presented to
of tbc
of Toronto
Bertram 1
from tbe boofcs of
tbe late Xionel Davfa,
VIEW
OF
THE STATE OF EUROPE
DURING
THE MIDDLE AGES.
BY HENRY HALLAM, LL.D., F.R.A.S.,
FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE.
Clefwttlj €biiion,
INCLUDING SUPPLEMENTAL NOTES.
IN THREE VOLUMES.— VOL. II.
LONDON: *
JOHN MURRAY, ALBEMARLE STREET.
1856.
Tiie rigid of Ti (/inflation is reserved.
D
n
Y.ft
LON1X>N : PRINTKU BY W. CI.OWKS AND SONS, STAMFORD 8TRKET,
AND CiIAKINU CROSS.
CONTENTS
OF
THE SECOND VOLUME.
CHAPTER IV.
THE HISTORY OF SPAIN TO THE CONQUEST OF GRANADA.
Kingdom of the Visigoths — Conquest of Spain by the Moors — Gradual
Revival of the Spanish Nation — Kingdoms of Leon, Aragon, Navarre,
and Castile successively formed — Chartered Towns of Castile — Military
Orders — Conquest of Ferdinand III. and James of Aragon — - Causes of the
Delay in expelling the Moors — History of Castile continued — Character
of the Government — Peter the Cruel — House of Trastamare — John IF.
— Henry IV. — Constitution of Castile — National Assemblies or Cortes
— Their constituent Parts — Right of Taxation — Legislation — Privy
Council of Castile — Laws for the Protection of Liberty — Imperfections of
the Constitution — Aragon — its History in the fourteenth and fifteenth
Centuries — Disputed Succession — Constitution of Aragon — Free Spirit
of its Aristocracy — Privilege of Union — Powers of the Justiza — Legal
Securities — Illustrations — Other Constitutional Laws — Valencia and
Catalonia — Union of two Crowns by the Marriage of Ferdinand and Isa-
bella — Conquest of Granada Page 1
NOTE TO CHAPTER IV. 61
CHAPTER V.
HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495.
Sketch of German History under the Emperors of the House of Saxony —
House of Frauconia — Henry IV. — House of Suabia — Frederic Bar-
barossa — Fall of Henry the Lion — Frederic II. — Extinction of House
of Suabia — Changes in the Germanic Constitution — Electors — Territorial
Sovereignty of the Princes — Rodolph of Hapsburg — State of the Empire
after his Time — Causes of Decline of Imperial Power — House of Luxem-
burg — Charles IV. — Golden Bull — House of Austria — Frederic III. —
Imperial Cities — Provincial States — Maximilian — Diet of Worms —
Abolition of private Wars — Imperial Chamber — Aulic Council — Bohemia
— Hungary — Switzerland .. .. ., .. 65
CONTENTS.
CHAPTER VI.
HISTORY OF THE GREEKS AND SARACENS.
Rise of Mohammedism — Causes of its Success — Progress of Saracen Arms —
Greek Empire — Decline of the Khalifs — The Greeks recover Part of their
Losses — The Turks — The Crusades — Capture of Constantinople by the
Latins — its Recovery by the Greeks — The Moguls — The Ottomans —
Danger at Constantinople — Timur — Capture of Constantinople by Ma-
homet II. — Alarm of Europe Page 112
CHAPTER VII.
HISTORY OF ECCLESIASTICAL POWER DURING THE MIDDLE AGES.
PART I.
Wealth of the Clergy — its Sources — Encroachments on Ecclesiastical Pro-
perty— their Jurisdiction — arbitrative — coercive — their Political Power
— Supremacy of the Crown — Charlemagne — Change after his Death, and
Encroachments of the Church in the Ninth Century — Primacy of the See
of Rome — its early Stage — Gregory I. — Council of Frankfort — False De-
cretals — Progress of Papal Authority — Effects of Excommunication —
Lothaire — State of the Church in the Tenth Century — Marriage of Priests
— Simony — Episcopal Elections — Imperial Authority over the Popes —
Disputes concerning Investitures — Gregory VII. and Henry IV. — Con-
cordat of Calixtus — Election by Chapters — General System of Gregory VII.
— Progress of Papal Usurpations in fhe Twelfth Century — Innocent III.
— his Character and Schemes .. .. 137
PABT II.
Continual Progress of the Papacy — Canon Law — Mendicant Orders — Dis-
pensing Power— Taxation of the Clergy by the Popes — Encroachments on
Rights of Patronage — - Mandats, Reserves, &c. — General Disaffection
towards the See of Rome in the Thirteenth Century — Progress of Ecclesi-
astical Jurisdiction — Immunity of the Clergy in Criminal Cases — Re-
straints imposed upon their Jurisdiction — upon their Acquisition of Pro-
perty—Boniface VIII. — his Quarrel with Philip the Fair — its Termina-
tion — Gradual Decline of Papal Authority — Louis of Bavaria — Secession
to Avignon and Return to Rome — Conduct of Avignon Popes — Contested
Election of Urban and Clement produces the great Schism — Council of
Pisa — Constance — Basle — Methods adopted to restrain the Papal Usurpa-
tions in England, Germany, and France — Liberties of the Gallican Church
— Decline of the Papal Influence in Italy .. .. .. .. .. 199
NOTES TO CHAPTER VII. 259
CONTENTS. vii
CHAPTER VIII.
THE CONSTITUTIONAL HISTORY OF ENGLAND.
PART I.
The Anglo-Saxon Constitution — Sketch of Anglo-Saxon History — Succes-
sion to the Crown — Orders of Men — Thanes and Ceorls — Witenagemot
— Judicial System — Division into Hundreds — County-Court — Trial by
jury — its Antiquity investigated — Law of Frankpledge — its several
Stages — Question of Feudal Tenures before the Conquest . . . . Page 266
PART II.
THE ANGLO-NORMAN CONSTITUTION.
The Anglo-Norman Constitution — Causes of the Conquest — Policy and
Character of William — his Tyranny — Introduction of Feudal Services —
Difference between the Feudal Governments of France and England —
Causes of the great Power of the first Norman Kings — Arbitrary Character
of their Government — Great Council — Resistance of the Barons to John
— Magna Charta — its principal Articles — Reign of Henry III. — The Con-
stitution acquires a more liberal character — Judicial System of the Anglo-
Normans — Curia Regis, Exchequer, &c. — Establishment of the Common
Law — its Effect in fixing the Constitution — Remarks on the Limitation of
Aristocratical Privileges in England 299
NOTES TO CHAPTER VIII., PARTS I. and II 349
VIEW
OF
THE STATE OF EUROPE
DURING THE MIDDLE AGES.
CHAPTER IV.
THE HISTORY OF SPAIN TO THE CONQUEST OF GRANADA.
Kingdom of the Visigoths — Conquest of Spain by the Moors — Gradual
Revival of the Spanish Nation — Kingdoms of Leon, Aragon, Navarre, and
Castile, successively formed — Chartered Towns of Castile — Military Orders
— Conquest of Ferdinand III. and James of Aragon — Causes of the Delay
in expelling the Moors — History of Castile continued — Character of the
Government — Peter the Cruel — House of Trastamare — John II. — •
Henry IV. — Constitution of Castile — National Assemblies or Cortes —
their constituent Parts — Right of Taxation — Legislation — Privy Council
of Castile — Laws for the Protection of Liberty — Imperfections of the Con-
stitution— Aragon — its History in the fourteenth and fifteenth Centuries —
disputed Succession — Constitution of Aragon — Free Spirit of its Aristocracy
— Privilege of Union — Powers of the Justiza — Legal Securities — Illus-
trations — other Constitutional^ Laws — Valencia and Catalonia — Union of
two Crowns by the Marriage of Ferdinand and Isabella — Conquest of
Granada.
THE history of Spain during the middle ages ought to com-
mence with the dynasty of the Visigoths ; a nation Kingdom of
among the first that assaulted and overthrew the sPail?ths
Roman Empire, and whose establishment preceded by nearly
half a century the invasion of Clovis. Vanquished by that
conqueror in the battle of Poitiers, the Gothic monarchs
lost their extensive dominions in Gaul, and transferred
their residence from Toulouse to Toledo. But I will not
detain the reader by naming one sovereign of that obscure
race. It may suffice to mention that the Visigothic mo-
narchy differed in several respects from that of the Franks
during the same period. The crown was less hereditary, or
at least the regular succession was more frequently disturbed.
VOL. II. B
2 STATE OF EUROPE CHAP. IV.
The prelates had a still more commanding influence in
temporal government. The distinction of Romans and
barbarians was less marked, the laws more uniform, and
approaching nearly to the imperial code. The power of the
sovereign was, perhaps, more limited by an aristocratical
council than in France ; but it never yielded to the danger-
ous influence of mayors of the palace. Civil wars and dis-
puted successions were very frequent, but the integrity of
the kingdom was not violated by the custom of partition.
Spain, after remaining for nearly three centuries in the
conquest possession of the Visigoths, fell under the yoke of
sirens, the Saracens in 712. The fervid and irresistible
enthusiasm which distinguished the youthful period of Mo-
hammedism might sufficiently account for this conquest ;
even if we could not assign additional causes, — the factions
which divided the Goths, the resentment of disappointed
pretenders to the throne, the provocations, as has been gene-
rally believed, of Count Julian, and the temerity that risked
the fate of an empire on the chances of a single battle.* It
is more surprising that a remnant of this ancient monarchy
should not only have preserved its national liberty and name
in the northern mountains, but waged for some centuries a
successful, and generally an offensive, warfare against the
conquerors, till the balance was completely turned in its
favour, and the Moors were compelled to maintain almost as
obstinate and protracted a contest for a small portion of the
peninsula. But the Arabian monarchs of Cordova found in
their success and imagined security a pretext for indolence ;
even in the cultivation of science, and contemplation of the
magnificent architecture of their mosques and palaces, they
forgot their poor but daring enemies in the Asturias ; while,
according to the nature of despotism, the fruits of wisdom
or bravery in one generation were lost in the follies and
effeminacy of the next. Their kingdom was dismembered
by successful rebels, who formed the states of Toledo,
Huesca, Saragosa, and others less eminent ; and these, in
their own mutual contests, not only relaxed their natural
enmity towards the Christian princes, but sometimes sought
their alliance.b
" [NOTE.] b Cardonne, Histoire de 1'Afrique et de 1'Espagne.
SPAIN. DUKING THE MIDDLE AGES. 3
The last attack which seemed to endanger the reviving
monarchy of Spain, was that of Almanzor, the illus- Kingdom of
trious vizir of Haccham II., towards the end of 'Leon<
the tenth century, wherein the city of Leon, and even the
shrine of Compostella, were burned to the ground. For
some ages before this transient reflux gradual encroachments
had been made upon the Saracens ; and the kingdom ori-
ginally styled of Oviedo, the seat of which was removed
to Leon in 914, had extended its boundary to the Douro,
and even to the mountainous chain of the Guadarrama.
The province of Old Castile, thus denominated, as is gene-
rally supposed, from the castles erected while it remained
a march or frontier against the Moors, was governed by
hereditary counts, elected originally by the provincial aris-
tocracy, and virtually independent, it seems probable, of
the kings of Leon, though commonly serving them in war,
as brethren of the same faith and nation.0
While the kings of Leon were thus occupied in recover-
ing the western provinces, another race of Christian Kingdoms
princes grew up silently under the shadow of the ^dl\argroen.
Pyrenean mountains. Nothing can be more obscure than
the beginnings of those little states which were formed in
Navarre and the country of Soprarbe. They might, per-
haps, be almost contemporaneous with the Moorish con-
quests. On both sides of the Pyrenees dwelt an aboriginal
people ; the last to undergo the yoke, and who had never
acquired the language, of Rome. We know little of these
intrepid mountaineers in the dark period which elapsed
under the Gothic and Frank dynasties, till we find them
cutting off the rear-guard of Charlemagne in Roncesvalles,
and maintaining at least their independence, though seldom,
like the kings of Asturias, waging offensive war against the
0 According to Roderic of Toledo, in the same writer prove that the counts
one of the earliest Spanish historians, of Castile were nearly independent of
though not older than the beginning of Leon, at least from the time of Ferdinand
the thirteenth century, the nobles of Gonsalvo about the middle of the tenth
Castile, in the reign of Froila, about the century. Ex quo iste suscepit suae
year 924-, sibi et posteris providerunt, et patriae comitatum, cessaverunt reges
duos milites non de potentioribus, sed de Asturiarum insolescere in Castellam, et
prudentioribus elegerunt, quos et judices a flumine Pisorica nihil amplius vindi-
statuerunt, ut dissensiones patrise et carunt. 1. v. c. 2. Marina, in his Ensayo
querelantium causae suo judicio sopi- Historico-Critico, is disposed to contro-
rentur. 1. v. c. 1. Several other passages vert this fact.
B 2
4 STATE OF EUROPE CHAP. IV.
Saracens. The town of Jaca, situated among long narrow
valleys that intersect the southern ridges of the Pyrenees,
was the capital of a little free state, which afterwards ex-
panded into the monarchy of Aragon.d A territory rather
more extensive belonged to Navarre, the kings of which
fixed their seat at Pampelona. Biscay seems to have been
divided between this kingdom and that of Leon. The con-
nexion of Aragon or Soprarbe and Navarre was very inti-
mate, and they were often united under a single chief.
At the beginning of the eleventh century, Sancho the
Kingdom of Great, king of Navarre and Aragon, was enabled
to render his second son, Ferdinand, count, or, as
he assumed the title, king of Castile. This effectually dis-
membered that province from the kingdom of Leon ; but
their union soon became more complete than ever, though
with a reversed supremacy. Bermudo III., king of Leon,
fell in an engagement with the new king of Castile, who had
married his sister ; and Ferdinand, in her right, or in that
of conquest, became master of the united monarchy. This
cessation of hostilities between the Christian states enabled
them to direct a more unremitting energy against their
ancient enemies, who were now sensibly weakened by the
various causes of decline to which I have already alluded.
During the eleventh century the Spaniards were almost
always superior in the field ; the towns which they began
by pillaging they gradually possessed ; their valour was
heightened by the customs -of chivalry, and inspired by the
example of the Cid; and before the end of this age,
d The Fueros, or written laws of Jaca, nibus aliis suis faziendis [negotiis] se
were perhaps more ancient than any local quantur appellitum. Et si illi qui fuerint
customary in Europe. Alfonso III. con- magis remoti, invenerint in villa magis
firms them by name of the ancient usages proxima appellito, [deest aliquid ?] omnes
of Jaca. They prescribe the descent of qui nondum fuerint egressi tune villain
lands and moveables, as well as the elec- illam,quae tardius secuta est appellitum,
tion of municipal magistrates. The fol- pecent [solvant] unam baccam [vaccaml ;
lowing law, which enjoins the rising in et unusquisque homo ex illis qui tardius
arms on a sudden emergency, illustrates secutus est appellitum, et quern magis
with a sort of romantic wildness the remoti prsecesserint, pecet tres solidos
manners of a pastoral but warlike people, quomodo nobis videbitur, partiendos
and reminds us of a well-known passage Tamen in Jaca et in aliis villis, sint aliqui
m the Lady of the Lake. De appellitis nominati et certi, quos elegerint consulea,
ita statuimus. Cum homines de villis, qui remaneant ad villas custodiendas et
yelquistantinmontamscumsuisganatis defendendas. Biancse Commentaria in
[gregibus],audiermt appellitum; omnes Schotti Hispania Illustrate, p. 595 '
capiant arma, et dimissis ganatis, et om-
SPAIN. DURING THE MIDDLE AGES. 5
Alfonso VI. recovered the ancient metropolis of the mo-
narchy, the city of Toledo. This was the severest capture of
blow which the Moors had endured ; and an une- Toledo>
quivocal symptom of that change in their relative strength
which, from being so gradual, was the more irretrievable.
Calamities scarcely inferior fell upon them in a different
quarter. The kings of Aragon (a title belonging originally
to a little district upon the river of that name) had been
cooped up almost in the mountains by the small Moorish
states north of the Ebro, especially that of Huesca. About
the middle of the eleventh century they began to attack
their neighbours with success ; the Moors lost one town
after another, till, in 1118, exposed and weakened by the
reduction of all these places, the city of Saragosa, in ^ ^
which a line of Mohammedan princes had flourished
for several ages, became the prize of Alfonso I. and the
capital of his kingdom. The southern parts of what is now
the province of Aragon were successively reduced during
the twelfth century ; while all New Castile and Estrema-
dura became annexed in the same gradual manner to the
dominion of the descendants of Alfonso VI.
Although the feudal system cannot be said to have ob-
tained in the kingdoms of Leon and Castile, their Mode of
peculiar situation gave the aristocracy a great newli?ogn-be
deal of the same power and independence which quest8>
resulted in France and Germany from that institution. The
territory successively recovered from the Moors, like waste
lands reclaimed, could have no proprietor but the con-
querors ; and the prospect of such acquisitions was a con-
stant incitement to the nobility of Spain, especially to those
who had settled themselves on the Castilian frontier. In
their new conquests they built towns and invited Christian
settlers, the Saracen inhabitants being commonly expelled,
or voluntarily retreating to the safer provinces of the south.
Thus Burgos was settled by a count of Castile about 880 ;
another fixed his seat at Osma ; a third at Sepulveda ; a
fourth at Salamanca. These cities were not free from in-
cessant peril of a sudden attack till the union of the two
kingdoms under Ferdinand I. ; and consequently the neces-
sity of keeping in exercise a numerous and armed popula-
6 STATE OF EUROPE CHAP. IV.
tion gave a character x>f personal freedom and privilege to
the inferior classes, which they hardly possessed at so early
a period in any other monarchy. Villenage seems never
to have been established in the Hispano-Gothic kingdoms,
Leon and Castile ; though I confess it was far from being
unknown in that of Aragon, which had formed its institu-
tions on a different pattern. Since nothing makes us forget
the arbitrary distinctions of rank so much as participation
in any common calamity, every man who had escaped the
great shipwreck of liberty and religion in the mountains of
Asturias was invested with a personal dignity which gave
him value in his own eyes and those of his country. It
is probably this sentiment, transmitted to posterity, and
gradually fixing the national character, that has produced
the elevation of manner remarked by travellers in the
Castilian peasant. But while these acquisitions of the
nobility promoted the grand object of winning back the
peninsula from its invaders, they by no means invigorated
the government, or tended to domestic tranquillity.
A more interesting method of securing the public defence
chartered was by the institution of chartered towns or com-
SmmiSi- munities. These were established at an earlier pe-
riod than in France and England, and were in some
degree of a peculiar description . Instead of purchasing their
immunities, and almost their personal freedom, at the hands
of a master, the burgesses of Castilian towns were invested
with civil rights and extensive property on the more liberal
condition of protecting their country. The earliest instance
of the erection of a community is in 1020, when Alfonso Y.
in the cortes at Leon established the privileges of that city,
with a regular code of laws by which its magistrates should
be governed. The citizens of Carrion, Llanes, and other
towns were incorporated by the same prince. Sancho the
Great gave a similar constitution to Naxara. Sepulveda
had its code of laws in 1076 from Alfonso VI. ; in the same
reign Logrono and Sahagun acquired their privileges, and
Salamanca not long afterwards. The fuero, or original
charter of a Spanish community, was properly a compact
by which the king or lord granted a town and adjacent dis-
trict to the burgesses, with various privileges, and especially
SPAIN. DUBING THE MIDDLE AGES. 7
that of choosing magistrates and a common council, who
were bound to conform themselves to the laws prescribed
by the founder. These laws, civil as well as criminal,
though essentially derived from the ancient code of the
Visigoths, which continued to be the common law of Castile
till the fourteenth or fifteenth century, varied from each
other in particular usages, which had probably grown up
and been established in these districts before their legal con-
firmation. The territory held by chartered towns was fre-
quently very extensive, far beyond any comparison with
corporations in our own country or in France ; including
the estates of private landholders, subject to the jurisdiction
and control of the municipality, as well as its inalienable
demesnes, allotted to the maintenance of the magistrates and
other public expenses. In every town the king appointed
a governor to receive the usual tributes, and watch over
the police and the fortified places within the district ; but
the administration of justice was exclusively reserved to the
inhabitants and their elected judges. Even the executive
power of the royal officer was regarded with jealousy ; he
was forbidden to use violence towards any one without legal
process ; and, by the fuero of Logrono, if he attempted to
enter forcibly into a private house he might be killed with
impunity. These democratical customs were altered in the
fourteenth century by Alfonso XI., who vested the muni-
cipal administration in a small number of jurats, or regidors.
A pretext for this was found in some disorders to which
popular elections had led ; but the real motive, of course,
must have been to secure a greater influence for the crown,
as in similar innovations of some English kings.
In recompense for such liberal concessions, the incor-
porated towns were bound to certain money payments, and
to military service. This was absolutely due from every
inhabitant, without dispensation or substitution, unless in
case of infirmity. The royal governor and the magistrates,
as in the simple times of primitive Kome, raised and com-
manded the militia ; who, in a service always short, and for
the most part necessary, preserved that delightful conscious-
ness of freedom, under the standard of their fellow citizens
and chosen leaders, which no mere soldier can enjoy. Every
8 STATE OF EUROPE CHAP. IV.
man of a certain property was bound to serve on horseback,
and was exempted in return from the payment of taxes.
This produced a distinction between the caballeros, or noble
class, and the pecker os, or payers of tribute. But the dis-
tinction appears to have been founded only upon wealth,
as in the Roman equites, and not upon hereditary rank,
though it most likely prepared the way for the latter. The
horses of these caballeros could not be seized for debt ; in
some cases they were exclusively eligible to magistracy, and
their honour was protected by laws which rendered it highly
penal to insult or molest them. But the civil rights of rich
and poor in courts of justice were as equal as in England.6
The progress of the Christian arms in Spain may in part
Military be ascribed to another remarkable feature in the
constitution of that country, the military orders.
These had already been tried with signal effect in Palestine,
and the similar circumstances of Spain easily led to an
adoption of the same policy. In a very few years after
the first institution of the Knights Templars they were
endowed with great estates, or rather districts, won from
the Moors, on condition of defending their own and the
national territory. These lay chiefly in the parts of
Aragon beyond the Ebro, the conquest of which was then
recent and insecure/ So extraordinary was the respect
for this order and that of St. John, and so powerful the
conviction that the hope of Christendom rested upon
their valour, that Alfonso I., king of Aragon, dying
childless, bequeathed to them his whole kingdom: an
example of liberality, says Mariana, to surprise future
times, and displease his own.g The states of Aragon an-
nulled, as may be supposed, this strange testament; but
the successor of Alfonso was obliged to pacify the ambitious
knights by immense concessions of money and territory,
I am indebted for this account of el codigo de D. Alonso el Sabio, conocido
municipal towns in Castile to a book con el nombre de las Siete Partidas.
published at Madrid in 1808, imme- This work is perhaps not readily to be
diately after the revolution, by the procured in England : but an article in
Doctor Marina, a canon of the church of the Edinburgh Review, No. XLIIL, will
St. Isidor, entitled, Ensayo Historico • convey a sufficient notion of its contents.
Critico sobre la antigua legislacion y ' Mariana, Hist. Hispan. 1. x. c. 10.
principales cuerpos legales de los reynos g 1. x. c. 15.
de Lyon y Castilla, especialment sobre
SPAIN. DURING THE MIDDLE AGES. 9
stipulating even not to make peace with the Moors against
their will.h In imitation of these great military orders
common to all Christendom, there arose three Spanish insti-
tutions of a similar kind, the orders of Calatrava, Santiago,
and Alcantara. The first of these was established in 1158;
the second and most famous had its charter from the pope
in- 1 1 75, though it seems to have existed previously ; the
third branched off from that of Calatrava at a subsequent
time.1 These were military colleges, having their walled
towns in different parts of Castile, and governed by an
elective grand master, whose influence in the state was at
least equal to that of any of the nobility. In the civil dis-
sensions of the fourteenth and fifteenth centuries the chiefs
of these incorporated knights were often very prominent.
The kingdoms of Leon and Castile were unwisely divided
anew by Alfonso VII. between his sons Sancho and ^^umon
Ferdinand, and this produced not only a separation, castue.
but a revival of the ancient jealousy with frequent wars for
near a century. At length, in 1238, Ferdinand III., king
of Castile, reunited for ever the two branches of the Gothic
monarchy. He employed their joint strength against the
Moors, whose dominion, though it still embraced the finest
provinces of the peninsula, was sinking by internal weakness,
and had never recovered a tremendous defeat at Banos di
Toloso, a few miles from Baylen, in 1210.k Ferdi- conquest of
nand, bursting into Andalusia, took its great capital A.D. me/
the city of Cordova, not less ennobled by the cultivation of
Arabian science, and by the names of Avicenna and Aver-
roes, than by the splendid works of a rich and munificent
dynasty.™ In a few years more Seville was added to his
h 1. x. c. 18. exactly in what century, 200, 000 houses,
1 1. xi. c. 6, 13 ; 1. xii. c. 3. 600 mosques, and 900 public baths.
k A letter of Alfonso IX., who gained There were 12,000 towns and villages
this victory, to Pope Innocent III., puts on the banks of the Guadalquivir. This,
the loss of the Moors at 180,000 men. however, must be greatly exaggerated, as
The Arabian historians, though without numerical statements generally are. The
specifying numbers, seem to confirm this mines of gold and silver were very pro-
immense slaughter, which nevertheless ductive. And the revenues of the khalifa
it is difficult to conceive before the in- of Cordova are said to have amounted to
vention of gunpowder, or indeed since. 130,000,000 of French money; besides
Cardonne, t. ii. p. 327. large contributions that, according to the
111 If we could rely on a Moorish author practice of oriental governments, were
quoted by Cardonne (t. i. p. 337), the paid in the fruits of the earth. Other
city of Cordova contained, I know not proofs of the extraordinary opulence and
10 STATE OF EUROPE CHAP. IV.
conquests, and the Moors lost their favourite regions on
and vaien- th e banks of the Guadalquivir. James I. of Aragon,
the victories of whose long reign gave him the
surname of Conqueror, reduced the city and kingdom of
Valencia, the Balearic isles, and the kingdom of Murcia ;
but the last was annexed, according to compact, to the
crown of Castile.
It could hardly have been expected about the middle of
Expulsion tne thirteenth century, when the splendid cori-
ng long quests of Ferdinand and James had planted the
delayed. Christian banner on the three principal Moorish
cities, that two hundred and fifty years were yet to elapse
before the rescue of Spain from their yoke should be com-
pleted. Ambition, religious zeal, national enmity, could not
be supposed to pause in a career which now seemed to be
obstructed by such moderate difficulties ; yet we find, on the
contrary, the exertions of the Spaniards begin from this time
to relax, and their acquisitions of territory to become more
slow. One of the causes, undoubtedly, that produced this
unexpected protraction of the contest was the superior
means of resistance which the Moors found in retreating.
Their population, spread originally over the whole of Spain,
was now condensed, and, if I may so say, become no further
compressible, in a single province. It had been mingled,
in the northern and central parts, with the Mosarabic Chris-
tians, their subjects and tributaries, not perhaps treated with
much injustice, yet naturally and irremediably their enemies.
Toledo and Saragosa, when they fell under a Christian
sovereign, were full of these inferior Christians, whose long
intercourse with their masters has infused the tones and
dialect of Arabia into the language of Castile.n But in the
twelfth century the Moors, exasperated by defeat, and
jealous of secret disaffection, began to persecute their
Christian subjects, till they renounced or fled for their re-
ligion, so that, in the southern provinces, scarcely any pro-
fessors of Christianity were left at the time of Ferdinand's
invasion. An equally severe policy was adopted on the
splendour of this monarchy are dispersed Murphy's Moorish Antiquities of Spain
in Cardonne's work, from which they illustrate this subject,
have been chiefly borrowed by later n Mariana, 1. xi. c. 1. Gibbon, c. 51.
writers. The splendid engravings in
SPAIN. DUKING THE MIDDLE AGES. 11
other side. The Moors had been permitted to dwell in
Saragosa, as the Christians had dwelt before, subjects, not
slaves; but on the capture of Seville they were entirely
expelled, and new settlers invited from every part of Spain.
The strong fortified towns of Andalusia, such as Gibraltar,
Algeciras, TarifFa, maintained also a more formidable re-
sistance than had been experienced in Castile ; they cost
tedious sieges, were sometimes recovered by the enemy,
and were always liable to his attacks. But the great pro-
tection of the Spanish Mohammedans was found in the
alliance and ready aid of their kindred beyond the Straits.
Accustomed to hear of the African Moors only as pirates,
we cannot easily conceive the powerful dynasties, the war-
like chiefs, the vast armies, which for seven or eight cen-
turies illustrate the annals of that people. Their assist-
ance was always afforded to the true believers in Spain,
though their ambition was generally dreaded by those who
stood in need of their valour.0
Probably, however, the kings of Granada were most in-
debted to the indolence which gradually became character-
istic of their enemies. By the cession of Murcia to Castile
the kingdom of Aragon shut itself out from the possibility
of extending those conquests which had ennobled her earlier
sovereigns ; and their successors, not less ambitious and
enterprising, diverted their attention towards objects beyond
the peninsula. The Castilian, patient and undesponding in
bad success, loses his energy as the pressure becomes less
heavy, and puts no ordinary evil in comparison with the
exertions by which it must be removed. The greater part
of his country freed by his arms, he was content to leave
the enemy in a single province, 'rather than undergo the
labour of making his triumph complete.
If a similar spirit of insubordination had not been found
compatible in earlier ages with the aggrandizement Alfonso x
of the Castilian monarchy, we might ascribe its A>D- 1252>
want of splendid successes against the Moors to the con-
tinued rebellions which disturbed that government for more
than a century after the death of Ferdinand III. His son
0 Cardonne, t. ii. and iii. passim.
12 STATE OF EUKOPE CHAP. IV.
Alfonso X., might justly acquire the surname of Wise for
his general proficiency in learning, and especially in astrono-
mical science, if these attainments deserved praise in a king
who was incapable of preserving his subjects in their duty.
As a legislator Alfonso, by his code of the Siete Partidas,
sacrificed the ecclesiastical rights of his crown to the usurp-
ation of Rome ;p and his philosophy sunk below the level
of ordinary prudence when he permitted the phantom of an
imperial crown in Germany to seduce his hopes for almost
twenty years. For the sake of such an illusion he would
even have withdrawn himself from Castile, if the states had
not remonstrated against an expedition that would probably
have cost him the kingdom. In the latter years of his tur-
bulent reign Alfonso had to contend against his son. The
right of representation was hitherto unknown in Castile,
which had borrowed little from the customs of feudal na-
tions. By the received law of succession, the nearer was
always preferred to the more remote, the son to the grand-
son. Alfonso X. had established the different maxim of
representation by his code of the Siete Partidas, the authority
of which, however, was not universally acknowledged. The
question soon came to an issue on the death of his elder son
Ferdinand, leaving two male children. Sancho, their uncle,
asserted his claim, founded upon the ancient Castilian right
of succession ; and this, chiefly no doubt through fear of
arms, though it did not want plausible arguments, was
ratified by an assembly of the cortes, and secured, notwith-
standing the king's reluctance, by the courage of Sancho.
But the descendants of Ferdinand, generally called the
infants of la Cerda, by the protection of France, to whose
royal family they were ' closely allied, and of Aragon,
always prompt to interfere in the disputes of a rival people,
continued to assert their pretensions for more than half a
century, and, though they were not very successful, did not
fail to aggravate the troubles of their country.
The annals of Sancho IY. and his two immediate suc-
Srbancesof cessors> Ferdinand IV. and Alfonso XI., present
castne. " a series of unhappy and dishonourable civil dissen-
p Marina, Ensayo Historico-Critico, p. 272, &c.
SPAIN. DURING THE MIDDLE AGES. 13
«
sions with too much rapidity to be remembered or sancho iv.
even understood. Although the Castilian nobility rSdmand
had no pretence to the original independence of the A.D. 1295.
French peers, or to the liberties of feudal tenure, A.i>°i3i2. '
they assumed the same privilege of rebelling upon any
provocation from their sovereign. When such occurred,
they seem to have been permitted, by legal custom, to
renounce their allegiance by a solemn instrument, which
exempted them from the penalties of treason. q A very few
families composed an oligarchy, the worst and most ruinous
condition of political society, alternately the favourites and
ministers of the prince, or in arms against him. If unable to
protect themselves in their walled towns, and by the aid of
their faction, these Christian patriots retired to Aragon or
Granada, and excited an hostile power against their country,
and perhaps their religion. Nothing is more common in the
Castilian history than instances of such defection. Mariana
remarks coolly of the family of Castro, that they were much
in the habit of revolting to the Moors.r This house and
that of Lara were at one time the great rivals for power ;
but from the time of Alfonso X. the former seems to have
declined, and the sole family that came in competition with
the Laras during the tempestuous period that followed was
that of Haro, which possessed the lordship of Biscay by an
hereditary title. The evils of a weak government were
aggravated by the unfortunate circumstances in which Fer-
dinand IY. and Alfonso XI. ascended the throne ; both
minors, with a disputed regency, and the interval too short
to give ambitious spirits leisure to subside. There is indeed
some apology for the conduct of the Laras and Haros in the
character of their sovereigns, who had but one favourite
method of avenging a dissembled injury, or anticipating a
suspected treason. Sancho IY. assassinates Don Lope Haro
in his palace at Yalladolid. Alfonso XI. invites to court
the infant Don Juan, his first-cousin, and commits a
similar violence. Such crimes may be found in the history
of other countries, but they were nowhere so usual as in
q Mariana, 1. xiii. c. 11. Castria gens per hsec tempora ad Mauros
r Alvarus Castrius patria aliquanto saepe defecisse visa est. 1. xii. c. 12. See
antea, uti moris erat, remmciata. — also chapters 17 and 19.
14 STATE OF EUROPE CHAP. IV.
Spain, which was far. behind France, England, and even
Germany, in civilization.
But whatever violence and arbitrary spirit might be im-
peter the puted to Sancho and Alfonso, was forgotten in the
A.D.ei35o. unexampled tyranny of Peter the Cruel. A sus-
picion is frequently intimated by Mariana, which seems, in
more modern times, to have gained some credit, that party
malevolence has at least grossly exaggerated the enormities
of this prince.8 It is difficult, however, to believe that a
number of atrocious acts unconnected with each other, and
generally notorious enough in their circumstances, have
been ascribed to any innocent man. The history of his
reign, chiefly derived, it is admitted, from the pen of an
inveterate enemy, Lope de Ayala, charges him with the
murder of his wife, Blanche of Bourbon, most of his brothers
and sisters, with Eleanor Gusman, their mother, many
Castilian nobles, and multitudes of the commonalty ; be-
sides continual outrages of licentiousness, and especially a
pretended marriage with a noble lady, of the Castrian
family. At length a rebellion was headed by his illegiti-
mate brother Henry, count of Trastamare, with the assist-
ance of Aragon and Portugal. This, however, would
probably have failed of dethroning Peter, a resolute prince,
and certainly not destitute of many faithful supporters, if
Henry had not invoked the more powerful succour of Ber-
trand du Guesclin, and the companies of adventure who,
after the pacification between France and England, had lost
the occupation of war, and retained only that of plunder.
With mercenaries so disciplined it was in vain for Peter
to contend ; but, abandoning Spain for a moment, he
* There is in general room enough for day within the recollection of many per-
scepticism as to the characters of men sons living when he wrote ? There may
who are only known to us through their be a question whether Richard III.
enemies. History is full of calumnies, smothered his nephews in the Tower;
and of calumnies that can never be but nobody can dispute that Henry VIII.
effaced. But I really see no ground for cut off Anna Boleyn's head,
thinking charitably of Peter the Cruel. The passage from Matteo Villani
Froissart, part i. c. 230, and Matteo above-mentioned is as follows : — Co-
Villani (in Script. Rerum Italic, t. xiv. mincio aspramente a se far ubbidire,
p. 53), the latter of whom died before perche temendo de' suoi baroni, trov6
the rebellion of Henry of Trastamare, modo di far infamare 1' uno 1' altro, e
speak of him much in the same terms as prendendo cagione, gli cominci6 ad uc-
the Spanish historians. And why should cidere con le sue mani. E in brieve
Ayala be doubted, when he gives a long tempo ne fece morire 25, e tre suoi fra-
list of murders committed in the face of telli fece morire, &c.
SPAIN. PUKING THE MIDDLE AGES. 15
had recourse to a more powerful weapon from the same
armoury. Edward the Black Prince, then resident at
Bordeaux, was induced, by the promise of Biscay, to enter
Spain as the ally of Castile, and at the great battle
of Navarette he continued lord of the ascendant
over those who had so often already been foiled by his
prowess. Du Guesclin was made prisoner ; Henry fled to
Aragon ; and Peter remounted the throne. But a second
revolution was at hand : the Black Prince, whom he had
ungratefully offended, withdrew into Guienne, and he lost his
kingdom and life in a second short contest with his brother.
A more fortunate period began with the accession of
Henry. His own reign was hardly disturbed by House of
I.
any rebellion; and though his successors, John
and Henry III., were not altogether so unmolested,
especially the latter, who ascended the throne in
his minority, yet the troubles of their time were A'Dl 139°-
slight in comparison with those formerly excited by the
houses of Lara and Haro, both of which were now happily
extinct. Though Henry II.'s illegitimacy left him no title
but popular choice, his queen was sole representative of
the Cerdas, the offspring, as has been mentioned above, of
Sancho IV.'s elder brother, and, by the extinction of the
younger branch, unquestioned heiress of the royal line.
Some years afterwards, by the marriage of Henry III.
with Catherine, daughter of John of Gaunt and of Con-
stance, an illegitimate child of Peter the Cruel, her pre-
tensions, such as they were, became merged in the crown.
No kingdom could be worse prepared to meet the dis-
orders of a minority than Castile, and in none did John IL
the circumstances so frequently recur. John II. A-D- 1406-
was but fourteen months old at his accession ; and but for
the disinterestedness of his uncle Ferdinand, the nobility
would have been inclined to avert the danger by placing
that prince upon the throne. In this instance, however,
Castile suffered less from faction during the infancy of her
sovereign than in his maturity. The queen dowager, at
first jointly with Ferdinand, and solely after his accession
to the crown of Aragon, administered the government with
credit. Fifty years had elapsed at her death, in 1418,
16 STATE OF EUKOPE CHAP. IV.
since the elevation of the house of Trastamare, who had
entitled themselves to public affection by conforming them-
selves more strictly than their predecessors to the constitu-
tional laws of Castile, which were never so well established
as during this period. In external affairs their reigns were
not what is considered as glorious. They were generally
at peace with Aragon and Granada, but one me-
morable defeat by the Portuguese at Aljubarrota
disgraces the annals of John I., whose cause was as unjust
as his arms were unsuccessful. This comparatively golden
period ceases at the majority of John II. His reign was
filled up by a series of conspiracies and civil wars, headed
by his cousins John and Henry, the infants of Aragon, who
enjoyed very extensive territories in Castile, by the testa-
ment of their father Ferdinand. Their brother, the king of
Aragon, frequently lent the assistance of his arms. John
himself, the elder of these two princes, by marriage with
the heiress of the kingdom of Navarre, stood in a double
relation to Castile, as a neighbouring sovereign and as a
power and member of the native oligarchy. These con-
Aivarode spiracies were all ostensibly directed against the
favourite of John II., Alvaro de Luna, who re-
tained for five-and-thirty years an absolute control over his
feeble master. The adverse faction naturally ascribed to
this powerful minister every criminal intention and all public
mischiefs. He was certainly not more scrupulous than the
generality of statesmen, and appears to have been rapacious
in accumulating wealth. But there was an energy and
courage about Alvaro de Luna which distinguishes him from
the cowardly sycophants who usually rise by the favour of
weak princes, and Castile probably would not have been
happier under the administration of his enemies. His fate
is among the memorable lessons of history. After a life of
troubles endured for the sake of this favourite, sometimes a
fugitive, sometimes a prisoner, his son heading rebellions
against him, John II. suddenly yielded to an intrigue of the
palace, and adopted sentiments of dislike towards the man
he had so long loved. No substantial charge appears to have
been brought against Alvaro de Luna, except that general
malversation which it was too late for the king to object to
SPAIN. DURING THE MIDDLE AGES. 17
him. The real cause of John's change of affection was,
most probably, the insupportable restraint which the weak
are apt to find in that spell of a commanding understanding
which they dare not break : the torment of living subject to
the ascendant of an inferior, which has produced so many
examples of fickleness in sovereigns. That of John II. is
not the least conspicuous. Alvaro de Luna was brought to
a summary trial and beheaded ; his estates were confiscated.
