were not payable till final judgment ; and, if
the matter were not heard in court, but referred
to a judge for him to hear, and report to the court
upon it, he was entitled to a proportion only of the
epices, and the other judges were entitled to no
part of them. Those among the magistrates, who
were most punctual and diligent in their attendance
in court, and the discharge of their duty, had most
causes referred to them, and were therefore richest
in Apices ; but the superior amount of them, how-
ever it might prove their superior exertions, added
little to their fortune, as it did not often exceed
50 /. and never lOo /. a year. The judges had some
other perquisites, and also some remuneration from
government ; but the whole of the perquisites and
remuneration of any judge, except those of the
presidents, amounted to little more than the epices.
The presidents of the parliament had a higher re-
muneration : but the price which they paid for thek

ig4 LIEE OE LUOPITAL.

offices was proportlonably higher; and the whole
amount, received by any judge for his Spires, per-
quisites, and other remunerations, fell short of the
interest of the money which he paid for the charge ;
so that it is generally true, that the French judges
administered justice, not only without salary, but
even with some pecuniary loss. Their real remu-
neration was the rank and consideration which
their office gave them in society, and the respect
and regard of their fellow-citizens. How well does
this illustrate Montesquieu's aphorism, that the
principle of the French monarchy was honour ! It
may be truly said, that the world has not produced
a more leai'ned, enlightened, or honourable order in
society, than the French magistracy.

Englishmen are much scandalized when they are
informed that the French judges 'were personally
solicited by the suitors in court, their families and
protectors, and by any other person whom the
suitors thought likely to influence the decision of
the cause in their favour. But it all amounted to
nothing: — To all these solicitations the judges lis-
tened with equal external reverence, and internal
indifference ; and they availed themselves of the
first moment when it could be done with decency,
to bow the parties respectfully out of the room : —
it was a corvee on their time which they most bit-
terly iJimented.

LIFE OF L*h6pITAL. I95

CHAP. XI.

The Chancellor de VHopital supports the Independence of the
French Bar.

1j*H6pital anxiously strove to exalt the character
of the profession of the law in public estimation.
In Rome, the practice of the law was at first ho-
norary ; it became afterwards an object of gain.
During the second Punic war, the Cincian law
was passed, to revive the primitive custom of hono-
rary advocation. But it was so often evaded, that
the emperor Claudius thought it more advisable to
moderate, than to attempt to destroy entirely, the
salaries or emoluments of advocates. He accord-
ingly inhibited them from taking a larger fee than
two sesterces ; about 80 /. 145. '] d. English. The
advocates, however, thought it an indignity that
their fees should be considered as wages, and
therefore dignified them by the honourable title of
presents, or gratuities ; but, as they might demand,
and even recover them by action, the distinction
was merely nominal. In England, fees of council
always were, in the strictest sense of the word,
honorary. Till the time of I'Hopital, it was not
settled whether the fees of the French advocates
were honorary ; but, in his time, the honoraiy
quality of them was completely recognized. At-
tempts, the reason of which does not appear, were
made at different times, both by the government

196 LIFE OF l'hOPITAL.

and the parliaments of France, to oblige the advo-
cates to sign receipts for their fees ; and it was ex-
pressly enjoined by the ordonnance of Blois. In
1602, the parliament of Paris issued an arret,
enforcing the observance of that ordonnance. It
gave the advocates so much offence, that three
hundred of them immediately renounced the pro-
fession with the regular formalities. This put a
total stop to the proceedings of the courts of justice,
and the parliament submitted. In the contest in
1775, between the order of advocates and M. Lin-
guet, one of the charges against him was, that he
had written to the duke d'Aguillon to demand his
fees, had threatened him with an action for them,
and had allowed his demand on the duke to be
referred to arbitration.

CHAP. XII.

The Chancellor de I'Hopital ims unfavourable to the extension of
Law hy too great a latitude in the interpretation of it ; — to
allowing Interest on jjecuniary Loans ',— favoured Sumptuary
Laws ; — the erection of Commercial Tribunals, and Public
Schools for the Education of Youth ; — tvas equally zealous
for the Rights of the Crown and the Rights of the Subject, ac-
cording to the true Constitution of the French Monarchy,

L'HopiTAL was a declared enemy of the latitude
of legal interpretation, in which the parliaments
of France, (the reader will carry in mind, that we
consider them only as courts of judicature), too

LIFE OF l'iIOPITAL. I97

frequently indulged themselves. It was of two
sorts : Sometimes they signified their interpretation
of law by arrets, a species of judicial edict, having
the effect of law within the jurisdiction of the par-
liament by which it was issued. To this kind of
semi-legislative interpretation of law, nothing in
England bears any resemblance. On other occa-
sions, the French parliaments interpreted the law,
as it is generally done in courts of justice, by deci-
sions on dubious points of law. Their interpre-
tation of it by arrets was frequently censured, as
amounting in effect to an act of legislation ; they
were also reproached with carrying interpretation
too far, in their decisions. In the redaction of the
Code Civil Napoleon this was a subject of much
discussion. It gave rise to the 5th article of the
preliminary title, " on the publication and effects
" and application of the laws." The existence
and extent of the mischief was admitted ; as a re-
medy, some proposed an article, expressing, " that
" the judges should be forbidden to interpret the law
" by general and reglementary dispositions.** To
that, others objected, on the ground, that all inter-
pretation oflaw was prohibited to judges, according to
the maxim of the civil law, impefYttoris est interpre-
tari legem. To this, it was replied, that there
were two sorts of interpretation, one of legislation,
the other of doctrine ; that the first was prohibited
to the judges, but that the second was essential to
their office. The result of the discussion was, that

V 0 L. II. M M

igS LIFE OF l'hoPITAL.

as the two sorts of interpretation were not easily
distinguishable, it was better to omit the word inter-
pretation from the article. It stands therefore in
these words, *' It is forbidden to the judge to pro-
** nounce, by way of general and reglementary dis-
*' position on the causes which come before them : —
" II est defendu au juges, de pronon^er par voie
*' du disposition generale et reglementaire, sur les
" causes qui leur sont soumises.*' If the language
of this article do not convey a clearer meaning to
a French, than it does to an English, lawyer, the
French tribunals, when this article shall come under
their consideration, will probably wish that an in-
terpretative clause had been subjoined to it. — That
the right of interpretation should be vested iu
judges no reasonable person can deny ; but to what
extent it should be allowed, or, in other words, to
ascertain the exact point, where judicial interpre-
tation should stop, and legislative interpretation be
called in, is a question of extreme difficulty. An
English lawyer will perhaps admit, without any
hesitation, that the decision of our courts, that after-
purchased estates shall not pass by a previous devise,
was an exposition of the meaning of the word
" having," in the statute of wills, which the courts
were allowed to make, by the strictest rules of
judicial interpretation j but he will, at least doubt,
whether the preservation of uses, under the appli-
cation of trusts, both against the words and against
the spirit of the statute of uses, was not a sub-

LIFE OF l'h6pITAL. I99

ject more proper for legislative than judicial pro-
vision.