He met his death with the intrepidity of Strafford, to whom
he seems to have borne some resemblance in character.
John II. did not long survive his minister, dying in
1454, after a reign that may be considered as
. , '. ' . . ' iA.Pl.- Henry IV.
inglorious, compared with any except that ot his
successor. If the father was not respected, the son fell com-
pletely into contempt. He had been governed by Pacheco
marquis of Villena as implicitly as John by Alvaro de
Luna. This influence lasted for some time afterwards. But
the king inclining to transfer his confidence to the queen
Joanna of Portugal, and to one Bertrand de Cueva, upon
whom common fame had fixed as her paramour, a powerful
confederacy of disaffected nobles was formed against the
royal authority. In what degree Henry lY.'s government
had been improvident or oppressive towards the people it
is hard to determine. The chiefs of that rebellion, Carillo
archbishop of Toledo, the admiral of Castile, a veteran
leader of faction, and the marquis of Villena, so lately the
king's favourite, were undoubtedly actuated only by selfish
ambition and revenge. They deposed Henry in an
assembly of their faction at Avila with a sort of *
theatrical pageantry which has often been described. But
modern historians, struck by the appearance of judicial
solemnity in this proceeding, are sometimes apt to speak of
it as a national act ; while, on the contrary, it seems to
have been reprobated by the majority of the Castilians, as
an audacious outrage upon a sovereign who, with many
defects, had not been guilty of any excessive tyranny. The
confederates set up Alfonso the king's brother, and a civil
war of some duration ensued, in which they had the support
of Aragon. The queen of Castile had at this time borne a
daughter, whom the enemies of Henry IV., and indeed no
VOL. II. C
18 STATE OF EUKOPE CHAP. IV.
small part of his adherents, were determined to treat as
spurious. Accordingly, after the death of Alfonso, his
sister Isabel was considered as heiress of the kingdom. She
might have aspired, with the assistance of the confederates,
to its immediate possession ; but, avoiding the odium of a
contest with her brother, Isabel agreed to a treaty, by which
the succession was absolutely settled upon her.
This arrangement was not long afterwards followed
by the union of that princess with Ferdinand, son of the
king of Aragon. This marriage was by no means acceptable
to a part of the Castilian oligarchy, who had preferred a
connexion with Portugal. And as Henry had never lost
sight of the interests of one whom he considered, or pre-
tended to consider, as his daughter, he took the first oppor-
tunity of revoking his forced disposition of the crown, and
restoring the direct line of succession in favour of the prin-
cess Joanna. Upon his death, in 1474, the right was to be
decided by arms. Joanna had on her side the common
presumptions of law, the testamentary disposition of the
late king, the support of Alfonso king of Portugal, to whom
she was betrothed, and of several considerable leaders
among the nobility, as the young marquis of Yillena, the
family of Mendoza, and the archbishop of Toledo, who,
charging Ferdinand with ingratitude, had quitted a party
which he had above all men contributed to strengthen.
For Isabella were the general belief of Joanna's illegiti-
macy, the assistance of Aragon, the adherence of a majority
both among the nobles and people, and, more than all, the
reputation of ability which both she and her husband had
deservedly acquired. The scale was, however, pretty
equally balanced, till, the king of Portugal having been
defeated at Toro in 1476, Joanna's party discovered their
inability to prosecute the war by themselves, and succes-
sively made their submission to Ferdinand and Isabella.
The Castilians always considered themselves as subject to
constitution a legal and limited monarchy. For several ages
suSon the crown was elective, as in most nations of Ger-
wn- man origin, within the limits of one royal family.1
* Defuncto in pace principe, primates cessorum regni concilio communi con-
totius regni una curn sacerdotibiis sue- stituant. Concil. Toletan. IV. c. 75,
SPAIN. DURING THE MIDDLE AGES. 19
In general, of course, the public choice fell upon the nearest
heir; and it became a prevailing usage to elect a son
during the lifetime of his father, till about the eleventh cen-
tury a right of hereditary succession was clearly established.
But the form of recognising the heir apparent's title in an
assembly of the cortes has subsisted until our own time.11
In the original Gothic monarchy of Spain, civil as well
as ecclesiastical affairs were decided in national councils, the
acts of many of which are still extant, and have Nati0nai
been published in ecclesiastical collections. To councils-
these assemblies the dukes and other provincial governors,
and in general the principal individuals of the realm, were
summoned along with spiritual persons. This double aris-
tocracy of church and state continued to form the great
council of advice and consent in the first ages of the new
kingdoms of Leon and Castile. The prelates and nobility,
or rather some of the more distinguished nobility, appear to
have concurred in all general measures of legislation, as we
infer from the preamble of their statutes. It would be
against analogy, as well as without evidence, to suppose
that any representation of the commons had been formed in
the earlier period of the monarchy. In the preamble of laws
passed in 1020, and at several subsequent times during that
and the ensuing century, we find only the bishops and mag-
nats recited as present. According to the General Admission
Chronicle of Spain, deputies from the Castilian froXoS.
towns formed a part of cortes in 1169 ; a date not to be
rejected as incompatible with their absence in 1178. How-
ever, in 1 1 88, the first year of the reign of Alfonso IX.,
they are expressly mentioned ; and from that era were con-
stant and necessary parts of those general assemblies.3" It
apud Marina, Teoria de las Cortes, t. ii. Crit.) furnishes a series of testimonies
p. 2. This important work, by the (c. 66) to the elective character of the
author of the Ensayo Historico-Critico, monarchy from Pelayo downwards to
quoted above, contains an ample digest the twelfth century,
of the parliamentary law of Castile, u Teoria de las Cortes, t. ii. p. 7.
drawn from original and, in a great x Ensayo Hist. -Crit. p. 77. Teoria
degree, unpublished records. I have de las Cortes, t. i. p. 66. Marina seems
been favoured with the use of a copy, to have somewhat changed his opinion
from which I am the more disposed to since the publication of the former work,
make extracts, as the book is likely, where he inclines to assert that the
through its liberal principles, to become commons were from the earliest times
almost as scarce in Spain as in England, admitted into the legislature. In 1188,
Marina's former work (the Ensayo Hist.- the first year of the reign of Alfonso IX.,
c 2
20 STATE OF EUROPE CHAP. IV.
has been seen already that the corporate towns or districts
of Castile had early acquired considerable importance ;
arising less from commercial wealth, to which the towns of
other kingdoms were indebted for their liberties, than from
their utility in keeping up a military organization among
the people. To this they probably owe their early reception
into the cortes, as integrant portions of the legislature, since
we do not read that taxes were frequently demanded till
the extravagance of later kings, and their alienation of the
domain, compelled them to have recourse to the national
representatives.
Every chief town of a concejo or corporation ought, per-
haps, by the constitution of Castile, to have received its
regular writ for the election of deputies to cortes/ But
there does not appear to have been in the best times any
uniform practice in this respect. At the cortes of Burgos,
in 1315, we find one hundred and ninety-two representatives
from more than ninety towns ; at those of Madrid, in 1391,
one hundred and twenty-six were sent from fifty towns ; and
the latter list contains names of several places which do not
appear in the former." No deputies were present from the
kingdom of Leon in the cortes of Alcala in 1348, where,
among many important enactments, the code of the Siete
Partidas first obtained a legislative recognition.41 We find,
in short, a good deal more irregularity than during the same
period in England, where the number of electing boroughs
varied pretty considerably at every parliament. Yet the
cortes of Castile did not cease to be a numerous body and a
fair representation of the people till the reign of John II.
The first princes of the house of Trastamare had acted in all
points with the advice of their cortes. But John II., and
still more his son Henry IV., being conscious of their own
unpopularity, did not venture to meet a full assembly of the
nation. Their writs were directed only to certain towns ; an
abuse for which the looseness of preceding usage had given
a pretence.b It must be owned that the people bore it in
we find positive mention of la muche- from forty-eight towns to the cortes at
dumbre de las cibdades 6 embiados de Madrid in 1390.— Miscellaneous Tracts
cada cibdat. vol. j^
y Teoria de las Cortes, p. 139. a Id', p. 154.
' fd* ^ 148< Geddes Sives a list of b Sepades (says John II. in 1442 i que
Q» hundred and twenty-seven deputies en el ayuntamiento que yo fice en la
SPAIN. DUKING THE MIDDLE AGES. 21
general very patiently. Many of the corporate towns, im-
poverished by civil warfare and other causes, were glad to
save the cost of defraying their deputies' expenses. Thus
by the year 1480 only seventeen cities had retained privilege
of representation. A vote was afterwards added for Gra-
nada, and three more in later times for Palencia, and the
provinces of Estremadura and Galicia.0 It might have been
easy, perhaps, to redress this grievance while the exclusion
was yet fresh and recent. But the privileged towns, with a
mean and preposterous selfishness, although their zeal for
liberty was at its height, could not endure the only means of
effectually securing it, by a restoration of elective franchises
to their fellow citizens. The cortes of 1506 assert, with one
of those bold falsifications upon which a popular body some-
times ventures, that " it is established by some laws, and by
immemorial usage, that eighteen cities of these kingdoms
have the right of sending deputies to cortes, and no more ;"
remonstrating against the attempts made by some other
towns to obtain the same privilege, which they request may
not be conceded. This remonstrance is repeated in 1512.d
From the reign of Alfonso XI., who restrained the go-
vernment of corporations to an oligarchy of magistrates, the
right of electing members of cortes was confined to the
ruling body, the bailiffs or regidores, whose number seldom
exceeded twenty-four, and whose succession was kept up by
close election among themselves.6 The people, therefore, had
no direct share in the choice of representatives. Experience
proved, as several instances in these pages will show, that
even upon this narrow basis the deputies of Castile were
not deficient in zeal for their country and its liberties. But
it must be confessed that a small body of electors is always
liable to corrupt influence and to intimidation. John II. and
noble villa de Valladolid . . . . los pro- laxara, and Cuenca. The representatives
curadores de ciertas cibdades 6 villas de of these were supposed to vote not only
mis reynos que por mi mandado fueron for their immediate constituents, but
llamados. This language is repeated as for other adjacent towns. Thus Toro
to subsequent meetings, p. 156. voted for Palencia and the kingdom of
0 The cities which retained their re- Galicia, before they obtained separate
presentation in cortes were Burgos, To- votes; Salamanca for most of Estrema-
ledo (there was a constant dispute for dura; Guadalaxara for Siguenza and four
precedence between these two), Leon, hundred other towns. Teoria de las
Granada, Cordova, Murcia, Jaen, Za- Cortes, p. 160, 268.
mora, Toro, Soria, Valladolid, Sala- d Idem, p. 161.
mauca, Segovia, Avila, Madrid, Guada- e Teoria de las Cortes, p. 86, 197,
22 STATE OF EUROPE CHAP. IV.
Henry IV. often invaded the freedom of election ; the latter
even named some of the deputies/ Several energetic re-
monstrances were made in cortes against this flagrant griev-
ance. Laws were enacted and other precautions devised to
secure the due return of deputies. In the sixteenth century
the evil, of course, was aggravated. Charles and Philip cor-
rupted the members by bribery.8 Even in 1573 the cortes
are bold enough to complain that creatures of government
were sent thither, " who are always held for suspected by
the other deputies, and cause disagreement among them."11
There seems to be a considerable obscurity about the con-
ituai and stitution of the cortes, so far as relates to the two
Sy in higher estates, the spiritual and temporal nobility.
jt -g a(jmitted that down to the latter part of the
thirteenth century, and especially before the introduction of
representatives from the commons, they were summoned in
considerable numbers. But the writer to whom I must
almost exclusively refer for the constitutional history of
Castile, contends that from the reign of Sancho IV. they
took much less share and retained much less influence in
the deliberation of cortes.1 There is a remarkable pro-
test of the archbishop of Toledo, in 1295, against the acts
done in cortes, because neither he nor the other prelates
had been admitted to their discussions, nor given any con-
sent to their resolutions, although such consent was falsely
recited in the laws enacted therein.k This protestation is at
least a testimony to the constitutional rights of the prelacy,
which indeed all the early history of Castile, as well as the
analogy of other governments, conspires to demonstrate. In
the fourteenth and fifteenth centuries, however, they were
1 Teoria de las Cortes, p. 199. otorgados; mas ante iuemos ende'apar-
5 Idem, p. 213. tados et estrannados et secados expresa-
h P. 202. mente nos et los otros perlados et ricos
1 P. 67. homes et los fijosdalgo; et non fue hi
k Protestamos que desde aqui venimos cosa fecha con nuestro consejo. Otrosi
non fuemos llamados a consejo, ni & los protestamos por razon de aquello que
tratados sobre los feehos del reyno, ni dice en los previlegios que les otorgaron,
sobre las otras cosas que Hi fuei'en trac- que fueren los perlados llamados, et que
tadas et fechas, et sennaladamente sobre eran otorgados de consentimiento et de
los feehos de los consejos de las her- voluntad dellos, que non fuemos hi pre-
mandades etde las petici ones que fueron sentes ni llamados nin fue fecho con
fechas de su parte, et sobre los otorga- nuestra voluntad, nin consentiemos, niu
mentos que les ficieron, et sobre los pre- consentimos en ellos, &c. p. 72.
vilegios que por esta nazon les fueron
SPAIN.
DURING THE MIDDLE AGES.
23
more and more excluded. None of the prelates were sum-
moned to the cortes of 1299 and 1301 ; none either of the
prelates or nobles to those of 1370 and 1373, of 1480 and
1505. In all the latter cases, indeed, such members of both
orders as happened to be present in the court attended the
cortes ; a fact which seems to be established by the language
of the statutes."1 Other instances of a similar kind may be
adduced. Nevertheless, the more usual expression in the
preamble of laws reciting those summoned to and present at
the cortes, though subject to considerable variation, seems to
imply that all the three estates were, at least nominally and
according to legitimate forms, constituent members of the
national assembly. And a chronicle mentions, under the
year 1406, the nobility and clergy as deliberating separately,
and with some difference of judgment, from the deputies of
the commons.11 A theory, indeed, which should exclude the
great territorial aristocracy from their place in cortes, would
expose the dignity and legislative rights of that body to
n Teoria de las Cortes, p. 74.
n T. ii. p. 234. Marina is influenced
by a prejudice in favour of the abortive
Spanish constitution of 1812, which ex-
cluded the temporal and spiritual aristo-
cracy from a place in the legislature, to
imagine a similar form of government in
ancient times. But his own work fur-
nishes abundant reasons, if I am not
mistaken, to modify this opinion very
essentially. A few out of many instances
may be adduced from the enacting words
of statutes, which we consider in Eng-
land as good evidences to establish a
constitutional theory. Sepades que yo
hube rnio acuerdo e mio consejo con mios
hermanos e los arzobispos, 6 los obispos,
4 con los ricos homes de Castella, 6 de
Leon, e' con homes buenos de las villas
de Castella, e de Leon, que fueron con-
migo en Valladolit, sobre muchas cosas,
&c. (Alfonso X. in 1258.) Maudamos
enviar llama por cartas del rei e nuestras
a" los infantes e perlados 4 ricos homes 4
infanzones 6 caballeros e homes buenos
de las cibdades e de las villas de los rey-
nos de Castilia et de Toledo 4 de Leon 6
de las Estramaduras, e de Gallicia e de
las Asturias e' del Andalusia. (Writ of
summons to cortes of Burgos in 1315.)
Con acuerdo de los perlados 4 de los
ricos homes e procuradores de las cib-
dades e villas e logares de los nuestros
reynos. (Ordinances of Toro in 1371.)
Estanho hi con el el infante Don Fer-
rando, &c. £ otros perlados e condes
e ricos homes e otros del consejo del
senor rei, e otros caballeros e escu-
deros, e los procuradores de las cib-
dades e villas e logares de sus reynos.
(Cortes of 1391.) Los tres estados que
deben venir a" las cortes e ayuntamientos
segunt se debe facer e es de buena cos-
tumbre antigua. (Cortes of 1393.) This
last passage is apparently conclusive to
prove that three estates, the superior
clergy, the nobility, and the commons,
were essential members of the Legis-
lature in Castile, as they were in France
and England; and one is astonished to
read in Marina that no faltaron £ nin-
guna de las formalidades de derecho los
monarcas que no tuvieron por oportuno
llamar & cortes para semej antes actos ni
al clero ni a la nobleza ni & las personas
singulares de uno y otro estado. T. i.
p. 09. That great citizen, Jovellanos,
appears to have had much wiser notions
of the ancient government of his country,
as well as of the sort of reformation
which she wanted : as we may infer from
passages in his Memoria & sus Compa-
triotas, Coruiia, 1811, quoted by Marina
for the purpose of censure.
24 STATE OF EUROPE CHAP. IV.
unfavourable inferences. But it is manifest that the king
exercised very freely a prerogative of calling or omitting
persons of both the higher orders at his discretion. The
bishops were numerous, and many of their sees not rich ;
while the same objections of inconvenience applied, per-
haps, to the ricoshombres, but far more forcibly to the lower
nobility, the hijosdalgo or caballeros. Castile never adopted
the institution of deputies from this order, as in the States
General of France and some other countries, much less
that liberal system of landed representation which forms one
of the most admirable peculiarities in our own constitution.
It will be seen hereafter that spiritual and even temporal
peers were summoned by our kings with much irregularity ;
and the disordered state of Castile through almost every
reign was likely to prevent the establishment of any fixed
usage in this and most other points.
The primary and most essential characteristic of a limited
Right of monarchy is that money can only be levied upon the
taxation. pe0ple through the consent of their representatives.
This principle was thoroughly established in Castile; and the
statutes which enforce it, the remonstrances which protest
against its violation, bear a lively analogy to corresponding
circumstances in the history of our constitution. The lands
of the nobility and clergy were, I believe, always exempted
from direct taxation ; an immunity which perhaps rendered
the attendance of the members of those estates in the cortes
less regular. The corporate districts or concejos, which, as
I have observed already, differed from the communities of
France and England by possessing a large extent of territory,
subordinate to the principal town, were bound by their charter
to a stipulated annual payment, the price of their franchises,
called moneda forera.0 Beyond this sum nothing could be
demanded without the consent of the cortes. Alfonso VIII.,
in 1 177, applied for a subsidy towards carrying on the siege
of Cuenca. Demands of money do not however seem to
0 Marina, Ensayo Hist.-Crit. cap. 158. meis in unoquoque anno in die Pente-
Teoria de las Cortes, t. ii. p. 387. This costes de unaquaque domo 12 denarios;
is expressed in one of their fueros, or et, nihi cum bona voluntate vestra fece-
charters : Liberi et ingenui semper ma- ritis, nullum servitium faciatis.
neatis, reddendo mihi et successoribus
SPAIN. DURING THE MIDDLE AGES. 25
have been very usual before the prodigal reign of Alfonso X.
That prince and his immediate successors were not much
inclined to respect the rights of their subjects; but they
encountered a steady and insuperable resistance. Ferdi-
nand IV., in 1307, promises to raise no money beyond his
legal and customary dues. A more explicit law was enacted
by Alfonso XI. in 1328, who bound himself not to exact
from his people, or cause them to pay, any tax, either par-
tial or general, not hitherto established by law, without the
previous grant of all the deputies convened to the cortes.p
This abolition of illegal impositions was several times con-
firmed by the same prince. The cortes, in 1393, having
made a grant to Henry III., annexed this condition, that
" since they had granted him enough for his present neces-
sities, and even to lay up a part for a future exigency, he
should swear before one of the archbishops not to take or
demand any money, service, or loan, or anything else, of the
cities and towns, nor of individuals belonging to them, on
any pretence of necessity, until the three estates of the king-
dom should first be duly summoned and assembled in cortes
according to ancient usage. And if any such letters re-
quiring money have been written, that they shall be obeyed
and not complied with."* His son John II. having violated
this constitutional privilege on the allegation of a pressing
necessity, the cortes, in 1420, presented a long remonstrance
couched in very respectful but equally firm language,
wherein they assert " the good custom, founded in reason
and in justice, that the cities and towns of your kingdoms
shall not be compelled to pay taxes, or requisitions, or other
new tribute, unless your highness order it by advice arid
with the grant of the said cities and towns, and of their
deputies for them." And they express their apprehension
lest this right should be infringed, because, as they say,
" there remains no other privilege or liberty which can be
p De los con echar nin mandar pagar expression occurs frequently in pro-
pecho desaforado ninguno, especial nin visions made against illegal acts of the
general, en toda mi tierra, sin ser llama- crown; and is characteristic of the sin-
dos primeramente a cortes e otorgado gular respect with which the Spaniards
ppr todos los procuradores que hi ve- always thought it right to treat their
nieren : p. 388. sovereign, while they were resisting the
q Obedecidas e non cumplidas. This abuses of his authority.
26 STATE OF EUROPE CHAP. IV.
profitable to subjects, . if this be shaken."1" The king gave
them as full satisfaction as they desired, that his encroach-
ment should not be drawn into precedent. Some fresh
abuses during the unfortunate reign of Henry IV. produced
another declaration in equally explicit language ; forming
part of the sentence awarded by the arbitrators to whom
the differences between the king and his people had been
referred at Medina del Campo in 1465.8 The catholic
kings, as they are eminently called, Ferdinand and Isabella,
never violated this part of the constitution ; nor did even
Charles I., although sometimes refused money by the cortes,
attempt to exact it without their consent.* In the Recopi-
lacion, or code of Castilian law, published by Philip II., we
read a positive declaration against arbitrary imposition of
taxes, which remained unaltered on the face of the statute-
book till the present age.u The law was indeed frequently
broken by Philip II. ; but the cortes, who retained through-
out the sixteenth century a degree of steadiness and courage
truly admirable, when we consider their political weakness,
did not cease to remonstrate with that suspicious tyrant, and
recorded their unavailing appeal to the law of Alfonso XI.,
" so ancient and just, and which so long time has been
used and observed."x
r La buena costumbre e possession acostumbran "llamar, e seyendo per los
fundada en razon e en justicia que las dichos procuradores otorgado el dicho
cibdades e' villas de vuestros reinos tenian pedimento e monedas. T. ii. p. 391.
de no ser mandado coger monedas e pe- * Marina has published two letters
didos nin otro tribute nuevo alguno en from Charles to the city of Toledo, in
los vuestros reinos sin que la vuestra se- 1542 and 1548, requesting them to in-
iioria lo faga 6 ordene de consejo e" con struct their deputies to consent to a fur-
otorgamiento de las cibdades e villas de ther grant of money, which they had
los vuestros reinos e de sus procuradores refused to do without leave of their con-
en su nombre * * * * po queda otro stituents. T. iii. p. 180, 187.
previlegioni libertadde que los subditos u T. ii. p. 393.
puedan gozar ni aprovechar quebrantado * En las cortes de afio de 70 y en las
el sobre dicho. T. iii. p. 30. de 76 pedimos a" v. m. fuese servide de no
Declaramos e ordenamos, que el poner uuevos impuestos, rentas, pechos,
dicho senor rei nin los otros reyes que ni derechos ni otros tributes particulars
despues del fueren non echan nin repar- nigenerales sin junta del reyno en cortes,
tan nin pidan pedidos nin monedas en sus como est£ dispuesto por lei del senor rei
reynos, salvo por gran necessidad, e sey- Don Alonso, y se signified a v. m. el dano
endo primero accordado con los perlados grande que con las nuevas rentas habia
e grandes de sus reynos, e con los otros rescibido el reino, suplicando a" v. m.
que a" la sazon residieren en su consejo, e fuese servido de mandarle aliviar y des-
seyendo para ello llamados los procura- cargar, y que en lo de adelante se les
dores de las cibdades c villas de sus rey- hiciesse nierced de guardar las dichas
nos, que para las tale.3 cosas se suelen e leyes reales, y que ne se impusiessen
SPAIN. DURING THE MIDDLE AGES. 27
The free assent of the people by their representatives to
grants of money was by no means a mere matter control of
of form. It was connected with other essential expenSS*
rights, indispensable to its effectual exercise ; those of ex-
amining public accounts and checking the expenditure. The
cortes, in the best times at least, were careful to grant no
money until they were assured that what had been already
levied on their constituents had been properly employed/
They refused a subsidy in 1390, because they had already
given so much, and, " not knowing how so great a sum had
been expended, it would be a great dishonour and mischief
to promise any more." In 1406 they stood out a long
time, and at length gave only half of what was demanded.2
Charles I. attempted to obtain money, in 1527, from the
nobility, as well as commons. But the former protested
that " their obligation was to follow the king in war, where-
fore to contribute money was totally against their privilege,
and for that reason they could not acquiesce in his majesty's
request."* The commons also refused on this occasion.
In 1538, on a similar proposition, the superior and lower
nobility (los grandes y caballeros) " begged, with all humi-
lity, that they might never hear any more of that matter." b
The contributions granted by cortes were assessed and
collected by respectable individuals (hombres buenos) of the
several towns and villages.0 This repartition, as the French
call it, of direct taxes, is a matter of the highest importance
in those countries where they are imposed by means of a
gross assessment on a district. The produce was paid to
the royal council. It could not be applied to any other
purpose than that to which the tax had been appropriated.
nuevas rentas sin su asistencia ; pues se guarde la dicha lei del senor rei Don
podria v. m. estar satisfecho de que el Alonso, como tan antigua y justa y que
reino sirve en las cosas necessarias con tanto tiempo se uso* y guardd. P. 395.
toda lealtad y hasta ahora no se ha pro- This petition was in 1579.
veido lo susodicho ; y el reino por la y Marina, t. ii. p. 404, 406,
obligacion que tiene & pedir a v. m. z P. 409.
guarde la dicha lei, y que no solamente a Pero que contribuir a la guerra con
han cessado las necessidades de los sub- ciertas sumas era totalmente opuesto a"
ditos y naturales de v. m. pero antes sus previlegios, e asi que no podrian
crecen de cada dia: vuelve a" suplicar £ acomodarse a" lo que s. m. deseaba. —
v. m. sea servido concederle lo susodicho, P. 41 1 .
y que las nuevas rentas pechos y dere- b Marina, t. ii. p* 411.
chos se quiten, y que cle aqui adelante c P. 398.
'
28 STATE OF EUROPE CHAP. IV.
Thus the corfces of Segovia, in 1407, granted a subsidy for
the war against Granada, on condition " that it should not
be laid out on any other service except this war ;" which
they requested the queen and Ferdinand, both regents in
John II.'s minority, to confirm by oath. Part, however,
of the money remaining unexpended, Ferdinand wished to
apply it to his own object of procuring the crown of Aragon ;
but the queen first obtained not only a release from her oath
by the pope, but the consent of the cortes. They continued
to insist upon this appropriation, though ineffectually, under
the reign of Charles I.d
The cortes did not consider it beyond the line of their
duty, notwithstanding the respectful manner in which they
always addressed the sovereign, to remonstrate against pro-
fuse expenditure even in his own household. They told
Alfonso X. in 1258, in the homely style of that age, that
they thought it fitting that the king and his wife should eat
at the rate of a hundred and fifty maravedis a day, and no
more ; and that the king should order his attendants to eat
more moderately than they did.6 They remonstrated more
forcibly against the prodigality of John II. Even in 1559
they spoke with an undaunted Castilian spirit to Philip II. :
" Sir, the expenses of your royal establishment and house-
hold are much increased ; and we conceive it would much
redound to the good of these kingdoms that your majesty
should direct them to be lowered, both as a relief to your
wants, and that all the great men and other subjects of your
majesty may take example therefrom, to restrain the great
disorder and excess they commit in that respect."1
The forms of a Castilian cortes were analogous to those
Forms of °f an English parliament in the fourteenth century.
» cortes. They were summoned by a writ almost exactly
coincident in expression with that in use among us.g The
session was opened by a speech from the chancellor or other
d Marina, t. ii. p. 412. necessidades, como para que de v. m. to-
e P. 417. men egemplo totos los grandes y cabal -
f Senhor, los gastos de vuestro real leros y otros subditos de v. m. en la gran
estado y mesa son muy crecidos, y en- desorden y excesses que hacen en las
ten demos que convernia mucho al bien cosas sobredichas. P. 437.
de estos reinos que v. m. los mandasse g T. i. p. 175; t. iii. p. 103.
moderar, asi para algun remedio de sus
SPAIN. DURING THE MIDDLE AGES. 29
chief officer of the court. The deputies were invited to
consider certain special business, and commonly to grant
moriey.h After the principal affairs were despatched, they
conferred together, and, having examined the instructions of
their respective constituents, drew up a schedule of petitions.
These were duly answered one by one, and from the petition
and answer, if favourable, laws were afterwards drawn up,
where the matter required a new law, or promises of redress
were given, if the petition related to an abuse or grievance.
In the struggling condition of Spanish liberty under
Charles I. the crown began to neglect answering the pe-
titions of cortes, or to use unsatisfactory generalities of
expression. This gave rise to many remonstrances. The
deputies insisted, in 1523, on having answers before they
granted money. They repeated the same contention in
1525, and obtained a general law, inserted in the Becopila-
cion, enacting that the king should answer all their petitions
before he dissolved the assembly.1 This however was dis-
regarded as before ; but the cortes, whose intrepid honesty
under Philip II. so often attracts our admiration, continued
as late as 1586 to appeal to the written statute, and lament
its violation. k
According to the ancient fundamental constitution of
Castile, the king did not legislate for his subjects night of
without their consent. The code of the Visigoths, Sia«on.
called in Spain the Fuero Jusgo, was enacted in public
councils, as were also the laws of the early kings of Leon,
which appears by the reciting words of their preambles.™
This consent was originally given only by the higher estates,
who might be considered, in a large sense, as representing
the nation, though not chosen by it, but, from the end of the
twelfth century, by the elected deputies of the commons in
cortes. The laws of Alfonso X. in 1258, those of the same
prince in 1274, and many others in subsequent times, are
h Marina, t. i. p. 278. temporibus. So those of Salamanca in
1 P- 3ol. 1178: Ego rex Fernandas inter csetera
^ P. 288-304. quaa cum episcopis et abbatibus regni
T. ii. p. 202. The acts of the cortes nostri et quamplurimis aliis religiosis,
of Leon in 1 020 run thus : Omnes pon- cum comitibus terrarum et principibus
tifices et abbates et optimates regni His- et rectoribus provinciarum, toto posse
paniae jussu ipsius regis talia decreta de- tenenda statuimus apud Salamancam.
crevimus quoe firmiter teneantur futuris
30 STATE OF EUEOPE CHAP. IV.
declared to be made. with the consent (con acuerdo) of the
several orders of the kingdom. More commonly, indeed,
the preamble of Castilian statutes only recites their advice
(consejo) ; but I do not know that any stress is to be laid
on this circumstance. The laws of the Siete Partidas,
compiled by Alfonso X., did not obtain any direct sanction
till the famous cortes of Alcala in 1348, when they were
confirmed along with several others, forming altogether the
basis of the statute-law of Spain.11 Whether they were in
fact received before that time, has been a matter controverted
among Spanish antiquaries ; and upon the question of their
legal validity at the time of their promulgation depends an
important point in Castilian history, the disputed right of
succession between Sancho IV. and the infants of la Cerda;
the former claiming under the ancient customary law, the
latter under the new dispositions of the Siete Partidas. If
the king could not legally . change the established laws
without consent of his cortes, as seems most probable, the
right of representative succession did not exist in favour of
his grandchildren, and Sancho IV. cannot be considered as
an usurper.
It appears upon the whole to have been a constitutional
principle, that laws could neither be made nor annulled
except in cortes. In 1506 this is claimed by the deputies
as an established right.0 John I. had long before admitted
that what was done by cortes and general assemblies could
not be undone by letters missive, but by such cortes and
assemblies alone.p For the kings of Castile had adopted
the English practice of dispensing with statutes by a non
obstante clause in their grants. But the cortes remon-
strated more steadily against this abuse than our own par-
liament, who suffered it to remain in a certain degree till
" Ensayo Hist.-Crit. p. 353. Teoria cias fuesen proveidas, se llamasen cortes
de las Cortes, t. ii. p. 77. Marina seeins y procuradores que entendiesen en ellas,
to have changed his opinion between the y por esto se establecio lei que no se
publication of these two works, in the hiciesen nirenovasen ley essino en cortes.
former of which he contends for thepre- Teoria de las Cortes, t. ii. p. 218.
vious authority of the Siete Partidas, and p Lo que es fecho por cortes e por
in favour of the infants of la Cerda. ayuntamientos que non se pueda disfacer
0 Los reyes establicieron que cuando por las tales cartas, salvo por ayunta-
hubiesen de hacer leyes, para que fuesen mientos e cortes. P. 215.
provechosas a sus reynos y cada provin-
SPAIN. DURING THE MIDDLE AGES. 31
the Revolution. It was several times enacted upon their
petition, especially by an explicit statute of Henry II., that
grants, and letters patent dispensing with statutes, should
not be obeyed/1 Nevertheless John II., trusting to force
or the servility of the judges, had the assurance to dispense
explicitly with this very law/ The cortes of Yalladolid, in
1442, obtained fresh promises and enactments against such
an abuse. Philip I. and Charles I. began to legislate with-
out asking the consent of cortes ; this grew much worse
under Philip II., and reached its height under his suc-
cessors, who entirely abolished all constitutional privileges.8
In 1555 we find a petition that laws made in cortes should
be revoked nowhere else. The reply was such as became
that age : " To this we answer, that we shall do what best
suits our government." But even in 1619, and still after-
wards, the patriot representatives of Castile continued to lift
an unavailing voice against illegal ordinances, though in the
form of very humble petition ; perhaps the latest testimonies
to the expiring liberties of their country/ The denial of
exclusive legislative authority to the crown must, however,
be understood to admit the legality of particular ordinances,
designed to strengthen the king's executive government.11
These, no doubt, like the royal proclamations in England,
extended sometimes very far, and subjected the people to a
sort of arbitrary coercion much beyond what our enlightened
notions of freedom would consider as reconcileable to it.
But in the middle ages such temporary commands and pro-
hibitions were not reckoned strictly legislative, and passed,
perhaps rightly, for inevitable consequences of a scanty
code, and short sessions of the national council.
The kings were obliged to swear to the observance of
laws enacted in cortes, besides their general coronation oath
to keep the laws and preserve the liberties of their people.
Of this we find several instances from the middle of the
thirteenth century ; and the practice continued till the time
of John II., who, in 1433, on being requested to swear to
* Teoria de las Cortes, t. ii. p. 215. en parte las antiguas se alteren, sin que
P. 216, t. iii. p. 40. sea por cortes . . . . y por ser de tanta
T. ii. p. 218. importancia vuelve el reino a" suplicarlo
1 Ha suplicado el reino & v. m. no se humilmente a" v. m. P. 220.
promulguen neuvas leyes, ni en todo iii u P. 207.
32 STATE OF EUROPE CHAP. IV.
the laws then enacted, answered, that he intended to main-
tain them, and consequently no oath was necessary ; an
evasion in which the cortes seem unaccountably to have
acquiesced.x The guardians of Alfonso XI. not only swore
to observe all that had been agreed on at Burgos in 1315,
but consented that, if any one of them did not keep his
oath, the people should no longer be obliged to regard or
obey him as regent/
It was customary to assemble the cortes of Castile for
other rights many purposes besides those of granting money
of the cortes. and concurring in legislation. They were summoned
in every reign to acknowledge and confirm the succession
of the heir apparent ; and upon his accession to swear alle-
giance.2 These acts were however little more than formal,
and accordingly have been preserved for the sake of parade,
after all the real dignity of the cortes was annihilated. In
the fourteenth and fifteenth centuries they claimed and ex-
ercised very ample powers. They assumed the right, when
questions of regency occurred, to limit the prerogative, as
well as to designate the persons who were to use it.a And
the frequent minorities of Castilian kings, which were un-
favourable enough to tranquillity and subordination, served
to confirm these parliamentary privileges. The cortes were
usually consulted upon all material business. A law of
Alfonso XI. in 1328, printed in the Recopilacion or code
published by Philip II., declares, u Since in the arduous
affairs of our kingdom the counsel of our natural subjects
is necessary, especially of the deputies from our cities and
towns, therefore we ordain and command that on such great
occasions the cortes shall be assembled, and counsel shall be
taken of the three estates of our kingdoms, as the kings our
forefathers have been used to do." b A cortes of John II.,
in 1419, claimed this right of being consulted in all matters
of importance, with a warm remonstrance against the alleged
violation of so wholesome a law by the reigning prince ; who
answered, that in weighty matters he had acted, and would
continue to act, in conformity to it.c What should be in-
x Teoria de las Cortes, t. i. p. 306. a Teoria de las Cortes, p. 230.
y T. iii. p. 62. b T. i. p. 31.
z T. i. p. 33, t. ii. p. 24. c P. 34.
SPAIN. DUKING THE MIDDLE AGES. 33
tended by great and weighty affairs, might be not at all
agreed upon by the two parties ; to each of whose inter-
pretations these words gave pretty full scope. However,
the current usage of the monarchy certainly permitted much
authority in public deliberations to the cortes. Among other
instances, which indeed will continually be found in the
common civil histories, the cortes of Ocana in 1469 re-
monstrate with Henry IV. for allying himself with England
rather than France, and give, as the lirst reason of com-
plaint, that " according to the laws of your kingdom, when
the kings have anything of great importance in hand, they
ought not to undertake it without advice and knowledge of
the chief towns and cities of your kingdom. "d This privi-
lege of general interference was asserted, like other ancient
rights, under Charles, whom they strongly urged, in 1548,
not to permit his son Philip to depart out of the realm.6 It
is hardly necessary to observe, that in such times they had
little chance of being regarded.