It was a favourite plan of I'Hdpital that all com-
mercial disputes should be settled by a summary
process, in which process the ordinary rules of
evidence might be dispensed with, and the judges
should decide on a statement of the facts, brought
before them by the parties themselves. With this
view he procured the establishment of consular tri-
bunals in the chief maritime to^vns in France. Jus-^
tice was to be administered by them, in commercial
causes, ai'ising within their jurisdiction, by a brief
and summary proceeding. They were found a useful
institution, and were, at all times greatly favoured
by the government. It is a little remarkable that
the code de commerce is, of all the codes Napoleon,
the most complex.

He wished for sumptuary laws ; and thought
the taking of interest Jbr money lent should be pro-
hibited by law. It it surprizing how long the uni-
versal opinion, even of enlightened persons, was
against both the expediency and moral lawfulness
of receiving interest on a loan of money. Even
in M. Bemardi's doge of l'H6pital, published so
lately as the year 1807, ^^ is condemned: probably
M. Bernardi, when he composed it, had not read
Mr. Bentham's admirable Letters on Usury.

L'Hopital did all in his power to improve the
national education of youth. On that account, he
favoured the legal establishments of the Jesuits in

M M 2

200 LIFE OF L HOPITAL.

France, and checked the opposition of the parlia-
ment of Paris to that measure.

Such were I'HopitaFs general views respecting
the administration of justice. — His loyalty to his
sovereign knew no reserve. For the French con-
stitution, an absolute monarchy, with many checks
on the monarch's abuse of his power, from general
opinion, from established forms, and from inter-
mediate authorities of great weight and influence in
the state, he had the highest veneration, and used
all means in his power for its preservation. On the
one hand, he withheld the princes of the blood royal,
and the princes of the house of Lorraine, and of
other leading families, from encroaching on the just
prerogatives of the crown, or forcing from the crown
iinprovident grants ; he repressed the attempts of
the governors of the provinces to exercise the
powers of royalty within their governments, and
ckecked the parliaments in their unconstitutional re?
sistance to the crown: On the other, he favoured
the frequent calling of the states, and caused many
laws to be parsed that were favourable to the rights
and liberties of the subject. Such in particular is
the article in the ordonnance of Moulins, which
enjoined *' the parliaments, while a cause was pend-
" ing before them, to pay no regard to any inti-
" mation upon it from the monarch, though it were
" even contained in a letter, addressed by the
*' monarch himself, to them."

LIFE OF L HOPITAL-. 201

CHAP. XIU.

Tlie Chancellor de I'HSpiial resigns the Seals: His last Years ;
his Will ; his Death ; his Works ; his Character by Bravr
tome, and the President Henaut.

W E have endeavoured to present our readers witli
a short view of the leading principles by which
I'Hopital was guided in the discharge of his high
office ; it remains to mention his fall from power.
We have said, that he resisted the cardinal of Lor-
raine on the great question of the reception of the
council of Trent in France, and that his resistance
was successful. This was never forgiven by the house
of Guise : the princes of it determined on the chan-
cellor's removal ; but he was so much esteemed and
loved by the king, the queen-mother, and the great
body of the nation, that the Guises did not venture
to take the seals from him ; and therefore, by their
continual opposition to his measures, compelled him
to resign them. He then retired to his country house
at Vignay.

He had always cultivated the muses : several of
his poetical epistles have reached us. Considering
them as literary compositions, their unpretending
simplicity is their greatest merit: but they show
jsuch real dignity of character, they breathe so pure
a spirit of virtue, and are full of such excellent sen-

M 31 3

202 LIFE OF L HOPITAL.

timents of public and private worth, that they will
always be read with pleasure.

They are particularly remarkable for the perfect
lessons to be found in them of complete religious
toleration, and it adds much to their merit in this
respect, that, in those days, religious toleration was a
virtue very little known — " It is a folly," I'Hopital
observes in one of them (lib. vi. p. 290), '* to sup-
" pose, that you can destroy by force, the divisions
*' which subsist among us. You may put to death
** some of the innovators ; the consequence will
*' only be, that the land, fertilized by their blood,
*' will produce a thousand others. You may prevent
*' them, for a time, from assembling in their tem-
" pies ; but, by thus concentrating the fire, you
" only give it more activity, when it finds a vent :
" an explosion must take place, and a general con-
" flagration, the flames of which may touch the very
" skies, will then ensue. This kind of remedy
*' does not" suit the evils, under which we labour.
•' Does not the founder of our religion enjoin us
*' to love peace, to refrain from violence ? Did he
** ever intimidate any one by acts of violence?
•' Did he not constantly endeavour to gain hearts
" to him by the meekness of his words ? What can
*' the sword do to the mind? It may force the
" tongue to be silent, or perhaps to utter untruth ;
•' but the internal sentiment will remain, and, when
*' the danger is over, will burst forth with double
" force.'*

l;fe of l hopital. 203

He blamed both parties : — " The huguenots,"
he says, *' have defiled the sanctuary with the blood
" of priests; they have violated the tombs of the
" dead. But have the catholics been guilty of no
*' crime ? — War, cruel war, has perverted every
" heart. The fear of God has disappeared from
*' the world ; yet every army professes to fight for
" his cause !"

From these scenes of blood and carnage, his
muse often fled. — " Health," he exclaims in another
epistle, '* health to the dear friends, who, quitting
" the roads to great towns and splendid castles,
" come to visit me in my humble retreat. The
*' luxury, the amusements of the capital, they
** don't expect to meet with there ; the smallness
** of my fields does not enable me to treat them
" sumptuously. — But, all I have, they may all
*' command." He proceeds to boast of *' his sheep,
^' his lambs, his milk, his fruit, his nuts, and his
** wine, made under his wife's own care ; the hares
•* they might hunt, the birds they might shoot."
He hints to them, however, that the situation of thp
domain, to which he invites them, was not very
beautiful : he tells them that they were not to look
for extensive prospects, or even for a eiystal stream ;
all his water, he says, comes from a well. — But,
** Spartam, quam nactus sis, orna; — Sparta has
** fallen to my lot, and I must make the best of
" her."

His expressions on his fall from power are those

M M 4

204 LIF5 OF iJh6p1TAL.

of dignity and conscious rectitude. *' No ! my
" dear friend," thus he writes to the president de
Thou, *' I am not conquered ! I have withdrawn
from the administration of the public concerns ;
but I did not give up my post through cowardice.
As long as I could be of any use to my king or
country, no danger alarmed me ; I endured every
thing. But abandoned by all, both the king and
the queen-mother being terrified from the sup-
port of me, I retired, with a sigh for my unhappy
country. How contentedly should I die, if I
could behold my king restored to his just prero-
gatives, and peace and liberty restored to my
fellow subjects ! My own career draws to its end,
my tenth lustre verges to its close. The world
to come should now be my only care." He speaks
of his general conduct in life with modesty, and
appeals, with confidence, to the judgment of it by
posterity ; yet he wishes it better known, what
violence he had to combat, what artifices to contend
with. " If those were fully known, it would be
" wondered that I was not sooner overpowered."
He rejoices that he had persevered to the end.

He foresaw that the peace, which preceded the
massacre oh St. Bartholomew's day, would not
be of long duration. He narrowly escaped being
among its victims. One of the few circumstances
in the life of Charles the ninth, which can be
related with any praise, is the attachment which
he shewed to I'Hdpital. During the massacre on

LIFE OF l'hoPITAL. 205

St. Baitholomew*s-day, he sent a troop of horse to
protect PHopital from outrage ; and in the last
illness of I'Hopital, he and the queen-mother sent
him a message of great kindness, with an assurance
that they would provide for his grand-children.

L'Hopital survived his retirement from office
about four years ; and the massacre of St. Bartholo-
mew's-day some months. That horrid event embit-
tered all his hours : "I have lived," he says, in a
letter written soon after it, " I have lived too longi
" I have seen, what I could not have believed, a,
'* young prince of an excellent natural character,
'* change, in a moment, from a mild king to a
" ferocious tyrant. Those were not the manners
" of the ancient kings : they were too fond of war ;
" but they made it openly. No prospect of advan-
** tage would have induced them to break a peace,
" which they had solemnly sworn to obsei-ve. But
" we have been corrupted by our neighbours ; our
" manners are changed."

The office of chancellor had not added to his
fortune. The small provision, which he should
leave behind him for his grand-children, afflicted
his last moments. He was sensible of the kind as-
surances which he received from the king and
queen-mother ; but he foresaw, that, if they had the
will, the circumstances of the times would deprive
them of the means of giving them effect.

In the life of the conn^table de Montmorency,

2o6 LIFE OF l'hOPITAL.

Brantdme inserts the Will ofrHopital : It is very

interesting.

It contains a short statement of the principal

events of his life. He particularly mentions his

appointment to the office of chancellor : *' I soon
found," he proceeds, " that I had to do with per-
sons as enterprising as they were powerful, who
preferred violence to council and prudence. They
almost displaced the queen from the administra-
tion of government ; and they forced the king of
Navarre into a war. It was ever my opinion, that
nothing is so destructive to a state as a civil war ;
and that peace, almost on any terms, is preferable
to it. The advocates for war stirred up all ranks
against me ; — nobility, princes, magistrates and
judges ; and by their cabals prevailed over me.
Thus they ruined the king and kingdom. We
saw, what I cannot mention without tears, foreign
soldiers sporting with our lives and property,
while those, who should have been the first to de-
fend us against them, were the first to lead them
on. Finding I had no longer the means of re-
sisting them^ I retired. My last prayer to the
king and queen-mother was, that, since they had
resolved to break the peace, and to make war on
those, with whom, but a short time before, they
were concerting measures of peace, they would,
when the first thirst for carnage and blood was
satisfie4j and before the state was brought to the

LIFE OF L HOPITAL. 207

" last stage of ruin, embrace the earliest occasion
*' that offered of making peace. It broke my heart
*' to see the young king and his brothers taken from
" me, when they most stood in need of my councils.
" I take God and his angels to witness, that nothing
" has been so dear to me as my king and country.
*' The good of religion served as a pretence for my
" removal ; its real cause was, that those whose cabals
*' removed me, felt, that, so long as I remained in
" office, I would not permit the king's edicts to be
" trifled with, his finances to be dilapidated, or the
" fortunes of liis subjects to be plundered." He
then proceeds to dispose of his property.

" L'Hopital," says Brantome, was the *' greatest,
" worthiest, and most learned chancellor, that was
** ever known in France. His large white beard,
" pale countenance, austere manner, made all who
'* saw him think they beheld a true portrait of St.
" Jerome ; he was called St. Jerome by the cour-
" tiers. All orders of men feared him ; particularly
" the members of the courts of justice j and, when
" he examined them on their lives, their discharge
" of their duties, their capacities or their knowledge,
" and particularly, when he examined candidates
" for offices, and found them deficient, he made
" them feel it.'*

" He was profoundly versed in polite learning,

*' very eloquent, and an excellent poet. His seve-

" rity was never ill-natured ; he made due allow-

, ** ance for the imperfections of human nature ; was

2oS LIFE OF l'h6piTAL.

** always equal and always firm. After his death,
*' his very enemies acknowledged that he was the
" greatest magistrate whom France had known, and
" that they did not expect to see such another."

He died at Vignay, on the 13th of March 1573.

Both catholics and protestants reproached him
with being a concealed protestant. Theodore Beza
caused an engraving of him to be made, and a lan-
tern with a lighted candle in it, fastened to his back ;
designing to intimate by it, that PHopital had seen
the light, but turned his back to it, and left it for
others to follow. His uniform declaration in favour
of the toleration of the huguenots, his marrying his
daughter to a huguenot, her subsequent conversion
to Calvinism, and there not being found a single
expression of regret, at any of these circumstances,
in his poems, which are full of domestic details,
favour this supposition. On the other hand, when
the cardinal of Ferara was sent by the pope, as his
ambassador to France, in 1562, one object of his
mission was to procure the removal of the chancellor,
on the ground of ^ his supposed Calvinism ; but, in
one of his letters to cardinal Borromeo, he mentions,
that, *' it would be impossible to fix on I'Hopital the
'* imputation of heresy ; as he was seen regularly
" at mass, at confession, and at communion." The
cardinal adds, that, '* when he mentioned the matter
"to the queen-mother she would not hear of it 5
" all these imputations, she said, were the work of
" a few individuals interested in his removal.'* Most

LIFE OF l'h6pital. 2og

assuredly, his support of the Jesuits against the parlia-
ment does not favour the notion of his being a calvi-
nist ; and it is observable, that under Henry the
fourth, one of his grandsons was archbishop of Aix.
Father GrifFet, in a note to father Daniel's History
of France, (torn. x. p. 626 — 638), refers to a letter
written by PHopital, in defence of the integrity of
his religious principles, to pope Pius the fourth, in
which, after exculpating himself from the charges
brought against him, he generally submits himself
" to God, and the vicar of God." It is not likely
that a concealed huguenot would use, unnecessarily,
this expression.

The works of I'Hopital, which have reached us,
consist of the ordonnances framed by him ; of some
discourses pronounced by him, and of his poems.
For some time after his decease his poems could not
be found ; but at length they were discovered, and
published by Pybrac, with the assistance of S(^evola
of St. Martha, and the president de Thou. In 1 732,
a better edition of them was published at Amster-
dam, from a manuscript which had belonged to the
celebrated pensionary, John de Witt.

" Under the unhappy reigns," (says the presi-
dent Henault, an. 1568), *' of Francis the second,
*' Charles the ninth, and Henry the third, if the
" nobility and the people had been abandoned to
*' their fanaticism, France would have fallen, if not
" into its former barbarity (from which its luxury
" and love of pleasure would for some time have

210 ilFE OF l'hOPITAL.