The kings of Leon and Castile acted, during the interval
of the cortes, by the advice of a smaller council, councilor
answering, as it seems, almost exactly to the king's Castile-
ordinary council in England. In early ages, before the in-
troduction of the commons, it is sometimes difficult to dis-
tinguish this body from the general council of the nation ;
being composed, in fact, of the same class of persons, though
in smaller numbers. A similar difficulty applies to the Eng-
lish history. The nature of their proceedings seems best
to ascertain the distinction. All executive acts, including
those ordinances which may appear rather of a legislative
nature, all grants and charters, are declared to be with the
assent of the court (curia), or of the magnatsof the palace,
or of the chiefs or nobles/ This privy council was an
essential part of all European monarchies. And though the
sovereign might be considered as free to call in the advice
d Porque, segunt leyes de nuestros e t. iii. p. 183.
reynos, cuando los reyes han de facer f Cum assensu magnatum palatii :
alguna cosa de gran importancia, non lo Cum consilio curiee mesB : Cum consilio
deben facer sin consejo e sabiduria de las et beneplacito omnium principum meo-
cibdades 6 villas principales de vuestros rum, nullo contradicente nee reclamante.
reynos. Teoria de las Cortes, t. ii. p. 325.
p. 241.
VOL. II. D
34 STATE OF EUROPE CHAP. IV.
of whomsoever he pleased, yet, in fact, the princes of the
blood and most powerful nobility had anciently a constitu-
tional right to be members of such a council ; so that it
formed a very material check upon his personal authority.
The council underwent several changes, in progress of
time, which it is not necessary to enumerate. It was justly
deemed an important member of the constitution, and the
cortes showed a laudable anxiety to procure its composition
in such a manner as to form a guarantee for the due execu-
tion of laws after their own dissolution. Several times,
especially in minorities, they even named its members, or a
part of them ; and in the reigns of Henry III. and John II.
they obtained the privilege of adding a permanent deputa-
tion, consisting of four persons elected out of their own body,
annexed as it were to the council, who were to continue at
the court during the interval of cortes, and watch over the
due observance of the laws.8 This deputation continued, as
an empty formality, in the sixteenth century. In the council
the king was bound to sit personally three days in the week.
Their business, which included the whole executive, govern-
ment, was distributed with considerable accuracy into what
might be despatched by the council alone, under their own
seals and signatures, and what required the royal seal.h The
consent of this body was necessary for almost every act of
the crown, for pensions or grants of money, ecclesiastical
and political promotions, and for charters of pardon, the
easy concession of which was a great encouragement to the
homicides so usual in those ages, and was restrained by
some of our own laws.1 But the council did not exercise
any judicial authority, if we may believe the well-informed
author from whom I have learned these particulars ; unlike,
in this, to the ordinary council of the kings of England. It
was not until the days of Ferdinand and Isabella that this,
among other innovations, was introduced.12
Civil and criminal justice was administered, in the first
^mmistra. instance, by the alcaldes, or municipal judges of
jSce. towns ; elected within themselves, originally, by
the community at large, but, in subsequent times, by the
governing body. In other places, a lord possessed the right
8 Teoria de las Cortes, t. ii. p. 346. ' p. 360, 362, 372.
h P- 354. k p> 375? 379<
SPAIN. DURING THE MIDDLE AGES. 35
of jurisdiction, by grant from the crown, not, what we find
in countries where the feudal system was more thoroughly
established, as incident to his own territorial superiority.
The kings, however, began in the thirteenth century to
appoint judges of their own, called corregidores, a name
which seems to express concurrent jurisdiction with the
regidores, or ordinary magistrates.01 The cortes frequently
remonstrated against this encroachment. Alfonso XI. con-
sented to withdraw his judges from all corporations by
which he had not been requested to appoint them.n Some
attempts to interfere with the municipal authorities of.
Toledo, produced serious disturbances under Henry III.
and John II.° Even where the king appointed magistrates
at a city's request, he was bound to select them from among
the citizens.p From this immediate jurisdiction, an appeal
lay to the adelantado or governor of the province, and from
thence to the tribunal of royal alcaldes.01 The latter, how-
ever, could not take cognizance of any cause depending
before the ordinary judges ; a contrast to the practice of
Aragon, where the justiciary's right of evocation (juris
firma) was considered as a principal safeguard of public
liberty/ As a court of appeal, the royal alcaldes had the
supreme jurisdiction. The king could only cause their
sentence to be revised, but neither alter nor revoke it.8
They have continued to the present day as a criminal
tribunal; but civil appeals were transferred by the ordi-
nances of Toro in 1371 to a new court, styled the king's
audience, which, though deprived under Ferdinand and
his successors of part of its jurisdiction, still remains one of
the principal judicatures in Castile.*
No people in a half-civilised state of society have a full
practical security against particular acts of arbitrary Violent
power. They were more common perhaps in Cas- JSSSkSgs
tile, than in any other European monarchy which ofCastile-
professed to be free. Laws indeed were not wanting to
m Alfonso X. says: Ningun ome sea p p. 255.
osado juzgar pleytos, se no fuere alcalde q p. 266.
puesto pol el rey. Id. fol. 27. This r p. 260.
seems an encroachment on the muni- s p. 287, 304.
cipal magistrates. * p. 292-302. The use of the present
n Teoria de las Cortes, p. 251. tense, in this and many other passages,
0 p. 255. Mariana, 1. xx. c. 13. will not confuse the attentive reader.
D 2
36 STATE OF EUEOPE CHAP. IV.
protect men's lives and liberties, as well as their properties.
Ferdinand IV., in 1299, agreed to a petition that "justice
shall be executed impartially according to law and right ;
and that no one shall be put to death or imprisoned, or de-
prived of his possessions, without trial, and that this be better
observed than heretofore."11 He renewed the same law in
1307. Nevertheless the most remarkable circumstance of
this monarch's history was a violation of so sacred and ap-
parently so well established a law. Two gentlemen having
been accused of murder, Ferdinand, without waiting for
any process, ordered them to instant execution. They
summoned him with their last words to appear before the
tribunal of God in thirty days ; and his death within the
time, which has given him the surname of the Summoned,
might, we may hope, deter succeeding sovereigns from
iniquity so flagrant. But from the practice of causing their
enemies to be assassinated, neither law nor conscience could
withhold them. Alfonso XI. was more than once guilty
of this crime. Yet he too passed an ordinance in 1325
that no warrant should issue for putting any one to death,
or seizing his property, till he should be duly tried by
course of law. Henry II. repeats the same law in very
explicit language.31 But the civil history of Spain displays
several violations of it. An extraordinary prerogative of
committing murder appears to have been admitted, in
early times, by several nations who did not acknowledge
unlimited power in their sovereign/ Before any regular
police was established, a powerful criminal might have been
secure from all punishment, but for a notion, as barbarous
as any which it served to counteract, that he could be
lawfully killed by the personal mandate of the king. And
the frequent attendance of sovereigns in their courts of
u Que mandase facer la justicia en ants' llamado e oido 4 vencido por fuero
aquellos que la merecen comunalinente e por derecho, por querella nin por que-
con fuero & con derecho 6 los homes que rellas que £ nos fuesen dadas, segunt que
non sean muertos nin presos nin tornados esto esta ordenado por el rei don Alonso
lo que han sin ser oidos por derecho 6 nuestro padre. Teoria de las Cortes,
por fuero de aquel logar do acaesciere, t. ii. p. 287.
6 que sea guardado mejor que se guardd y Si quis hominem per jussionem
fasta aqui. Marina, Ensayo Hist.-Cri- regis vel ducis sui occiderit, non requira-
tico, p. 148. tur ei, nee sit faidosus, quia jussio domini
x Que non mandemos matar nin pren- sui fuit, et non potuit contradicere jus-
der nin lisiar nin despechar nin tomar d sionem. Leges Bajuvariorum, tit. ii. in
alguno ninguna cosa de lo suyo, sin ser Baluz. Capitularibus.
SPAIN. DURING THE MIDDLE AGES. 37
judicature might lead men not accustomed to consider the
indispensable necessity of legal forms, to confound an act
of assassination with the execution of justice.
Though it is very improbable that the nobility were not
considered as essential members of the cortes, they JJ^J-^
certainly attended in smaller numbers than we nobiuty.
should expect to find from the great legislative and deliber-
ative authority of that assembly. This arose chiefly from
the lawless spirit of that martial aristocracy, which placed
less confidence in the constitutional methods of resisting
arbitrary encroachment, than in its own armed combina-
tions.2 Such confederacies to obtain redress of grievances
by force, of which there were five or six remarkable in-
stances, were called Hermandad (brotherhood or union),
and though not so explicitly sanctioned as they were by
the celebrated Privilege of Union in Aragon, found coun-
tenance in a law of Alfonso X., which cannot be deemed so
much to have voluntarily emanated from that prince as to
be a record of original rights possessed by the Castilian
nobility. "The duty -of subjects towards their king," he
says, " enjoins them not to permit him knowingly to en-
danger his salvation, nor to incur dishonour and inconve-
nience in his person or family, nor to produce mischief to
his kingdom. And this may be fulfilled in two ways : one
by good advice, showing him the reason wherefore he ought
not to act thus ; the other by deeds, seeking means to pre-
vent his going on to his own ruin, and putting a stop to
those who give him ill counsel, forasmuch as his errors are
of worse consequence than those of other men, it is the
bounden duty of subjects to prevent his committing them."*
To this law the insurgents appealed, in their coalition
against Alvaro de Luna ; and indeed we must confess, that
however just and admirable the principles which it breathes,
so general a licence of rebellion was not likely to preserve
the tranquillity of a kingdom. The deputies of towns in a
cortes of 1445 petitioned the king to declare that no con-
struction should be put on this law, inconsistent with the
obedience of subjects towards their sovereign •, a request to
which of course he willingly acceded.
2 Teoria de las Cortes, t. ii. p. 465. a Ensayo Hist.-Critico, p. 312.
38 STATE OF EUKOPE CHAP. IV.
Castile, it will be apparent, bore a closer analogy to
England in its form" of civil polity, than France or even
Aragon. But the frequent disorders of its government and
a barbarous state of manners rendered violations of law
much more continual and flagrant than they were in Eng-
land under the Plantagenet dynasty. And besides these
practical mischiefs, there were two essential defects in the
constitution of Castile, through which perhaps it was ulti-
mately subverted. It wanted those two brilliants in the
coronet of British liberty, the representation of freeholders
among the commons, and trial by jury. The cortes of
Castile became a congress of deputies from a few cities,
public spirited indeed and intrepid, as we find them in bad
times, to an eminent degree, but too much limited in num-
ber, and too unconnected with the territorial aristocracy, to
maintain a just balance against the crown. Yet, with every
disadvantage, that country possessed a liberal form of
government, and was animated with a noble spirit for its
defence. Spain, in her late memorable though short resus-
citation, might well have gone back to her ancient institu-
tions, and perfected a scheme of policy which the great
example of England would have shown to be well adapted
to the security of freedom. What she did, or rather at-
tempted instead, I need not recall. May her next effort be
more wisely planned, and more happily terminated ! b
Though the kingdom of Aragon was very inferior in
Affairs of extent to that of Castile, yet the advantages of a
Aragon. better form of government and wiser sovereigns,
with those of industry and commerce along a line of sea-
coast, rendered it almost equal in importance. Castile rarely
intermeddled in the civil dissensions of Aragon ; the kings
of Aragon frequently carried their arms into the heart of
Castile. During the sanguinary outrages of Peter the Cruel,
and the stormy revolutions which ended in establishing the
house of Trastamare, Aragon was not indeed at peace, nor
altogether well governed ; but her political consequence rose
in the eyes of Europe through the long reign of the ambitious
and wily Peter IV., whose sagacity and good fortune re-
deemed, according to the common notions of mankind, the
iniquity with which he stripped his relation the king of
b The first edition of this work was published in 1818.
SPAIN... DURING THE MIDDLE AGES. 39
Majorca of the Balearic islands, and the constant perfidious-
ness of his character. I have mentioned in another place
the Sicilian war, prosecuted with so much eagerness for
many years by Peter III. and his son Alfonso III. After
this object was relinquished, James II. undertook an enter-
prise less splendid, but not much less difficult, the conquest
of Sardinia. That island, long accustomed to independ-
ence, cost an incredible expense of blood and treasure to
the kings of Aragon during the whole fourteenth century.
It was not fully subdued till the commencement of the
next, under the reign of Martin.
At the death of Martin, king of Aragon, in 1410, a me-
morable question arose as to the right of succes- Disputed
rrn IT* «TI i i r>T» • TT succession
sion. I hough Petromlla, daughter of Kamiro II., j^tje
had reigned in her own right from 1137 to 1172, Martin.
an opinion seems to have gained ground from the thirteenth
century, that females could not inherit the crown of Aragon.
Peter IV. had excited a civil war by attempting to settle
the succession upon his daughter, to the exclusion of his
next brother. The birth of a son about the same time sus-
pended the ultimate decision of this question ; but it was
tacitly understood that what is called the Salic law ought
to prevail.0 Accordingly, on the death of John I. in 1395,
his two daughters were set aside in favour of his brother
Martin, though not without opposition on the part of the
elder, whose husband, the count of Foix, invaded the king-
dom, and desisted from his pretension only through want
of force. Martin's son, the king of Sicily, dying in his
father's lifetime, the nation was anxious that the king should
fix upon his successor, and would probably have acquiesced
in his choice. But his dissolution occurring more rapidly
than was expected, the throne remained absolutely vacant.
The count of Urgel had obtained a grant of the lieutenancy,
which was the right of the heir apparent. This nobleman
possessed an extensive territory in Catalonia, bordering on
the Pyrenees. He was grandson of James, next brother to
Peter IV., and, according to our rules of inheritance, cer-
tainly stood in the first place. The other claimants were
Zurita, t. ii. f. 188." It was pretended and this analogy seems to have had some
that women were excluded from the influence in determining the Aragonese
crown in England as well as France : to adopt a Salic law.
40 STATE OF EUROPE CHAP. IV.
the duke of Gandia, grandson of James II., who, though
descended from a more distant ancestor, set up a claim
founded on proximity to the royal stock, which in some
countries was preferred to a representative title ; the duke of
Calabria, son of Violante, younger daughter of John I. (the
countess of Foix being childless) ; Frederic count of Luna,
a natural son of the younger Martin, king of Sicily, legiti-
mated by the pope, but with a reservation excluding him from
royal succession ; and finally, Ferdinand, infant of Castile,
son of the late king's sister .d The count of Urgel was favoured
in general by the Catalans, and he seemed to have a powerful
support in Antonio de Luna, a baron of Aragon, so rich, that
he might go through his own estate from France to Castile.
But this apparent superiority frustrated his hopes. The jus-
ticiary and other leading Aragonese were determined not to
suffer this great constitutional question to be decided by an
appeal to force, which might sweep away their liberties in the
struggle. Urgel, confident of his right, and surrounded by
men of ruined fortunes, was unwilling to submit his preten-
sions to a civil tribunal. His adherent, Antonio de Luna,
committed an extraordinary outrage, the assassination of the
archbishop of Saragosa, which alienated the minds of good
citizens from his cause. On the other hand neither the
duke of Gandia, who was very old,6 nor the count of Luna,
d The subjoined pedigree will show more clearly the respective titles of the
competitors.
JAMES II. died 1327.
I
ALFO
PETE:
*so IV. d. 1336.
D. of Gandia.
el. D, of Gandia.
;el.
i IV. d. 1337.
James C. of Urg
Eleanor Q. of Castile. Joi
I
tN I. d. 1395.
MARTIN, Peter C. of Urj
d. 1410.
C. of Urgel
Martin,
of Sicily, 1409.
Henry III. Ferdinand.
K. of Castile.
1 K-
Joanna Violante
John II. Countess of Foix. Q. of Naples.
K. of Castile. I
(7. of Luna*
Louis D. of
Calabria.
This duke of Gandia died during seemed to have a worse claim: yet he
the interregnum. His son, though not became a competitor,
so objectionable on the score of age,
SPAIN. DURING THE MIDDLE AGES. 41
seemed fit to succeed. The party of Ferdinand, therefore,
gained ground by degrees. It was determined, however, to
render a legal sentence. The cortes of each nation agreed
upon the nomination of nine persons, three Aragonese, three
Catalans, and three Valencians, who were to discuss the pre-
tensions of the several competitors, and by a plurality of six
votes to adjudge the crown. Nothing could be more solemn,
more peaceful, nor, in appearance, more equitable, than the
proceedings of this tribunal. They summoned the claimants
before them, and heard them by counsel. One of these,
Frederic of Luna, being ill defended, the court took charge
of his interests, and named other advocates to maintain
them. A month was passed in hearing arguments ; a
second was allotted to considering them ; and at the expira-
tion of the prescribed time, in was announced to the people
by the mouth of St. Vincent Ferrier, that Ferdinand of
Castile had ascended the throne/
In this decision it is impossible not to suspect that the
judges were swayed rather by politic considerations
lu i. ' <L £• 1 J-I • "Li. Ti. Decision in
than a strict sense of hereditary right, it was,
therefore, by no means universally popular, especi-
ally in Catalonia, of which principality the count of
Urgel was a native ; and perhaps the great rebellion of the
Catalans fifty years afterwards may be traced to the disaffec-
tion which this breach, as they thought, of the lawful suc-
cession had excited. Ferdinand however was well received
in Aragon, The cortes generously recommended the count
of Urgel to his favour, on account of the great expenses he
had incurred in prosecuting his claim. But Urgel did not
wait the effect of this recommendation. Unwisely attempt-
f Biancae Commentaria, in Schotti was at least as plausible as that of his
Hispania Illustrata, t. ii. Zurita, t. iii. uncle Ferdinand. Indeed, upon the
f. 1-74. Vincent Ferrier was the most principles of inheritance to which we are
distinguished churchman of his time in accustomed, Louis, duke of Calabria, had
Spain. His influence, as one of the nine a prior right to Ferdinand, admitting the
judges, is said to have been very instru- rule which it was necessary for both of
mental in procuring the crown for Ferdi- them to establish ; namely, that a right of
nand. Five others voted the same way; succession might be transmitted through
one for the count of Urgel ; one doubt- females, which females could not person-
fully between the count of Urgel and ally enjoy. This, as is well known, had
duke of Gandia; the ninth declined to been advanced in the preceding age by
vote. Zurita, t. iii. f. 71. It is curious Edward III. as the foundation of his
enough that John, king of Castile, was claim to the crown of France.
altogether disregarded; though his claim
*
42 STATE OF EUKOPE CHAP. IV.
ing a rebellion with very inadequate means, he lost his
estates, and was thrown for life into prison. Ferdinand's
Alfonso v. successor was his son Alfonso V., more dis-
A.D. ui6. tinguished in the history of Italy than of Spain.
For all the latter years of his life, he never quitted the king-
dom that he had acquired by his arms ; and, enchanted by
the delicious air of Naples, intrusted the government of his
John ii. patrimonial territories to the care of a brother and
A.D. U58. an heir. John II., upon whom they devolved by
the death of Alfonso without legitimate progeny, had been
engaged during his youth in the turbulent revolutions of
Castile, as the head of a strong party that opposed the
domination of Alvaro de Luna. By marriage with the
heiress of Navarre, he was entitled, according to the usage
of those times, to assume the title of king, and administra-
tion of government during her life. But his ambitious
retention of power still longer produced events
A.D. 1420. , . , , r , . p . Jf. 01 1
which are the chiet stain on his memory. Charles
prince of Viana was, by the constitution of Navarre,
entitled to succeed his mother. She had requested him in
her testament not to assume the government with-
out his father's consent. That consent was always
withheld. The prince raised what we ought not to call a
rebellion ; but was made prisoner, and remained for some
time in captivity. John's ill disposition towards his son was
exasperated by a stepmother, who scarcely disguised her
intention of placing her own child on the throne of Aragon
at the expense of the eldest-born. After a life of perpetual
oppression, chiefly passed in exile or captivity, the prince of
V iana died in Catalonia, at a moment when that province
was in open insurrection upon his account. Though
A.D. 1461. . , ,,r f~ .
it hardly seems that the Catalans had any more
general provocations, they persevered for more than ten
years with inveterate obstinacy in their rebellion, offering
the sovereignty first to a prince of Portugal, and after-
wards to Regnier duke of Anjou, who was destined to pass
his life in unsuccessful competition for kingdoms. The
king of Aragon behaved with great clemency towards
these insurgents on their final submission.
It is consonant to the principle of this work, to pass
barons'
SPAIN. DURING THE MIDDLE AGES. 43
lightly over the common details of history, in order to fix
the reader's attention more fully on subjects of constitu-
1 •! 1 • 1 • ' T» 1 • T^ tion °f
pmJosophical inquiry, rernaps in no European Aragon.
monarchy except our own, was the form of government
more interesting than in Aragon, as a fortunate tempera-
ment of law and iustice with the royal authority, onginaiiya
OP j.i I • 1 i 0 '. sort of regal
JSo far as any thing can be pronounced of its aristocracy.
earlier period before the capture of*Saragosa in 1118, it
was a kind of regal aristocracy, where a small number of
powerful barons elected their sovereign on every vacancy,
though, as usual in other countries, out of one family ; and
considered him as little more than the chief of their con-
federacy.5^ These were the ricoshombres or barons, Privileges
the first order of the state. Among these the kings
of Aragon, in subsequent times, as they extended
their dominions, shared the conquered territory in grants
of honours on a feudal tenure. h For this system was fully
established in the kingdom of Aragon. A ricohombre, as
we read in Vitalis, bishop of Huesca, about the middle of
the thirteenth century,1 must hold of the king an honour
or barony capable of supporting more than three knights ;
and this he was bound to distribute among his vassals in
military fiefs. Once in the year he might be summoned
with his feudataries to serve the sovereign for two months
(Zurita says three) ; and he was to attend the royal court,
or general assembly, as a counsellor, whenever called upon,
assisting in its judicial as well as deliberative business. In
the towns and villages of his barony he might appoint
bailiffs to administer justice, and receive penalties ; but the
g Alfonso III. complained that his que tenian del rey, eran obligados de se-
barons wanted to bring back old times, guir al rey, si yva en persona a" la guerra,
quando havia en el reyno tantos reyes y residir en ella tres mesesen cadaunano.
como ricos hombres. Biancae Com- Zurita, t. i. fol. 43. (Saragosa, 1610.)
mentaria, p. 787. The form of election A fief was usually called in Aragon an
supposed to have been used by these honour, que en Castilla llamavan tierra,
bold barons, is well known. "We, who y en el principado de Cataluna feudo.
are as good as you, choose you for our fol. 46.
king and lord, provided that you observe ' I do ndt know whether this work of
our laws and privileges; and if not, not." Vitalis has been printed; but there are
But I do not much believe the authen- large extracts from it in Blancas's history,
ticity of this form of words. See Ro- and also in Ducange, under the words
bertson's Charles V. vol. i. note 31. It Infancia, Mesnadarius, &c. Several illus-
is, however, sufficiently agreeable to the trations of these military tenures may be
spirit of the old government. found in the Fueros de Aragon, espe-
h Los ricos hombres, por los feudos cially lib. 7.
44 STATE OF EUROPE CHAP. IV.
higher criminal jurisdiction seems to have been reserved to
the crown. According to Vitalis, the king could divest
these ricoshombres of their honours at pleasure, after which
they fell into the class of mesnadaries, or mere tenants in
chief. But if this were constitutional in the reign of
James I., which Blancas denies, it was not long permitted
by that high-spirited aristocracy. By the General Privilege
or Charter of Peter III. it is declared that no barony can
be taken away without a just cause and legal sentence of
the justiciary and council of barons.k And the same pro-
tection was extended to the vassals of the ricoshombres.
Below these superior nobles were the mesnadaries, cor-
Lowemo- responding to our mere tenants in chief, holding
bility- estates not baronial immediately from the crown ;
and the military vassals of the high nobility, the knights
and infanzones; a word which may be rendered by gen-
tlemen. These had considerable privileges in that aristo-
cratic government ; they were exempted from all taxes, they
could only be tried by the royal judges for any crime ; and
offences committed against them were punished with addi-
tional severity.™ The ignoble classes were, as in
other countries, the burgesses of towns, and the
villeins or peasantry. The peasantry seem to have been
subject to territorial servitude, as in France and England,
Vitalis says, that some villeins were originally so unpro-
tected, that, as he expresses it, they might be divided into
pieces by sword among the sons of their masters, till they
were provoked to an insurrection, which ended in establish-
ing certain stipulations, whence they obtained the denomi-
nation of villeins de parada, or of convention.0
Though from the twelfth century the principle of here-
Liberties ditary succession to the throne superseded, in
Aragonese Aragon as well as Castile, the original right of
kingdom. ci,oosmg a sovereign within the royal family, it
was still founded upon one more sacred and fundamental,
that of compact. No king of Aragon was entitled to
assume that name, until he had taken a coronation oath,
administered by the justiciary at Saragosa, to observe the
k Biancae Comm. p. 730. m p. 732. n p. 729.
SPAIN. DURING THE MIDDLE AGES. 45
laws and liberties of the realm.0 Alfonso III., in 1285,
being in France at the time of his father's death, named
himself king in addressing the states, who immediately re-
monstrated on this premature assumption of his title, and
obtained an apology.p Thus, too, Martin, having been called
to the crown of Aragon by the cortes, in 1395, was specially
required not to exercise any authority before his coronation."1
Blancas quotes a noble passage from the acts of cortes in
1451. "We have always heard of old time, and it is
found by experience, that, seeing the great barrenness of
this land, and the poverty of the realm, if it were not for
the liberties thereof, the folk would go hence to live and
abide in other realms, and lands more fruitful."1" This high
spirit of freedom had long animated the Aragonese. After
several contests with the crown in the reign of James I.,
not to go back to earlier times, they compelled
Peter III. in 1283, to grant a law called the
General Privilege, the Magna Charta of Aragon, and per-
haps a more full and satisfactory basis of civil liberty than
our own. It contains a series of provisions against arbitrary
tallages, spoliations of property, secret process after the
manner of the Inquisition in criminal charges, sentences
of the justiciary without assent of the cortes, appointment
of foreigners or Jews to judicial offices, trials of accused
persons in places beyond the kingdom, the use of torture,
except in charges of falsifying the coin, and the bribery of
judges. These are claimed as the ancient liberties of their
0 Zurita, Anales de Aragon, t. i. fol. barren and ill peopled. The kings were
104, t. iii. fol. 76. forced to go to Catalonia for money, and
p Biancae Comm. p. 661. They ac- indeed were little able to maintain ex-
knowledged, at the same time, that he pensive contests. The wars of Peter IV.
was their natural lord, and entitled to in Sardinia, and of Alfonso V. with
reign as lawful heir to his father— so Genoa and Naples, impoverished their
oddly were the hereditary and elective people. A hearth-tax having been im-
titles jumbled together. Zurita, t. i. posed in 1404, it was found that there
fol. 303. were 42,683 houses in Aragon, which,
q Zurita, t. ii. fol. 424. according to most calculations, will
r Siempre havemos oydo dezir antiga- give less than 300,000 inhabitants. In
ment, 4 se troba por esperiencia, que at- 1429, a similar tax being laid on, it
tendida la grand sterilidad de aquesta is said4 that the number of houses was
tierra, e pobreza de aqueste regno, si diminished in consequence of war. Zu-
non fues por las libertades de aquel, se rita, t. iii. fol. 189. It contains at
yrian a bivir, y habitar las gentes a otros present between 600,000 and 700,000
regnos, e tierras mas frutieras, p. 571. inhabitants.
Aragon was, in fact, a poor country,
46 STATE OF EUROPE CHAP. IV.
country. " Absolute power (rnero imperio e mixto), it is
declared, never was the constitution of Aragon, nor of Va-
lencia, nor yet of Ribago^a, nor shall there be in time to
come any innovation made ; but only the law, custom, and
privilege which has been anciently used in the aforesaid
kingdoms/'8
The concessions extorted by our ancestors from John,
Privilege Henry III., and Edward I,, were secured by the
of union. onjy guarantee those times could afford, the d'eter-
rnination of the barons to enforce them by armed confede-
racies. These, however, were formed according to emer-
gencies, and, except in the famous commission of twenty-five
conservators of Magna Charta, in the last year of John,
were certainly unwarranted by law. But the Aragonese
established a positive right of maintaining their liberties by
arms. This was contained in the Privilege of Union granted
by Alfonso III. in 1287, after a violent conflict with his
subjects ; but which was afterwards so completely abolished
and even eradicated from the records of the kingdom, that
its precise words have never been recovered.1 According
to Zurita, it consisted of two articles : first, that in the case
of the king's proceeding forcibly against any member of the
union without previous sentence of the justiciary, the rest
should be absolved from their allegiance ; secondly, that he
should hold cortes every year in Saragosa.u During the
two subsequent reigns of James II. and Alfonso IV. little
pretence seems to have been given for the exercise of this
right. But dissensions breaking out under Peter IV. in
1347, rather on account of his attempt to settle the crown
upon his daughter, than of any specific public grievances, the
Revolt nobles had recourse to the Union, that last voice,
Pet£siv. says Blancas, of an almost expiring state, full of
weight and dignity, to chastise the presumption of kings.x
' Fueros de Aragon, fol. 9. Zurita, u t. i. fol. 322.
t. i. fol. 265. x Priscam illam Unionis, quasi mo-
4 Blancas says that he had discovered rientis reipublicae extremani vocem, auc-
a copy of the Privilege of Union in the toritatis et gravitatis plenam, regum in-
archives of the see of Tarragona, and solentise apertum vindicem excitarunt,
would gladly have published it, but for summa ac singular! bonorum omnium
his deference to the wisdom of former consensione. p. 669. It is remarkable
ages, which had studiously endeavoured that such strong language should have
to destroy all recollection of that danger- been tolerated under Philip II.
ous law. p. 662.
SPAIN. DUKING THE MIDDLE AGES. 47
They assembled at Saragosa, and used a remarkable seal
for all their public instruments, an engraving from which
may be seen in the historian I have just quoted. It repre-
sents the king sitting on his throne, with the confederates
kneeling in a suppliant attitude around to denote their
loyalty, and unwillingness to offend. But in the back-
ground tents and lines of spears are discovered as a hint
of their ability and resolution to defend themselves. The
legend is Sigillum Unionis Aragonum. This respectful
demeanour towards a sovereign against whom they were
waging war, reminds us of the language held out by our
Long Parliament, before the Presbyterian party was over-
thrown. And although it has been lightly censured as incon-
sistent and hypocritical, this tone is the safest that men can
adopt, who, deeming themselves under the necessity of with-
standing the reigning monarch, are anxious to avoid a change
of dynasty, or subversion of their constitution. These con-
federates were defeated by the king at Epila in 13487 But
his prudence and the remaining strength of his opponents
inducing him to pursue a moderate course, there ensued a
more legitimate and permanent balance of the constitution
from this victory of the royalists. The Privilege privilege
of Union was abrogated, Peter himself cutting to
pieces with his sword the original instrument. But
in return many excellent laws for the security of stituted-
the subject were enacted ; z and their preservation was in-
trusted to the greatest officer of the kingdom, the justiciary,
whose authority and pre-eminence may in a great degree
be dated from this period.* That watchfulness over public
liberty, which originally belonged to the aristocracy of
ricoshombres, always apt to thwart the crown, or to oppress
the people, and which was afterwards maintained by the
y Zurita observes that the battle of from thence the name of Union was, by
Epila was the last fought in defence of common consent, proscribed, t. ii. fol.
public liberty, for which it was held law- 226. Blancas also remarks, that nothing
ful of old to take up arms, and resist the could have turned outmore advantageous
kmg> by virtue of the Privileges of Union, to the Aragonese than their ill fortune
For the authority of the justiciary being at Epila.
afterwards established, the former con- z Fueros de Aragon. De iis, quge
tentions and wars came to an end; means Dominus rex. fol. 14, et alibi passim,
being found to put the weak on a level a Bianc. Comm. p. 671, 811. Zurita,
with the powerful, in which consists the t. ii. fol. 229.
peace and tranquillity of all states : and
48 STATE OF EUROPE CHAP. IV.
dangerous Privilege, of Union, became the duty of a civil
magistrate, accustomed to legal rules, and responsible for
his actions, whose office and functions are the most pleasing
feature in the constitutional history of Aragon.
The justiza or justiciary of Aragon has been treated by
office of some writers as a sort of anomalous magistrate,
justiciary. created originally as an intermediate power between
the king and people, to watch over the exercise of royal
authority. But I do not perceive that his functions were, in
any essential respect, different from those of the chief justice
of England, divided, from the time of Edward I., among the
judges of the King's Bench. We should undervalue our
own constitution by supposing that there did not reside in
that court as perfect an authority to redress the subject's
injuries, as was possessed by the Aragonese magistrate. In
the practical exercise, indeed, of this power, there was an
abundant difference. Our English judges, more timid and
pliant, left to the remonstrances of parliament that redress
of grievances which very frequently lay within the sphere
of their jurisdiction. There is, I believe, no recorded in-
stance of a habeas corpus granted in any case of illegal
imprisonment by the crown or its officers during the con-
tinuance of the Plantagenet dynasty. We shall speedily
take notice of a very different conduct in Aragon.
The office of justiciary, whatever conjectural antiquity
some have assigned to it, is not to be traced beyond the
capture of Saragosa in 1 1 1 8, when the series of magistrates
commences.1" But for a great length of time they do not
appear to have been particularly important; the judicial
authority residing in the council of ricoshombres, whose
suffrages the justiciary collected, in order to pronounce their
sentence rather than his own. A passage in Vitalis, bishop
of Huesca, whom I have already mentioned, shows this to
have been the practice during the reign of James I.c Gra-
b Biancse Comment, p. 638. the meaning of Vitalis, his testimony
c Id. p. 772. Zurita indeed refers the seems to be beyond dispute. By the
justiciary's pre-eminence to an earlier General Privilege of 1283, the justiciary
date; namely, the reign of Peter II., was to advise with the ricoshombres, in
who took away a great part of the local all cases where the king was a party
jurisdictions of the ricoshombres. t. i. against any of his subjects. Zurita,
fol. 102. But if I do not misunderstand f. 281. See also f. 180.
SPAIN. DURING THE MIDDLE AGES. 49
dually, as notions of liberty became more definite, and laws
more numerous, the reverence paid to their permanent inter-
preter grew stronger ; and there was fortunately a succession
of prudent and just men in that high office, through whom it
acquired dignity and stable influence. Soon after the acces-
sion of James II., on some dissensions arising between the
king and his barons, he called in the justiciary as a mediator,
whose sentence, says Blancas, all obeyed.d At a subsequent
time in the same reign, the military orders, pretending that
some of their privileges were violated, raised a confederacy
or union against the king. James offered to refer the dis-
pute to the justiciary, Ximenes Salanova, a man of eminent
legal knowledge. The knights resisted his jurisdiction, al-
leging the question to be of spiritual cognizance. He de-
cided it, however, against them in full cortes at Saragosa,
annulled their league, and sentenced the leaders to punish-
ment.6 It was adjudged also that no appeal could lie to the
spiritual court from a sentence of the justiciary passed with
assent of the cortes. James II. is said to have frequently
sued his subjects in the justiciary's court, to show his regard
for legal measures ; and during the reign of this good
prince, its authority became more established/ Yet it was
not perhaps looked upon as fully equal to maintain public
liberty against the crown, till in the cortes of 1348, after
the Privilege of Union was for ever abolished, such laws
were enacted, and such authority given to the justiciary, as
proved eventually a more adequate barrier against oppression
than any other country could boast. All the royal as well as
territorial judges were bound to apply for his opinion in case
of legal difficulties arising in their courts, which he was to
certify within eight days. By subsequent statutes of the
same reign, it was made penal for any one to obtain letters
from the king, impeding the execution of the justiza's pro-
d p. 663. historians writing rather concisely.
e Zurita, t. i. f. 403 ; t. ii. f. 34. { Bianc. p. 663. James acquired the
Bian. p. 666. The assent of the cortes surname of Just, el Justiciero, by his fair
seems to render this in the nature of a dealings towards his subjects. Zurita,
legislative rather than a judicial proceed- t. ii. fol. 82. El Justiciero properly de-
ing; but it is difficult to pronounce any notes his exercise of civil and criminal
thing about a transaction so remote in justice,
time, and in a foreign country, the native
VOL. II. E
50 STATE OF EUROPE CHAP. IV.
cess, and they were declared null. Inferior courts were
forbidden to proceed 'in any business after his prohibition.8
Many other laws might be cited, corroborating the authority
of this great magistrate ; but there are two parts of his
remedial jurisdiction which deserve special notice.
These are the processes of jurisfirma, or firma del derecho,
processes of an(l °f manifestation. The former bears some
analogy to the writs of pone and certiorari in
England, through which the Court of King's Bench
exercises its right of withdrawing a suit from the juris-
diction of inferior tribunals. But the Aragonese jurisfirma
was of more extensive operation. Its object was not only
to bring a cause commenced in an inferior court before the
justiciary, but to prevent or inhibit any process from issuing
against the person who applied for its benefit, or any
molestation from being offered to him ; so that as Blancas
expresses it, when we have entered into a recognisance
(firme et graviter asseveremus) before the justiciary of
Aragon to abide the decision of law, our fortunes shall be
protected by the interposition of his prohibition, from the
intolerable iniquity of the royal judges.h The process termed
manifestation afforded as ample security for personal liberty
as that of jurisfirma did for property. " To manifest any
one," says the writer so often quoted, " is to wrest him from
the hands of the royal officers, that he may not suffer any
illegal violence ; not that he is at liberty by this process,
because the merits of his case are still to be inquired into ;
but because he is now detained publicly, instead of being
as it were concealed, and the charge against him is inves-
tigated, not suddenly or with passion, but in calmness and
according to law, therefore this is called manifestation.1
g Fueros de Aragon : Quod in dubiis teneatur, quasi antea celatus extitisset;
non crassis. (A.D. 1348.) Quod impe- neceaseque deinde sit de ipsius culpa,
trans (1372), &c. Zurita, t. ii. fol. 229. non impetu et cum furore, sed sedatis
Bianc. p. 671 and 811. prorsus animis, et juxta constitutas leges
h p. 751. Fueros de Aragon, f. 137. judicari. Ex eo autem, quod Imjusmodi
' Est apud nos manifestare, reum judicium manifesto deprehensum, omni-
subito sumere, atque e regiis manibus bus jam patere debeat, Manifestationis
extorquere, ne qua ipsi contra jus vis in- sibi nomen arripuit. p. 675.
feratur. Non quod tune reus judicio Ipsius Manifestationis potestas tarn
liberetur; nmilominus tamen, ut loqui- solida est et repentina, ut homiui jam
mur, de meritis causse ad plenum cog- collum in laqueum inserenti subveniat.
noscitur. Sed quod deinceps manifesto Illius enim preesidio, damnatus, dum per
SPAIN.
DURING THE MIDDLE AGES.
51
The power of this writ (if I may apply our term) was such,
as he elsewhere asserts, that it would rescue a man whose
neck was in the halter. A particular prison was allotted
to those detained for trial under this process.
Several proofs that such admirable provisions did not re-
main a dead letter in the law of Aragon, appear in instances
_., -i rr • i i i of their ap-
the two historians, Blancas and Zurita, whose noble plication.
attachment to liberties, of which they had either witnessed
or might foretell the extinction, continually displays itself.
leges licet, quasi experiendi juris gratia,
de manibus judicum confestim extor-
quetur, et in carcerem ducitur ad id sedi-
ficatum, ibidemque asservatur tamdiu,
quamdiu jurene, an injuria, quid in ea
causa factum fuerit, judicatur. Prop-
terea career hie vulgari lingua, la carcel
de los manifestados nuncupatur. p. 751.
Fueros de Aragon, fol. 60. De Mani-
festationibus personarum. Independently
of this right of manifestation by writ of
the justiciary, there are several statutes
in the Fueros against illegal detention, or
unnecessary severity towards prisoners.
(De Custodia reorum, f. 163.) No judge
could proceed secretly in a criminal pro-
cess; an indispensable safeguard to piib-
lic liberty, and one of the most salutary,
as well as most ancient, provisions in our
own constitution. (De judiciisj Tor-
ture was abolished, except in cases of
coining false money, and then only in
respect of vagabonds. (General Privi-
lege of 1283.)
Zurita has explained the two processes
of jurisfirma and manifestation so per-
spicuously, that, as the subject is very
interesting, and rather out of the common
way, I shall both quote and translate the
passage. Con firmar de derecho, que es
dar caution a" estar a" justicia, se conseden
literas inhibitorias por el justicia de
Aragon, para que no puedan ser presos,
ni privados, ni despojados de su posses-
sion, hasta que judicialmente se conozca,
y declare sob re la pretension, y justicia de
las partes,y parezca por processo legitimo,
que se deve revocar la tal inhibition.
Esta fue* la suprema y principal autoridad
del Justicia de Aragon desde que este
magistrado tuvo origen, y lo que llama
manifestation; porque assicorno lafirma
de derecho por privilegio general del
reyno impide, que no puede ninguno ser
preso, 6 agraviado contra razon y jus-
ticia, de la misma manera la manifesta-
cion, que es otro privilegio, y remedia
rnuy principal, tiene fuerga, quando al-
guno es preso sin preceder processo le-
gitimo, 6 quando lo prenden de hecho
sin orden de justicia; y en estos casos
solo el Justicia de Aragon, quando se
tiene recurso al el, se interpone, mani-
festando il preso, que es tomarlo a" su
mano, de poder de qualquiera juez, aun-
que sea el mas supremo ; y es obligado
el Justicia de Aragon, y sus lugartenien-
tes de proveer la manifestacion en el
mismo instante, que les es pedida sin
preceder inf orinacion ; y basta que se pi da
por qualquiere persona que se diga pro-
curador del que quiere que lo tengan por
manifesto, t. ii. fol. 386. "Upon a
firma de derecho, which is to give se-
curity for abiding the decision of the law,
the Justiciary of Aragon issues letters
inhibiting all persons to arrest the party,
or deprive him of his possession, until
the matter shall be judicially inquired
into, and it shall appear that such in-
hibition ought to be revoked. This pro-
cess and that which is called manifest-
ation have been the chief powers of the
justiciary, ever since the commencement
of that magistracy. And as the firma de
derecho by the general privilege of the
realm secures every man from being ar-
rested or molested against reason and
justice, so the manifestation, which is
another principal and remedial right,
takes place when any one is actually
arrested without lawful process; and in
such cases only the Justiciary of Aragon,
when recourse is had to him, interposes
by manifesting the person arrested, that
is, by taking him into his own hands, out
of the power of any judge, however high
in authority; and this manifestation the
justiciary, or his deputies in his absence,
are bound to issue at the same instant it
is demanded without further inquiry;
and it may be demanded by any one as
attorney of the party requiring to be
manifested."
E 2
52 STATE OF EUROPE CHAP. IV.
I cannot help illustrating this subject by two remarkable in-
stances. The heir apparent of the kingdom of Aragon had
a constitutional right to the lieutenancy or regency, during
the sovereign's absence from the realm. The title and office
indeed were permanent, though the functions must of course
have been superseded during the personal exercise of royal
authority. But as neither Catalonia nor Valencia, which
often demanded the king's presence, were considered as parts
of the kingdom, there were pretty frequent occasions for this
anticipated reign of the eldest prince. Such a regulation was
not likely to diminish the mutual and almost inevitable jea-
lousies between kings and their heirs apparent, which have
so often disturbed the tranquillity of a court and a nation.
Peter IV. removed his eldest son, afterwards John I., from
the lieutenancy of the kingdom. The prince entered into a
firma del derecho before the justiciary, Dominic de Cerda,
who, pronouncing in his favour, enjoined the king to replace
his son in the lieutenancy as the undoubted right of the
eldest born. Peter obeyed, not only in fact, to which, as
Blancas observes, the law compelled him, but with apparent
cheerfulness.15 There are, indeed, no private persons who
have so strong an interest in maintaining a free constitution
and the civil liberties of their countrymen as the members
of royal families ; since none are so much exposed, in abso-
lute governments, to the resentment and suspicion of a
reigning monarch.
John I., who had experienced the protection of law in
his weakness, had afterwards occasion to find it interposed
against his power. This king had sent some citizens of Sara-
gosa to prison without form of law. They applied to Juan
de Cerda, the justiciary, for a manifestation. He issued his
writ accordingly, nor, says Blancas, could he do otherwise
without being subject to a heavy fine. The king, pretending
that the justiciary was partial, named one of his own judges,
the vice-chancellor, as coadjutor. This raised a constitu-
tional question, whether, on suspicion of partiality, a coad-
jutor to the justiciary could be appointed. The king sent a
private order to the justiciary not to proceed to sentence upon
k Zurita, ubi supra. Blancas, p. 673.
SPAIN. DURING THE MIDDLE AGES. 53
this interlocutory point until he should receive instructions
in the council, to which he was directed to repair. But he
instantly pronounced sentence in favour of his exclusive
jurisdiction without a coadjutor. He then repaired to the
palace. Here the vice-chancellor, in a long harangue,
enjoined him to suspend sentence till he had heard the
decision of the council. Juan de Cerda answered that, the
case being clear, he had already pronounced upon it. This
produced some expressions of anger from the ting, who
began to enter into an argument on the merits of the
question. But the justiciary answered that, with all defer-
ence to his majesty, he was bound to defend his conduct
before the cortes, and not elsewhere. On a subsequent day,
the king, having drawn the justiciary to his country palace,
on pretence of hunting, renewed the conversation with the
assistance of his ally the vice-chancellor ; but no impres-
sion was made on the venerable magistrate, whom John
at length, though much pressed by his advisers to violent
courses, dismissed with civility. The king was probably
misled throughout this transaction, which I have thought fit
to draw from obscurity, not only in order to illustrate the
privilege of manifestation, but as exhibiting an instance of ju-
dicial firmness and integrity, to which in the fourteenth cen-
tury, no country perhaps in Europe could offer a parallel."1
Before the cortes of 1348, it seems as if the justiciary
might have been displaced at the king's pleasure, omce of
From that time he held his station for life. But in hew foriife.
order to evade this law, the king sometimes exacted a pro-
mise to resign upon request. Ximenes Cerdan, the justi-
ciary in 1420, having refused to fulfil this engagement,
Alfonso V. gave notice to all his subjects not to obey him,
and, notwithstanding the alarm which this encroachment
created, eventually succeeded in compelling him to quit his
office. In 1439, Alfonso insisted with still greater severity
upon the execution of a promise to resign made by another
justiciary, detaining him in prison until his death. But the
cortes of 1442 proposed a law, to which the king reluctantly
acceded, that the justiciary should not be compellable to
m Biancse Coinmentar. ubi supra. Zurita relates the story, but not so fully.
54 STATE OF EUROPE CHAP. IV.
resign his office on account of any previous engagement he
might have made.n
But lest these high powers, imparted for the prevention of
abuses, should themselves be abused, the justiciary
lityofthis ., , fi .
magistrate, was responsible, in case of an unjust sentence, to
the extent of the injury inflicted ; ° and was also subjected,
by a statute of 1390, to a court of inquiry, composed of
four persons chosen by the king out of eight named by the
cortes ; whose office appears to have been that of examining
and reporting to the four estates in cortes, by whom he was
ultimately to be acquitted or condemned. This superin-
tendence of the cortes, however, being thought dilatory and
inconvenient, a court of seventeen persons was appointed
in 1461 to hear complaints against the justiciary. Some
alterations were afterwards made in this tribunal.1" The
justiciary was always a knight, chosen from the second order
of nobility, the barons not being liable to personal punish-
ment. He administered the coronation oath to the king ;
and in the cortes of Aragon, the justiciary acted as a sort of
royal commissioner, opening or proroguing the assembly by
the king's direction.
No laws could be enacted or repealed, nor any tax iin-
Rightspf posed, without the consent of the estates duly as-
and taxation. sembled.q Even as early as the reign of Peter II.,
in 1205, that prince having attempted to impose a general
tallage, the nobility and commons united for the preserva-
tion of their franchises, and the tax was afterwards granted
in part by the cortes.r It may easily be supposed that the
n Fueros de Aragon, fol. 22. Zurita, q Majores nostri, quse de omnibus
t. iii. fol. 140, 255, 272. Bianc. Com- statuenda essent, noluerunt juberi, veta-
rnent. p. 701. rive posse, nisi vocatis, descriptisque or-
0 Fueros de Aragon, fol. 25. diuibus, ac cunctis eorum adhibitis suf-
p Blancas. Zurita, t. iii. fol. 321, t. iv. fragiis, re ipsa cognita et proniulgata.
f. 103. These regulations were very ac- Unde perpetuum illud nobis comparatum
ceptable to the nation. In fact, the jus- est jus, ut communes et publicae leges
tiza of Aragon had possessed much more neque tolli, neque rogari possint, nisi
unlimited powers than ought to be en- prius universus populus una voce co-
trusted to any single magistrate. The mitiis institutis suum ea de re liberum
court of King's Bench in England, be- suffragium ferat : idque postea ipsius
sides its consisting of four co-ordinate regis assensu comprobetur. • Biancse, p.
j udges, is checked by the appellant j uris- 761.
dictions of the Exchequer Chamber and r Zurita, t. i. fol. 92.
House of Lords, and, still more impor-
tantly, by the rights of juries.
SPAIN. DURING THE MIDDLE AGES. 55
Aragonese were not behind other nations in statutes to secure
these privileges, which, upon the whole, appear to have been
more respected than in any other monarchy.8 The general
privilege of 1283 formed a sort of groundwork for this legis-
lation, like the Great Charter in England. By a clause in
this law, cortes were to be held every year at Saragosa. But
under James II. their time of meeting was reduced to once
in two years, and the place was left to the king's discre-
tion.1 Nor were the cortes of Aragon less vigilant than
those of Castile in claiming a right to be consulted in all
important deliberations of the executive power, or in re-
monstrating against abuses of government, or in superin-
tending the proper expenditure of public money .u A variety
of provisions, intended to secure these parliamentary privi-
leges and the civil liberties of the subject, will be found dis-
persed in the collection of Aragonese laws,x which may be
favourably compared with those of our own statute-book.
Four estates, or, as they were called, arms (brazos),
formed the cortes of Aragon, the prelates, and com- Cortesof
manders of military orders, who passed for eccle- Ara€°n-
siastics ;y the barons or ricoshombres •, the equestrian order
8 Fueros de Aragon : Quod sissse in queen Forcia by her son-in-law John I.,
Aragonifl removeautur. (A.D. 1372.) f. 391, are perhaps as remarkable as any.
De prohibitione sissarum (1398). De l Zurita, t. i. f. 426. In general the
conservations patrimonii (1461). I session lasted from four to six months,
have only remarked two instances of One assembly was prorogued from time
arbitrary taxation in Zurita's nistory, to time, and continued six years, from
which is singularly full of information; 1446 to 1452, which was complained of
one, in 1343, when Peter IV. collected as a violation of the law for their biennial
money from various cities, though not renewal, t. iv. f. 6.
without opposition; and the other a re- u The Sicilian war of Peter III. was
monstrance of the cortes in 1383 against very unpopular, because it had been un-
heavy taxes; and it is not clear that this dertaken without consent of the barons,
refers to general unauthorized taxation, contrary to the practice of the kingdom ;
Zurita, t. ii. f. 168 and 382. Blancas porque ningun negocio arduo empren-
mentions that Alfonso V. set a tallage dian, sin acuerdo y consejo de sus ricos-
upon his towns for the marriage of his hombres. Zurita, t. i. fol. 264. The
natural daughters, which he might have cortes, he tells us, were usually divided
done had they been legitimate ; but they into two parties, whigs and tories ; estava
appealed to the justiciary's tribunal, and ordinariamente dividida en dos partes, la
the king receded from his demand, p. una que peusava procurar el beneficio
701. del reyno, y la otra que el servicio del
Some instances of tyrannical conduct rey. t. iii. fol. 321.
in violation of the constitutional laws x Fueros y observancias del reyno de
occur, as will naturally be supposed, in Aragon. 2 vols. in fol. Saragosa, 1667.
the annals of Zurita. The execution of The most important of these are col-
Bernard Cabrera under Peter IV., t. ii. leoted by Blancas, p. 7oO.
f. 336, and the severities inflicted on " y It is said by some writers that the
56 STATE OF EUROPE CHAP. IV.
or infanzones ; and the deputies of royal towns.2 The two
former had a right of. appearing by proxy. There was no
representation of the infanzones, or lower nobility. But it
must be remembered that they were not numerous, nor was
the kingdom large. Thirty-five are reckoned by Zurita as
present in the cortes of 1395, and thirty-three in those of
1412 ; and as upon both occasions an oath of fealty to a
new monarch was to be taken, I presume that nearly all the
nobility of the kingdom were present.*1 The ricoshombres
do not seem to have exceeded twelve or fourteen in number.
The ecclesiastical estate was not much, if at all, more nu-
merous. A few principal towns alone sent deputies to the
cortes, but their representation was very full : eight or ten
and sometimes more, sat for Saragosa, and no town appears
to have had less than four representatives. During the in-
terval of the cortes a permanent commission, varying a good
deal as to numbers, but chosen out of the four estates, was
empowered to sit with very considerable authority, receiving
and managing the public revenue, and protecting the justi-
ciary in his functions. b
The kingdom of Valencia, and principality of Catalonia,
Government having been annexed to Aragon, the one by con-
anJcateC.ia quest, the other by marriage, were always kept dis-
tinct from it in their laws and government. Each
had its cortes, composed of three estates, for the division of
the nobility into two orders did not exist in either country.
The Catalans were tenacious of their ancient usages, and
averse to incorporation with any other people of Spain.
Their national character was high-spirited and independent :
ecclesiastical arm was not added to the monarchy. The deputies of towns ap-
cortes of Aragon till about the year 1300. pear in the cortes of 1133, as Robertson
But I do not find mention in Zurita of has remarked from Zurita. Hist, of
any such constitutional change at that Charles V. note 32. And this cannot
time; and the prelates, as we might ex- well be called in question, or treated as
pect from the analogy of other countries, an anomaly ; for we find them men-
appear as members of the national coun- tioned in 1142 (the passage cited in the
cil long before. Queen Petronilla, in last note), and again in 1164, when Zu-
1142, summoned a los perlados, ricos- rita enumerates many of their names,
hombres, y cavalleros, y procuradores fol. 74. The institution of concejos, or
de las ciudadesy villas, que le juntassen corporate districts under a presiding
a cortes generales en la ciudadde Huesca. town, prevailed in Aragon as it did in
Zurita, t. i. fol. 71. So in the cortes of Castile.
1275, and on other occasions. * Zurita, t. ii. f. 490; t. iii. f. 76.
z Popular representation was more b Biancse, p. 762. Zurita, t.'iii. f. 76;
ancient in Aragon than in any other f. 182, et alibi.
SPAIN. DURING THE MIDDLE AGES. 57
in no part of the peninsula did the territorial aristocracy
retain, or at least pretend to such extensive privileges,0 and
the citizens were justly proud of wealth acquired by industry,
and of renown achieved by valour. At the accession of
Ferdinand L, which they had not much desired, the Catalans
obliged him to swear three times successively to maintain
their liberties, before they would take the reciprocal oath of
allegiance.d For Valencia it seems to have been a politic
design of James the Conqueror to establish a constitution
nearly analogous to that of Aragon, but with such limita-
tions as he should impose, taking care that the nobles of the
two kingdoms should not acquire strength by union. In the
reigns of Peter III. and Alfonso III., one of the principal
objects contended for by the barons of Aragon was the esta-
blishment of their own laws in Valencia ; to which the kings
never acceded.6 They permitted, however, the possessions
of the natives of Aragon in the latter kingdom to be go-
verned by the law of Aragon/ These three states, Aragon,
Valencia, and Catalonia, were perpetually united by a law
of Alfonso III., and every king on his accession was bound
to swear that he would never separate them.g Sometimes
general cortes of the kingdoms and principality were con-
vened; but the members did not, even in this case, sit
together, and were no otherwise united than as they met
in the same city.h
I do not mean to represent the actual condition of society
in Aragon as equally excellent with the constitu- stateof
tional laws. Relatively to other monarchies, as police-
I have already observed, there seem to have been fewer
excesses of the royal prerogative in that kingdom. But the
licentious habits of a feudal aristocracy prevailed very long.
We find in history instances of private war between the
great families, so as to disturb the peace of the whole
nation, even near the close of the fifteenth century.1 The
right of avenging injuries by arms, and the ceremony of
c Zurita, t. ii. f. 360. The villenage Valencia, f. 281 ; but this, I believe, did
of the peasantry in some parts of Cata- not long continue.
Ionia was very severe, even near the end f t. ii. f. 433.
of the fifteenth century, t. iv. f. 327. g t. ii. f. 91.
d Zurita, t. iii. f. 81. h Biancse Comment., p. 760. Zurita,
e Id. t. i. f. 281, 310, 333. There was t. Hi. fol. 239.
originally a justiciary in the kingdom of '~ Zurita, t. iv. fol. 189.
58 STATE OF EUROPE CHAP. IV.
diffidation, or solemn defiance of an enemy, are preserved
by the laws. We even meet with the ancient barbarous
usage of paying a composition to the kindred of a mur-
dered man.k The citizens of Saragosa were sometimes
turbulent, and a refractory nobleman sometimes defied the
ministers of justice. But owing to the remarkable copious-
ness of the principal Aragonese historian, we find more
frequent details of this nature than in the scantier annals of
some countries. The internal condition of society was
certainly far from peaceable in other parts of Europe.
By the marriage of Ferdinand with Isabella, and by the
SSueand death °^ J°nn H- m 1479, the two ancient and
Amgonan rival kingdoms of Castile and Aragon were for
ever consolidated in the monarchy of Spain. There had
been some difficulty in adjusting the respective rights of the
husband and wife over Castile. In the middle ages it was
customary for the more powerful sex to exercise all the
rights which it derived from the weaker, as much in sove-
reignties as in private possessions. But the Castilians were
determined to maintain the positive and distinct prerogatives
of their queen, to which they attached the independence of
their nation. A compromise, therefore, was concluded, by
which, though, according to our notions, Ferdinand obtained
more than a due share, he might consider himself as more
strictly limited than his father had been in Navarre. The
names of both were to appear jointly in their style, and upon
the coin, the king's taking the precedence in respect of his
sex. But, in the royal scutcheon, the arms of Castile were
preferred on account of the kingdom's dignity. Isabella had
the appointment to all civil offices in Castile ; the nomina-
tion to spiritual benefices ran, in the name of both. The
government was to be conducted by the two conjointly when
they were together, or by either singly, in the province
where one or other might happen to reside.* This partition
was well preserved throughout the life of Isabel without
mutual encroachments or jealousies. So rare an unanimity
between persons thus circumstanced must be attributed to
the superior qualities of that princess, who, while she main-
k Fueros de Aragou, f. 1660, &c. "' Zurita, t. iv. fol. 224, Mariana, 1. xxiv. c. 5.
SPAIN. DURING THE MIDDLE AGES. 59
tained a constant good understanding with a very ambitious
husband, never relaxed in the exercise of her paternal
authority over the kingdoms of her ancestors.
Ferdinand and Isabella had no sooner quenched the
flames of civil discord in Castile than they deter- conquest of
mined to give an unequivocal proof to Europe of Granada-
the vigour which the Spanish monarchy was to display
under their government. For many years an armistice with
the Moors of Granada had been uninterrupted. Neither
John II. nor Henry IV. had been at leisure to think of
aggressive hostilities ; and the Moors themselves, a prey,
like their Christian enemies, to civil war, and the feuds of
their royal family, were content with the unmolested enjoy-
ment of the finest province in the peninsula. If we may
trust historians, the sovereigns of Granada were generally
usurpers and tyrants. But I know not how to account for
that vast populousness, that grandeur and magnificence,
which distinguished the Mohammedan kingdom of Spain,
without ascribing some measure of wisdom and beneficence
to their governments. These southern provinces have
dwindled in later times ; and in fact Spain itself is chiefly
interesting to many travellers for the monuments which a
foreign and odious race of conquerors have left behind them.
Granada was, however, disturbed by a series of revolutions
about the time of Ferdinand's accession, which naturally
encouraged his designs. The Moors, contrary to what might
have been expected from their relative strength, were the
aggressors by attacking a town in Andalusia .n Predatory
inroads of this nature had hitherto been only retaliated by
the Christians. But Ferdinand was conscious that his re-
sources extended to the conquest of Granada, the consum-
mation of a struggle protracted through nearly eight cen-
turies. Even in the last stage of the Moorish dominion,
exposed on every side to invasion, enfeebled by a civil
dissension, that led one party to abet the common enemy,
Granada was not subdued without ten years of sanguinary
and unremitting contest. Fertile beyond all the rest of
Spain, that kingdom contained seventy walled towns ; and
u Zurita, t. iv, fol. 314,
60 STATE OF EUROPE CHAP. IV.
the capital is said, almost two centuries before, to have been
peopled by 200,000 inhabitants.0 Its resistance to such a
force as that of Ferdinand is, perhaps, the best justification of
the apparent negligence of earlier monarchs. But Granada
was ultimately to undergo the yoke. The city surrendered
on the 2nd of January, 1492 ; an event glorious not only to
Spain but to Christendom ; and which, in the political
combat of the two religions, seemed almost to counterbalance
the loss of Constantinople. It raised the name of Ferdinand
and of the new monarchy which he governed, to high estima-
tion throughout Europe. Spain appeared an equal com-
petitor with France in the lists of ambition. These great
kingdoms had for some time felt the jealousy natural to
emulous neighbours. The house of Aragon loudly com-
plained of the treacherous policy of Louis XI. He had
fomented the troubles of Castile, and given, not, indeed, an
effectual aid, but all promises of support, to the princess
Joanna, the competitor of Isabel. Rousillon, a province be-
longing to Aragon, had been pledged to France by John II.
for a sum of money. It would be tedious to relate the sub-
sequent events, or to discuss their respective claims to its
possession.1* At the accession of Ferdinand, Louis XI.
still held Eousillon, and showed little intention to resign it.
But Charles VIII., eager to smooth every impediment to
his Italian expedition, restored the province to Ferdinand
in 1493. Whether, by such a sacrifice, he was able to lull
the king of Aragon into acquiescence while he dethroned
his relation at Naples, and alarmed for a moment all Italy
with the apprehension of French dominion, it is not within
the limits of the present work to inquire.
0 Zurita, t. iv. fol. 314. is the most impartial French writer I
p For these transactions, see Gamier, have ever read, in matters where his own
Hist, de France, or Gaillard, Kivalite de country is concerned.
France et d'Espagne, t. iii. The latter
SPAIN. DURING THE MIDDLE AGES. 61
NOTE TO CHAPTER IV.
NOTE. Page 2.
THE story of Cava, daughter of Count Julian, whose se-
duction by Roderic, the last Gothic king, impelled her father
to invite the Moors into Spain, enters largely into the cycle
of Castilian romance, and into the grave narratives of every
historian. It cannot, however, be traced in extant writings
higher than the eleventh century, when it appears in the
Chronicle of the Monk of Silos. There are Spanish his-
torians of the eighth and ninth centuries ; in the former,
Isidore, bishop of Beja (Pacensis), who wrote a chronicle of
Spain ; in the latter, Paulus Diaconus of Merida, Sebastian
of Salamanca, and an anonymous chronicler. It does not
appear, however, that these dwell much on Roderic's reign.
(See Masdeu, Historia Critica de Espana, vol. xiii. p. 882.)
The most critical investigators of history, .therefore, have
treated the story as too apocryphal to be stated as a fact. A
sensible writer in the History of Spain and Portugal, pub-
lished by the Society for the Diffusion of Useful Knowledge,
has defended its probability, quoting a passage from Fer-
reras, a Spanish writer of the eighteenth century, whose
authority stands high, and who argues in favour of the tra-
dition from the brevity of the old chroniclers who relate the
fall of Spain, and from the want of likelihood that Julian,
who had hitherto defended his country with great valour,
would have invited the Saracens, except through some
strong motives. This, if we are satisfied as to the last fact,
appears plausible ; but another hypothesis has been sug-
gested, and is even mentioned by one of the early writers,
that Julian, being of Roman descent, was ill-affected to the
62 STATE OF EUROPE NOTE TO
Gothic dynasty, who had never attached to themselves the
native inhabitants. This I cannot but reckon the less
likely explanation of the two. Roderic, who became arch-
bishop of Toledo in 1208, and our earliest authority after
the monk of Silos, calls Julian, " vir nobilis de nobili
Gothorum prosapia ortus, illustris, in officio Palatino, in
armis exercitatus," &c. (See Schottus, Hispania Illustrata,
ii. 63.) Few, however, of those who deny the truth of the
story, as it relates to Cava, admit th defection of Count
Julian to the Moors, and his existence has been doubted.
The two parts of the story cohere together, and we have
no better evidence for one than for the other.
Southey, in his notes to the poem of Eoderic, says, " The
best Spanish historians and antiquaries are persuaded that
there is no cause for disbelieving the uniform and concurrent
tradition of both Moors and Christians." But this is on the
usual assumption, that those are the best who agree best
with ourselves. Southey took, generally, the credulous side,
and his critical judgment is of no superlative value. Masdeu,
in learning and laboriousness the first Spanish antiquary,
calls the story of Julian's daughter "a ridiculous tale,
framed in the age of romance when histories were thrust
aside (arrinconadas), and any love tale was preferred to
the most serious truth." (Hist. Crit. de Espana, vol. x.
p. 223.) And when in another passage (vol. xii. p. 6),
he recounts the story at large, he says that the silence of all
writers before the monk of Silos "should be sufficient, in
my opinion, to expel from our history a romance so des-
titute of foundation, which the Arabian romancers doubtless
invented for their ballads."
A modern writer of extensive learning says : " This fable,
which has found its way into most of the sober histories of
Spain, was first introduced by the monk of Silos, a chro-
nicler of the eleventh century. There can be no doubt
that he borrowed it from the Arabs ; but it seems hard to
believe that it was altogether a tale of their invention.
There are facts in it which an Arab could not have in-
vented, unless he drew them from Christian sources ; and,
as I shall show hereafter, the Arabs knew and consulted the
writings of the Christians." (Gayangos, History of the
CHAP. IV. DURING THE MIDDLE AGES. 63
Mohammedan Dynasties of Spain, vol. i. p. 513.) It does
riot appear to be a conclusion from* this passage that the story
is a fable. For if a chronicler of the eleventh century bor-
rowed it from the Arabs, and they again from Christian
sources, we get over a good deal of the chasm of time. But
if writers antecedent to the monk of Silos have related the
Arabian invasion and the fall of Roderic, without alluding
to so important a point as the treachery of a great Gothic
noble, it seems difficult to resist the inference from their
silence.
Gayangos investigates in a learned note (vol. i. p. 537)
the following points: — By whom and when was the name
of Ilyan, the Arabic form of Julian, first introduced into
Spanish history ? Did such a man ever exist ? What were
his country and religion ? Was he an independent prince,
or a tributary to the Gothic monarchs ? What part did he
take in the conquest of Spain by the Arabs ?
The account of Julian, in the Chronicon Silense, appears
to Grayangos indisputably borrowed from some Arabian au-
thority ; and this he proves by several writers from the ninth
century downwards, " all of whom mention, more or less
explicitly, the existence of a man living in Africa, and named
Ilyan, who helped the Arabs to make a conquest of Spain ;
j;o which I ought to add, that the rape of Ilyan's daughter
and the circumstances attending it may also be read in detail
in the Mohammedan authors who preceded the monk of
Silos." The result of this learned writer's investigation is,
that Ilyan really existed, that he was a Christian chief,
settled, not in Spain, but on the African coast, and that he
betrayed, not his country (except, indeed, as he was probably
of Spanish descent), but the interests of his religion, by
assisting the Saracens to subjugate the Gothic kingdom.01
The story of Cava is not absolutely overthrown by this
hypothesis, though it certainly may be the invention of
some Christian or Arabian romancer. It is perfectly true
q The Arabian writer whom Gayangos residence of Julian on that side of the
translates, one of late date, speaks of straits would not be incompatible with
Ilyan as governor of Ceuta, but tells the his being truly a Spaniard. Ilyan is
story of Cava in the usual manner. The evidently not an European form of the
Goths may very probably have possessed name,
some of the African coast ; so that the
64 STATE OF EUROPE NOTE TO CHAP. IV.
that of itself it contains no apparent improbability. Injuries
have been thus inflicted by kings, and thus resented by sub-
jects. But for this very reason it was likely to be invented ;
and the unwillingness with which many seem to surrender
so romantic a tale, attests the probability of its obtaining cur-
rency in an uncritical period. We must reject it as false or
not, according as we lay stress on the negative argument
from the silence of very early writers (an argument, strong
even as it is, and which would be insuperable if they were
less brief and imperfect), and on the presumptions adduced
by Gayangos, that Julian was not a noble Spaniard ; but
we cannot receive this celebrated legend at any rate with
more than a very sceptical assent, not sufficient to warrant
us in placing it among the authentic facts of history.
GERMANY. DURING THE MIDDLE AGES. 65
CHAPTER V.
HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495.
Sketch of German History under the Emperors of the House of Saxony —
House of Franconia — Henry IV. — House of Suabia — Frederic Barbarossa
— Fall of Henry the Lion — Frederic II. — Extinction of House of Suabia —
Changes in the Germanic Constitution — Electors — Territorial Sovereignty
of the Princes — Rodolph of Hapsburg — State of the Empire after his Time
— Causes of Decline of Imperial Power — House of Luxemburg — Charles
IV. — Golden Bull — House of Austria — Frederic III. — Imperial Cities
— Provincial States — Maximilian — Diet of Worms-— Abolition of pri-
vate Wars — Imperial Chamber — Aulic Council — Bohemia — Hungary
— Switzerland.
AFTER the deposition of Charles the Fat in 888, which
finally severed the connexion between France and Germany,*
Arnulf, an illegitimate descendant of Charlemagne, ob-
tained the throne of the latter country, in which he separation
..... T • T» V> j ji of Germany
was succeeded by his son Louis. ±>ut upon the from France.
death of this prince in 911, the German branch of that
dynasty became extinct. There remained indeed Charles
the Simple, acknowledged as king in some parts of France,
but rejected in others, and possessing no personal claims to
respect. The Germans therefore wisely determined to
choose a sovereign from among themselves. They were at
this time divided into five nations, each under its own duke,
and distinguished by difference of laws, as well as of origin;
8 There can be no question about this cannot affect the independence of the
in a general sense. But several German crown in that age, which had been
writers of the time assert, that both established by the treaty of Verdun in
Eudes and Charles the Simple, rival 843, but proves the weakness of the
kings of France, acknowledged the competitors, and their want of patriotism,
feudal superiority of Arnulf. Charles, In Eudes it is more remarkable than
says Regino, regnum quod usurpaverit in Charles the Simple, a man of feeble
ex tnanu ejuspercepit. Struvius, Corpus character, and a Carlovingian by birth.
Hist. German, p. 202, 203. This ac- b The German princes had some hesi-
knowledgment of sovereignty in Arnulf tation about the choice of Louis, but
king of Germany, who did not even their partiality to the Carlovingian line
pretend to be emperor, by both the prevailed. Struvius, p. 208 : quia reges
claimants of the throne of France, for Francorum semper ex uno genere pro-
such it virtually was, though they do cedebant, says an archbishop Hatto, in
not appear to have rendered homage, writing to the pope.
VOL. II. F
66 STATE OF EUROPE CHAP. V.
the Franks, whose territory, comprising Franconia, and the
modern Palatinate, 'was considered as the cradle of the
empire, and who seem to have arrogated some superiority
over the rest, the Suabians, the Bavarians, the Saxons,
under which name the inhabitants of Lower Saxony alone
and Westphalia were included, and the Lorrainers, who
occupied the left bank of the Rhine as far as its termina-
Election of tion. The choice of these nations in their general
ATWi. assembly fell upon Conrad, duke of Franconia,
according to some writers, or at least a man of high rank,
and descended through females from Charlemagne.0
Conrad dying without male issue, the crown of Germany
House of Was bestowed upon Henry the Fowler, duke of
Hemy the Saxony, ancestor of the three Othos, who followed
A.&.8i». him in direct succession. To Henry, and to the
A.i>.°936. first Otho, Germany was more indebted than to
A*0 973. any sovereign since Charlemagne. The conquest
Otho III. f. *T, -I i /» -t • • i ,'ji
A.D. 983. or Italy, arid recovery of the imperial title, are
indeed the most brilliant trophies of Otho the Great ; but
he conferred far more unequivocal benefits upon his own
country by completing what his father had begun, her libe-
ration from the inroads of the Hungarians. Two marches,
that of Misnia, erected by Henry the Fowler, and that of
Austria, by Otho, were added to the Germanic territories
by their victories/1
A lineal succession of four descents without the least oppo-
sition, seems to show that the Germans were disposed to con-
sider their monarchy as fixed in the Saxon family. Otho II.
and III. had been chosen each in his father's lifetime, and
during legal infancy. The formality of election subsisted at
that time in every European kingdom ; and the imperfect
rights of birth required a ratification by public assent. If
c Schmidt, Hist, des Alleinands, t. ii. able tendency to promote the improve-
p. 288. Struvius, Corpus Histories Ger- rnent of that territory, and combined
manicsG, p. 210. The former of these with the discovery of the gold and silver
writers does not consider Conrad as duke mines of Goslar under Otho I., rendered
of Franconia. it the richest and most important part
d Many towns in Germany, especially of the empire. Struvius, p. 225 and
on the Saxon frontier, were built by 251. Schmidt, t. ii. p. 322. Putter,
Henry I. ; who is said to have com- Historical Development of the German
pelled every ninth man to take up his Constitution, vol. i. p. 115.
residence in them. This had a remai-k-
GERMANY. DURING THE MIDDLE AGES. 67
at least France and England were hereditary monarchies in
the tenth century, the same may surely be said of Germany ;
since we find the lineal succession fully as well observed in
the last as in the former. But upon the early and unex-
pected decease of Otho III., a momentary opposition was
offered to Henry duke of Bavaria, a collateral Henryii.
branch of the reigning family. He obtained the A<D< 1002-
crown, however, by what contemporary historians call an
hereditary title,6 and it was not until his death in 1024,
that the house of Saxony was deemed to be extinguished.
No person had now any pretensions that could interfere
with the unbiassed suffrages of the nation; and Houseof
accordingly a general assembly was determined by
merit to elect Conrad, surnamed the Salic, a noble-
man of Franconia/ From this prince sprang three
successive emperors, Henry III., IV., and Y. Per-
haps the imperial prerogatives over that irisubor- A-D- 1106-
dinate confederacy never reached so high a point as in the
reign of Henry III., the second emperor of the house of
Franconia. It had been, as was natural, the object of all
his predecessors not only to render their throne hereditary,
which, in effect, the nation was willing to concede, but to
surround it with authority sufficient to control the leading
vassals. These were the dukes of the four nations of Ger-
many, Saxony, Bavaria, Suabia, and Franconia, and the
three archbishops of the Rhenish cities, Mentz, Treves, and
Cologne. Originally, as has been more fully shown in
another place, duchies, like counties, were temporary govern-
ments, bestowed at the pleasure of the crown. From this
first stage they advanced to hereditary offices, and finally to
patrimonial fiefs. But their progress was much slower in
Germany than in France. Under the Saxon line of em-
perors, it appears probable, that although it was usual, and
consonant to the prevailing notions of equity, to confer a
duchy upon the nearest heir, yet no positive rule enforced
e A maxima multitudirte vox una re- f Conrad was descended from a
spondit ; Henricum, Christ! adjutorio, daughter of Otho the Great, and also
et jure hsereditario, regnaturum. Bit- from Conrad I. His first cousin was
mar apud Struvium, p. 273. See other duke of Franconia. Struvius. Schmidt,
passages quoted in the same place. Pfeffel.
Schmidt, t. ii. p. 410.
F 2
68 STATE OF EUKOPE CHAP. V.
this upon the emperor, and some instances of a contrary
proceeding occurred* But, if the royal prerogative in this
respect stood higher than in France, there was a countervail-
ing principle, that prohibited the emperor from uniting a fief
to his domain, or even retaining one which he had possessed
before his accession. Thus Otho the Great granted away
his duchy of Saxony, and Henry II. that of Bavaria. Otho
the Great endeavoured to counteract the effects of this cus-
tom, by conferring the duchies that fell into his hands upon
members of his own family. This policy, though apparently
well conceived, proved of no advantage to Otho ; his son
and brother having mixed in several rebellions against him.
It was revived, however, by Conrad II. and Henry III.
The latter was invested by his father with the two duchies
of Suabia and Bavaria. Upon his own accession, he re-
tained the former for six years, and even the latter for a
short time. The duchy of Franconia, which became vacant,
he did not re-grant, but endeavoured to set a precedent of
uniting fiefs to the domain. At another time, after sentence
of forfeiture against the duke of Bavaria, he bestowed that
great province on his wife, the empress Agnes.h He put
an end altogether to the form of popular concurrence, which
had been usual when the investiture of a duchy was con-
ferred : and even deposed dukes by the sentence of a few
princes, without the consent of the diet.1 If we combine
with these proofs of authority in the domestic administra-
tion of Henry III., his almost unlimited control over papal
elections, or rather the right of nomination that he acquired,
we must consider him as the most absolute monarch in the
annals of Germany.
These ambitious measures of Henry III. prepared fifty
re?forofnate vears of calamity for his son. It is easy to perceive
Henry iv. that the misfortunes of Henry IV. were primarily
occasioned by the jealousy with which repeated violations of
their constitutional usages had inspired the nobility .k The
« Schmidt, t. ii. p. 393, 403. Stru- grant the duchy of Bavaria to the sons
vius, p. 214, supposes the hereditary of the last duke, which, however, ex-
rights of dukes to have commenced under cited a rebellion, p. 235.
Conrad I.; but Schmidt is perhaps a h Schmidt, t. iii. p. 25, 37.
better authority; and Struvius after- j Id. p. 207
wards mentions the refusal of Otho I. to k In the very first year of Henry's
GERMANY. DUKING THE MIDDLE AGES. 69
mere circumstance of Henry IV.'s minority, under the
guardianship of a woman, was enough to dissipate whatever
power his father had acquired. Hanno, archbishop of Mentz,
carried the young king away by force from his mother, and
governed Germany in his name ; till another archbishop,
Adalbert of Bremen, obtained greater influence over him.