" preserved it), at least into anarchy. ' Who would
" not have thought that all was lost? But the
" chancellor de T Hopital watched over his country ;
" in the midst of civil disorder, he made the laws
** speak and be heard. It never entered into his
" mind to doubt their power. He did reason and
*' justice the honour of thinking that their power
*' was greater than the power of arms ; and that,
" when they were properly displayed, they would
" have an irresistible effect on the hearts of sub-
" jects. Hence proceeded the laws framed by him,
" the noble simplicity of which rivalled that of the
" laws of Rome. Hence those edicts, which by
•' their wise provisions applied to future times, as
*' well as to the actual moment, and furnished prin-
*' ciples for the decisions of cases which were not
"then foreseen; those ordonnances, the strength
" and wisdom of which make the weakness of the
" reigns, in which they were enacted, be forgotten :
" Immortal works of a great magistrate, who equally
*' felt the extent of his duties, and the high dignity
*' of the place which he filled ! Who knew, that
" when the court interfered in the exercise of his
*' functions, it was time for him to resign ; and by
*' whose conduct, all who have sat on the same
" tribunal, without his courage or endowments,
" have been tried.**

LIFE OP L HOPITAL. 211

THE Avocat in France nearly resembled, in rank
and function, the English Barrister. In the very
earliest era of the history of France, her lawyers form-
ed a distinguished portion of her community. Even
in the reign of Tiberius, the city of Autun had schools
of eloquence and law, which contained 60,000 stu-
dents. In 297, they were under the direction of
the orator Eumenius, with a salary of 600,000 ses-
terces, or about 2,880/. of our money. The schools
of Toulouse, Bourdeaux, Marseilles, Lyons, Treves,
and Besancon, had the same celebrity. When the
Francs possessed themselves of Gaul, they respected
the profession of an avocat, and their most powerful
nobles solicited the office of avoue or avocat of a reli-
gious or civil community : but, in those turbulent
times, it was as much a military as a civil advocation.
The profession of avocat maintained its consideration
till the division of the Francic empire among the sons
of Charlemagne in 814. In the troubles, which im-
mediately followed that event, it almost vanished ;
but it re-appeared to advantage in the reign of St.
Louis. Ths parliament of France was made seden-
tary at Paris by Philip le Bel ; and soon after this
event the avocats were foirtned into a distinct class,
with many rights and under many obligations, by the
ordinances of 1327 and 1344 of Philip de Vlalds ;
but, disdaining the "more cottlmon denomination df

212 LIFE OF L HOPITAL.

a body, they assumed, in analogy to the order of the
nobility, and the order of the clergy, the denomi-
nation of rOrdre des Avocdts. Bartoli, the oracle
of the law in the fourteenth century, asserted (ad
lib. 1 eod. de professoribus), that at the end of the
tenth year of successful professional exertion, the
avocat became ipsojacto^ a knight. A more mode-
rate opinion assigned to him, at that period of his
career, no more than a fair claim to the honour of
forensic knighthood. It has not been discovered by
the writer that a forensic order of knighthood was
ever known in England ; but in France, Italy and
Germany, it was an order frequently conferred on
the successful practitioner at the bar. When it was
applied for, the king commissioned some ancient
knight of the forensic order to admit the postulant
into it. The postulant knelt before the knight-
commissary, and said, " I pray you, my Lord and
" my protector, to dress me with the sword, belt,
" golden spurs, golden collar, golden ring, and all
" the other ornaments of a true knight. I will not
*' use the advantages of knighthood for profane pur-
" poses ; I will use them only for the purposes of
** religion, for the church, and the holy christian
" faith, in the "warfare of the science to which I am
** devoted." The postulant then rose ; and, being
fully equipped, and girded with the sword, he be-
came, for all purposes, a member of the order of
knighthood, and entitled to a full participation of
all the rights of military knights. In the Memoirs

LIFE OF l'ii6pITAL. 213

of the Mareclial de Vielle-Ville, who died m 1571,
such knights are mentioned as very common, and
treated by the old Mar(^chal somewhat disrespect-
fully, though one of his own sons-in-law was a knight
of that descrijition. — It does not appear that they
wore then equestrian costume in the courts j but,
as Beaumanoir declares it to have been a o-eneral
rule, in his time, that the avocat, who was followed
by one horse only, should not have as large a fee as
an avocat who was followed by two, three, four or
more horses, we must suppose they were attended
to the courts by esquires.

In many of the most distinguished civil and eccle-
siastical events in the French history, as the two dis-
putes on the Salic Law, the troubles of the Jacquerie,
the League and the Fronde, and the disputes between
pope Boniface and Philip le Bel, and the recent dis-
putes on Jansenism, the Order of Avocats acted an
important part.

On several occasions the Order acted in direct op-
position to the crown. In general, the parliament led
the way in them, and the Order fought under their
banners. In these contests, when matters came to an
extremity, the parliament and the avocats discon-
tinued their functions. This amounted to an abso-
lute suspension of justice, and the disputes generally
teiminated by the submission of the monarch.

In 1771, the parliaments, and many leading avo-
cats, were banished, and new courts of justice were
established. At the end of three years the king found

VOI^ II. N N

214 ^^^^ ^^ L HOPITAL.

it necessary to recall the banished members, and
restored the ancient courts.

In i 790 the French National Assembly determined
on an entire new organization of the administration
of justice, but were not unwilling to preserve the
subsisting members of the Order of Avocats, who,
with the numerous associates, whom the new order
of tilings must necessarily give, would practice in
the courts to be established for the administration
of justice under the new regime. The leading avo-
cats of Paris, after several meetings on the subject,
rejected the plan. They foresaw that the new
avocats would have nothing of the learning, the
principles, the character, or public respect of the
order. The public, they said, will confound the
latter with the former. " To avoid such a posterity,
" our only means, they said, is to suppress our name,
*' and our order, so that, after we shall cease to
** exist, there shall be no avocat in France. Sole
" depositaries of that noble state, let us not permit
*' it to be sullied by transmitting it to successors,
** unworthy of us. We pray, therefore, for its instant
" extinction."

The assembly was moved to tears by this discourse,
and in compliance with it, on the 1 ith of September
1795* suppressed the Order of Avocats, their name,
their costume, and every thing else that belonged to
them. "Thus perished," says the writer, from
whom these details have been extracted, *' this cele-
*' brated coi-poration, which, under the name of

LIFE OF L HOPITAL. 215

" I'Ordre des Avocats, had counted 427 years of
'* a brilliant existence, and the renown of which
** had spread over all Europe." — Histoire des
Avocats au Parlemeiit et au Bureau de Paris^
depuis St. Louis jusqu* au 15 Octobre 1 'J go. Pari
M. Tournel, ancieii avocdt au Parlement de
Paris.

NN 2

( 217 )

SKETCH

PROFESSIONAL CHARACTER

EARL OF MANSFIELD,

N N 3

The following Sketch of an account of Lord Mansfield's
professional Life and Character, was written, by the Author
of the preceding compilation, at the request of the late
Mr. Seward, and inserted by him in his interesting
" Anecdotes of distinguished Persons"

( 219 )

SKETCH

PROFESSIONAL CHARACTER

EARL OF MANSFIELD.

riis Lordship was sent, at the usual age, to the
university of Oxford. He applied to the study of
the classics, and afterwards to the study of law, with
great diligence. He told the writer, that he had
translated many of Cicero's Orations into English,
and then translated them back into Latin. He
also mentioned, that, while he was a student in the
temple, he and some other students had regular
meetings to discuss legal questions ; that they pre-
pared their arguments with great care ; and that he
afterwards found many of them useful to him, not
only at the bar, but upon the bench.

For some time after he was called to the bar, he
was without any practice. There is a letter from
Mr. Pope, in answer to one from him, in which he
had mentioned this circumstance with good-humour.

N N 4

220 PROFESSIONAL CHARACTER OF

A speech he made as counsel at the bar of the house
of lords, first brought him into notice.* Upon this,

* To this Mr. Pope alludes in the following lines :

" Graced as thou art, with all the power of words,
" So known, so honor'd at the House of Lords."

The second of these lines has been considered as a great
falling off from the first. They were thus parodied by Colley
Gibber:

" Persuasion tips his tongue when'er he talks,

" And he has chambers in the King's Bench Walks."

To the chambers in the King's Bench Walks, Mr. Pope
has an allusion in one of the least read, but not least beautiful,
of his compositions, his Imitation of the first Ode of the fourth
book of Horace.

" To Number Five direct your doves,

" There spread round Murray all your blooming loves ;

" Noble and young, who strikes the heart

" With every sprightly, every decent part :

" Equal, the injur'd to defend,

" To charm the mistress, or to fix the friend.

" He with an hundred arts refin'd,

" Shall spread thy conquest over half the kind ;

" To him, each rival shall submit,

" Make but his riches equal to his wit."

The two last verses allude to an unsuccessful address made
by his Lordship, in the early part of his life, to a lady of great
wealth. Mr. Pope adverts to it in the following lines :

" Shall one whom nature, learning, birth conspir'd

" To form, not to admire, but be admir'd,

*' Sigh, while his Cloe, blind to wit and worth,

" Weds the rich dulness of some son of earth?"

THE EARL OF MANSFIELD. 221

business poured in upon him from all sides ; and he
himself has been heard to say, that he never knew
the difference between a total want of employment
and a gain of 3,000 /. a year.

He learned much of special pleading from Mr.
Justice Dennison, and much of the law of title and
real property from Mr. Booth. He confined his
practice to the court of chancery. His command of
words, and the gracefulness of his action, formed a
striking contrast with the manner of speaking of
some of his rivals, who were equally distinguished
by the extent and depth of their legal knowledge,
and their unpleasant enunciation.

After he had filled, with great applause, the offices
of Solicitor, and Attorney-General, he was created
Chief Justice of the King's Bench, in May 1 756,
on the decease of Sir Dudley Ryder. He held that
high situation for two-and-thirty years. Till his
time, the practice was, that the bench called on the
gentlemen within the bar, to make their motions,
beginning every day with the senior counsel, and
then calling on the next senior in order, as long
as it was convenient to the court to sit ; and to
proceed again in the same manner upon the next
and eveiy subsequent day, although the bar had not
been half, or perhaps a quarter gone through,
upon any one of the fonner days; so that the
juniors were very often obliged to attend in vain,
without being able to bring on their motions for
many successive days. Lord Mansfield, to encourage

222 PROFESSIONAL CHARACTER OF

the juniors, proceeded regularly through the bar
to the youngest counsel, before he would begin
again with the seniors. This method was not only
advantageous to the younger part of the barristers,
but, as it prevented a great delay of business, was
extremely advantageous to the suitors. On every
other occasion, he was equally attentive to the bar
and the suitors of the court.

In all he said or did, there was a happy mixture
of good-nature, good-humour, elegance, ease, and
dignity. His countenance was most pleasing ; he
had an eye of fire ; and a voice perhaps unrivalled
in its sweetness and the mellifluous variety of its
tones. There was a similitude between his action
and Mr. Garrick's ; and, in the latter part of his
life, his voice discovered something of that guttu-
rality, for which Mr. Garrick's was distinguished.
He spoke slowly, sounding distinctly every letter of
every word. In some instances he had a great
peculiarity of pronunciation — " authority" and
" attachment,'* two words of frequent use in the
law, he always pronounced a^vtawrity and attaich-
meni. His expressions were sometimes low. He
did not always observe the rules of grammar. There
was great confusion in his periods, very often be-
ginning without ending them, and involving his
sentences in endless parentheses ; yet, such was
the charm of his voice and action, and such the
general beauty, propriety, and force of his expres-
sions, that, as he spoke, all these defects passed

THE EARL OF MANSFIELD. 223

unnoticed. No one ever remarked them, who did
not obstinately confine his attention and observation
to them alone.

Among his contemporaries, he had some superiors
in force, and some equals in persuasion ; but in in-
sinuation, he was without a rival or a second. This
was particularly distinguishable in his speeches from
the bench. He excelled in the statement of a case.
One of the first orators of the present age said of it,
" that it was, of itself, worth the argument of any
" other man.'' He divested it of all unnecessary
circumstances ; brought together every circumstance
of importance ; and these he placed in so striking
a point of view, and connected them by observations
so powerful, but which appeared to arise so natu-
rally from the facts themselves, that frequently the
hearer was convinced before the argument was
opened. When he came to the argument, he
shewed equal ability, but it was a mode of argu-
ment almost peculiar to himself. His statement of
the case predisposed the hearers to fall into the very
train of thought he w ished them to take, when they
should come to consider the argument. Through
this he accompanied them, leading them insensibly
to every observation favourable to the conclusion he
wished them to draw, and diverting every objection
to it ; but, all the time, keeping himself concealed ;
so that the hearers thought they formed their
opinions in consequence of the powers and workings
of their own minds, when, in fact, it was the effect

224 PROFESSIONAL CHARACTER OF

of the most subtle argumentation and the most re-
fined dialectic.

Some idea of lord Mansfield's cast of mind and
mode of discussion, may be formed by perusing his
arguments in delivering his opinion in the cases of
the Mayor of Kingston-upon-Hull, v. Horner ;
Eldridge, 'v. Nott ; and Hogan, v. Jackson, in Mr.
Cowper's Reports, 102, 214, 299. Something of
them appears also in the following extract of his
speech in reversing Mr. Wilkes's outlawry, 2 Burr.
2561 ; but it should be taken into consideration,
that the last evidently was either a prepared speech,
or pui-posely corrected for the press.

After stating the general merits of the case, his
lordship says,

f But here, let me pause ! —

*' It is fit to take some notice of the various ter-
rors hung out ; the numerous crowds which have
attended and now attend in and about the hall, out
of all reach of hearing what passes in court; and
the tumults which, in other places, have shamefully
insulted all order and government. Audacious ad-
dresses in print dictate to us, from those they call
the people, the judgment to be given now, and after-
wards upon the conviction. Reasons of policy are
urged, from danger to the kingdom, by commotions
and general confusion.

" Give me leave to take the opportunity of this
great and respectable audience, to let the whole
world know, all such attempts are vain. Unless we

THE EARL OF MANSFIELD. 225

have been able to find an error which will bear us
out, to reverse the outlawry ; it must be affirmed.
The constitution does not allow reasons of state to
influence our judgments : God forbid it should ! we
must not regard political consequences ; how for-
midable soever they might be : if rebellion was the
certain consequence, we are bound to say ^Jiatjus-
titia, mat ccelmn.* The constitution trusts the king
with reasons of state and policy : he may stop prose-
cutions ; he may pardon offences ; it is his, to judge
whether the law or the criminal should yield. We
have no election. None of us encouraged or ap-
proved the commission of either of the crimes of
which the defendant is convicted : none of us had
any hand in his being prosecuted. As to myself, I
took no part, (in another place,) in the addresses for
that prosecution. We did not advise or assist the
defendant to fly from justice : it was his own act ;
and he must take the consequences. None of us
have been consulted or had any thing to do with the
present prosecution. It is not in our power, to stop
it : it was not in our power, to bring it on. We
cannot pardon. We are to say, what we take the
law to be : if we do not speak our real opinions,
we prevaricate with God and our own consciences.

" I pass over many anonymous letters I have
received. Those in print are public : and some of
them have been brought judicially before the court.
Whoever the writers are, they take the wrong way.
I will do my duty, unawed. Wliat am I to fear ?