Through the neglect of his education, Henry grew up with
a character not well fitted to retrieve the mischief of so
unprotected a minority ; brave indeed, well natured, and
affable, but dissolute beyond measure, and addicted to low
and debauched company. He was soon involved in
• \ .f C\ • 1 ' A'D- 1073'
a desperate war with the oaxons, a nation valuing
itself on its populousness and riches, jealous of the house
of Franconia, who wore a crown that had belonged to their
own dukes, and indignant at Henry's conduct in erecting
fortresses throughout their country.
In the progress of this war, many of the chief princes
evinced an unwillingness to support the emperor.m Not-
withstanding this, it would probably have terminated, as
other rebellions had done, with no permanent loss to either
party. But in the middle of this contest, another far more
memorable broke out with the Roman see, concerning eccle-
siastical investitures. The motives of this famous quarrel
will be explained in a different chapter of the present work.
Its effect in Germany was ruinous to Henry. A
T f» ' i , P i A-i>- 1077.
sentence, not only of excommunication, but of de-
position, which Gregory VII. pronounced against him, gave
a pretence to all his enemies, secret as well as avowed, to
withdraw their allegiance.0 At the head of these was Ro-
dolph, duke of Suabia, whom an assembly of revolted princes
reign, while he was but six years old, the Henry IV.'s reign, that the ecclesiastical
princes of Saxony are said by Lambert of quarrel was only secondary in the eyes
Aschaffenburg to have formed a con- of Germany. The contest against him
epiracy to depose him, out of resent- was a struggle of the aristocracy, jealous
ment for the injuries they had sustained of the imperial prerogatives which Con-
from his father. Struvius, p. 306. St. rad II. and Henry III. had strained to
Marc, t. iii. p. 248. the utmost. Those who were in re-
m Struvius. Schmidt. bellion against Henry were not pleased
n A party had been already formed, with Gregory VII. Bruno, author of a
who were meditating to depose Henry, history of the Saxon war, a furious in-
His excommunication came just in time vective, manifests great dissatisfaction
to confirm their resolutions. It appears with the court of Kome, which he re-
clearly, upon a little consideration of proaches with dissimulation and venality.
A.D. 1080.
70 STATE OF EUROPE CHAP. V.
raised to the throne. We may perceive, in the conditions
of Rodolph's election^ a symptom of the real principle that
animated the German aristocracy against Henry IY. It
was agreed that the kingdom should no longer be hereditary,
not conferred on the son of a reigning monarch, unless his
merit should challenge the popular approbation.0 The pope
strongly encouraged this plan of rendering the empire
elective, by which he hoped either eventually to secure
the nomination of its chief for the Holy See, or at least, by
sowing the seed of civil dissensions in Germany, to render
Italy more independent. Henry IV. however displayed
greater abilities in his adversity than his early conduct had
promised. In the last of several decisive battles,
Rodolph, though victorious, was mortally wounded;
and no one cared to take up a gauntlet which was to be won
with so much trouble and uncertainty. The Germans were
sufficiently disposed to submit ; but Rome persevered in
her unrelenting hatred. At the close of Henry's long
reign, she excited against him his eldest son, and, after
more than thirty years of hostility, had the satisfaction of
wearing him down with misfortune, and casting out his
body, as excommunicated, from its sepulchre.
In the reign of his son Henry V. there is no event worthy of
Extmction^of much attention, except the termination of the great
Francoma. contest about investitures. A this death in 1125,
the male line of the Franconian emperors was at an end.
Frederic duke of Suabia, grandson by his mother of
Henry IV., had inherited their patrimonial estates,
and seemed to represent their dynasty. But both the last
emperors had so many enemies, and a disposition to render
the crown elective prevailed so strongly among the leading
Election of princes, that Lothaire, duke of Saxony, was elevated
to the throne, though rather in a tumultuous and
irregular manner.p Lothaire, who had been engaged in a
0 Hoc etiam ibi consensu communi rex proveniret : si vero non esset dignus
comprobatum, Roman! pontificis auc- regis filius, vel si nollet eum populus,
toritate est corroboratum, ut regia po- quern regem facere vellet, haberet in po-
testas nulli per hsereditatem, sicut antea testate populus. Bruno de Bello Saxo-
fuit cojisuetudo, cederet, sed filius regis, nico, apud Struvium, p. 327.
etiamsi valde dignus esset, per electionem p See an account of Lothaire's elec-
spontaneam,non per successionis lineam, tion by a contemporary writer in Stru-
GERMANY. DURING THE MIDDLE AGES. 71
revolt against Henry V. and the chief of a nation that bore
an inveterate hatred to the house of Franconia, was the
natural enemy of the new family that derived its importance
and pretensions from that stock. It was the object of his
reign, accordingly, to oppress the two brothers, Frederic and
Conrad, of theHohenstauffen.or Suabian family. By this
means he expected to secure the succession of the empire for
his son-in-law. Henry, surnamed the Proud, who married
Lothaire's only child, was fourth in descent from Welf, son
of Azon, marquis of Este, by Cunegonda, heiress of a dis-
tinguished family, the Welfs of Altorf in Suabia. Her son
was invested with the duchy of Bavaria in 1071. His de-
scendant, Henry the Proud, represented also, through his
mother, the ancient dukes of Saxony, surnamed Billung,
from whom he derived the duchy of Luneburg. The wife
of Lothaire transmitted to her daughter the patrimony of
Henry the Fowler, consisting of Hanover and Brunswic.
Besides this great dowry, Lothaire bestowed upon his son-
in-law the duchy of Saxony in addition to that of Bavaria.q
This amazing preponderance, however, tended to alienate
the princes of Germany from Lothaire's views in favour of
Henry ; and the latter does not seem to have possessed
abilities adequate to his eminent station. On the death of
Lothaire in 1 138, the partisans of the house of Suabia made
a hasty and irregular election of Conrad, in which the Saxon
faction found itself obliged to acquiesce.1 The new emperor
availed himself of the jealousy which Henry the Proud's
aggrandizement had excited. Under pretence that
two duchies could not legally be held by the same SI"
TT i , • P Conrad!
person, Henry was summoned to resign one ot
them ; and on his refusal, the diet pronounced that
he had incurred a forfeiture of both. Henry made but little
vius, p. 357. See also proofs of the dis- title to preference, but a sort of inchoate
satisfaction of the aristocracy at the right, as in France, Spain, and England.
Franconian government. Schmidt, t. iii. Lothaire signed a capitulation at his ac-
p. 328. It was evidently their deter- cession.
mination to render the empire truly elec- q Pfeffel, Abrege Chronologique de
tive (Id. p. 335): and perhaps we may 1'Histoire d'Allemagne, t. i. p. 269.
date that fundamental principle of the (Paris, 1777.) Gibbon's Antiquities of
Germanic constitution from the accession the House of Brunswic.
of Lothaire. Previously to that era, ' Schmidt,
birth seems to have given not only a fair
House of
Suabia.
Conrad III.
1138.
72 STATE OF EUKOPE CHAP. V.
resistance, and before his death, which happened soon after-
wards, saw himself stripped of all his hereditary as well as
original of acquired possessions. Upon this occasion the famous
GhSeuSsd names of Guelf and Ghibelin were first heard,
which were destined to keep alive the flame of civil dissen-
sion in far distant countries, and after their meaning had
been forgotten. The Guelfs, or Welfs, were, as I have
said, the ancestors of Henry, and the name has become a
sort of patronymic in his family. The word Ghibelin is
derived from Wibelung, a town in Franconia, whence the
emperors of that line are said to have sprung. The house
of Suabia were considered in Germany as representing that
of Franconia ; as the Guelfs may, without much impro-
priety, be deemed to represent the Saxori line.8
Though Conrad III. left a son, the choice of the electors
Frederic fell, at his own request, upon his nephew Frederic
Barbarossa. Barbarossa.* The most conspicuous events of this
great emperor's life belong to the history of Italy. At home
he was feared and respected ; the imperial prerogatives stood
as high during his reign, as, after their previous decline,
it was possible for a single man to carry them." But the
only circumstance which appears memorable enough for the
FEU of present sketch, is the second fall of the Guelfs.
Hemythe Henry the Lion, son of Henry the Proud, had
A.D. iiYs.i been restored by Conrad III. to his father's duchy
of Saxony, resigning his claim to that of Bavaria which had
been conferred on the margrave of Austria. This renun-
ciation, which indeed was only made in his name during
childhood, did not prevent him from urging the emperor
Frederic to restore the whole of his birthright ; and Fre-
deric, his first cousin, whose life he had saved in a sedition
at Koine, was induced to comply with this request in 1156.
Far from evincing that political jealousy which some writers
impute to him, the emperor seems to have carried his gene-
rosity beyond the limits of prudence. For many years
their union was apparently cordial. But, whether it was
that Henry took umbrage at part of Frederic's conduct/ or
8 Struvius, pp. 370 and 378. of Wolf, Marquis of Tuscany, uncle of
« ^J'ST3' r Henry the Lion, who probably coii-
Fteflel, p. 341. sidered himself as entitled to expect it.
Frederic had obtained the succession Schmidt, p. 427.
GERMANY. DUKING THE MIDDLE AGES. 73
that mere ambition rendered him ungrateful, he certainly
abandoned his sovereign in a moment of distress, refusing
to give any assistance in that expedition into Lombardy,
which ended in the unsuccessful battle of Legnano. Frederic
could not forgive this injury, and taking advantage of com-
plaints which Henry's power and haughtiness had produced,
summoned him to answer charges in a general diet. The
duke refused to appear, and being adjudged contumacious,
a sentence of confiscation, similar to that which ruined his
father, fell upon his head ; and the vast imperial fiefs that
he possessed were shared among some potent enemies/
He made an ineffectual resistance : like his father, he
appears to have owed more to fortune than to nature ; and
after three years' exile, was obliged to remain content with
the restoration of his alodial estates in Saxony. These,
fifty years afterwards, were converted into imperial fiefs,
and became the two duchies of the house of Brunswic, the
lineal representatives of Henry the Lion, and inheritors of
the name of Guelf.z
Notwithstanding the prevailing spirit of the German
oligarchy, Frederic Barbarossa had found no difficulty in
procuring the election of his son Henry, even during infancy,
as his successor.* The fall of Henry the Lion had Henry VL
greatly weakened the ducal authority in Saxony A-D-1190-
and Bavaria ; the princes who acquired that title, especially
in the former country, finding that the secular and spiritual
nobility of the first class had taken the opportunity to raise
themselves into an immediate dependence upon the empire.
Henry VI. came, therefore, to the crown with considerable
advantages in respect of prerogative ; and these inspired him
with the bold scheme of declaring the empire hereditary.
One is more surprised to find that he had no contemptible
prospect of success in this attempt : fifty- two princes, and
y Putter, in his Historical Develop- I do not see that there was any pre-
ment of the Constitution of the German cipitancy or manifest breach of justice in
Empire, is inclined to consider Henry the course of proceedings against him.
the Lion as sacrificed to the Emperor's Schmidt, Pfeffel, and Struvius do not
jealousy of the Guelfs, and as illegally represent the condemnation of Henry as
proscribed by the diet. But the pro- unjust,
vocations he had given Frederick are un- z Putter, p. 220.
deniable; and, without pretending to . a Struvius, p. 418.
decide on a question of German history,
74 STATE OF EUROPE CHAP. V.
even what appears hardly credible, the See of Eome, under
Clement III., having' be*en induced to concur in it. But
the Saxons made so vigorous an opposition, that Henry did
not think it advisable to persevere.b He procured, however,
the election of his son Frederic, an infant only two years
old. But, the emperor dying almost immediately, a power-
ful body of princes, supported by Pope Innocent III., were
pwiip and desirous to withdraw their consent. Philip duke of
A.D.°im. Suabia, the late king's brother, unable to secure his
nephew's succession, brought about his own election by one
party, while another chose Otho of Brunswic, younger son
of Henry the Lion. This double election renewed the
rivalry between the Guelfs and Ghibelins, and threw Ger-
many into confusion for several years. Philip, whose pre-
tensions appear to be the more legitimate of the two, gained
ground upon his adversary, notwithstanding the opposition of
the pope, till he was assassinated in consequence of a private
resentment. Otho IV. reaped the benefit of a crime in
which he did not participate, and became for some years un-
disputed sovereign. But, having offended the pope
by not entirely abandoning his imperial rights over
Italy, he had, in the latter part of his reign, to contend
against Frederic, son of Henry VI., who, having grown up to
manhood, came into Germany as heir of the house of Suabia,
and, what was not very usual in his own history, or that of
his family, the favoured candidate of the Holy See. Otho
IV. had been almost entirely deserted except by his natural
subjects, when his death, in 1218, removed every difficulty,
and left Frederic II. in the peaceable possession of Germany.
The eventful life of Frederic II. was chiefly passed in
Frederic ii ^^7' ^° Presei*ve his hereditary dominions, and
chastise the Lombard cities, were the leading ob-
jects of his political and military career. He paid therefore
but little attention to Germany, from which it was in vain
for any emperor to expect effectual assistance towards objects
of his own. Careless of prerogatives which it seemed hardly
b Struvius, p. 424. Impetravit a transiret, et sic in ipso terminus esset
subditis, ut cessante pristina Palatinorum electiouis, priucipi unique successive di" -
electione, imperium in ipsius posted- nitatis. Gervas. Tilburiens. ibidem,
tatem, distincta proximo-rum successione,
A.D. 1208.
uencesof
e council
f Lyons.
A>D- 1245'
GERMANY. DURING THE MIDDLE AGES. 75
worth an effort to preserve, he sanctioned the independence
of the princes, which may be properly dated from his reign.
In return, they readily elected his son Henry king of the
Eomans ; and on his being implicated in a rebellion, deposed
him with equal readiness, and substituted his brother Conrad
at the emperor's request.0 But in the latter part of Fre-
deric's reign, the deadly hatred of Koine penetrated beyond
the Alps. After his solemn deposition in the coun-
cil of Lyons, he was incapable, in ecclesiastical qu
pi i T -i. • i1 T TTT th
eyes, ot holding the imperial sceptre, innocent 1 V . of Lyons.
found however some difficulty in setting up a rival
TT 1 J J?rru . . r i
emperor. Henry, landgrave of Ihuringia, made an
indifferent figure in this character. Upon his death, William,
count of Holland, was chosen by the party adverse to Fre-
deric and his son Conrad ; and after the emperor's death, he
had some success against the latter. It is hard indeed to
say that any one was actually sovereign for twenty-two years
that followed the death of Frederic II. ; a period of con-
tested title and universal anarchy, which is usually Grand in.
denominated the grand interregnum. On the de- K™®"™-
cease of William of Holland, in 1256, a schism A^l™2
among the electors produced the double choice of Richard of
Eichard earl of Cornwall, and Alfonso X. king of (
Castile. It seems not easy to determine which of these
candidates had a legal majority of votes ; d but the subse-
quent recognition of almost all Germany, and a sort of
possession evidenced by public acts, which have been held
valid, as well as the general consent of contemporaries, may
justify us in adding Eichard to the imperial list. The choice
indeed was ridiculous, as he possessed no talents which could
Struvius, p. 457. is certain that he was on the side of
d The election ought legally to have Eichard. Perhaps we may collect from
been made at Frankfort. But the elec- the opposite statements in Struvius,
tor of Treves, having got possession of p. 504, that the proxies of Ottocar had
the town, shut out the archbishops of voted for Alfonso, and that he did not
Mentz and Cologne, and the count pala- think fit to recognise their act.1
tine, on pretence of apprehending vio- There can be no doubt that Richard
lence. They met under the walls, and was de facto sovereign of Germany; and
there elected Richard. Afterwards it is singular, that Struvius should assert
Alfonso was chosen by the votes of the contrary, on the authority of an in-
Treves, Saxony, and Brandenburg. His- strument of Rodolph, which expressly
torians differ about the vote of Ottocar, designates him king, per quondam
king of Bohemia, which would turn the Rrchardum regem illustrem. Struv.
scale. Some time after the election, it p. "502.
Geraamc e
constitution
Electors.
76 STATE OF EUKOPE CHAP. V.
compensate for his want of power ; but the electors attained
their objects ; to perpetuate a state of confusion by which
their own independence was consolidated, and to plunder
without scruple a man, like Dldius at Rome, rich and
foolish enough to purchase the first place upon earth,
That place indeed was now become a mockery of great-
ness. For more than two centuries, notwithstand-
ing the temporary influence of Frederic Barbarossa
. • , , . ,1 • • i ,1 ',111
and his son, the imperial authority had been in a
state of gradual decay. From the time of Frederic II. it had
bordered upon absolute insignificance ; and the more pru-
dent German princes were slow to canvass for a dignity so
little accompanied by respect. The changes wrought in the
Germanic constitution during the period of the Suabian
emperors chiefly consist in the establishment of an oligarchy
of electors, and of the territorial sovereignty of the princes.
1 . At the extinction of the Franconian line by the death
of Henry Y., it was determined by the German no-
bility to make their empire practically elective, ad-
mitting no right, or even natural pretension, in the eldest son
of a reigning sovereign. Their choice upon former occa-
sions had been made by free and general suffrage. But it
may be presumed that each nation voted unanimously, and
according to the disposition of its duke. It is probable too,
that the leaders, after discussing in previous deliberations
the merits of the several candidates, submitted their own re-
solutions to the assembly, which would generally concur in
them without hesitation. At the election of Lothaire, in
1 124, we find an evident instance of this previous choice, or
as it was called, proetaxation, from which the electoral col-
lege of Germany has been derived. The princes, it is said,
trusted the choice of an emperor to ten persons, in whose
judgment they promised to acquiesce.6 This precedent was,
in all likelihood, followed at all subsequent elections. The
proofs indeed are not perfectly clear. But in the famous
privilege of Austria, granted by Frederic I. in 1156, he
bestows a rank upon the newly-created duke of that coun-
try, immediately after the electing princes (post principes
e Struvius, p. 357. Schmidt, t. iii. p. 331.
GERMANY. DUKING THE MIDDLE AGES. 77
electores) *,f a strong presumption that the right of pretax-
ation was not only established, but limited to a few definite
persons. In a letter of Innocent III., concerning the
double election of Philip and Otho in 1 198, he asserts the
latter to have had a majority in his favour of those to whom
the right of election chiefly belongs (ad quos principaliter
spectat electio).g And a law of Otho in 1208, if it be
genuine, appears to fix the exclusive privilege of the seven
electors.11 Nevertheless so obscure is this important part of
the Germanic system, that we find four ecclesiastical and
two secular princes concurring with the regular electors in
the act, as reported by a contemporary writer, that creates
Conrad, son of Frederic II., king of the Romans.1 This,
however, may have been an irregular deviation from the
principle already established. But it is admitted, that all
the princes retained, at least during the twelfth century, their
consenting suffrage ; like the laity in an episcopal election,
whose approbation continued to be necessary, long after the
real power of choice had been withdrawn from them.k
It is not easy to account for all the circumstances that
gave to seven spiritual and temporal princes this distin-
guished pre-eminence. The three archbishops, Mentz,
Treves, and Cologne, were always indeed at the head of the
German church. But the secular electors should naturally
have been the dukes of four nations ; Saxony, Franconia,
Suabia, and Bavaria. We find, however, only the first of
these in the undisputed exercise of a vote. It seems pro-
bable, that, when the electoral princes came to be distin-
guished from the rest, their privilege was considered as pecu-
liarly connected with the discharge of one of the great offices
in the imperial court. These were attached, as early as the
diet of Mentz in 1 184, to the four electors, who ever after-
wards possessed them : the duke of Saxony having then
officiated as arch-marshal, the count palatine of the Rhine
f Schmidt, t. iii. p. 390. tion from the Chronicle of Francis
g Pfeffel, p. 360. Pippin.
h Schmidt, t. iv. p. 80. * This is manifest by the various pas-
1 This is not mentioned in Struvius, sages relating to the elections of Philip
or the other German writers. But and Otho, quoted by Struvius, p.
Denina (Rivoluzioni d' Italia, 1. ix. c. 9) 428, 430. See too Pfeffel, ubi supra.
quotes the style of the act of elec- Schmidt, t. iv. p. 79.
78 STATE OF EUROPE CHAP. V.
as arch-steward, the king of Bohemia as arch-cupbearer, and
the margrave of Brandenburg as arch-chamberlain of the
empire.m But it still continues a problem, why the three
latter offices, with the electoral capacity as their incident,
should not rather have been granted to the dukes of Fran-
conia, Suabia, and Bavaria. I have seen no adequate ex-
planation of this circumstance ; which may perhaps lead us
to presume, that the right of pre-election was not quite so
soon confined to the precise number of seven princes. The
final extinction of two great original duchies, Franconia and
Suabia, in the thirteenth century, left the electoral rights of
the count palatine and the margrave of Brandenburg beyond
dispute. But the dukes of Bavaria continued to claim a vote
in opposition to the kings of Bohemia. At the election of
Eodolph in 1272, the two brothers of the house of Wittels-
bach voted separately, as count Palatine and duke of Lower
Bavaria. Ottocar was excluded upon this occasion ; and it
was not till 1 290 that the suffrage of Bohemia was fully
recognised. The Palatine and Bavarian branches, however,
continue to enjoy their family vote conjointly, by a deter-
mination of Eodolph ; upon which Louis of Bavaria slightly
innovated, by rendering the suffrage alternate. But the
Golden Bull of Charles IV. put an end to all doubts on the
rights of electoral houses, and absolutely excluded Bavaria
from voting. The limitation to seven electors, first perhaps
fixed by accident, came to be invested with a sort of myste-
rious importance, and certainly was considered, until times
comparatively recent, as a fundamental law of the empire."
2. It might appear natural to expect that an oligarchy of
princes and seven persons, who had thus excluded their equals
feriorenoin~ from all share in the election of a sovereign, would
assume still greater authority, and trespass further
upon the less powerful vassals of the empire. But while the
electors were establishing their peculiar privilege, the class
immediately inferior raised itself by important acquisitions of
power. The German dukes, even after they became here-
ditary, did not succeed in compelling the chief nobility within
their limits to hold their lands in fief so completely as the
m Schmidt, t. iv. p. 78.
n Ibid. p. 78, 568. Putter, p. 274. Pfeffel, p. 435, 565. Struvius, p. 511.
GEEMANY. DURING THE MIDDLE AGlS. 79
peers of France had done. The nobles of Suabia refused
to follow their duke into the field against the emperor
Conrad II.° Of this aristocracy the superior class were
denominated princes ; an appellation which, after the eleventh
century, distinguished them from the untitled nobility, most
of whom were their vassals. They were constituent parts of
all diets ; and though gradually deprived of their original
participation in electing an emperor, possessed, in all other
respects, the same rights as the dukes or electors. Some
of them were fully equal to the electors, in birth as well as
extent of dominions ; such as the princely houses of Austria,
Hesse, Brunswic, and Misnia. By the division of Henry
the Lion's vast territories,1* and by the absolute extinction
of the Suabian family in the following century, a great
many princes acquired additional weight. Of the ancient
duchies, only Saxony and Bavaria remained ; the former of
which especially was so dismembered, that it was vain to
attempt any renewal of the ducal jurisdiction. That of the
emperor, formerly exercised by the counts palatine, went
almost equally into disuse, during the contest between Philip
and Otho IV. The princes accordingly had acted with
sovereign independence within their own fiefs, before the
reign of Frederic II. ; but the legal recognition of their im-
munities was reserved for two edicts of that emperor ; one,
in 1220, relating to ecclesiastical, and the other, in 1232,
to secular princes. By these he engaged neither to levy
the customary imperial dues, nor to permit the jurisdiction
of the palatine judges, within the limits of a state of the
empire ;q concessions, that amounted to little less than an
abdication of his own .sovereignty. From this epoch the
territorial independence of the states may be dated,
A class of titled nobility, inferior to the princes, were the
counts of the empire, who seem to have been separated from
the former in the twelfth century, and to have lost at the
same time their right of voting in the diets/ In some parts
0 Pfeffel, p. 209. r In the instruments relating to the
v See the arrangements made in con- election of Otho IV. the princes sign
sequence of Henry's forfeiture, which their names, Ego N. elegi et subscripsi.
gave quite a new face to Germany, in But the counts only as follows : Ego
Pfeffel, p. 234, also p. 437. N. consensi et subscripsi. Pfeffel, p.
q Pfeffel, p. 384. Putter, p. 233. 360,
80 STATE OF EUROPE CHAP. V.
of Germany, chiefly in Franconia and upon the Ehine, there
always existed a very numerous body of lower nobility; un-
titled, at least till modern times, but subject to no superior
except the emperor. These are supposed to have become
immediate, after the destruction of the house of Suabia,
within whose duchies they had been comprehended.8
A short interval elapsed after the death of Eichard of
Election of Cornwall, before the electors could be induced, by
H$2£tg°f tne deplorable state of confusion into which Ger-
A.D. 1272.' many j^ fa]ien> to fill the imperial throne. Their
choice was however the best that could have been made. It
fell upon Eodolph count of Hapsburg, a prince of very an-
cient family, and of considerable possessions as well in
Switzerland as upon each bank of the Upper Ehine, but
not sufficiently powerful to alarm the electoral oligarchy.
Eodolph was brave, active, and just ; but his characteristic
quality appears to have been good sense, and judgment of
the circumstances in which he was placed. Of this he gave
a signal proof in relinquishing the favourite project of so
many preceding emperors, and leaving Italy altogether to
itself. At home he manifested a vigilant spirit in admi-
nistering justice, and is said to have destroyed seventy
strongholds of noble robbers in Thuringia and other parts,
bringing many of the criminals to capital punishment/ But
he wisely avoided giving offence to the more powerful
princes ; and during his reign there were hardly any rebel-
lions in Germany.
It was a very reasonable object of every emperor to ag-
investment grandize his familv by investing his near kindred
of his son ° . , £ _ - , J „
Aibenwith with vacant nets : but no one was so fortunate in
duchy of,. .. -r» i i i i •
Austria, his opportunities as Eodolph. At his accession,
Austria. Styria, and Carniola were in the hands of Ottocar,
king of Bohemia. These extensive and fertile countries had
been formed into a march or margraviate, after the victories
of Otho the Great over the Hungarians. Frederic Barbarossa
erected them into a duchy, with many distinguished privi-
leges, especially that of female succession, hitherto unknown
8 Pfeffel, p. 455. Putter, p. 254. House of Austria, p. 57. This valuable
Struvius, p. 511. work contains a full and interesting ac-
* Struvius, p. 530. Coxe's Hist, of count of Rodolph's reign.
GERMANY. DURING THE MIDDLE AGES. 81
in the feudal principalities of Germany .u Upon the extinction
of the house of Bamberg, which had enjoyed this duchy, it
was granted by Frederic II. to a cousin of his own name ;
after whose death a disputed succession gave rise to several
changes, and ultimately enabled Ottocar to gain possession
of the country. Against this king of Bohemia Rodolph
waged two successful wars, and recovered the
Austrian provinces, which, as vacant fiefs, he con-
ferred, with the consent of the diet, upon his son Albert.x
Notwithstanding the merit and popularity of Eodolph, the
electors refused to choose his son king of the Eo- state of the
._. , „ 1-1 i i empire after
mans in his lifetime, and, alter his death, deter- Rodoiph.
mined to avoid the appearance of hereditary succession, put
Adolphus of Nassau upon the throne. There is AdoiphUS.
very little to attract notice in the domestic history ii
of the empire during the next two centuries. From He
Adolphus to Sigismund, every emperor had either
to struggle against a competitor, claiming the ma-
jority of votes at his election, or against a com-
bination of the electors to dethrone him. Theim-
perial authority became more and more ineffective ;
yet it was frequently made a subject of reproach
against the emperors, that they did not maintain a sove-
reignty to which no one was disposed to submit.
It may appear surprising that the Germanic confederacy
under the nominal supremacy of an emperor should have
been preserved in circumstances apparently so calculated to
dissolve it. But, besides the natural effect of prejudice and
u The privileges of Austria were vius, p. 463. The instrument runs as
granted to the margrave Henry in 1156, follows : Ducatus Austrise et Styrise,
by way of indemnity for his restitution cum pertinentiis et terminis suis quot
of Bavaria to Henry the Lion. The hactenus habuit, ad nomen et honorem
territory between the Inn and the Ems regium transferentes, te hactenus du-
was separated from the latter province, catuum prsedictorum ducem, de potes-
and annexed to Austria at this time, tatis nostrse plenitudine et magnificentia
The dukes of Austria are declared equal speciali promovemus in regein, per liber-
in rank to the palatine archdukes (archi- tates et jura prsedictum regnum tuum
ducibus palatinis). This expression gave praesentis epigrammatis auctoritate do-
a hint to the duke Rodolph IV. to as- nantes, quse regiam deceant dignitatem ;
sume the title of archduke of Austria, ut tamen ex honore quern tibi libenter
Schmidt, t. iii. p. 390. Frederic II. even addimus, nihil honoris et juris nostri
created the duke of Austria king : a very diadematis aut imperii subtrahatur.
curious fact, though neither he nor his * Struvius, p. 525. Schmidt. Coxe.
successors ever assumed the title. Stru-
VOL. II. G
82 STATE OF EUROPE CHAP. V.
a famous name, there were sufficient reasons to induce the
electors to preserve a form of government in which they
bore so decided a sway. Accident had in a considerable
degree restricted the electoral suffrages to seven princes.
Without the college there were houses more substantially
powerful than any within it. The duchy of Saxony had
been subdivided by repeated partitions among children, till
the electoral right was vested in a prince who possessed
only the small territory of Wittenberg. The great families
of Austria, Bavaria, and Luxemburg, though not electoral,
were the real heads of the German body ; and though the two
former lost much of their influence for a time through the
pernicious custom of partition, the empire seldom looked
for its head to any other house than one of these three.
While the duchies and counties of Germany retained their
custom of original character of offices or governments, they
partition. were Of course, even though considered as heredi-
tary, not subject to partition among children. When they
acquired the nature of fiefs, it was still consonant to the
principles of a feudal tenure that the eldest son should
inherit according to the law of primogeniture, an inferior
provision or appanage, at most, being reserved for the
younger children. The law of England favoured the eldest
exclusively; that of France give him great advantages.
But in Germany a different rule began to prevail about the
thirteenth century/ An equal partition of the inheritance,
without the least regard to priority of birth, was the general
law of its principalities. Sometimes this was effected by
undivided possession, or tenancy in common, the brothers
residing together and reigning jointly. This tended to pre-
serve the integrity of dominion, but, as it was frequently
incommodious, a more usual practice was to divide the terri-
tory. From such partitions are derived those numerous in-
dependent principalities of the same house, many of which
still subsist in Germany. In 1589 there were eight reign-
ing princes of the Palatine family; and fourteen, in 1675,
y Schmidt, t. iv. p. 66. Pfeffel, p. 289, rule; but I find the house of Badeu
maintains that partitions were not intro- divided into two branches, Baden and
duced till the latter end of the thirteenth Hochberg, in 1 1 90, with rights of mutual
century. This may be true, as a general reversion.
GEBMANY. DURING THE MIDDLE AGES. 83
of that of Saxony.2 Originally these partitions were in
general absolute and without reversion ; but, as their effect
in weakening families became evident, a practice was intro-
duced of making compacts of reciprocal succession, by which
a fief was prevented from escheating to the empire until all
the male posterity of the first feudatory should be extinct.
Thus, while the German empire survived, all the princes of
Hesse or of Saxony had reciprocal contingencies of suc-
cession, or what our lawyers call cross-remainders, to each
other's dominions. A different system was gradually adopted.
By the Golden Bull of Charles IY. the electoral territory,
that is, the particular district to which the electoral suffrage
was inseparably attached, became incapable of partition, and
was to descend to the eldest son. In the fifteenth century
the present house of Brandenburg set the first example of
establishing primogeniture by law ; the principalities of
Anspach and Bayreuth were dismembered from it for the
benefit of younger branches ; but it was declared that all the
other dominions of the family should for the future belong
exclusively to the reigning elector. This politic measure
was adopted in several other families ; but, even in the six-
teenth century, the prejudice was not removed, and some
German princes denounced curses on their posterity, if they
should introduce the impious custom of primogeniture.*
Notwithstanding these subdivisions, and the most remark-
able of those which I have mentioned are of a date rather
subsequent to the middle ages, the antagonist principle of
consolidation by various means of acquisition was so actively
at work that several princely houses, especially those of
Hohenzollern or Brandenburg, of Hesse, Wirtemberg, and
the Palatinate, derive their importance from the same era,
the fourteenth and fifteenth centuries, in which the preju-
dice against primogeniture was the strongest. And thus it
will often be found in private patrimonies ; the tendency to
consolidation of property works more rapidly than that to
its disintegration by a law of gavelkind.
Weakened by these subdivisions, the principalities of
Germany in the fourteenth and fifteenth centuries shrink to
2 Pfeffel, p. 289. Putter, p. 189." a Id. p. 280.
G 2
84 STATE OF EUROPE CHAP. V.
a more and more diminutive size in the scale of nations.
But one family, the most illustrious of the former age, was
House of less exposed to this enfeebling system. Henry VII.
Luxemburg. counf. of Luxemburg, a man of much more per-
sonal merit than hereditary importance, was elevated to the
empire in 1308. Most part of his short reign he passed in
Italy, but he had a fortunate opportunity of obtaining the
crown of Bohemia for his son. John, king of Bohemia, did
not himself wear the imperial crown ; but three of his de-
scendants possessed it, with less interruption than could have
been expected. His son, Charles IV., succeeded Louis of
Bavaria in 1347 ; not indeed without opposition, for a double
election and a civil war were matters of course in Germany.
Charles IV. has been treated with more derision by his con-
temporaries, and consequently by later writers, than almost
any prince in history, yet he was remarkably successful in
the only objects that he seriously pursued. Deficient in
personal courage, insensible of humiliation, bending without
shame to the pope, to the Italians, to the electors, so poor
and so little reverenced as to be arrested by a butcher at
Worms for want of paying his demands, Charles IV. affords
a proof that a certain dexterity and cold-blooded persever-
ance may occasionally supply, in a sovereign, the want of
more respectable qualities. He has been reproached with
neglecting the empire. But he never designed to trouble
himself about the empire, except for his private ends. He
did not neglect the kingdom of Bohemia, to which he almost
seemed to render Germany a province. Bohemia had been
long considered as a fief of the empire, and indeed could
pretend to an electoral vote by no other title. Charles, how-
ever, gave the states by law the right of choosing a king,
on the extinction of the royal family, which seems deroga-
tory to the imperial prerogative.1" It was much more ma-
terial that, upon acquiring Brandenburg, partly by conquest,
and partly by a compact of succession, in 1373, he not only
invested his sons with it, which was conformable to usage,
but tried to annex that electorate for ever to the kingdom
of Bohemia.0 He constantly resided at Prague, where he
b Struvius, p. 641. « pfeffel, p. 575. Schmidt, t. iv. p. 595.
GERMANY. DURING THE MIDDLE AGES. 85
founded a celebrated university, and embellished the city
with buildings. This kingdom, augmented also during his
reign by the acquisition of Silesia, he bequeathed to his
son Wenceslaus, for whom, by pliancy towards the electors
and the court of Rome, he had procured, against all recent
example, the imperial succession."1
The reign of Charles IV. is distinguished in the consti-
tutional history of the empire by his Golden Bull, Golden BulL
an instrument which finally ascertained the preroga- A-D- 1355>
tives of the electoral college. The Golden Bull terminated
the disputes which had arisen between different members of
the same house as to their right of suffrage, which was de-
clared inherent in certain definite territories. The number
was absolutely restrained to seven. The place of legal
imperial elections was fixed at Frankfort ; of coronations,
at Aix-la-Chapelle, and the latter ceremony was to be per-
formed by the archbishop of Cologne. These regulations,
though consonant to ancient usage, had not always been
observed, and their neglect had sometimes excited questions
as to the validity of elections. The dignity of elector was
enhanced by the Golden Bull as highly as an imperial edict
could carry it ; they were declared equal to kings, and con-
spiracy against their persons incurred the penalty of high
treason.6 Many other privileges are granted to render
them more completely sovereign within their dominions.
It seems extraordinary that Charles should have voluntarily
elevated an oligarchy, from whose pretensions his prede-
cessors had frequently suffered injury. But he had more
to apprehend from the two great families of Bavaria and
Austria, whom he relatively depressed by giving such a
preponderance to the seven electors, than from any
members of the college. By his compact with Brandenburg
he had a fair prospect of adding a second vote to his own ;
and there was more room for intrigue and management,
which Charles always preferred to arms, with a small
number than with the whole body of princes.
d Struvius, p. 637. controversy of long standing between the
e Pfeffel, p. 565. Putter, p. 271. two branches of the house of Saxony,
Schmidt, t. iv. p. 566. The Golden Bull Wittenberg and Lauenberg, in favour
not only fixed the Palatine vote, in ab- of the former.
solute exclusion of Bavaria, but settled a
86 STATE OF EUROPE CHAP. V.
The next reign, nevertheless, evinced the danger of in-
Deposition of vesting the 'electors with such preponderating au-
wencesiaus. thority. Wenceslaus, a supine and voluptuous man,
less respected, and more negligent of Germany, if possible,
than his father, was regularly deposed by a majority of the
electoral college in 1400. This right, if it is to be con-
sidered as a right, they had already used against Adolphus
of Nassau in 1298, and against Louis of Bavaria in 1346.
They chose Eobert Count Palatine instead of Wenceslaus ;
and though the latter did not cease to have some adherents,
Robert has generally been counted among the lawful em-
perors/ Upon his death the empire returned to the house
of Luxemburg, Wenceslaus himself waiving his rights in
favour of his brother Sigismund of Hungary. g
The house of Austria had hitherto given but two emperors
House of to Germany, Rodolph its founder, and his son
Austria. Albert, whom a successful rebellion elevated in the
place of Adolphus. Upon the death of Henry of Luxem-
burg, in 1313, Frederic, son of Albert, disputed the election
of Louis duke of Bavaria, alleging a majority of genuine
votes. This produced a civil war, in which the Austrian
party were entirely worsted. Though they advanced no
pretensions to the imperial dignity during the rest of the
fourteenth century, the princes of that line added to their
possessions Carinthia, Istria, and the Tyrol. As a counter-
balance to these acquisitions, they lost a great part of their
ancient inheritance by unsuccessful wars with the Swiss.
According to the custom of partition, so injurious to princely
houses, their dominions were divided among three branches;
Albert ii. one reigning in Austria, a second in Styria and the
adjacent provinces, a third in the Tyrol and Alsace.
This had in a considerable degree eclipsed the glory of the
house of Hapsburg. But it was now its destiny to revive,
_f Many of the cities, besides some grave of Moravia, having been chosen,
princes, continued to recognise Wences- • as far as appears, by a legal majority,
laus throughout the life of Eobert ; and However, his death within three months
the latter was so much considered as an removed the difficulty; and Josse, who
usurper by foreign states, that his am- was not crowned at Frankfort, has never
bassadors were refused admittance at the been reckoned among the emperors,
council of Pisa. Struvius, p. 658. though modern critics agree that his title
This election of Sigismund was not was legitimate. Struvius, p. 684. Pfeffel,
uncontested: Josse, or Jodocus, mar- p. 612.