226 PROFESSIONAL CHARACTER OF

Tliat mendax infamia from the press, iVhich daily
coins false facts and false motives ? The lies of
calumny carry no terror to me. I trust, that my
temper of mind, and the colour and conduct of my
life, have given me a suit of armour against these
arrows. If, during this king's reign, I have ever
supported his government, and assisted his mea-
sures ; I have done it without any other reward,
than the consciousness of doing what I thought
right. If I have ever opposed, I have done it upon
the points themselves : without mixing in party or
faction, and without any collateral views. I honour
the king ; and respect the people : but, many things
acquired by the favour of either, are in my account,
objects not worth ambition. I wish popularity :
but, it is that popularity which follows ; not that
which is run after. It is that popularity which,
sooner or later, never fails to do justice to the pur-
suit of noble ends, by noble means. I will not do
that which my conscience tells me is wrong, upon
this occasion ; to gain the huzzas of thousands, or
the daily praise of all the papers which come from
the press : I will not avoid doing what I think is
right ; though I should draw on me the whole artil^
lery of libels ; all that falsehood and malice can in-
vent, or the credulity of a deluded populace can
swallow. I can say, with a great magistrate, upon
an occasion and under circumstances not unlike,
' jE^'o lioc animo semper fid, ut hwidiam, virtute
* par tarn f glorianiy non invidiam , putarem,*

THE EARL OF MANSFIELD. 227

*' The threats go further than abuse : personal
violence is denounced. I do not believe it : it is not
the genius of" the worst men of this country, in the
worst of times. But I have set my mind at rest.
The last end that can happen to any man, never
comes too soon, if he falls in support of the law and
liberty of his country : (for, liberty is synonymous
to law and government.) Such a shock, too, might
be productive of public good : it might awake the
better part of the kingdom out of that lethargy which
seems to have benumbed them ; and bring the mad
part back to their senses, as men intoxicated are
sometimes stunned into sobriety.

*' Once for all, let it be imderstood, * that no
' endeavours of this kind will influence any man
* who at present sits here.' If they had any effect, it
would be contrary to their intent : leaning against
their impression, might give a bias the other way.
But I hope, and I know, that I have fortitude
enough to resist even that weakness. No libels, no
threats, nothing that has happened, nothing that
can happen, will weigh a feather against allowing
the defendant, upon this and every other question,
not only the whole advantage he is intitled to from
substantial law and justice ; but every benefit from
the most critical nicety of form, which any other
defendant could claim under the like objection.
The only effect I feel, is an anxiety to be able to
explain the grounds upon which we proceed ; so as
to satisfy all mankind * that a flaw of form given

228 PROFESSIONAL CHARACTER OF

' way to in this case, could not have been got over
* in any other.' "

His lordship frequently enlivened the taedium of
a cause w^ith sallies of good-humoured wit. He was
sometimes happy in them. A jew of a very bad
character, but covered with gold lace, was brought
before him to justify bail for fifty pounds. The
counsel asked him the usual question, if he were
worth fifty pounds, after all his just debts were paid.
*' AVTiy do you ask him that question ?" said his
lordship : " don't you see he would burn for twice
♦' the sum ? "

But it was not by oratory alone, that he was dis-
tinguished : in many parts of our law he established
a wise and complete system of jurisprudence. His
decisions have had a considerable influence in fixing
some of those rules which are called the land-marks
of real property. The law of insurance, and the
poor laws (particularly so far as respects the law of
parochial settlements), are almost entirely founded
on his determinations. It has been objected to him,
that he introduced too much equity into his court.
It is not easy to answer so general an observation ;
it may, however, be observed, that it is as wrong to
suppose a court of law is to judge without equity,
as to suppose a court of equity is not bound by law ;
and, when Mr. Justice Blackstone informs us, t that,
under the ancient provisions of the second statute

•)• Cora. vol. iii. 435.

THE EARL OF MANSFIELD. 229

oF Westminster, the courts of law were furnished
with powers, which might have effectually answered
all the purposes of a court of equity, except that
of obtaining a discovery by the party's oath, there
cannot, it should seem, be much ground for such an
accusation.

His lordship was sometimes charged witli not en-
tertaining the high notions which. Englishmen feel,
and it is hoped will ever feel, of the excellence of
the trial by jury. Upon what, this charge is founded
does not appear : between him and his jury there
never was the slightest difference of opinion. He
treated them with unvaried attention, and respect ;
they always shewed him the utmost deference. It is
remembered, that no part of his office was so agree-
able to him as attending the trials at Guildhall. It
was objected to him, that, in matters of libel, he
thought the judges were to decide on its criminality.
If his opinions on this subject were erroneous, the
error was common to him with some of the most
eminent among the ancient and modern lawyers. It
was also objected to him, that he preferred the civil
law to the law of England. His citations from the
civilians were brought as a proof of his supposed
partiality to that law : but they were rather oc-
casional than frequent ; and he seldom introduced
them where the case was not of a new impression,
so that the scantiness of home materials necessarily
led him to avail himself of foreign ware. Some-
times, however, he intimated an opinion, that the

VOL. II. O o

2^0 PROFESSIONAL CHARACTER OF

modification of real property in England, in wili&
and settlements, was of too intricate and complex
a nature, and for that reason inferior to the more
simple system of the Roman usufruct. The fre-
quent necessity there is in our law to call in trustees,
whenever property is to be transmitted or charged,
so as to be taken out of immediate commerce, ap-
peared to him an imperfection ; and he wished the
nature of our jurisprudence permitted the adoption
of the rule of the civil law, that, when a debt is
extinguished, the estate or interest of the creditor,
in the lands or other property mortgaged for its
security, is extinguished with it. It will be difficult
to shew any other instance in which he preferred
the civil law to the lav/ of England.

In a conversation he permitted a student at the
English bar to have with him, he expressed himself
in terms of great esteem for Littleton, but spoke of
lord Coke, particularly of " his attempting to give
*' reasons for every thing" (that was his phrase)
with great disrespect. He mentioned lord Hard-
wicke in terms of admiration and of the warmest
friendship : " When his lordship pronounced his
*' decrees, wisdom herself,'* he said, '* might be
*' supposed to speak.'*

He observed with great satisfaction, that during
the long period of his chief-justiceship, there had
been but one case in which he had ultimately differed
with his brother judges of the same court. That
was the case of Perryn against Blake. He lamented

THE EARL OF MANSFIELD. 23 1

tlie difference, but declared his conviction, that
the opinion he dehvered upon it was right.

He recommended Saunders* Reports. He ob-
served, that the quantity of professional reading
absolutely necessary, or even really useful, to "a
lawyer, was not so great as was usually imagined ;
but, he observed, *' that it was essential he should
*' read much," as he termed it, " in his own de-
" fence j lest, by appearing ignorant on subjects
" which did not relate to his particular branch of
" the profession, his ignorance of that particular
" branch might be inferred.'*

Speaking of the great increase of the number
of law books, he remarked, that it did not increase
the quantity of necessary reading, as the new pub-
lications frequently made the reading of the former
publications unnecessary. Thus, he said, since
Mr. Justice Blackstone had published his Commen-
taries, no one thought of reading Wood's Insti-
tutes or Finch's Law, which, till then, were the
first books usually put into the hands of students.
He said that when he was young, few persons
would confess they had not read a considerable
part, at least, of the year books ; but that, at the
time he was then speaking, few persons would pre-
tend to more than an occasional recourse to them
in very particular cases. He warmly recommended
the part of Giannone's History of Naples, which
gives the history of jurisprudence, and of the dis-
putes between the church and the state. He men-
Oo 2

232 PROFESSIONAL CHARACTER OF

tionetl Chillingworth as a perfect model of argii -
mentation.

In the fundamental principles, either of the
constitution or the jurisprudence of this country,
no one dreaded inliovation more than he did. His
speech on the case of Eltham Allen shews his
notions on the great subject of toleration. It was
published by Dr. Furneaux. He was the first
judge who openly discountenanced prosecutions on
the popery laws. His charge to the jury, in the
case of Mr. James Webb, a roman-catholic priest,
tried in 1768 for saying mass, is printed from the
notes of the short-hand writer, in a life of Dr.
Cballoner, a roman-catholic bishop, by Mr. James
Barnard.

To these may be added, a speech against the
suspending and dispensing prerogative, printed in
Mr. Almon's collection. It is an invaluable com-
position, and presents, perhaps, the clearest notions
that have yet appeared in print, of this mysterious
and delicate part of the law. Much of his manner
of arguing, and his turn of expression, is disco-
verable in it. It cannot, however, be considered
as his genuine speech : it is at least three times the
size of the speech really delivered by him. He
obtained by it a complete triumph over Lord
Camden and Lord Chatham.

Though he was so far a friend to toleration, as
not to wish for an extension of the laws enacted
against dissenters, or to wish the existing laws

THE EARL OF MANSFIELD. 233

Hgidly enforced against them, yet he was a friend
to the coq^oration and test laws, and considered
them as bulwarks of the constitution, which it
might be dangerous to remove. On every occasion
he reprobated the discussion of abstract principles,
and inculcated the maxim, that the exchange of
the well for the better was a dangerous experiment,
and scarcely ever to be hazarded.

Some time after the commencement of the French
revolution, he was asked, where he thought it would
end ? He said, he feared it was not begun. — To
a person who enquired of him, what he supposed
would be the ultimate issue of it ; he said, it was
an event without precedent, and therefore without
prognostic.

It has been argued, that his knowledge of the
law was by no means profound, and that his great
professional eminence was owing more to his oratory
than to his knowledge. This was an early charge
against him. Mr. Pope alludes to it in these
lines :

The Temple late two brother Sergearits saw,
Who deemed each other oracles of law ;
Each had a gravity would make you split,
And shook his head at Murray as a wit.

. Imitations of Horace, book ii. epist. ii.

Perhaps the opinion was founded on the notion
which many entertain, that the study of the polite
arts is incompatible with a profound knowledge of
O03

234 PROFESSIONAL CHARACTER OF

the law ; not recollecting, that the human mind
necessarily requires some relaxation, and that a
change of study is the greatest and most natural of
all relaxations, to a mind engaged in professional
pursuits. Besides — the commune vinculum between
all branches of learning, preserves the habits of
application, of thinking, and of judging, which are
lost in the modes of dissipation usually resorted to
for relaxation. The Chancellor d'Aguesseau,*
and even the stern du Moulin, were eminently
distinguished by their general literature. Lord
Bacon's various and profound knowledge is univer-
sally known ; and many works of Lord Hale are
published, which shew, that to the deepest and
most extensive knowledge of all the branches of
the law, the constitution, and the antiquities of his
country, he united a general acquaintance with the
history of other nations ; that he had given much
of his time to the study of theology ; that he oc-
casionally sacrificed to the muses, and spent some
time in the curious and instructive amusements of
experimental philosophy. It was late in life, that
Lord Hardwicke took up the study of polite lite-
rature, but he afterwards pursued it with great
earnestness. His son. Lord Chancellor Yorke,
always called himself a fugitive from the muses ;
and, amidst his vast variety of occupation, still
found time to converse with them. Each of these

* This great magistrate used to say, '* Le changement
" d' etude est toujour s un delassement pour mot."

THE EARL OF MANSFIELD. 235

great men might have said with Cicero, " Qim
*' tandem vie reprehendai., aut qins mihi jure
** succenseaty si quantum ca^teri, ad suas res obe-
" undas, quantum adfestos dies ludorum celehran-
*' doSy quantum ad alias volupiateSy et ad ipsam
*' requiem a7iimi et corporis conceditur temporis ;
** quaritum alii tribuunt tempestivis conviviisy
" quantum denique alece^ quantum pike, tantum
" mihi egomet, ad hcec stadia r^ecollenda sump-
*' seroJ'

To decide on his lordship's knowledge of tlie
law, a serious perusal of his arguments, as counsel,
in Mr. Atkyns's reports, and of his speeches, as
judge, in Sir James Burrow's, Mr. Douglas', and
Mr. Cowper's Reports, is absolutely necessary.
If the former be compared with the arguments of
his contemporaries, many of whom were men of
the profoundest knowledge that ever appeared at
the Chancery bar, it will not be discovered, that in
learning or research, in application of principles or
in recollection of cases, his arguments are anywise
inferior to those of the most eminent among them.
Neither will he suffer by the comparison, if his
speeches in giving his judgments from the bench,
are compared with those of the counsel at the bar.
It is easy to imagine, that, on some one occasion,
a judge, with his lordship's mental endowments,
by a particular application to the learning immedi-
ately referrible to the case in question, and by con-
O04

236 PROFESSIONAL CHARACTER OF

suiting with persons eminently skilled in that par-
ticular branch of legal lore, may, with a very
small stock of real knowledge of his own, express
himself with a great appearance of extensive and
recondite erudition. This, however, can be the
case but seldom, the calls upon a chief justice of the
King's Bench for a full exertion of all his natural
and acquired endowments being incessant. There
is hardly a day of business in his court, in which a
disclosure of his knowledge, or of his want of it,
is not forced from him.

Considering his lordship's decisions separately,
it will appear, that on all occasions he was perfectly
master of the case before him, and apprised of every
principle of law, and every adjudication of the
courts, immediately or remotely applicable to it.
Considering them collectively, they will be found
to form a complete code of jurisprudence on some
of the most important branches of our law : a
system founded on principles equally liberal and
just, admirably suited to the genius and circum-
stances of the age, and happily blending the vene-
rable doctrines of the old law with the learning
and refinement of modern times ; the work of a
mind nobly gifted by nature, and informed with
every kind of learning which could serve for use
gjid ornament.

It was not on great occasions only, that his
lordship's talents were conspicuous : they were

THE EARL OF MANSFIELD. 237

equally discoverable in the common business of the
courts. Par negotiis neqiie supra,* was never
more applicable than to the discernment, persever-
ance, abilities, and good-humour with which he con-
ducted himself in that part of his office. 1 he late
Earl of Sandwich said of him, " that his talents
*' were more for common use, and more at his finger
" ends, than those of any other person he had
" known." But his highest praise is, that his private
virtues were allowed by all, and his personal inte-
grity was never called in question.

A memorable event in his Lordship's life, is the
destruction of his house and papers, in the riots of
1780. The following account of it is given, by
Mr. Douglas, now Lord Glenbervie, in his *' Re-
" ports of Cases adjudged and determined in the
" King's Bench, in the 19th, 20th, and 21st years
*' of the reign of George the Third."