GERMANY. DURING THE MIDDLE AGES. 87
and to enter upon a career of prosperity which has never
since been permanently interrupted. Albert duke of Aus-
tria, who had married Sigismund's only daughter, the queen
of Hungary and Bohemia, was raised to the imperial throne
upon the death of his father-in-law in 1437. He died in
two years, leaving his wife pregnant with a son, Ladislaus
Posthumus, who afterwards reigned in the two kingdoms
just mentioned ; and the choice of the electors fell upon
Frederic duke of Styria, second cousin of th'e last emperor,
from whose posterity it never departed, except in a single
instance, upon the extinction of his male line in 1740.
Frederic III. reigned fifty-three years, a longer period
than any of his predecessors, and his personal cha- Reign ?f
racter was more insignificant. With better fortune S?2£^?'
than could be expected, considering both these cir- 1493>
cumstances, he escaped any overt attempt to depose him,
though such a project was sometimes in agitation. He
reigned during an interesting age, full of remarkable events,
and big with others of more leading importance. The de-
struction of the Greek empire, and appearance of the vic-
torious crescent upon the Danube, gave an unhappy distinc-
tion to the earlier years of his reign, and displayed his mean
and pusillanimous character in circumstances which de-
manded a hero. At a later season he was drawn into
contentions with France and Burgundy, which ultimately
produced a new and more general combination of European
politics. Frederic, always poor, and scarcely able to pro-
tect himself in Austria from the seditions of his subjects, or
the inroads of the king of Hungary, was yet another founder
of his family, and left their fortunes incomparably more pros-
perous than at his accession.11 The marriage of his son
h Ranke has drawn the character of more because they acquired an ideal
Frederic III. more favourably on the value from their connection with the im-
whole tb an preceding historians, and perial dignity. It cost him a long and
with a discrimination which enables us severe struggle to allow his son to be
to account better for his success in the crowned king of the Romans ; he wished
objects which he had at heart. " From to take the supreme authority undivided
his youth he had been inured to trouble with him to the grave : in no case would
and adversity. When compelled to yield, he grant Maximilian any independent
he never gave up a point, and always share in the administration of govern-
gamed the mastery in the end. The ment; but kept him, even after he was
maintenance of his prerogatives was the king, still as 'son of the house;' nor
governing principle of all his actions, the would he ever give him anything but
88 STATE OF EUROPE CHAP. V.
Maximilian with the heiress of Burgundy began that aggran-
dizement of the house of Austria which Frederic seems to
have anticipated.1 The electors, who had lost a good deal of
their former spirit, and were grown sensible of the necessity
of choosing a powerful sovereign, made no opposition to
Maximilian's becoming king of the Romans in his father's
lifetime. The Austrian provinces were re-united either under
Frederic, or in the first years of Maximilian ; so that, at
the close of that period which we denominate the Middle
Ages, the German empire, sustained by the patrimonial
dominions of its chief, became again considerable in the
scale of nations, and capable of preserving a balance be-
tween the ambitious monarchies of France and Spain.
The period between Rodolph and Frederic III. is dis-
tinguished by no circumstance so interesting as the
prosperous state of the free imperial cities, which
had attained their maturity about the commencement of that
interval. We find the cities of Germany, in the tenth cen-
tury, divided into such as depended immediately upon the
empire, which were usually governed by their bishop as im-
perial vicar, and such as were included in the territories of
the dukes and counts.k Some of the former, lying princi-
the countship of Cilli; 'for the rest he nance of a confederacy so ill held toge-
would have time enough.' His frugality ther by any other tie. Hence he suc-
bordered on avarice, his slowness on ceeded in what seemed so difficult — in
inertness, his stubbornness on the most procuring the election of Maximilian as
determined selfishness ; yet all these king of the Romans ; and interested the
faults are removed from vulgarity by German diet in maintaining the Burgun-
high qualities. He had at bottom a dian inheritance, the western provinces of
sober depth of judgment, a sedate and the Netherlands, which the latter's mar-
inflexible honour; the aged prince, even riage brought into the house of Austria,
when a fugitive imploring succour, had ' The famous device of Austria, A. E.
a personal beating which never allowed 1. 0. U. was first used by Frederic III.,
the majesty of the empire to sink." who adopted it on his plate, books, and
Hist. Reformation (Translation), vol. ii. buildings. These initials stand for,
p. 103. Austrise Est Imperare Orbi Universe;
A character of such obstinate passive or, in German, Alles Erdreich 1st Os-
resistance was well fitted for his station terreich Unterthan : a bold assumption
in that age; spite of his poverty and for a man who was not safe in an inch of
weakness, he was hereditary sovereign of his dominions. Struvius, p. 722. He
extensive and fertile territories; he was confirmed the archiducal title of his
not loved, feared, or respected, but he family, which might seem implied in the
was necessary; he was a German, and original grant of Frederic I.; and be-
therefore not to be exchanged for a king stowed other high privileges above all
of Hungary or Bohemia; he was, not as princes of the empire. These are enu-
Frederic of Austria, but as elected em- merated in Coxe's House of Austria,
peror, the sole hope for a more settled vol. i. p. 263.
rule, for public peace, for the mainte- k Pfeffel, p. 187. The Othos adopted
GERMANY. DURING THE MIDDLE AGES. 89
pally upon the Rhine and in Franconia, acquired a certain
degree of importance before the expiration of the eleventh
century. Worms and Cologne manifested a zealous attach-
ment to Henry IV., whom they supported in despite of their
bishops.m His son Henry V. granted privileges of enfran-
chisement to the inferior townsmen or artizans, who had
hitherto been distinguished from the upper class of freemen,
and particularly relieved them from oppressive usages, which
either gave the whole of their moveable goods to the lord
upon their decease, or at least enabled him to seize the best
chattel as his heriot.n He took away the temporal authority
of the bishop, at least in several instances, and restored the
cities to a more immediate dependence upon the empire. The
citizens were classed in companies, according to their several
occupations, an institution which was speedily adopted in
other commercial countries. It does not appear that any
German city had obtained, under this emperor, those privi-
leges of choosing its own magistrates, which were conceded
about the same time, in a few instances, to those of France.0
Gradually, however, they began to elect councils of citizens
as a sort of senate and magistracy. This innovation might
perhaps take place as early as the reign of Frederic I. ; p at
least it was fully established in that of his grandson. They
were at first only assistants to the imperial or episcopal bailiff,
who probably continued to administer criminal justice.
But in the thirteenth century the citizens, grown richer and
stronger, either purchased the jurisdiction, or usurped it
through the lord's neglect, or drove out the bailiff by force.q
The great revolution in Franconia and Suabia, occasioned
by the fall of the Hohenstauffen family, completed the victory
of the cities. Those which had depended upon mediate lords
became immediately connected with the empire, and with
the same policy in (Germany which they p In the charter granted by Frederic I.
had introduced in Italy, conferring the to Spire in 1182, confirming and en-
temporal government of cities upon the larging that of Henry V., though no ex-
bishops ; probably as a counterbalance press mention is made of any municipal
to the lay aristocracy. Putter, p. 136. jurisdiction, yet it seems implied in the
Struvius, p. 252. following words: Causam in civitate jam
Schmidt, t. iii. p. 239. lite contestatam non episcopus aut alia
n Schmidt, p. 242. Pfeffel, p. 293. potestas extra civitatem determinari
Dumont, Corps Diplomatique, t. i. p. 64. compellet. Dumont, p. 108.
0 Schmidt, p. 245. 1 Schmidt, t. iv. p. 96. Pfeffel, p. 441.
90 STATE OF EUKOPE CHAP. V
the empire in its state of feebleness, when an occasional
present of money would easily induce its chief to ac-
quiesce in any claims of immunity which the citizens
might prefer.
It was a natural consequence of the importance which the
free citizens had reached, and of their immediacy, that they
were admitted to a place in the diets, or general meetings
of the confederacy. They were tacitly acknowledged to be
equally sovereign with the electors and princes. No proof
exists of any law by which they were adopted into the diet.
We find it said that Eodolph of Hapsburg, in 1291, re-
newed his oath with the princes, lords, and cities. Under
the emperor Henry VII. there is unequivocal mention of
the three orders composing the diet ; electors, princes, and
deputies from cities/ And in 1344 they appear as a
third distinct college in the diet of Frankfort.8
The inhabitants of these free cities always preserved their
respect for the emperor, and gave him much less vexation
than his other subjects. He was indeed their natural friend.
But the nobility and prelates were their natural enemies,
and the western parts of Germany were the scenes of irrecon-
cileable warfare between the possessors of fortified castles and
the inhabitants of fortified cities. Each party was frequently
the aggressor. The nobles were too often mere robbers, who
lived upon the plunder of travellers. But the citizens were
almost equally inattentive to the rights of others. It was
their policy to offer the privileges of burghership to all
strangers. The peasantry of feudal lords, flying to a neigh-
bouring town, found an asylum constantly open. A multi-
tude of aliens, thus seeking as it were sanctuary, dwelt in the
suburbs or liberties, between the city walls and the palisades
which bounded the territory. Hence they were called Pfahl-
biirger, or burgesses of the palisades ; and this encroachment
on the rights of the nobility was positively, but vainly, pro-
hibited by several imperial edicts, especially the Golden
Bull. Another class were the Ausbiirger, or outburghers,
r Mansit ibi rex sex hebclomadibus disponendo. Auctor apud Schmidt
cum principibus electoribus et aliis prin- t. vi. p. 31.
cipibus et cimtatum nunttis, de suo tran- s Pfeffel, p. 552.
situ et de prsestandis servitiis in Italiam
GERMANY. DURING THE MIDDLE AGES. 91
who had been admitted to privileges of citizenship, though
resident at a distance, and pretended in consequence to be
exempted from all dues to their original feudal superiors.
If a lord resisted so unreasonable a claim, he incurred the
danger of bringing down upon himself the vengeance of
the citizens. These outburghers are in general classed
under the general name of Pfahlbiirger by contemporary
writers.*
As the towns were conscious of the hatred which the
nobility bore towards them, it was their interest to Leagues of
make a common cause, and render mutual assist- ^ cities-
ance. From this necessity of maintaining, by united exer-
tions, their general liberty, the German cities never suffered
the petty jealousies, which might no doubt exist among
them, to ripen into such deadly feuds as sullied the glory,
and ultimately destroyed the freedom, of Lombardy. They
withstood the bishops and barons by confederacies of their
own, framed expressly to secure their commerce against
rapine, or unjust exactions of toll. More than sixty cities,
with three ecclesiastical electors at their head, formed the
league of^the Rhine, in 1255, to repel the inferior nobility,
who, having now become immediate, abused that indepen-
dence by perpetual robberies.11 The Hanseatic Union owes
its origin to no other cause, and may be traced, perhaps, to
rather a higher date. About the year 1 370 a league was
formed, which, though it did not continue so long, seems to
have produced more striking effects in Germany. The cities
of Suabia and the Rhine united themselves in a strict con-
federacy against the princes, and especially the families of
Wirtemberg and Bavaria. It is said that the emperor
Wenceslaus secretly abetted their projects. The recent suc-
cesses of the Swiss, who had now almost established their
republic, inspired their neighbours in the empire with ex-
pectations which the event did not realize ; for they were
defeated in this war, and ultimately compelled to relinquish
their league. Counter-associations were formed by the
1 Schmidt, t. iv. p. 98; t. vi. p. 76. u Struvius, p. 498. Schmidt, t. iv.
Pfeffel, p. 402. Du Cange, Gloss, v. p. 101. Pfeffel, p. 416.
Pfahlbiirger. Fauxbourg is derived from
this word.
92 STATE OF EUROPE CHAP. V.
nobles, styled Society of St. George, St. William, the Lion,
or the Panther.x
The spirit of political liberty was not confined to the free
provincial immediate cities. In all the German principalities,
empire. a form of limited monarchy prevailed, reflecting, on
a reduced scale, the general constitution of the empire. As
the emperors shared their legislative sovereignty with the
diet, so all the princes who belonged to that assembly had
their own provincial states composed of their feudal vassals,
and of their mediate towns within their territory. No tax
could be imposed without consent of the states ; and, in some
countries, the prince was obliged to account for the proper
disposition of the money granted. In all matters of import-
ance affecting the principality, and especially in cases of par-
tition, it was necessary to consult them ; and they sometimes
decided between competitors in a disputed succession, though
this, indeed, more strictly belonged to the emperor. The
provincial states concurred with the prince in making laws,
except such as were enacted by the general diet. The city
of Wurtzburg, in the fourteenth century, tells its bishop,
that, if a lord would make any new ordinance, the custom is
that he must consult the citizens, who have always opposed
his innovating upon the ancient laws without their consent.7
The ancient imperial domain, or possessions which be-
Aiienationof longed to the chief of the empire as such, had ori-
the imperial • n i • TT» • i i
domain. guially been very extensive. Besides large estates
in every province, the territory upon each bank of the Rhine,
afterwards occupied by the counts palatine, and ecclesiastical
electors, was, until the thirteenth century, an exclusive pro-
perty of the emperor. This imperial domain was deemed
so adequate to the support of his dignity that it was usual,
if not obligatory, for him to grant away his patrimonial do-
mains upon his election. But the necessities of Frederic
II., and the long confusion that ensued upon his death,
caused the domain to be almost entirely dissipated. Ro-
dolph made some efforts to retrieve it, but too late ; and
the 'poor remains of what had belonged to Charlemagne and
x Struvius, p. 649. Pfeffel, p. 586. y Schmidt, t. vi. p. 8. Putter, p.
Schmidt, t. v. p. 10; t. vi. p. 78. Putter, 230.
p. 293.
GERMANY. DURING THE MIDDLE AGES. 93
Otho were alienated by Charles IV.Z This produced a
necessary change in that part of the constitution which de-
prived an emperor of hereditary possessions. It was, how-
ever, some time before it took place. Even Albert I. con-
ferred the duchy of Austria upon his son, when he was
chosen emperor.a Louis of Bavaria was the first who
retained his hereditary dominions, and made them his resi-
dence.1" Charles IV. and Wenceslaus lived almost wholly
in Bohemia, Sigismund chiefly in Hungary, Frederic III.
in Austria. This residence in their hereditary countries,
while it seemed rather to lower the imperial dignity, and to
lessen their connection with the general confederacy, gave
them intrinsic power and influence. If the emperors of the
houses of Luxemburg and Austria were not like the Con-
rads and Frederics, they were at least very superior in im-
portance to the Williams and Adolphuses of the thirteenth
century.
The accession of Maximilian nearly coincides with the
expedition of Charles VIII. against Naples; and Accession of
T ri i i i i i /^ i • i o ,1 Maximilian.
I should here close the German history of the pietof
•in • r> i 1 i • i Worms.
middle age, were it not for the great epoch which A.D. 1495.
is made by the diet of Worms in 1495. This assembly is
celebrated for the establishment of a perpetual public peace,
and of a paramount court of justice, the Imperial chamber.
The same causes which produced continual hostilities
among the French nobility were not likely to ope- Establish-
i n -,, in IT ment of pub-
Fate less powerfully on the (jrermans, equally war- uc peace.
like with their neighbours, and rather less civilized. But while
the imperial government was still vigorous they were kept
under some restraint. We find Henry III., the most power-
ful of the Franconian emperors, forbidding all private de-
fiances, and establishing solemnly a general peace.0 After
his time the natural tendency of manners overpowered all
attempts to coerce it, and private war raged without limits
in the empire. Frederic I. endeavoured to repress it by a
regulation which admitted its legality. This was the law of
z Pfeffel, p. 580. the domain, instead of granting it away;
tt Id. p. 494. Struvius, p. 546. so completely was the public policy of the
b Struvius, p. 611. In the capitulation empire reversed. Schmidt, t. v. p. 44.
of Robert it was expressly provided that c Pfeffel, p. 212.
he should retain any escheated fief for
94 STATE OF EUROPE CHAP. V.
defiance (jus diffidationis), which required a solemn declara-
tion of war, and three days' notice, before the commence-
ment of hostile measures. All persons contravening this
provision were deemed robbers and not legitimate enemies.d
Frederic II. carried the restraint farther, and limited the
right of self-redress to cases where justice could not be ob-
tained. Unfortunately there was in later times no sufficient
provision for rendering justice. The German empire, in-
deed, had now assumed so peculiar a character, and the
mass of states which composed it were in so many respects
sovereign within their own territories, that wars, unless in
themselves unjust, could not be made a subject of reproach
against them, nor considered, strictly speaking, as private.
It was certainly most desirable to put an end to them by
common agreement, and by the only means that could
render war unnecessary, the establishment of a supreme
jurisdiction. War, indeed, legally undertaken, was not the
only nor the severest grievance. A very large proportion
of the rural nobility lived by robbery.6 Their castles, as the
ruins still bear witness, were erected upon inaccessible hills,
and in defiles that command the public road. An archbishop
of Cologne having built a fortress of this kind, the governor
inquired how he was to maintain himself, no revenue having
been assigned for that purpose: the prelate only desired
him to remark that the castle was situated near the junction
of four roads/ As commerce increased, and the example
of French and Italian civilization rendered the Germans
more sensible to their own rudeness, the preservation of
public peace was loudly demanded. Every diet under Fre-
deric III. professed to occupy itself with the two great ob-
jects of domestic reformation, peace and law. Temporary
cessations, during which all private hostility was illegal, were
sometimes enacted; and if observed, which may well be
doubted, might contribute to accustom men to habits of
d Schmidt, t. iv. p. 108, et infra. f Quern cum officiatus suus inter-
Pfeffel, p. 340. Putter, p. 205. rogans, de quo castrum deberet retinere,
e Germani atque Alemanni, quibus cum annuis careret reditibus, dicitur
census patrimonii ad victum suppetit, et respondisse: Quatuorvise sunt trans cas-
hos qui procul urbibus, aut qui castellis trum situates . Auctor apud Schmidt,
et oppidulis dominantur, quorum magna p. 492.
pars lutrocinio deditur, nobiles censeut.
Pet. de Andlo. apud Schmidt, t. v. p. 490.
GERMANY. DURING THE MIDDLE AGES. 95
greater tranquillity. The leagues of the cities were probably
more efficacious checks upon the disturbers of order. In
1486 a ten years' peace was proclaimed, and before the ex-
piration of this period the perpetual abolition of the right of
defiance was happily accomplished in the diet of Worms. g
These wars, incessantly waged by the states of Germany,
seldom ended in conquest. Very few princely houses of the
middle ages were aggrandized by such means. That small
and independent nobility, the counts and knights of the em-
pire, whom the revolutions of our own age have annihilated,
stood through the storms of centuries with little diminution
of their numbers. An incursion into the enemy's territory,
a pitched battle, a siege, a treaty, are the general circum-
stances of the minor wars of the middle ages, as far as they
appear in history. Before the invention of artillery, a
strongly fortified castle, or walled city, was hardly reduced
except by famine, which a besieging army, wasting impro-
vidently its means of subsistence, was full as likely to feel.
That invention altered the condition of society, and intro-
duced an inequality of forces that rendered war more inevi-
tably ruinous to the inferior party. Its first and most bene-
ficial effect was to bring the plundering class of the nobility
into control ; their castles were more easily taken, and it
became their interest to deserve the protection of law. A
few of these continued to follow their old profession after
the diet of Worms ; but they were soon overpowered by
the more efficient police established under Maximilian.
The next object of the diet was to provide an effectual
remedy for private wrongs which might supersede imperiai
all pretence for taking up arms. The administration Chamber-
of justice had always been a high prerogative as well as
bounden duty of the emperors. It was exercised originally
by themselves in person, or by the count palatine, the judge
who always attended their court. In the provinces of Ger-
many the dukes were intrusted with this duty ; but, in order
to control their influence, Otho the Great appointed pro-
vincial counts palatine, whose jurisdiction was in some re-
spects exclusive of that still possessed by the dukes. As
the latter became more independent of the empire, the pro-
g Schmidt, t. iv. p. 116; t. v. p. 338, 371; t. vi. p. 34. Putter, p. 292, 348.
96 STATE OF EUROPE CHAP. V.
vincial counts palatine lost the importance of their office,
though their name may be traced to the twelfth and thir-
teenth centuries.11 The ordinary administration of justice
by the emperors went into disuse ; in cases where states of
the empire were concerned, it appertained to the diet, or
to a special court of princes. The first attempt to re-esta-
blish an imperial tribunal was made by Frederic II. in a
diet held at Mentz in 1235. A judge of the court was
appointed to sit daily, with certain assessors, half nobles,
half lawyers, and with jurisdiction over all causes where
princes of the empire were not concerned.1 Rodolph of
Hapsburg endeavoured to give efficacy to this judicature ;
but after his reign it underwent the fate of all those parts
of the Germanic constitution which maintained the prero-
gatives of the emperors. Sigismund endeavoured to revive
this tribunal ; but as he did not render it permanent, nor
fix the place of its sittings, it produced little other good
than as it excited an earnest anxiety for a regular system.
This system, delayed throughout the reign of Frederic
III., was reserved for the first diet of his son.k
The Imperial Chamber, such was the name of the new
tribunal, consisted, at its original institution, of a chief judge,
who was to be chosen among the princes or counts, and of
sixteen assessors, partly of noble or equestrian rank, partly
professors of law. They were named by the emperor with
the approbation of the diet. The functions of the Imperial
Chamber were chiefly the two following. They exercised an
appellant jurisdiction over causes that had been decided by
the tribunals established in states of the empire. But their
jurisdiction in private causes was merely appellant. Accord-
ing to the original law of Germany, no man could be sued
except in the nation or province to which he belonged. The
early emperors travelled from one part of their dominions
to another, in order to render justice consistently with this
fundamental privilege. When the Luxemburg emperors
fixed their residence in Bohemia, the jurisdiction of the im-
perial court in the first instance would have ceased of itself
by the operation of this ancient rule. It was not, however,
b Pfeffel, p. 180. k Pfeffel^ t§ ii>
1 Idem, p. 386. Schmidt, t. iv. p. 56.
GERMANY. DURING THE MIDDLE AGES. 97
strictly complied with ; and it is said that the emperors
had a concurrent jurisdiction with the provincial tribunals
even in private causes. They divested themselves, never-
theless, of this right by granting privileges de non evocando ;
so that no subject of a state which enjoyed such a privilege
could be summoned into the imperial court. All the elec-
tors possessed this exemption by the terms of the Golden
Bull ; and it was specially granted to the burgraves of
Nuremberg, and some other princes. This matter was
finally settled at the diet of Worms ; and the Imperial
Chamber was positively restricted from taking cognizance
of any causes in the first instance, even where a state of the
empire was one of the parties. It was enacted, to obviate
the denial of justice that appeared likely to result from the
regulation in the latter case, that every elector and prince
should establish a tribunal in his own dominions, where
suits against himself might be entertained."1
The second part of the chamber's jurisdiction related to
disputes between two states of the empire. But these two
could only come before it by way of appeal. During the
period of anarchy which preceded the establishment of its
jurisdiction, a custom was introduced, in order to prevent the
constant recurrence of hostilities, of referring the quarrels of
states to certain arbitrators, called Austregues, chosen among
states of the same rank. This conventional reference became
so popular that the princes would not consent to abandon it
on the institution of the Imperial Chamber ; but, on the con-
trary, it was changed into an invariable and universal law,
that all disputes between different states must, in the first
instance, be submitted to the arbitration of Austregues.n
The sentences of the chamber would have been very idly
pronounced if means had not been devised to carry Estabush-
them into execution. In earlier times the want of ^Sles?
coercive process had been more felt than that of actual juris-
diction. For a few years after the establishment of the
chamber, this deficiency was not supplied. But in 1501
an institution, originally planned under Wenceslaus, and
attempted by Albert II., was carried into effect. The empire,
m Schmidt, t. v. p. 373. Putter, p. 372. i Putter, p. 361 . Pfeffel, p. 452.
VOL. II. H
98 STATE OF EUROPE CHAP. V.
with the exception of the electorates and the Austrian
dominions, was divided into six circles ; each of which had
its council of states, its director whose province it was to
convoke them, and its military force to compel obedience.
In 1512 four more circles were added, comprehending those
states which had been excluded in the first division. It was
the business of the police of the circles to enforce the exe-
cution of sentences pronounced by the Imperial Chamber
against refractory states of the empire.0
As the judges of the Imperial Chamber were appointed
Auiic with the consent of the diet, and held their sittings
council. jn a free imperiai city^ its establishment seemed
rather to encroach on the ancient prerogatives of the em-
perors. Maximilian expressly reserved these in consenting
to the new tribunal. And, in order to revive them, he soon
afterwards instituted an Aulic Council at Vienna, composed
of judges appointed by himself, and under the political
control of the Austrian government. Though some German
patriots regarded this tribunal with jealousy, it continued
until the dissolution of the empire. The Aulic Council had,
in all cases, a concurrent jurisdiction with the Imperial
Chamber ; an exclusive one in feudal and some other causes.
But it was equally confined to cases of appeal ; and these,
by multiplied privileges de non appellando, granted to the
electoral and superior princely houses, were gradually
reduced into moderate compass.p
The Germanic constitution may be reckoned complete, as
to all its essential characteristics, in the reign of Maximilian.
In later times, and especially by the treaty of Westphalia,
it underwent several modifications. Whatever might be its
defects, and many of them seem to have been susceptible of
reformation without destroying the system of government,
it had one invaluable excellence : it protected the rights of
the weaker against the stronger powers. The law of nations
was first taught in Germany, and grew out of the public law
of the empire. To narrow, as far as possible, the rights of
war and of conquest, was a natural principle of those who
belonged to petty states, and had nothing to tempt them in
ambition. JSTo revolution of our own eventful age, except
0 Putter, p. 355, t. ii. p. 100. P Putter, p. 357. Pfeffel, p. 102.
GERMANY. DUKING THE MIDDLE AGES. 99
the fall of the ancient French system of government, has been
so extensive, or so likely to produce important consequences,
as the spontaneous dissolution of the German empire.
Whether the new confederacy that has been substituted for
that venerable constitution will be equally favourable to
peace, justice, and liberty, is among the most interesting and
difficult problems that can occupy a philosophical observer .q
At the accession of Conrad the First, Germany had by
no means reached its present extent on the eastern Li^of
frontier. Henry the Fowler and the Othos made theemPire-
great acquisitions upon that side. But tribes of Sclavonian
origin, generally called Yenedic, or, less properly, Vandal,
occupied the northern coast from the Elbe to the Vistula.
These were independent, and formidable both to the kings
of Denmark and princes of Germany, till, in the reign of
Frederic Barbarossa, two of the latter, Henry the Lion,
duke of Saxony, and Albert the Bear, margrave of Bran-
denburg, subdued Mecklenburg and Pomerania, which
afterwards became duchies of the empire. Bohemia was
undoubtedly subject, in a feudal sense, to Frederic I. and
his successors ; though its connexion with Germany was
always slight. The emperors sometimes assumed a so-
vereignty over Denmark, Hungary, and Poland. But what
they gained upon this quarter was compensated by the
gradual separation of the Netherlands from their dominion,
and by the still more complete loss of the kingdom of Aries.
The house of Burgundy possessed most part of the former,
and paid as little regard as possible to the imperial su-
premacy ; though the German diets in the reign of Maxi-
milian still continued to treat the Netherlands as equally
subject to their lawful control with the states on the right
bank of the Ehine. But the provinces between the Rhone
and the Alps were absolutely separated ; Switzerland had
completely succeeded in establishing her own independence;
and the kings of France no longer sought even the ceremony
of an imperial investiture for Dauphine and Provence.
Bohemia, which received the Christian faith in the tenth
century, was elevated to the rank of a kingdom near
the end of the twelfth. The dukes and kings of Sa°
q The first edition of this work was published early in 1818.
H 2
ons1
100 STATE OF EUROPE CHAP. V.
Bohemia were feudally dependent upon the emperors, from
whom they received investiture. They possessed, in return,
a suffrage among the seven electors, and held one of the
great offices in the imperial court. But separated by a ram-
part of mountains, by a difference of origin and language,
and, perhaps, by national prejudices, from Germany, the
Bohemians withdrew as far as possible from the general
politics of the confederacy. The kings obtained dispensa-
tions from attending the diets of the empire, nor were they
able to reinstate themselves in the privilege thus abandoned
till the beginning of the last century/ The government of
this kingdom, in a very slight degree partaking of the feudal
character,8 bore rather a resemblance to that of Poland; but
the nobility were divided into two classes, the baronial and
the equestrian, and the burghers formed a third state in
the national diet. For the peasantry, they were in a con-
dition of servitude, or predial villenage. The royal au-
thority was restrained by a coronation oath, by a permanent
senate, and by frequent assemblies of the diet, where a
numerous and armed nobility appeared to secure their
liberties by law or force.* The sceptre passed, in ordinary
times, to the nearest heir of the royal blood; but the right
of election was only suspended, and no king of Bohemia
ventured to boast of it as his inheritance." This mixture
of elective and hereditary monarchy was common, as we
have seen, to most European kingdoms in their original
constitution, though few continued so long to admit the
participation of popular suffrages.
The reigning dynasty having become extinct in 1306, by
House of the death of Wenceslaus, son of that Ottocar who,
Luxemburg. after extenc[ing his conquests to the Baltic sea, and
r Pfeffel, t. ii. p. 497. of the kings, about the year 1300, sent
1 Bona ipsorum tota Bohemia pie- for an Italian lawyer to compile a code,
raque omnia hsereditaria sunt seu alodi- But the nobility refused to consent to
alia, perpauca feudalia. Stransky, Resp. this : aware, probably, of the conse-
Bohemica, p. 392. Stransky was a Bo- quences of letting in the prerogative
hemian protestant, who fled to Holland doctrines of the civilians. They opposed,
after the subversion of the civil and re- at the same time, the institution of an
ligious liberties of his country by the university at Prague; \vhich however
fatal battle of Prague in 1621. took place afterwards under Charles IV.
1 Dubravius, the Bohemian historian, u Stransky, Resp. Bohem. Coxe's
relates (lib. xviii.) that, the kingdom House of Austria, p. 487.
having no written laws, Wenceslaus, one
GERMANY. DURING THE MIDDLE AGES. 101
almost to the Adriatic, had lost his life in an unsuccessful
contention with the emperor Rodolph, the Bohemians chose
John of Luxemburg, son of Henry VII. Under the kings
of this family in the fourteenth century, and especially
Charles IV., whose character appeared in a far more advan-
tageous light in his native domains than in the empire,
Bohemia imbibed some portion of refinement and science.x
An university erected by Charles at Prague became one of
the most celebrated in Europe. John HussJ rector John HlISS
of the university, who had distinguished himself AJX1416-
by opposition to many abuses then prevailing in the church,
repaired to the council of Constance, under a safe conduct
from the emperor Sigismund. In violation of this pledge,
to the indelible infamy of that prince and of the council, he
was condemned to be burned ; and his disciple, Jerome of
Prague, underwent afterwards the same fate. His country-
men, aroused by this atrocity, flew to arms. They
found at their head one of those extraordinary men,
whose genius, created by nature and called into action by for-
tuitous events, appears to borrow no reflected light from that
of others. John Zisca had not been trained in any
school which could have initiated him in the science
of war ; that, indeed, except in Italy, was still rude, and no-
where more so than in Bohemia. But, self-taught, he be-
came one of the greatest captains who had appeared hitherto
in Europe. It renders his exploits more marvellous, that
he was totally deprived of sight. Zisca has been called the
inventor of the modern art of fortification ; the famous moun-
tain near Prague, fanatically called Tabor, became, by his
skill, an impregnable entrenchment. For his stratagems he
has been compared to Hannibal. In battle, being destitute
of cavalry, he disposed at intervals ramparts of carriages
filled with soldiers, to defend his troops from the enemy's
horse. His own station was by the chief standard, where,
after hearing the circumstances of the situation explained,
he gave his orders for the disposition of the army. Zisca
was never defeated ; and his genius inspired the Hussites
with such enthusiastic affection, that some of those who had
* Schmidt. Coxe.
A.D. 1424.
102 STATE OF EUROPE CHAP. V.
served under him refused to obey any other general, and
denominated themselves Orphans, in commemoration of
his loss. He was, indeed, a ferocious enemy, though some
of his cruelties might, perhaps, be extenuated by the law^of
retaliation ; but to his soldiers affable and generous, divid-
ing among them all the spoil.7
Even during the lifetime of Zisca the Hussite sect was
disunited ; the citizens of Prague and many of the
nobility contenting themselves with moderate de-
mands, while the Taborites, his peculiar followers, were ac-
tuated by a most fanatical frenzy. The former took the name
of Caiixtins, from their retention of the sacramental cup, of
which the priests had latterly thought fit to debar laymen ;
an abuse so totally without pretence or apology, that nothing
less than the determined obstinacy of the Romish church
could have maintained it to this time. The Taborites, though
no longer led by Zisca, gained some remarkable victories, but
were at last wholly defeated; while the Catholic and Calixtin
parties came to an accommodation, by which Sigismund was
acknowledged as king of Bohemia, which he had claimed by
the title of heir to his brother Wenceslaus, and a few indul-
gences, especially the use of the sacramental cup,
conceded to the moderate Hussites. But this com-
pact, though concluded by the council of Basle, being ill
observed, through the perfidious bigotry of the see of Rome,
the reformers armed again to defend their religious liberties,
and ultimately elected a nobleman of their own party, by
name George Podiebrad, to the throne of Bohemia,
A.D. 1458. i'ii • • 1 i • T r>
which he maintained during his life with great
vigour and prudence.2 Upon his death they chose Uladis-
A D i4Yi ^aus> son °f Casirair king of Poland, who after-
wards obtained also the kingdom of Hungary. Both
A.D. 152{. - •"'«•« -r • /*
these crowns were conferred on his son Louis, after
whose death, in the unfortunate battle of Mohacz, Ferdinand
of Austria became sovereign of the two kingdoms.
The Hungarians, that terrible people who laid waste the
Hungary Ita^an and GrfirHlHi provinces of the empire in the
tenth century, became proselytes soon afterwards
y Lenfant, Hist, de la Guerre des Hussites. Schmidt. Coxe.
z Lenfant. Schmidt. Coxe.
GERMANY. DURING THE MIDDLE AGES. 103
to the religion of Europe, and their sovereign, St. Stephen,
was admitted by the pope into the list of Christian kings.
Though the Hungarians were of a race perfectly distinct
from either the Gothic or the Sclavonian tribes, their sys-
tem of government was in a great measure analogous. None
indeed could be more natural to rude nations who had but
recently accustomed themselves to settled possessions, than
a territorial aristocracy, jealous of unlimited or even here-
ditary power in their chieftain, and subjugating the inferior
people to that servitude which, in such a state of society,
is the unavoidable consequence of poverty.
The marriage of an Hungarian princess with Charles II.
king of Naples eventually connected her country far more
than it had been with the affairs of Italy. I have mentioned
in a different place the circumstances which led to the in-
vasion of Naples by Louis king of Hungary, and the wars of
that powerful monarch with Venice. By marrying sigismund.
the eldest daughter of Louis, Sigismund, after- A-D-1392-
wards emperor, acquired the crown of Hungary, which upon
her death without issue he retained in his own right, and was
even able to transmit to the child of a second marriage, and
to her husband Albert duke of Austria. From this com-
mencement is deduced the connexion between Hungary and
Austria. In two years, however, Albert dying left A<1)< U3Y.
his widow pregnant ; but the states of Hungary, Uladjsiaus. •
jealous of Austrian influence, and of the intrigues AD* U4°-
of a minority, without waiting for her delivery, bestowed
the crown upon Uladisiaus, king of Poland. The birth of
Albert's posthumous son, Ladislaus, produced an opposition
in behalf of the infant's right; but the Austrian party
turned out the weaker, and Uladisiaus, after a civil war of
some duration, became undisputed king. Meanwhile a
more formidable enemy drew near. The Turkish arms had
subdued all Servia, and excited a just alarm throughout
Christendom. Uladisiaus led a considerable force, to which
the presence of the cardinal Julian gave the appearance of
a crusade, into Bulgaria, and, aft§r several successes, con-
cluded an honourable treaty with Amurath II. But ^tie^of
this he was unhappily persuaded to violate, at the A.Daruk
instigation of the cardinal, who abhorred the impiety of
104 STATE OF EUROPE CHAP. V.
keeping faith with infidels.* Heaven judged of this other-
wise, if the judgment of Heaven was pronounced upon the
field of Warna. In that fatal battle Uladislaus was killed,
and the Hungarians utterly routed. The crown was now
permitted to rest on the head of young Ladislaus ; but the
regency was allotted by the states of Hungary to a
Hunniades. °. •> T t. TT • J b T»l.- 1_ A.
native warrior, J ohn Hunniades. 1 his hero stood
in the breach for twelve years against the Turkish power,
frequently defeated, but unconquered in defeat. If the
renown of Hunniades may seem exaggerated by the par-
tiality of writers who lived under the reign of his son, it is
confirmed by more unequivocal evidence, by the dread and
hatred of the Turks, whose children were taught obedience
by threatening them with his name, and by the deference of
a jealous aristocracy to a man of no distinguished birth. He
surrendered to young Ladislaus a trust that he had exercised
with perfect fidelity ; but his merit was too great to be for-
given, and the court never treated him with cordiality. The
last, and the most splendid service of Hunniades, was the
stride relief of Belgrade. That strong city was besieged
A.D. use. by Mahomet II. three years after the fall of Con-
stantinople ; its capture would have laid open all Hungary.
A tumultuary army, chiefly collected by the preaching of a
friar, was intrusted to Hunniades : he penetrated into the
city, and, having repulsed the Turks in a fortunate sally
wherein Mahomet was wounded, had the honour of compel-
ling him to raise the siege in confusion. The relief of Bel-
a ^Eneas Sylvius lays this perfidy on racter of all partisans accustomed to
Pope Eugenius IV. Scripsit Cardinali, desultory warfare. This is the apology
nullum valere foedus, quod se inconsulto made for him by JSneas Sylvius : for-
cum hostibus religioms percussum esset. tasse rei militaris perito nulla in pugua
p. 397. ^ The words in italics are slipped salus visa, et salvare aliquos quam omnes
in, to give a slight pretext for breaking perire maluit. Poloni acceptam eo praelio
the treaty. cladem Huniadis vecordiae atque ignaviee
b Hunniades was a Wallachian, of a tradiderunt; ipse sua concilia spreta con-
small family. The Poles charged him questus est. I observe that all the
with cowardice at Warna. (^Eneas Syl- writers upon Hungarian affairs have a
vms, p. 398.) And the Greeks impute party bias one way or other. The best
the same to him, or at least desertion of and most authentic account of Hunuiades
his troops, at Cossova, where he was de- seems to be, still allowing for this par-
feated in 1448. (Spondanus, ad ann. tiality, in the chronicle of John Thwrocz,
-48.) Probably he was one of those who lived under Matthias. Bonfinius,
prudently brave men who, when victory an Italian compiler of the same a<*e has
is out of their power, reserve themselves amplified this original authority in his
5 fight another day; which is the cha- three decads of Hungarian history.