" In the night between Tuesday the 6th, and
Wednesday the 7th of June, Lord Mansfield's
house, in Bloomsbury-square, was attacked by the
rioters, who, on the Friday and Tuesday, to the
amount of many thousands, had surrounded the
avenues to the houses of parliament, under pretence
of attending Lord George Gordon, when he pre-
sented the petition from the protestant association.
Lord Mansfield acted at that time as Speaker of the
House of Lords, in the absence of the Lord Chan-
cellor, who was ill. On the Tuesday evening, the

* Tacitus, in Vitd Agricolae.

238 projFessional character of

prison of Newgate had been thrown open, all the
combustible part reduced to ashes, and the felons
let loose upon the public. It was after this attempt
to destroy the means of securing the victims of cri-
minal justice, that the rioters assaulted the residence
of the chief magistrate of the first criminal court
in the kingdom ; nor were they dispersed till they
had burnt all the furniture, pictures, books, manu-
scripts, deeds, and, in short, every thing which fire
could consume in his lordship's house; so that
nothing remained but the walls ; which were seen
the next morning almost red hot, from the violence
of the flames, presenting a melancholy and awful
ruin to the eyes of the passengers.

The amount of that part of Lord Mansfield's
loss which might have been estimated, and was ca-
pable of a compensation in money, is known to have
been very great. This he had a right to recover
against the Hundred. Many others have taken that
course ; but his lordship thought it more consistent
with the dignity of his character, not to resort to
the indemnification provided by the legislature.
His sentiments on the subject of a reparation from
the state were communicated to the board of works,
in a letter written in consequence of an application
which they had made to him, (as one of the prin-
cipal sufferers,) pursuant to directions from the
treasury, founded on a vote of the House of Com-
mons, requesting him to state the nature and amount
of his loss. In that letter, after some introductory

THE EARL OF MANSFIELD. 23g

expressions of civility to the surveyor general, to
whom it was addressed, his lordship says,

" Besides what is irreparable, ray pecuniary loss
** is great. I apprehended no danger, and therefore
*' took no precaution. But how great soever that
*' loss may be, I think it does not become me to
*' claim or expect reparation from the state. I have
** made up my mind to my misfortune as I ought :
" with this consolation, that it came from those
" whose object manifestly was general confusion
" and destruction at home, in addition to a dan-
" gerous and complicated war abroad. If I should
" lay before you any account or computation of the
" pecuniary damage I have sustained, it might seem
** a claim or expectation of being iudemnified.
" Therefore you will have no further trouble upon
" this subject from, &c.

*' Mansfield."

On Wednesday, the devastation became almost
general throughout London. The houses of many
of the most respectable individuals had been pre-
viously attacked : that evening, the Fleet and King^s
Bench prisons were set on fire ; the bank of Eng-
land, the Inns of Court, almost all the public build-
ings were threatened with destruction ; and an
universal conflagration must have taken place, if the
king had not issued a proclamation for the speedy
and effectual interposition of the military power.
Till then, the soldiery had scarcely dared to act of-

240 TROFESSIONAL CHARACTER OF

fensively ; the ordinary magistrates were, for the
most part, deterred, or prevented by various causes,
from giving their sanction to the employment of the
troops; and, in many places, the men under arms,
with their officers at their head, though drawn up
in military order, did nothing more than preserve a
space between the incendiaries and the crowel of
spectators, so as to have the effect of enabling the
former to demolish the houses and property of their
fellow subjects without interruption.

The courts of justice continued, on the Wednes-
day, to sit, in order to do the business of course ;
but almost every where else, except in Westminster
Hall, the rioters seemed, that day, to have obtained
a complete mastery, and a real anarchy pervaded all
parts of the metropolis. The execution done by the
troops on the night between the Wednesday and
Thursday, though very few lives were sacrificed,
produced a happy revolution. The numerous bands
of rioters had entirely vanished on the Thursday af-
ternoon ; scarce a single badge of the protestant
association, (which w^as a blue cockade, and which
all the rioters wore,) was to be seen ; and the total
suppression of this insurrection, in its circumstances
vdthout example in the history of Europe, was as
sudden as its rise. The encampment of large bo-
dies of the army and militia in and near London for
several months, prevented the renewal of the com-
motions there ; and, although a scene of the same
sort took place a few days afterwards at Bath, and

THE EARL OF MANSFIELD. 24 1

was commenced, or expected, in other parts of
England, similar precautions entirely extinguished,
not only all danger, but all apprehension, in the
space of a few weeks."

His lordship resigned his office on the 3d of June,
1788.

Soon after his lordship's resignation was signi-
fied, the following letter was sent to him. It was
signed by the counsel of the King's Bench bar,
who had practised in the court during his lordship's
administration :

" TO THE EARL OF MANSFIELD.

" My Lord,

" It was our wish to have waited
*' personally upon your lordship in a body, to have
*' taken our public leave of you on your retiring
*' from the office of chief justice of England ; but,
" judging of your lordship's feelings upon such an
" occasion by our own, and considering besides
" that our numbers might be inconvenient, we de-
*' sire in this manner affectionately to assure your
*' lordship, that we regret, with a just sensibility,
" the loss of a magistrate whose conspicuous and
" exalted talents conferred dignity upon the pro-
*' fession, whose enlightened and regular admini-
** stration of justice made its duties less difficult and
" laborious, and whose manners rendered them
*' pleasant and respectable.

242 PROFESSIONAL CHARACTER OF

" But while we lament our loss, we remember
" witli peculiar satisfaction, that your lordship is not
" cut off from us by the sudden stroke of painful dis-
*' temper, or the more distressing ebb of those ex-
" traordinary faculties which have so long distin-
" guished you amongst men ; but that it has pleased
" God to allow to the evening of an useful and il-
*' lustrious life the purest enjoyments which nature
'* has ever allotted to it ; the unclouded reflections
** of a superior and unfading mind over its varied
" events; and the happy consciousness that it has
" been faithfully and eminently devoted to the high-
" est duties of human society, in the most distin-
*' guished nation upon earth.

" May the season of this high satisfaction bear
" its proportion to the lengthened days of your ac-
" tivity and strength.

" (Signed.)"

The letter thus signed, being transmitted to the
venerable earl by Mr. Erskine, at the desire of Mr.
Bearcroft, the senior of that bar, and the rest of the
gentlemen who had thus subscribed it, his lordship,
without detaining the servant five minutes, returned
the following answer :

*' to the honourable t. erskine,
*' serjeant's-inn.
" Dear sir,

" I cannot but be extremely flattered
" by the letter which I this moment have the honor
" to receive.

THE EARL OF MANSFIELD. 243

" If I have given satisfaction, it is owing to the
" learning and candour of the bar ; the liberaHty
'* and integrity of their practice, freed the judicial
*' investigation of truth and justice from difficulties.
" The memory of the assistance I have received from
"them, and the deep impression which the extra-
" ordinary mark they have now given me of their
" approbation and affection has made upon my mind,
" will be a source of perpetual consolation in my de-
*' cline of life, under the pressure of bodily infir-
" mities, which made it my duty to retire.

" I am, dear sir, with gratitude to
*' You and the other Gentlemen,

* ' Your most affectionate
*' And obliged humble servant,

" Mansfield."

" Caen Wood,
"June 18, 1788."

END OF VOL. II.

Priufred by Luke Hansard & Sons,
near Liucoln's-Inn Fields, London.

Ptinceton Theological Semmary-Speer

1 1012 01147 539

.^'

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Full text of "The philological and biographical works of Charles Butler .."

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