GERMANY. DURING THE MIDDLE AGES. 105
grade was more important in its effect than in its immediate
circumstances. It revived the spirits of Europe, which had
been appalled by the unceasing victories of the infidels. Ma-
homet himself seemed to acknowledge the importance of the
blow, and seldom afterwards attacked the Hungarians. Hun-
niades died soon after this achievement, and was followed by
the king Ladislaus.0 The states of Hungary, although the
emperor Frederic III. had secured to himself, as he thought,
the reversion, were justly averse to his character, and to
Austrian connexions. They conferred their crown Matthias
on Matthias Corvinus, son of their great Hun- A.D. use.
niades. This prince reigned above thirty years with con-
siderable reputation, to which his patronage of learned
men, who repaid his munificence with very profuse eulo-
gies, did not a little contributed Hungary, at least in his
time, was undoubtedly formidable to her neighbours, and
held a respectable rank as an independent power in the
republic of Europe.
The kingdom of Burgundy or Aries comprehended the
whole mountainous region which we now call Switzerland.
It was accordingly reunited to the Germanic empire by the
bequest of Rodolph along with the rest of his dominions.
A numerous and ancient nobility, vassals one to
another, or to the empire, divided the possession
with ecclesiastical lords, hardly less powerful than A<D-
themselves. Of the former we find the counts of Zahringen,
Kyburg, Hapsburg, and Tokenburg, most conspicuous ; of
the latter, the bishop of Coire, the abbot of St. Gall, and
abbess of Seckingen. Every variety of feudal rights was
early found and long preserved in Helvetia ; nor is there any
country whose history better illustrates that ambiguous rela-
c Ladislaus died at Prague, at the age Matthias, or wrote at his court, for ex-
of twenty- two, with great suspicion of aggerating his virtues, or dissembling
poison, which fell chiefly on George his misfortunes. And this was probably
Podiebrad and the Bohemians. JEneas the case. However, Spondanus has
Sylvius was with him at the time, and, in rather contracted a prejudice against the
a letter written immediately after, .plainly Corvini. A. treatise of Galeotus Mar-
hints this; and his manner carries with tius, an Italian litterateur, De dictis et
it more persuasion than if he had spoken factis Mathise, though it often notices an
put. Epist. 324. Mr. Coxe, however, ordinary saying as jocose or facete die-
informs us that the Bohemian historians turn, gives a favourable impression of
have fully disproved the charge. Matthias's ability, and also of his in-
d Spondanus frequently blames the tegrity.
Italians, who received pensions from
SwitZeriand
i£rly
1032-
106 STATE OF EUKOPE CHAP. V.
tion, half property and half dominion, in which the territorial
aristocracy, under the feudal system, stood with respect to
their dependents. In the twelfth century the Swiss towns
rise into some degree of importance. Zurich was eminent
for commercial activity, and seems to have had no lord but
the emperor. Basle, though subject to its bishop, possessed
the usual privileges of municipal government. Berne and
Friburg, founded only in that century, made a rapid pro-
gress, and the latter was raised, along with Zurich, by
Frederic II. in 1218, to the rank of a free imperial city.
Several changes in the principal Helvetian families took
place in the thirteenth century, before the end of which the
house of Hapsburg, under the politic and enterprising Eo-
dolph, and his son Albert, became possessed, through vari-
ous titles, of a great ascendency in Switzerland.6
Of these titles none was more tempting to an ambitious
Albert of chief than that of advocate to a convent. That
Austna. specious name conveyed with it a kind of indefinite
guardianship, and right of interference, which frequently
ended in reversing the conditions of the ecclesiastical sove-
reign and its vassal. But during times of feudal anarchy
there was perhaps no other means to secure the rich abbeys
from absolute spoliation ; and the free cities in their early
stage sometimes adopted the same policy. Among
The Swiss. "TV , . £i. , . % , J „
other advocacies, Albert obtained that ot some
convents which had estates in the valleys of Schweitz and
Underwald. These sequestered regions in the heart of the
Alps had been for ages the habitation of a pastoral race, so
happily forgotten, or so inaccessible in their fastnesses, as to
have acquired a virtual independence, regulating their own
affairs in their general assembly with a perfect equality,
though they acknowledged the sovereignty of the empire/
The people of Schweitz had made Rodolph their advocate.
They distrusted Albert, whose succession to his father's in-
heritance spread alarm through Helvetia. It soon appeared
that their suspicions were well founded. Besides the local
rights which his ecclesiastical advocacies gave him over part
e Planta's History of the Helvetic Confederacy, vol. i. chaps. 2-5.
f Id. c. 4.
"GERMAN*. DUEING THE MIDDLE AGES. 107
of the forest cantons, he pretended, after his election to the
empire, to send imperial bailiffs into their valleys as admi-
nistrators of criminal justice. Their oppression of a people
unused to control, whom it was plainly the design of Albert
to reduce into servitude, excited those generous emotions
of resentment which a brave and simple race have seldom
the discretion to repress. Three men, Stauffacher of
Schweitz, Furst of Uri, Melchthal of Underwald, Their insur.
each with ten chosen associates, met by night in rection-
a sequestered field, and swore to assert the common cause
of their liberties, without bloodshed or injury to the rights
of others. Their success was answerable to the justice
of their undertaking ; the three cantons unanimously took
up arms, and expelled their oppressors without a contest.
Albert's assassination by his nephew, which fol-
lowed soon afterwards, fortunately gave them
leisure to consolidate their union.8 He was succeeded in
the empire by Henry VII., jealous of the Austrian family,
and not at all displeased at proceedings which had been
accompanied with so little violence or disrespect for the
empire. But Leopold duke of Austria, resolved to hum-
ble the peasants who had rebelled against his father, led a
considerable force into their country. The Swiss, com-
mending themselves to Heaven, and determined rather to
perish than undergo that yoke a second time, though igno-
rant of regular discipline, and unprovided with Jatue^
defensive armour, utterly discomfited the assail- AJMSIS.'
ants at Morgarten.h
This great victory, the Marathon of Switzerland, confirmed
the independence of the three original cantons. After some
years, Lucerne, contiguous in situation and alike in interests,
was incorporated into their confederacy. It was far Formation of
,•11 , , , i .in n i Swiss Con-
more materially enlarged about the middle of the federacy.
fourteenth century, by the accession of Zurich, Glaris, Zug,
and Berne, all which took place within two years. The first
and last of these cities had already been engaged in frequent
wars with the Helvetian nobility, and their internal polity was
altogether republican.1 They acquired, not independence,
8 Planta, c. 6. »» Id. c. 7. j Id. cc. 8, 9.
108 STATE OF EUROPE CHAP. V.
which they already enjoyed, but additional security, by this
union with the Swiss, properly so called, who in deference
to their power and reputation ceded to them the first rank in
the league. The eight already enumerated are called the
ancient cantons, and continued till the late reformation of the
Helvetic system to possess several distinctive privileges, and
even rights of sovereignty over subject territories, in which
the five cantons of Friburg, Soleure, Basle, Schaffausen, and
Appenzel did not participate. From this time the united
cantons, but especially those of Berne and Zurich, began to
extend their territories at the expense of the rural nobility.
The same contest between these parties, with the same ter-
mination, which we know generally to have taken place in
Lombardy during the eleventh and twelfth centuries, may be
traced with more minuteness in the annals of Switzerland.*
Like the Lombards, too, the Helvetic cities acted with policy
and moderation towards the nobles whom they overcame,
admitting them to the franchises of their community, as
co-burghers (a privilege which virtually implied a defensive
alliance against any assailant), and uniformly respecting the
legal rights of property. Many feudal superiorities they
obtained from the owners in a more peaceable manner,
through purchase or mortgage. Thus the house of Austria,
to which the extensive domains of the counts of Kyburg had
devolved, abandoning, after repeated defeats, its hopes of
subduing the forest cantons, alienated a great part of its pos-
sessions to Zurich and Berne.m And the last remnant of their
ancient Helvetic territories in Argovia was wrested in 1417
from Frederic count of Tyrol, who, imprudently supporting
Pope John XXIII. against the council of Constance, had
been put to the ban of the empire. These conquests Berne
could not be induced to restore, and thus completed the in-
dependence of the confederate republics.11 The other free
cities, though not yet incorporated, and the few remaining
nobles, whether lay or spiritual, of whom the abbot of St.
Gall was the principal, entered into separate leagues with
different cantons. Switzerland became therefore, in the
first part of the fifteenth century, a free country, acknow-
k Planta, c. 10. m Id. c. 11. n Id. vol. ii. c. 1.
GERMANY. DUKING THE MIDDLE AGES. 109
ledged as such by neighbouring states, and subject to no
external control, though still comprehended within the no-
minal sovereignty of the empire.
The affairs of Switzerland occupy a very small space in
the great chart of European history. But in some respects
they are more interesting than the revolutions of mighty
kingdoms. Nowhere besides do we find so many titles to
our sympathy, or the union of so much virtue with so com-
plete success. In the Italian republics a 'more splendid
temple may seem to have been erected to liberty ; but, as we
approach, the serpents of faction hiss around her altar, and
the form of tyranny flits among the distant shadows behind
the shrine. Switzerland, not absolutely blameless, (for what
republic has been so?) but comparatively exempt from
turbulence, usurpation, and injustice, has well deserved to
employ the native pen of an historian accounted the most
eloquent of the last age.0 Other nations displayed an in-
superable resolution in the defence of walled towns ; but the
steadiness of the Swiss in the field of battle was without a
parallel, unless we recall the memory of Lacedsemon. It was
even established as a law, that whoever returned from battle
after a defeat should forfeit his life by the hands of the
executioner. Sixteen hundred men, who had been sent to
oppose a predatory invasion of the French in 1444, though
they might have retreated without loss, determined rather to
perish on the spot, and fell amidst a far greater heap of the
hostile slain.p At the famous battle of Sempach, in 1385,
the last which Austria presumed to try against the forest
cantons, the enemy's knights, dismounted from their horses,
presented an impregnable barrier of lances, which discon-
0 I am unacquainted with Muller's Muller to embellish his narration with so
history in the original language; but, much circumstantial detail, he has been
presuming the first volume of Mr. remarkably fortunate in his authorities.
Planta's History of the Helvetic Con- No man could write the annals of Eng-
federacy to be a free translation or land or France in the fourteenth century
abridgment of it, I can well' conceive with such particularity, if he was scru-
that it deserves the encomiums of pulous not to fill up the meagre sketch
Madame de Stael, and other foreign of chroniclers from the stores of his in-
critics. It is very rare to meet with vention. The striking scenery of Switzer-
such picturesque and lively delineation land, and Muller's exact acquaintance
in a modern historian of distant times, with it, have given him another advan-
But I must observe, that, if the authentic tage as a painter of history,
chronicles of Switzerland have enabled p Planta, vol. ii. c. 2.
110 STATE OF EUROPE CHAP. V.
certed the Swiss : till Winkelried, a gentleman of Under-
wald, commending his wife and children to his country-
men, threw himself upon the opposite ranks, and, collecting
as many lances as he could grasp, forced a passage for his
followers by burying them in his bosom.q
The burghers and peasants of Switzerland, ill provided
Excellence with cavalry, and better able to dispense with it than
of the Swiss . . J \ , . •, -,
troops. the natives of champaign countries, may be deemed
the principal restorers of the Greek and Roman tactics,
which place the strength of armies in a steady mass of
infantry. Besides their splendid victories over the dukes
of Austria and their own neighbouring nobility, they had
repulsed, in the year 1375, one of those predatory bodies
of troops, the scourge of Europe in that age, and to whose
licentiousness kingdoms and free states yielded alike a
passive submission. They gave the Dauphin, afterwards
Louis XI., who entered their country in 1444 with a
similar body of ruffians, called Armagnacs, the disbanded
mercenaries of the English war, sufficient reason to desist
from his invasion and to respect their valour. That able
prince formed indeed so high a notion of the Swiss, that he
sedulously cultivated their alliance during the rest of his
life. He was made abundantly sensible of the wisdom of
this policy when he saw his greatest enemy, the duke of
Burgundy, routed at Granson and Morat, and his affairs
irrecoverably ruined, by these hardy republicans. The en-
suing age is the most conspicuous, though not the most
essentially glorious, in the history of Switzerland. Courted
for the excellence of their troops by the rival sovereigns of
Europe, and themselves too sensible both to ambitious
schemes of dominion arid to the thirst of money, the united
cantons came to play a very prominent part in the wars of
Lombardy, with great military renown, but not without
some impeachment of that sterling probity which had dis-
tinguished their earlier efforts for independence. These
events, however, do not fall within my limits, but the last
Eatmcation year of the fifteenth century is a leading epoch
^nden"; with which I shall close this sketch. Though the
house of Austria had ceased to menace the liber-
q Planta, vol. i. c. 10.
GERMANY. DURING THE MIDDLE AGES. HI
ties of Helvetia, and had even been for many years its
ally, the emperor Maximilian, aware of the important
service he might derive from the cantons in his projects
upon Italy, as well as of the disadvantage he sustained by
their partiality to French interest, endeavoured to revive
the unextinguished supremacy of the empire. That supre-
macy had just been restored in Germany by the establish-
ment of the Imperial Chamber, and of a regular pecuniary
contribution, for its support as well as for other purposes, in
the diet of Worms. The Helvetic cantons were summoned
to yield obedience to these imperial laws : an innovation,
for such the revival of obsolete prerogatives must be consi-
dered, exceedingly hostile to their republican independence,
and involving consequences not less material in" their eyes,
the abandonment of a line of policy which tended to enrich,
if not to aggrandize them. Their refusal to comply brought
on a war, wherein the Tyrolese subjects of Maximilian, and
the Suabian league, a confederacy of cities in that province
lately formed under the emperor's auspices, were principally
engaged against the Swiss. But the success of the latter
was decisive, and, after a terrible devastation of the fron-
tiers of Germany, peace was concluded upon terms very
honourable for Switzerland. The cantons were declared
free from the jurisdiction of the Imperial Chamber, and
from all contributions imposed by the diet. Their right to
enter into foreign alliance, even hostile to the empire, if it
was not expressly recognised, continued unimpaired in
practice ; nor am I aware that they were at any time after-
wards supposed to incur the crime of rebellion by such pro-
ceedings. Though, perhaps, in the strictest letter of public
law, the Swiss cantons were not absolutely released from
their subjection to the empire until the treaty of West-
phalia, their real sovereignty must be dated by an historian
from the year when every prerogative which a government
can exercise was finally abandoned/
r Planta, vol. ii. c. 4.
112 STATE OF EUEOPE CHAP. VI.
CHAPTER VI.
HISTORY OF THE GREEKS AND SARACENS.
Eise of Mohammedism — Causes of its Success — Progress of Saracen Arms —
Greek Empire — Decline of the Khalifs — The Greeks recover part of their
Losses — Tlie Turks — The Crusades — Capture of Constantinople by the
Latins — Its Recovery by the Q-reeks — The Moguls — The Ottomans —
Danger at Constantinople — Timur — Capture of Constantinople ~by
Mahomet II. — Alarm of Europe.
THE difficulty which occurs to us in endeavouring to fix
a natural commencement of modern history even in the
Western countries of Europe is much enhanced when we
direct our attention to the Eastern Empire. In tracing the
long series of the Byzantine annals we never lose sight of
antiquity; the Greek language, the Roman name, the
titles, the laws, all the shadowy circumstance of ancient
greatness, attend us throughout the progress from the first
to the last of the Constantines ; and it is only when we
observe the external condition and relations of their em-
pire that we perceive ourselves to be embarked in a new
sea, and are compelled to deduce, from points of bearing
to the history of other nations, a line of separation which
the domestic revolutions of Constantinople would not satis-
factorily afford. The appearance of Mohammed, and the
conquests of his disciples, present an epoch in the history
of Asia still more important and more definite than the
subversion of the Roman empire in Europe, and hence the
boundary line between the ancient and modern divisions
of Byzantine history will intersect the reign of Heraclius.
That prince may be said to have stood on the verge of
both hemispheres of time, whose youth was crowned with
the last victories over the successors of Artaxerxes, and
whose age was clouded by the first calamities of Moham-
medan invasion.
Of all the revolutions which have had a permanent in-
Appearance fluence upon the civil history of mankind, none
of Moham- ,, i • i i •• 111 i
med. could so little be anticipated by human prudence as
GREEKS, ETC. DURING THE MIDDLE AGES. 113
that effected by the religion of Arabia. As the seeds of
invisible disease grow up sometimes in silence to maturity,
till they manifest themselves hopeless and irresistible, the
gradual propagation of a new faith in a barbarous country
beyond the limits of the empire was hardly known perhaps,
and certainly disregarded, in the court of Constantinople.
Arabia, in the age of Mohammed, was divided into many
small states, most of which, however, seem to have looked
up to Mecca as the capital of their nation and the chief seat
of their religious worship. The capture of that city accord-
ingly, and subjugation of its powerful and numerous aristo-
cracy, readily drew after it the submission of the minor
tribes, who transferred to the conqueror the reverence they
were used to show to those he had subdued. If we con-
sider Mohammed only as a military usurper, there is nothing
more explicable, or more analogous, especially to the course
of oriental history, than his success. But as the author
of a religious imposture, upon which, though avowedly un-
attested by miraculous powers, and though originally dis-
countenanced by the civil magistrate, he had the boldness
to found a scheme of universal dominion, which his fol-
lowers were half enabled to realise, it is a curious specula-
tion by what means he could inspire so sincere, so ardent,
so energetic, and so permanent a belief.
A full explanation of the causes which contributed to the
progress of Mohammedism is not perhaps at pre- causes of
sent attainable by those most conversant with this hissuccess-
department of literature.a But we may point out several of
leading importance : in the first place, those just and elevated
notions of the divine nature, and of moral duties, the gold
ore that pervades the dross of the Koran, which were calcu-
lated to strike a serious and reflecting people, already per-
haps disinclined by intermixture with their Jewish and
Christian fellow-citizens, to the superstitions of their ancient
a We are very destitute of satisfactory Al Jannabi, whom Gagnier translated, is
materials for the history of Mohammed a mere legend writer; it would be as
himself. Abulfeda, the most judicious rational to rely on the Acta Sanctorum as
of his biographers, lived in the fourteenth his romance. It is therefore difficult to
century, when it must have been mo- ascertain the real character of the pro-
rally impossible to discriminate the truth phet, except as it is deducible from the
amidst the torrent of fabulous tradition. Koran.
VOL. IT. I
114 STATE OF EUROPE CHAP. VI.
idolatry ;b next, the artful incorporation of tenets, usages
and traditions from the various religions that existed in
Arabia ;c and thirdly, the extensive application of the pre-
cepts in the Koran, a book confessedly written with much
elegance and purity, to all legal transactions, and all the
business of life. It may be expected that I should add to
these, what is commonly considered as a distinguishing mark
of Mohammedism, its indulgence to voluptuousness. But
this appears to be greatly exaggerated. Although the charac-
ter of its founder may have been tainted by sensuality as well
as ferociousness, I do not think that he relied upon induce-
ments of the former kind for the diffusion of his system. We
are not to judge of this by rules of Christian purity, or of
European practice. If polygamy was a prevailing usage in
Arabia, as is not questioned, its permission gave no additional
licence to the proselytes of Mohammed, who will be found
rather to have narrowed the unbounded liberty of oriental
manners in this respect; while his decided condemnation of
adultery, and of incestuous connexions, so frequent among
barbarous nations, does not argue a very lax and accommo-
dating morality, A devout Mussulman exhibits much more
of the Stoical than the Epicurean character. Nor can any
one read the Koran without being sensible that it breathes
b The very curious romance of Antar, his divinity or pre-existence. Hence it
written, perhaps, before the appearance is rather surprising to read in a poptilar
of Mohammed, seems to render it pro- book of sermons by a living prelate, that
bable that "however idolatry, as we are all the heresies of the Christian church
told by Sale, might prevail in some parts (I quote the substance from memory)
of Arabia, yet the genuine religion of are to be found in the Koran, but espe-
the descendants of Ishmael was a belief cially that of Arianism. No one who
in the unity of God as strict as is laid knows what Arianism is, and what Mo-
down in the Koran itself, and accom- hammedism is, could possibly fall into
panied by the same antipathy, partly re- so strange an error. The misfortune has
ligious, partly national, towards the been that the learned writer, while accu-
Fire-worshippers which Mohammed in- mulating a mass of reading upon this
culcated. This corroborates what I had part of his subject, neglected what should
said in the text before the publication of have been the nucleus of the whole, a
that work. perusal of the single book which contains
c I am very much disposed to believe, the doctrine of the Arabian impostor,
notwithstanding what seems to be the In this strange chimera about the Arian-
general opinion, that Mohammed had ism of Mohammed, he has been led away
never read any part of the New Testa- by a misplaced trust in Whitaker; a
ment. His knowledge of Christianity writer almost invariably in the wrong,
appears to be wholly derived from the and whose bad reasoning upon all the
apocryphal gospels^ and similar works, points of historical criticism which he
He admitted the miraculous conception attempted to discuss, is quite noto-
and prophetic character of Jesus, but not rious.
GREEKS, ETC. DUKING THE MIDDLE AGES. 115
an austere and scrupulous spirit. And, in fact, the founder
of a new religion or sect is little likely to obtain permanent
success by indulging the vices and luxuries of mankind. I
should rather be disposed to reckon the severity of Moham-
med's discipline among the causes of its influence. Pre-
cepts of ritual observance, being always definite and un-
equivocal, are less likely -to be neglected, after their obliga-
tion has been acknowledged, than those of moral virtue.
Thus the long fasting, the pilgrimages, the' regular prayers
and ablutions, the constant almsgiving, the abstinence from
stimulating liquors, enjoined by the Koran, created a visible
standard of practice among its followers, and preserved a
continual recollection of their law.
But the prevalence of Islam in the lifetime of its prophet,
and during the first ages of its existence, was chiefly owing
to the spirit of martial energy that he infused into it. The
religion of Mohammed is as essentially a military system
as the institution of chivalry in the west of Europe. The
people of Arabia, a race of strong passions and sanguinary
temper, inured to habits of pillage and murder, found in the
law of their native prophet, not a licence, but a command, to
desolate the world, and the promise of all that their glowing
imaginations could anticipate of Paradise annexed to all in
which they most delighted upon earth. It is difficult for us,
in the calmness of our closets, to conceive that feverish in-
tensity of excitement to which man may be wrought, when
the animal and intellectual energies of his nature converge to
a point, and the buoyancy of strength and courage recipro-
cates the influence of moral sentiment or religious hope. The
effect of this union I have formerly remarked in the Crusades;
a phenomenon perfectly analogous to the early history of the
Saracens. In each, one hardly knows whether most to ad-
mire the prodigious exertions of heroism, or to revolt from
the ferocious bigotry that attended them. But the Crusades
were a temporary effort, not thoroughly congenial to the spirit
of Christendom, which, even in the darkest and most super-
stitious ages, was not susceptible of the solitary and over-
ruling fanaticism of the Moslem. They needed no excite-
ment from pontiffs and preachers to achieve the work to
which they were called ; the precept was in their law, the
i 2
116 STATE OF EUKOPE CHAP. VI.
principle was in their hearts, the assurance of success was in
their swords. "0 prophet," exclaimed Ali, when Moham-
med, in the first years of his mission, sought among the
scanty and hesitating assembly of his friends a vizir and
lieutenant in command, "I am the man; whoever rises
against thee, I will dash out his teeth, tear out his eyes,
break his legs, rip up his belly. O prophet, I will be thy
vizir over them."d These words of Mohammed's early and
illustrious disciple are, as it were, a text, upon which the
commentary expands into the whole Saracenic history. They
contain the vital essence of his religion, implicit faith, and
ferocious energy. Death, slavery, tribute to unbelievers,
were the glad tidings of the Arabian prophet. To the
idolaters indeed, or those who acknowledged no special re-
velation, one alternative only was proposed, conversion or
the sword. The people of the Book, as they are termed in
the Koran, or four sects of Christians, Jews, Magians, and
Sabians, were permitted to redeem their adherence to their
ancient law by the payment of tribute, and other marks of
humiliation and servitude. But the limits which Mohamme-
dan intolerance had prescribed to itself were seldom trans-
gressed, the word pledged to unbelievers was seldom for-
feited ; and with all their insolence and oppression, the Mos-
lem conquerors were mild and liberal in comparison with
those who obeyed the pontiffs of Koine or Constantinople.
At the death of Mohammed in 632, his temporal and re-
First con- ligious sovereignty embraced, and was limited by,
quests of the ° . • i mi ~r» -r^ •
Saracens. the Arabian peninsula. The Koman and Persian
empires, engaged in tedious and indecisive hostility upon the
rivers of Mesopotamia and the Armenian mountains, were
viewed by the ambitious fanatics of his creed as their quarry.
In the very first year of Mohammed's immediate successor,
Abubeker, each of these mighty empires was invaded. The
latter opposed but a short resistance. The crumbling fabric
of eastern despotism is never secure against rapid and total
subversion ; a few victories, a few sieges, carried the Arabian
arms from the Tigris to the Oxus, and overthrew, with the
Sassanian dynasty, the ancient and famous religion they had
d Gibbon, vol. ix. p. 284.
A.D.
647—698.
GREEKS, ETC. DURING THE MIDDLE AGES. 117
professed. Seven years of active and unceasing warfare
sufficed to subjugate the rich province of Syria, A.D. ^
though defended by numerous armies and fortified 632~639-
cities ; and the khalif Omar had scarcely returned thanks
for the accomplishment of this conquest, when Amrou his
lieutenant announced to him the entire reduction of Egypt.
After some interval the Saracens won their way along the
coast of Africa as far as the pillars of Hercules, and
a third province was irretrievably torn fr6m the
Greek empire. These western conquests introduced them
to fresh enemies, and ushered in more splendid successes ;
encouraged by the disunion of the Visigoths, and perhaps
invited by treachery, Musa, the general of a master who sat
beyond the opposite extremity of the Mediter-
C1 1 • A O 1 ',1 ' A.D. 710.
ran can oea, passed over into opain, and within
about two years the name of Mohammed was invoked
under the Pyrenees.6
These conquests, which astonish the careless and super-
ficial, are less perplexing to a calm inquirer than their
cessation ; the loss of half the Roman empire, than the pre-
servation of the rest. A glance from Medina to state of
Constantinople in the middle of the seventh century empire?6
would probably have induced an indifferent spectator, if such
a being may be imagined, to anticipate by eight hundred
years the establishment of a Mohammedan dominion upon
the shores of the Hellespont. The fame of Heraclius had
withered in the Syrian war ; and his successors appeared as
incapable to resist as they were unworthy to govern. Their
despotism, unchecked by law, was often punished by suc-
cessful rebellion ; but not a whisper of civil liberty was ever
heard, and the vicissitudes of servitude and anarchy con-
summated the moral degeneracy of the nation. Less igno-
rant than the western barbarians, the Greeks abused their
e Ockley's History of the Saracens, trary, it may be laid down as a pretty
Cardonne, Revolutions de 1'Afrique et general rule, that circumstantiality, which
del'Espagne. The former of these works enhances the credibility of a witness,
is well known and justly admired for diminishes that of an historian, remote
its simplicity and picturesque details, in time or situation. And I observe that
Scarcely any narrative has ever excelled Reiske, in his preface to Abulfeda, speaks
in beauty that of the death of Hossein. of Wakidi, from whom Ockley's book is
But these do not tend to render it more but a translation, as a mere fabulist,
deserving of confidence. On the con-
118 STATE OF EUROPE CHAP. VI.
ingenuity in theological controversies, those especially which
related to the nature and incarnation of our Saviour ; wherein
the disputants, as is usual, became more positive and ran-
corous as their creed receded from the possibility of human
apprehension. Nor were these confined to the clergy, who
had not, in the East, obtained the prerogative of guiding the
national faith; the sovereigns sided alternately with opposing
factions; Heraclius was not too brave, nor Theodora too
infamous, for discussions of theology; and the dissenters
from an imperial decision were involved in the double pro-
scription of treason and heresy. But the persecutors of their
opponents at home pretended to cowardly scrupulousness
in the field ; nor was the Greek church ashamed to require
the lustration of a canonical penance from the soldier, who
shed the blood of his enemies in a national war.
But this depraved people were preserved from destruction
Decline of by the vices of their enemies, still more than by
the Saracens. some intrinsic resources which they yet possessed.
A rapid degeneracy enfeebled the victorious Moslem in their
career. That irresistible enthusiasm, that earnest and dis-
interested zeal of the companions of Mohammed, was in a
great measure lost, even before the first generation had passed
away. In the fruitful valleys of Damascus and Bassora, the
Arabs of the desert forgot their abstemious habits. Rich
from the tributes of an enslaved people, the Mohammedan
sovereigns knew no employment of riches but in sensual
luxury, and paid the price of voluptuous indulgence in the
relaxation of their strength and energy. Under the reign of
Moawiah, the fifth khalif, an hereditary succession was sub-
stituted for the free choice of the faithful, by which the first
representatives of the prophet had been elevated to power ;
and this regulation, necessary as it plainly was to avert in
some degree the dangers of schism and civil war, exposed
the kingdom to the certainty of being often governed by
feeble tyrants. But no regulation could be more than a
temporary preservative against civil war. The dissensions
which still separate and render hostile the followers of Mo-
hammed may be traced to the first events that ensued upon
his death, to the rejection of his son-in-law Ali by the electors
of Medina. Two reigns, those of Abubeker and Omar,
GREEKS, ETC. DURING THE MIDDLE AGES. 119
passed in external glory and domestic reverence ; but the old
age of Othman was weak and imprudent, and the conspirators
against him established the first among a hundred precedents
of rebellion and regicide. Ali was now chosen ; but a strong
faction disputed his right ; and the Saracen empire was for
many years distracted with civil war, among competitors,
who appealed, in reality, to no other decision than that of
the sword. The family of Omniiyah succeeded at last in
establishing an unresisted, if not an undoubted title. But
rebellions were perpetually afterwards breaking out in that
yast extent of dominion, till one of these revolters
i i i_ij AtD- ^5^*
acquired by success a better name than rebel, and
founded the dynasty of the Abbassides.
Damascus had been the seat of empire under the Om-
miades ; it was removed by the succeeding family KhaiifSof
to their new city of Bagdad. There are not any Bagdad-
names in the long line of khalifs after the companions of
Mohammed, more renowned in history than some of the
earlier sovereigns who reigned in this capital, Almansor,
Haroun Alraschid, and Almamiin. Their splendid palaces,
their numerous guards, their treasures of gold and silver,
the populousness and wealth of their cities, formed a striking
contrast to the rudeness and poverty of the western nations
in the same age. In their court, learning, which the first
Moslem had despised as unwarlike, or rejected as profane,
was held in honour/ The khalif Almamun, especially, was
distinguished for his patronage of letters ; the philosophical
writings of Greece were eagerly sought and translated ; the
stars were numbered, the course of the planets was measured;
the Arabians improved upon the science they borrowed, and
returned it with abundant interest to Europe in the com-
munication of numeral figures and the intellectual language
of algebra.g Yet the merit of the Abbassides has been
f The Arabian writers date the origin History of England, vol. i. Harris's
of their literature (except those works of Philological Arrangement is perhaps a
fiction which had always been popular) book better known; and though it has
from the reign of Almansor, A.D. 758. since been much excelled, was one of the
Abulpharagius, p. 160. Gibbon, c. 52. first contributions, in our own language,
s Several very recent publications to this department, in which a great deal
contain interesting details on Saracen yet remains for the oriental scholars of
literature; Berington's Literary History Europe. Casiri's admirable catalogue of
of the Middle Ages, Mill's History of Arabic MSS. in the Escurial ought be-
Mohammedanism, chap. vi. Turner's fore this to have been followed up by a
120 STATE OF EUEOPE CHAP. VI.
exaggerated by adulation or gratitude. After all the vague
praises of hireling poets, which have sometimes been re-
peated in Europe, it is very rare to read the history of an
eastern sovereign unstained by atrocious crimes. No Chris-
tian government, except perhaps that of Constantinople, ex-
hibits such a series of tyrants as the khalifs of Bagdad ; if
deeds of blood wrought through unbridled passion, or jealous
policy, may challenge the name of tyranny. These are ill
redeemed by ceremonious devotion, and acts of trifling, per-
haps ostentatious, humility ; or even by the best attribute of
Mohammedan princes, a rigorous justice in chastising the
offences of others. Anecdotes of this description give as
imperfect a sketch of an oriental sovereign, as monkish
chroniclers sometimes draw of one in Europe, who founded
monasteries and obeyed the clergy; though it must be
owned that the former are in much better taste.
Though the Abbassides have acquired more celebrity, they
never attained the real strength of their predecessors. Under
the last of the house of Ommiyah, one command was obeyed
almost along the whole diameter of the known world, from
the banks of the Sihon to the utmost promontory of Portugal.
But the revolution which changed the succession of khalifs
produced another not less important. A fugitive of the van-
quished family, by name Abdalrahman, arrived in Spain ;
and the Moslem of that country, not sharing in the pre-
|eSiaan0dn °f Juc^ces which had stirred up the Persians in favour
AMca. of the line of Abbas, and conscious that their remote
situation entitled them to independence, proclaimed him
khalif of Cordova. There could be little hope of reducing so
distant a dependency ; and the example was not unlikely to
be imitated. In the reign of Haroun Alraschid, two prin-
cipalities were formed in Africa : of the Aglabites who
reigned over Tunis and Tripoli ; and of the Edrisites in the
western parts of Barbary. These yielded in about a century
to the Fatimites, a more powerful dynasty, who afterwards
established an empire in Egypt.h
The loss, however, of Spain and Africa was the inevitable
more accurate examination of their con- very easy to fix in the memory, consult
tents than it was possible for him to give. Cardonne, who has made as much of
h For these revolutions, which it is not them as the subject would bear.
GREEKS, ETC. DURING THE MIDDLE AGES. 121
effect of that immensely extended dominion, which their se-
paration alone would not have enfeebled. But other D?cline of
revolutions awaited it at home. In the history of the Khalifs-
the Abbassides of Bagdad we read over again the decline of
European monarchies, through their various symptoms of
ruin ; and find successive analogies to the insults of the bar-
barians towards imperial Rome in the fifth century, to the
personal insignificance of the Merovingian kings, and to the
feudal usurpations that dismembered the' inheritance of
Charlemagne. 1 . Beyond the north-eastern frontier of the
Saracen empire dwelt a warlike and powerful nation of the
Tartar family, who defended the independence of Turkestan
from the sea of Aral to the great central chain of mountains.
In the wars which the khalifs or their lieutenants waged
against them, many of these Turks were led into captivity,
and dispersed over the empire. Their strength and courage
distinguished them among a people grown effeminate by
luxury ; and that jealousy of disaffection among his subjects,
so natural to an eastern monarch, might be an additional mo-
tive with the khalif Motassem to form bodies of guards out of
these prisoners. But his policy was fatally erroneous. More
rude and even more ferocious than the Arabs, they con-
temned the feebleness of the khalifate, while they grasped at
its riches. The son of Motassem, Motawakkel, was mur-
dered in his palace by the barbarians of the north ; and his
fate revealed the secret of the empire, that the choice of its
sovereign had passed to their slaves. Degradation and death
were frequently the lot of succeeding khalifs ; but in the
East, the son leaps boldly on the throne which the blood of
his father has stained, and the praetorian guards of Bagdad
rarely failed to render a fallacious obedience to the nearest
heir of the house of Abbas. 2 In about one hundred years
after the introduction of the Turkish soldiers, the sovereigns
of Bagdad sunk almost into oblivion. Al Radi, who died in
940, was the last of these that officiated in the mosque, that
commanded the forces in person, that addressed the people
from the pulpit, that enjoyed the pomp and splendour of
royalty.1 But he was the first who appointed, instead of a
'Abulfeda, p. 261. Gibbon, c. 52. command of the army is only mentioned
Modern Univ. Hist. vol. ii. Al Radi's by. the last.
122 STATE OF EUROPE CHAP. VI.
vizir, a new officer, a mayor, as it were, of the palace, with
the title of Emir al Omra, commander of commanders, to
whom he delegated by compulsion the functions of his office.
This title was usually seized by active and martial spirits ;
it was sometimes hereditary, and in effect irrevocable by the
khalifs, whose names hardly appear after this time in oriental
annals. 3. During these revolutions of the palace, every
province successively shook off its allegiance ; new prin-
cipalities were formed in Syria and Mesopotamia, as well as
in Khorasan and Persia, till the dominion of the Commander
of the Faithful was literally confined to the city of Bagdad
and its adjacent territory. For a time, some of these princes,
who had been appointed as governors by the khalifs, pro-
fessed to respect his supremacy, by naming him in the public
prayers, and upon the coin ; but these tokens of dependence
were gradually obliterated.1"
Such is the outline of Saracenic history for three centuries
Revival of after Mohammed : one age of glorious conquest : a
the Greek IP* t •
Empire, second ot stationary, but rather precarious great-
ness ; a third of rapid decline. The Greek empire mean-
while survived, and almost recovered from the shock it had
sustained. Besides the decline of its enemies, several cir-
cumstances may be enumerated tending to its preservation.
The maritime province of Cilicia had been overrun by the
Mohammedans; but between this and the Lesser Asia,
Mount Taurus raises its massive buckler, spreading, as a
natural bulwark, from the sea-coast of the ancient Pam-
phylia to the hilly district of Isauria, whence it extends in an
easterly direction, separating the Cappadocian and Cilician
plains, and after throwing off considerable ridges to the
north and south, connects itself with other chains of moun-
tains that penetrate far into the Asiatic continent. Beyond
this barrier the Saracens formed no durable settlement,
though the armies of Alraschid wasted the country as far as
the Hellespont, and the city of Amorium in Phrygia was
razed to the ground by Al Motassem. The position of
Constantinople, chosen with a sagacity to which the course of
k The decline of the Saracens is fully sophical dissertation upon this part of
discussed in the 52nd chapter of Gibbon, history,
which is, in itself, a complete philo-
GREEKS, ETC. DURING THE MIDDLE AGES. 123
events almost gave the appearance of prescience, secured her
from any immediate danger on the side of Asia, and rendered
her as little accessible to an enemy, as any city which valour
and patriotism did not protect. Yet in the days of Arabian
energy she was twice attacked by great naval arma- AJ)> 668
ments; the first siege, or rather blockade, continued
for seven years ; the second, though shorter, was A>D- 716-
more terrible, and her walls, as well as her port, were
actually invested by the combined forces of the khalif Waled,
under his brother Moslema.m The final discomfiture of these
assailants showed the resisting force of the empire, or rather
of its capital; but perhaps the abandonment of such maritime
enterprises by the Saracens may be in some measure ascribed
to the removal of their metropolis from Damascus to Bagdad.
But the Greeks in their turn determined to dispute the con-
mand of the sea. By possessing the secret of an inextin-
guishable fire, they fought on superior terms : their wealth,
perhaps their skill, enabled them to employ larger and better-
appointed vessels; and they ultimately expelled their enemies
from the islands of Crete and Cyprus. By land, they were
less desirous of encountering the Moslem. The science of
tactics is studied by the pusillanimous, like that of medicine
by the sick ; and the Byzantine emperors, Leo and Constan-
tine, have left written treatises on the art of avoiding defeat,
of protracting contest, of resisting attack.11 But this timid
policy, and even the purchase of armistices from the Saracens,
were not ill calculated for the state of both nations ; while
Constantinople temporized, Bagdad shook to her foundations;
and the heirs of the Koman name might boast the immortality
of their own empire, when they contemplated the dissolution
of that which had so rapidly sprung up and perished. Amidst
all the crimes and revolutions of the Byzantine government,
and its history is but a series of crimes and revolutions, it was
never dismembered by intestine war ; a sedition in the army,
a tumult in the theatre, a conspiracy in the palace, precipi-
tated a monarch from the throne ; but the allegiance of Con-
m Gibbon, c. 52. trays a mind not ashamed to confess
n Gibbon, c. 53. Constantino For- weakness and cowardice, and pleasing
phyrogenitus, in his advice to his son as itself in petty arts to elude the rapacity
to the administration of the empire, be- or divide the power of its enemies.
124 STATE OF EUROPE CHAP. VI.
stantinople was instantly transferred to his successor, and
the provinces implicitly obeyed the voice of the capital. The
custom too of partition, so baneful to the Latin kingdoms,
and which was not altogether unknown to the Saracens-,
never prevailed in the Greek empire. It stood in the middle
of the tenth century, as vicious indeed and cowardly, but
more wealthy, more enlightened, and far more secure from
its enemies, than under the first successors of Heraclius. For
about one hundred years preceding, there had been only par-
tial wars with the Mohammedan potentates ; and in these
the emperors seem gradually to have gained the advantage,
and to have become more frequently the aggressors. But
A D. the increasing distractions of the East encouraged
963-975. f.wo brave USUrpers, Nicephorus Phocas and John
Zimisces, to attempt the actual recovery of the lost provinces.
They carried the Roman arms (one may use the term with
less reluctance than usual) over Syria ; Antioch and Aleppo
were taken by storm, Damascus submitted ; even the cities
of Mesopotamia, beyond the ancient boundary of the Eu-
phrates, were added to the trophies of Zimisces, who
unwillingly spared the capital of the khalifate. From such
distant conquests it was expedient, and indeed necessary, to
withdraw ; but Cilicia and Antiocli were permanently re-
stored to the empire. At the close of the tenth century, the
emperors of Constantinople possessed the best and greatest
portion of the modern kingdom of Naples, a part of Sicily,
the whole European dominions of the Ottomans, the pro-
vince of Anatolia or Asia Minor, with some part of Syria
and Armenia.0
These successes of the Greek empire were certainly much
The Turks ratner due to the weakness of its enemies, than to
any revival of national courage and vigour ; yet
they would probably have been more durable, if the contest
had been only with the khalifate, or the kingdoms derived
from it. But a new actor was to appear on the stage of
Asiatic tragedy. The same Turkish nation, the slaves and
0 Gibbon, c. 52 and 53. The latter each, the facts are not grouped histori-
of these chapters contains as luminous a cally according to the order of time, but
sketch of the condition of Greece as the philosophically, according to their re-
former does of Saracenic history. In lations.
GREEKS, ETC. DURING THE MIDDLE AGES. 125
captives from which had become arbiters of the sceptre of
Bagdad, passed their original limits of the laxartes or Sihon.
The sultans of Ghazna, a dynasty whose splendid conquests
were of very short duration, had deemed it politic to divide
the strength of these formidable allies, by inviting a part of
them into Khorasan. They covered that fertile province with
their pastoral tents, and beckoned their compatriots to share
the riches of the south. The Ghaznevides fell the ™jscon-
earliest victims ; but Persia, violated in turn by A.D. idss.
every conqueror, was a tempting and unresisting prey. To-
grol Bek, the founder of the Seljukian dynasty of Turks,
overthrew the family of Bowides, who had long reigned at
Ispahan, respected the pageant of Mohammedan sovereignty
in the khalif of Bagdad, embraced with all his tribes the
religion of the vanquished, and commenced the attack upon
Christendom by an irruption into Armenia. His nephew
and successor Alp Arslan defeated and took pri-
T> T~\' II A.D. 10T1.
soner the emperor Komanus Diogenes ; and the
conquest of Asia Minor was almost completed by princes of
the same family, the Seljukians of Rum,p who were per-
mitted by Malek Shah, the third sultan of the Turks, to
form an independent kingdom. Through their own exer-
tions, and the selfish impolicy of rival competitors for the
throne of Constantinople, who bartered the strength of the
empire for assistance, the Turks became masters of the
Asiatic cities and fortified passes ; nor did there seem any
obstacle to the invasion of Europe/1
In this state of jeopardy, the Greek empire looked for aid
to the nations of the West, and received it in fuller The first
measure than was expected, or, perhaps, desired. Crusade-
The deliverance of Constantinople was, indeed, a very
secondary object with the Crusaders. But it was necessarily
included in their scheme of operations, which, though they
all tended to the recovery of Jerusalem, must commence
with the first enemies that lay on their line of march. The
Turks were entirely defeated, their capital of Nice restored
to the empire. As the Franks passed onwards, the emperor
p Rum, i. e. country of the Romans.
q Gibbon,- c. 57. De Guignes, Hist, des Huns, t. ii. 1. 2.
126 STATE OF EUKOPE. CHAP. VI.
Alexius Comnenus trod on their footsteps, and secured to
himself the fruits fof which their enthusiasm disdained to
wait. He regained possession of the strong places on the
JEgean shores, of the defiles of Bithynia, and of the entire
coast of Asia Minor, both on the Euxine and Mediterranean
seas, which the Turkish armies, composed of cavalry and
unused to regular warfare, could not recover/ So much
must undoubtedly be ascribed to the first crusade. But I
think that the general effect of these expeditions has been
overrated by those who consider them as having permanently
progress of retarded the progress of the Turkish power. The
the Greeks. Christians in Palestine and Syria were hardly in
contact with the Seljukian kingdom of Rum, the only ene-
mies of the empire ; and it is not easy to perceive that their
small and feeble principalities, engaged commonly in defend-
ing themselves against the Mohammedan princes of Meso-
potamia, or the Fatimite khalifs of Egypt, could obstruct
the arms of a sovereign of Iconium upon the Mseander or
the Halys. Other causes are adequate to explain the equi-
poise in which the balance of dominion in Anatolia was
kept during the twelfth century ; the valour and activity of
the two Comneni, John and Manuel, especially the former ;
and the frequent partitions and internal feuds, through
which the Seljukians of Iconium, like all other oriental
governments, became incapable of foreign aggression.
But whatever obligation might be due to the first crusaders
capture of from the Eastern Empire was cancelled by their
descendants one hundred years afterwards, when
the fourth in number of those expeditions was turned
to the subjugation of Constantinople itself. One of those
domestic revolutions which occur perpetually in Byzantine
history had placed an usurper on the imperial throne. The
lawful monarch was condemned to blindness and a prison ;
but the heir escaped to recount his. misfortunes to the fleet
and army of crusaders, assembled in the Dalmatian
port of Zara. This armament had been collected
for the usual purposes, and through the usual motives, tem-
r It does not seem perfectly clear reign of Alexius, or of his gallant son,
whether the sea-coast, north and south, John Comnenus. But the doubt is
was re-annexed to the empire during the hardly worth noticing.
GREEKS, ETC. DURING THE MIDDLE AGES. 127
poral and spiritual, of a crusade ; the military force chiefly
consisted of French nobles ; the naval was supplied by the
republic of Venice, whose doge commanded personally in
the expedition. It was not apparently consistent with the
primary object of retrieving the Christian affairs in Palestine,
to interfere in the government of a Christian empire; but
the temptation of punishing a faithless people, and the hope
of assistance in their subsequent operations, prevailed. They
turned their prows up the Archipelago; and, notwithstanding
the vast population and defensible strength of Constantinople,
compelled the usurper to fly, and the citizens to surrender.
But animosities springing from religious schism and national
jealousy were not likely to be allayed by such remedies ; the
Greeks, wounded in their pride and bigotry, regarded the
legitimate emperor as a creature of their enemies ready to
sacrifice their church, a stipulated condition of his restoration,
to that of Koine. In a few months a new sedition and con-
spiracy raised another usurper in defiance of the crusaders'
army encamped without the walls. The siege in-
stantly recommenced ; and after three months the
city of Constantinople was taken by storm. The tale of pil-
lage and murder is always uniform ; but the calamities of
ancient capitals, like those of the great, impress us more
forcibly. Even now we sympathize with the virgin majesty
of Constantinople, decked with the accumulated wealth of
ages, and resplendent with the monuments of Roman empire
and of Grecian art. Her populousness is estimated beyond
credibility : ten, twenty, thirty-fold that of London or Paris ;
certainly far beyond the united capitals of all European king-
doms in that age.3 In magnificence she excelled them more
than in numbers; instead of the thatched roofs, the mud
walls, the narrow streets, the pitiful buildings of those cities,
she had marble and gilded palaces, churches and monas-
teries, the works of skilful architects, through nine centuries,
gradually sliding from the severity of ancient taste into the
8 Ville Hardouin reckons the inhabit- p. 213. We should probably rate Lon-
ants of Constantinople at quatre censmil don, in 1204, too high at 60,000 souls,
hommes ou plus, by which Gibbon un- Paris had been enlarged by Philip Au-
derstands him to mean men of a military gustus, and stood on more ground than
age. Le Beau allows a million for the London. Delamare sur la Police, t. i.
whole population. Gibbon, vol. xi. p. 7tf.
128 STATE OF EUROPE CHAP. VI.
more various and brilliant combinations of eastern fancy.*
In the libraries of Constantinople were collected the remains
of Grecian learning ; her forum and hippodrome were deco-
rated with those of Grecian sculpture ; but neither would be
spared by undistinguishing rapine ; nor were the chiefs of
the crusaders more able to appreciate the loss than their sol-
diery. Four horses that breathe in the brass of Lysippus,
were removed from Constantinople to the square of St. Mark
at Venice ; destined again to become the trophies of war,
and to follow the alternate revolutions of conquest. But we
learn* from a contemporary Greek to deplore the fate of
many other pieces of sculpture which were destroyed in
wantonness, or even coined into brass money. u
The lawful emperor and his son had perished in the
Partition of rebellion that gave occasion to this catastrophe;
the empire. an(j there remained no right to interfere with that
of conquest. But the Latins were a promiscuous multitude,
and what their independent valour had earned was not to be
transferred to a single master. Though the name of em-
peror seemed necessary for the government of Constanti-
nople, the unity of despotic power was very foreign to the
principles and the interests of the crusaders. In their selfish
schemes of aggrandizement they tore in pieces the Greek
empire. One fourth only was allotted to the emperor, three-
eighths were the share of the republic of Venice, and the
remainder was divided among the chiefs. Baldwin, count
of Flanders, obtained the imperial title, with the feudal so-
vereignty over the minor principalities. A monarchy thus
dismembered had little prospect of honour or durability.
The Latin emperors of Constantinople were more con-
temptible and unfortunate, not so much from personal cha-
racter as political weakness, than their predecessors ; their
vassals rebelled against sovereigns not more powerful than
themselves; the Bulgarians, a nation, who, after being
1 0 quanta civitas, exclaims Fulk of opulentia bonorum omnium, auri et
Chartres a hundred years before, nobilis argenti palliorum multiformium, sacra-
et decora ! quot monasteria quotque pa- rumque reliquiarum. Omni etiam tem-
latia sunt in ea, opere mero fabrefacta! pore, navigio frequenti cuncta hominum
quo etiam in plateis vel in vicis opera ad necessaria illuc afferuntur. Du Chesne,
spectandum mirabilia! Tsedium est qui- Scrip. Rerum Gallicarum, t. iv. p. 822.
dem magnum recitare, quanta sit ibi u Gibbon, c. 60.
A.D. 1261.
GREEKS, ETC. DURING THE MIDDLE AGES. 129
long formidable, had been subdued by the imperial arms,
and only recovered independence on the eve of the Latin
conquest, insulted their capital ; the Greeks viewed them
with silent hatred, and hailed the dawning deliverance from
the Asiatic coast. On that side of the Bosphorus, The Greeks
, -r . . i n recover Con-
the Latin usurpation was scarcely tor a moment stantmopie.
acknowledged ; Nice became the seat of a Greek dynasty,
who reigned with honour as far as t the Mseander; and
crossing into Europe, after having established their
dominion throughout Romania and other pro-
vinces, expelled the last Latin emperors from Constan-
tinople in less than sixty years from its capture.
During the reign of these Greeks at Nice they had for-
tunately little to dread on the side of their former enemies,
and were generally on terms of friendship with the Seljukians
of Iconium. That monarchy, indeed, had sufficient objects of
apprehension for itself. Their own example in invasions of
changing the upland plains of Tartary for the cul- KariJS^
tivated valleys of the south was imitated in the thirteenth
century by two successive hordes of northern barbarians.
The Karismians, whose tents had been pitched on the lower
Oxus and Caspian Sea, availed themselves of the decline of
the Turkish power to establish their dominion in Persia, and
menaced, though they did not overthrow, the kingdom of
Iconium. A more tremendous storm ensued in the
irruption of Moguls under the sons of Zingis Khan.
From the farthest regions of Chinese Tartary issued a race
more fierce and destitute of civilization than those who had
preceded, whose numbers were told by hundreds of thou-
sands, and whose only test of victory was devastation. All
Asia, from the sea of China to the Euxine, wasted A D 1218
beneath the locusts of the north. They annihilated A-D- m2-
the phantom of authority which still lingered with the name
of khalif at Bagdad. They reduced into dependence and
finally subverted the Seljukian dynasties of Persia, Syria,
and Iconium. The Turks of the latter kingdom betook
themselves to the mountainous country, where they formed
several petty principalities, which subsisted by incursions
into the territory of the Moguls or the Greeks.
The chief of one of these, named Othman, at the
VOL. ii. i
A.D. 1299.
130 STATE OF EUROPE CHAP. VI.
end of the thirteenth century, penetrated into the province of
Bithynia, from which* his posterity were never withdrawn.31
The empire of Constantinople had never recovered the
Declining blow it received at the hands of the Latins. Most
Sek°fem-e of the islands in the Archipelago, and the provinces
pire. Of pr0per Greece from Thessaly southward, were
still possessed by those invaders. The wealth and naval
power of the empire had passed into the hands of the mari-
time republics"; Venice, Genoa, Pisa, and Barcelona were
enriched by a commerce which they carried on as inde-
pendent states within the precincts of Constantinople,
scarcely deigning to solicit the permission or recognise
the supremacy of its master. In a great battle
fought under the walls of the city between the
Venetian and Genoese fleets, the weight of the Roman em-
pire, in Gibbon's expression, was scarcely felt in the balance
of these opulent and powerful republics. Eight galleys were
the contribution of the emperor Cantacuzene to his Vene-
tian allies ; and upon their defeat he submitted to the igno-
miny of excluding them for ever from trading in his domi-
nions. Meantime the remains of the empire in Asia were
seized by the independent Turkish dynasties, of which the
most illustrious, that of the Ottomans, occupied
*** • ^e Prov^nce °f Bithynia. Invited by a Byzantine
faction into Europe, about the middle of the four-
teenth century, they fixed themselves in the neighbourhood
of the capital, and in the thirty years' reigri of Amurath I.,
subdued with little resistance the province of Romania,
and the small Christian kingdoms that had been formed
on the lower Danube. Bajazet, the successor of Amurath,
reduced the independent emirs of Anatolia to subjection,
and, after long threatening Constantinople, invested it by sea
and land. The Greeks called loudly upon their
A.D. 1396. , , „ TTT n . . ,
brethren 01 the West for aid against the common
enemy of Christendom ; but the flower of French chivalry
had been slain or taken in the battle of Nicopolis in Bul-
garia/ where the king of Hungary, notwithstanding the
* De Guignes, Hist, des Huns, t. iii. M<5moires de Boucicaut, c. 25. But
1. 15. Gibbon, c. 64. Froissart, who seems a fairer authority,
y The Hungarians fled in this battle, imputes the defeat to the rashness of the
and deserted their allies, according to the French. Part iv. ch. 79. The count
GBEEKS, ETC. DUKING THE MIDDLE AGES. 131
heroism of these volunteers, was entirely defeated by Bajazet.
The emperor Manuel left his capital with a faint hope of
exciting the courts of Europe to some decided efforts, by
personal representations of the danger ; and, during his ab-
sence, Constantinople was saved, not by a friend, indeed, but
by a power more formidable to her enemies than to herself.
The loose masses of mankind, that, without laws, agricul-
ture, or fixed dwellings, overspread, the vast central The Tartars
. „ . . , r. , . , . or Moguls of
regions of Asia, have, at various times, been im- Timur.
pelled by necessity of subsistence, or through the casual
appearance of a commanding genius, upon the domain of
culture and civilization. Two principal roads connect the
nations of Tartary with those of the west and south ; the one
into Europe along the sea of Azoph, and northern coast of
the Euxine ; the other across the interval between the Buk-
harian mountains and the Caspian into Persia. Four times
at least within the period of authentic history, the Scythian
tribes have taken the former course, and poured themselves
into Europe, but each wave was less effectual than the pre-
ceding. The first of these was in the fourth and fifth cen-
turies, for we may range those rapidly successive migrations
of the Goths and Huns together, when the Roman empire
fell to the ground, and the only boundary of barbarian con-
quest was the Atlantic ocean upon the shores of Portugal.
The second wave came on with the Hungarians in the tenth
century, whose ravages extended as far as the southern pro-
vinces of France. A third attack was sustained from the
Moguls under the children of Zingis, at the same period as
that which overwhelmed Persia. The Russian monarchy
was destroyed in this invasion, and for two hundred years
that great country lay prostrate under the yoke of the Tar-
tars. As they advanced, Poland and Hungary gave little
opposition ; and the farthest nations of Europe were appalled
by the tempest. But Germany was no longer as she had been
in the anarchy of the tenth century ; the Moguls were un-
used to resistance, and still less inclined to regular warfare ;
de Nevers (Jean Sans Peur, afterwards from which Boucicaut was saved by the
duke of Burgundy), who commanded interference of the count de Nevers, who
the French, was made prisoner with might better himself have perished with
others of the royal blood, and ransomed honour on that occasion, than survived
at a very high price. Many of eminent to plunge his country into civil war and
birth and merit were put to death ; a fate his name into infamy.
K 2
132 STATE OF EUROPE CHAP. VI.
they retired before the emperor Frederic II., and the utmost
points of their western invasion were the cities of
Lignitz in Silesia, and Neustadt in Austria. In
the fourth and last aggression of the Tartars, their progress
in Europe is hardly perceptible ; the Moguls of Timur's
army could only boast the destruction of Azoph, and the
pillage of some Russian provinces. Timur, the sovereign of
these Moguls, and founder of their second dynasty, which
has been more permanent and celebrated than that of Zingis,
had been the prince of a small tribe in Transoxiana, between
the Gihon and Sirr, the doubtful frontier of settled and pas-
toral nations. His own energy and the weakness of his neigh-
bours are sufficient to explain the revolution he effected.
Like former conquerors, Togrol Bek and Zingis, he chose
the road through Persia ; and meeting little resistance from
the disordered governments of Asia, extended his empire
on one side to the Syrian coast, while by successes still
more renowned, though not belonging to this place, it
reached on the other to the heart of Hindostan. In his old
age, the restlessness of ambition impelled him against the
Turks of Anatolia. Bajazet hastened from the siege of
££et°f Constantinople to a more perilous contest : his de-
A.Tu<k feat and captivity, in the plains of Angora, clouded
for a time the Ottoman crescent, and preserved the wreck
of the Greek empire for fifty years longer.
The Moguls did not improve their victory ; in the western
cSffif- Parts °f ^s*a' as m Hindostan, Timur was but a
nopie. barbarian destroyer, though at Samarcand a sove-
reign and a legislator. He gave up Anatolia to the sons of
Bajazet ; but the unity of their power was broken ; and the
Ottoman kingdom, like those which had preceded, expe-
rienced the evils of partition and mutual animosity. For
about twenty years an opportunity was given to the Greeks
of recovering part of their losses ; but they were incapable
of making the best use of this advantage, and, though they
regained possession of part of Romania, did not extirpate a
strong Turkish colony that held the city of Gallipoli in the
A.D.H21. Chersonesus. When Amurath II., therefore, re-
united under his vigorous sceptre the Ottoman
monarchy, Constantinople was exposed to another siege and
GREEKS, ETC. DUKING THE MIDDLE AGES. 133
to fresh losses. Her walls, however, repelled the enemy;
and during the reign of Amurath she had leisure to repeat
those signals of distress which the princes of Christendom
refused to observe. The situation of Europe was, indeed,
sufficiently inauspicious ; France, the original country of the
crusades and of chivalry, was involved in foreign and do-
mestic war ; while a schism, apparently interminable, rent
the bosom of the Latin church, and impaired the efficiency
of the only power that could unite and animate its disciples
in a religious war. Even when the Eoman pontiffs were
best disposed to rescue Constantinople from destruction, it
was rather as masters than as allies that they would inter-
fere ; their ungenerous bigotry, or rather pride, dictated the
submission of her church, and the renunciation of her fa-
vourite article of distinctive faith. The Greeks yielded
with reluctance and insincerity in the council of Florence ;
but soon rescinded their treaty of union. Eugenius IY.
procured a short diversion on the side of Hungary ; but
after the unfortunate battle of Warna, the Hun-
garians were abundantly employed in self-defence.
The two monarchies, which have successively held their
seat in the city of Constantine, may be contrasted in the
circumstances of their decline. In the present day we an-
ticipate, with an assurance that none can deem extravagant,
the approaching subversion of the Ottoman power ; but the
signs of internal weakness have not yet been confirmed by
the dismemberment of provinces ; and the arch of dominion,
that long since has seemed nodding to its fall, and totters
at every blast of the north, still rests upon the landmarks
of ancient conquest, and spans the ample regions from
Bagdad to Belgrade. Far different were the events that
preceded the dissolution of the Greek empire.
Every province was in turn subdued ; every city
opened her gates to the conqueror ; the limbs were lopped
off one by one ; but the pulse still beat at the heart ; and
the majesty of the Roman name was ultimately confined
to the walls of Constantinople. Before Mahomet II. planted
his cannon against them, he had completed every smaller
conquest, and deprived the expiring empire of every hope
of succour or delay. It was necessary that Constantinople
134 STATE OF EUROPE CHAP. VI.
should fall ; but the magnanimous resignation of her empe-
ror bestows an honour upon her fall, which her prosperity
seldom earned. The long deferred but inevitable moment
arrived ; and the last of the Caesars (I will not
say of the Paleeologi) folded round him the impe-
rial mantle, and remembered the name which he represented
in the dignity of heroic death. It is thus that the intel-
lectual principle, when enfeebled by disease or age, is
found to rally its energies in the presence of death, and
pour the radiance of unclouded reason around the last
struggles of dissolution.
Though the fate of Constantinople had been protracted
Alarm ex- beyond all reasonable expectation, the actual intel-
in E^rJpe* ligence operated like that of sudden calamity. A
sentiment of consternation, perhaps of self-reproach, thrilled
to the heart of Christendom. There seemed no longer any-
thing to divert the Ottoman armies from Hungary ; and if
Hungary should be subdued, it was evident that both Italy
and the German empire were exposed to invasion.2 A
general union of Christian powers was required to withstand
this common enemy. But the popes, who had so often
armed them against each other, wasted their spiritual and
political counsels in attempting to restore unanimity. War
was proclaimed against the Turks at the diet of Frankfort,
in 1454 ; but no efforts were made to carry the menace into
execution. No prince could have sat on the imperial throne
more unfitted for the emergency than Frederic III. : his
mean spirit and narrow capacity exposed him to the contempt
of mankind ; his avarice and duplicity ensured the hatred of
Austria and Hungary. During the papacy of Pius II.,
whose heart was thoroughly engaged in this legitimate cru-
sade, a more specious attempt was made by convening an
European congress at Mantua. Almost all the sovereigns
attended by their envoys ; it was concluded that 50,000 men
at arms should be raised, and a tax levied for three
A.B. 14B9. n 1 n i ntt
years or one-tenth from the revenues ot the clergy,
z Sive vincitur Hungaria, sive coacta fort ; which, though too declamatory,
jungitur Turns, neque Italia neque like most of his writings, is ail interesting
Germania tuta erit, neque satis Rhenus illustration of the state of Europe, and of
Gallos securos reddet. JEn. Sylv. p. 678. the impression produced by that calamity.
This is part of a discourse pronounced by Spondanus, ad ann. 1454, has given large
2Eneas Sylvius before the diet of Frank- extracts from this oration.
GREEKS, ETC. DURING THE MIDDLE AGES. 135
one-thirtieth from those of the laity, and one-twentieth from
the capital of the Jews.* Pius engaged to head this arma-
ment in person ; but when he appeared next year at Ancona,
the appointed place of embarcation. the princes had failed
in all their promises of men and money ; and he found only
a headlong crowd of adventurers, destitute of every neces-
sary, and expecting to be fed and paid at the pope's expense.
It was not by such a body that Mahomet could be expelled
from Constantinople. If the Christian sovereigns had given
a steady and sincere co-operation, the contest would still
have been arduous and uncertain. In the early cru- institution of
sades the superiority of arms, of skill, and even of Janizaries-
discipline, had been uniformly on the side of Europe. But
the present circumstances were far from similar. An insti-
tution, begun by the first and perfected by the second Amu-
rath, had given to the Turkish armies, what their enemies
still wanted, military subordination and veteran experience.
Aware, as it seems, of the real superiority of Europeans in
war, these sultans selected the stoutest youths from their
Bulgarian, Servian, or Albanian captives, who were edu-
cated in habits of martial discipline, and formed into a
regular force with the name of Janizaries. After conquest
had put an end to personal captivity, a tax of every fifth
male child was raised upon the Christian population for the
same purpose. The arm of Europe was thus turned upon
herself; and the western nations must have contended with
troops of hereditary robustness and intrepidity, whose emu-
lous enthusiasm for the country that had adopted them was
controlled by habitual obedience to their commanders.b
a Spondanus. Neither Charles VII. with which an ingenious orator can dis-
nor even Philip of Burgundy, who had guise the truth, while he seems to be
made the loudest professions, and pledged stating it most precisely. Conferamus
himself in a fantastic pageant at his nunc Turcos et vos iuvicem; et quid
court, soon after the capture of Constan- sperandum sit, si cum illis pugnetis, ex-
tinople, to undertake this crusade, were aminemus. Vos nati ad arma, illi tracti.
sincere in their promises. The former Vos armati, illi meirnes; vos gladios
pretended apprehensions of invasion from versatis, illi cultrisutuntur; vos balistas
England, as an excuse for sending no tenditis, illi arcus trahunt; vos loricse
troops; which, considering the situation thoracesqueprotegunt,illosculcitrategit;
of England in 1459, was a bold attempt vos equos regitis, illi ab equis reguntur;
upon the credulity of mankind. vos nobiles in bellum ducitis, illi servos
b In the long declamation of ./Eneas aut artifices cogunt, &c. &c. p. 685.
Sylvius before the diet of Frankfort in This, however, had little effect upon the
1454, he has the following contrast hearers, who were better judges of mili-
between the European and Turkish tary affairs than the secretary of Frederic
militia; a good specimen of the artifice III. Pius II., or JSneas Sylvius, was
136 STATE OF EUROPE CHAP. VI.
Yet forty years after the fall of Constantinople, at the
suspension of epoch of Charles VIII.'s expedition into Italy, the
the Ottoman . r , ,". n T\ • 1_ 1
conquests, just apprehensions 01 European statesmen might
have gradually subsided. Except the Morea, Negropont,
and a few other unimportant conquests, no real progress
had been made by the Ottomans. Mahomet II. had been
kept at bay by the Hungarians ; he had been repulsed with
some ignominy by the knights of St. John from the island
of Ehodes. A petty chieftain defied this mighty con-
queror for twenty years in the mountains of Epirus : and
the persevering courage of his desultory warfare with such
trifling resources, and so little prospect of ultimate success,
may justify the exaggerated admiration with which his
contemporaries honoured the name of Scanderbeg. Once
only the crescent was displayed on the Calabrian
coast ; but the city of Otranto remained but a
year in the possession of Mahomet. On his death a dis-
puted succession involved his children in civil war. Bajazet,
the eldest, obtained the victory ; but his rival brother Zizim
fled to Khodes, from whence he was removed to France,
and afterwards to Eome. Apprehensions of this exiled
prince seem to have dictated a pacific policy to the reign-
ing sultan, whose character did not possess the usual energy
of Ottoman sovereigns.
a lively writer and a skilful intriguer, use of their power to recover the rights
Long experience had given him a con- of the church. Some of his inducements
siderable insight into European politics; are curious, and must, if made public,
and his views are usually clear and have been highly gratifying to his friend
sensible. Though not so learned as some Frederic III. Quippe ut arbitramur, si
popes, he knew much better what was Christianus fuisses, mortuo Ladislao Un-
going forward in his own time. But the gariae et Bohemise rege, nemo prseter te
vanity of displaying his eloquence be- sua regna fuisset adeptus. Sperassent
trayed him into a strange folly, when he . Ungari post diuturna bellorum mala
addressed a very long letter to Mahomet sub tuo regimine pacem, et illos Bohemi
II., ^ explaining the Catholic faith, and secuti fuissent; sed cum esses nostne
urging him to be baptized; in which religionis hostis, elegerunt Ungari, &c.
case, so far from preaching a crusade Epist. 396.
against the Turks, he would gladly make
ECCLES. POWER. DUKING THE MIDDLE AGES. 137
CHAPTER, VII.
HISTORY OF ECCLESIASTICAL POWER DURING THE
MIDDLE AGES.
PAET I.
Wealth of the Clergy — its Sources — Encroachments on Ecclesiastical Property
— their Jurisdiction — - arbitrative — coercive — their political Power —
Supremacy of the Crown — Cliarlemayne — Change after his Death, and
Encroachments of the Church in the ninth Century — Primacy of the See of
Home — its early Stage — Gregory I. — Council of Frankfort — false De-
cretals — Progress of Papal Authority — Effects of Excommunication —
— Lothaire — - State of the Church in the tenth Century — Marriage of
Priests — Simony — Episcopal Elections — Imperial Authority over the
Popes — Disputes concerning Investitures — Gregory VII. and Henry IV.
— Concordat of Calixtus — Election by Chapters — general System of
Gregory VII. — Progress of Papal Usurpations in the twelfth Century —
Innocent III. — 7m Character and Schemes*
AT the irruption of the northern invaders into the Eoman
empire they found the clergy already endowed with exten-
sive possessions. Besides the spontaneous oblations upon
which the ministers of the Christian church had
originally subsisted, they had obtained, even under
the pagan emperors, by concealment or connivance,
for the Roman law did not permit a tenure of lands in
mortmain, certain immoveable estates, the revenues of which
were applicable to their own maintenance and that of the
poor.* These indeed were precarious, and liable to confis-
cation in times of persecution. But it was among the first
a Giannone, Istoria di Napoli, 1. ii. writer does not wholly confirm this po-
c. 8, Gibbon, c. 15 and c. 2<X F» Paul's sition ; but a comparison of the three
Treatise on Benefices, c. 4, The last seems to justify my text.
empire'
138 STATE OF EUKOPE CHAP. VII. PART I.
effects of the conversion of Constantine, to give not only a
security, but a legal sanction, to the territorial acquisitions
of the church. The edict of Milan, in 313, recognises the
actual estates of ecclesiastical corporations^ Another, pub-
lished in 321, grants to all the subjects of the empire the
power of bequeathing their property to the church.0 His
own liberality and that of his successors set an example
which did not want imitators. Passing rapidly from a con-
dition of distress and persecution to the summit of prosperity,
the church degenerated as rapidly from her ancient purity,
and forfeited the respect of future ages in the same pro-
portion as she acquired the blind veneration of her own.
Covetousness, especially, became almost a characteristic
vice. Valentinian I., in 370, prohibited the clergy from
receiving the bequests of women ; a modification more dis-
creditable than any general law could have been. And
several of the fathers severely reprobate the prevailing
avidity of their contemporaries."1
The devotion of the conquering nations, as it was still less
increased enlightened than that of the subjects of the empire,
after its sub- . .,, .„ •' rr,, . C
version. so was it still more munificent. Iney left indeed
the worship of Hesus and Taranis in their forests ; but they
retained the elementary principles of that and of all barbarous
idolatry, a superstitious reverence for the priesthood, a cre-
dulity that seemed to invite imposture, and a confidence in the
efficacy of gifts to expiate offences. Of this temper it is un-
deniable that the ministers of religion, influenced, probably,
not so much by personal covetousness as by zeal for the
interests of their order, took advantage. Many of the pecu-
liar and prominent characteristics in the faith and discipline
of those ages appear to have been either introduced, or sedu-
. lously promoted, for the purposes of sordid fraud. To those
purposes conspired the veneration for relics, the worship of
images, the idolatry of saints arid martyrs, the religious in-
violability of sanctuaries, the consecration of cemeteries, but,
above all, the doctrine of purgatory and masses for the relief
of the dead, A creed thus contrived, operating upon the
minds of barbarians, lavish though rapacious, and devout
b Gianuone. Gibbon, ubi supra. P. «i Giannone, ubi supra. F. Paul,
Paul, c. 5. c Id. ibid. c. 6.
ECCLES. POWER. DURING THE MIDDLE AGES. 139
though dissolute, naturally caused a torrent of opulence to
pour in upon the church. Donations of land were continually
made to the bishops, and, in still more ample proportion, to
the monastic foundations. These had riot been very nu-
merous in the West till the beginning of the sixth century,
when Benedict established his celebrated rule.6 A more
remarkable show of piety, a more absolute seclusion from
the world, forms more impressive and edifying, prayers and
masses more constantly repeated, gave to the professed in
these institutions an advantage, in public esteem, over the
secular clergy.
The ecclesiastical hierarchy never received any territorial
endowment by law, either under the Roman empire or the
kingdoms erected upon its ruins. But the voluntary muni-
ficence of princes, as well as their subjects, amply supplied
the place of a more universal provision. Large private
estates, or, as they were termed, patrimonies, not only within
their own dioceses, but sometimes in distant countries, sus-
tained the dignity of the principal sees, and especially that
of Rome.f The French monarchs of the first dynasty, the
Carlovingian family and their great chief, the Saxon line of
emperors, the kings of England and Leon, set hardly any
bounds to their liberality, as numerous charters still extant in
diplomatic collections attest. Many churches possessed seven
or eight thousand mansi ; one with but two thousand passed
for only indifferently rich.8 But it must be remarked, that
many of these donations are of lands uncultivated and un-
appropriated.11 The monasteries acquired legitimate riches
by the culture of these deserted tracts, and by the prudent
management of their revenues, which were less exposed to
the ordinary means of dissipation than those of the laity.
Their wealth, continually accumulated, enabled them to be-
come the regular purchasers of landed estates, especially in
the time of the crusades, when the fiefs of the nobility were
constantly in the market for sale or mortgage.1
e Giannone, 1. iii. c. 6 ; 1. iv. c. 12. g Schmidt, t. ii. p. 205.
Treatise on Benefices, c. 8. Fleury, h Muratori, Dissert. 65. Du Cange,
Huitieme Discours sur 1'Hist. Eccle- v. Erenius.
siastique. Muratori, Dissert. 65. ' Heeren, Essai sur les Croisades,
f St. Mare. t. i. p. 281. Giannone, p. 166. Schmidt, t. iii. p. 293.
1. iv. c. 12.
140 STATE OF EUROPE CHAP. VII. PART I.
If the possessions of ecclesiastical communities had all
sometimes been as fairly .earned, we could find nothing in them
• ™quSriy to reprehend. But other sources of wealth were
less pure, arid they derived their wealth from many sources.
Those who entered into a monastery threw frequently their
whole estates into the common stock, and even the children
of rich parents were expected to make a donation of land on
assuming the cowl. Some gave their property to the church
before entering on military expeditions ; gifts were made by
some to take effect after their lives, and bequests by many
in the terrors of dissolution. Even those legacies to charitable
purposes, which the clergy could with more decency and spe-
ciousness recommend, and of which the administration was
generally confined to them, were frequently applied to their
own benefit.k They failed not, above all, to inculcate upon
the wealthy sinner that no atonement could be so acceptable
to heaven as liberal presents to its earthly delegates.™ To
die without allotting a portion of worldly wealth to pious
uses was accounted almost like suicide, or a refusal of the
last sacraments, and hence intestacy passed for a sort of
fraud upon the church, which she punished by taking the
administration of the deceased's effects into her own hands.
This, however, was peculiar to England, and seems to have
been the case there only from the reign of Henry III. to
that of Edward III., when the bishop took a portion of the
intestate's personal estate, for the advantage of the church
and poor, instead of distributing it among his next of kin.n
The canonical penances imposed upon repentant offenders,
extravagantly severe in themselves, were commuted for
k Primo sacris pastoribus data est fa- declares that, struck with reflections upon
cultas, ut hsereditatis portio in pauperes his sinful state, he had taken counsel
et egenos dispergeretur ; sed sensim with certain religious, how he should
ecclesiae quoque in pauperum censum atone for his offences. Accepto consilio
venerunt, atque intestatse gentis mens ab iis, excepto ei renunciare sseculo pos-
credita est proclivior in eas futura fuisse : sem, nullum esse melius inter eleemosi-
qu& ex re pinguius illarum patrimonium naruin virtutes, quam si depropriis meis
evasit. Immo episcopi ipsi in rem suam substantiis in monasterium concederem.
ejusmodi consuetudinem interdum con- Hoc consilium ab iis libenter, et arden-
vertebant: ac tributum evasit, quod tissimo animo ego accepi.
antea pii moris fuit. Muratori, Anti- n Selden, vol. iii. p. 1676. Prynne's
quitates Italise, t. v. Dissert. 67. Constitutions, vol. iii. p. 18. Blackstone,
m Muratori, Dissert. 67 (Antiquit. vol. ii. chap. 32. In France the lord of
Italise, t. v. p. 1055), has preserved a the fief seems to have taken the whole
curious charter of an Italian count, who spoil. Du Cange, v. Intestatus.
ECCLES. POWEK. DURING THE MIDDLE AGES. 141
money or for immoveable possessions : a fertile though scan-
dalous source of monastic wealth, which the popes afterwards
diverted into their own coffers by the usage of dispensations
and indulgences.0 The church lands enjoyed an immunity
from taxes, though not in general from military service,
when of a feudal tenure.p But their tenure was frequently
in what was called frankalmoign, without any obligation of
service. Hence it became a customary fraud of lay pro-
prietors to grant estates to the church, which they received
again by way of fief or lease, exempted from public burthens.
And, as if all these means of accumulating what they could
not legitimate] y enj oy were insufficient, the monks prostituted
their knowledge of writing to the purpose of forging charters
in their own favour, which might easily impose upon an
ignorant age, since it has required a peculiar science to
detect them in modern times. Such rapacity might seem
incredible in men cut off from the pursuits of life and the
hope of posterity, if we did not behold every day the un-
reasonableness of avarice and the fervour of professional
attachments."1
As an additional source of revenue, and in imitation of
the Jewish law, the payment of tithes was recom-
mended or enjoined. These, however, were not
applicable at first to the maintenance of a resident clergy.
Parochial divisions, as they now exist, did not take place,
at least in some countries, till several centuries after the es-
tablishment of Christianity.1" The rural churches, erected
0 Muratori, Dissert. 68. q Muratori's 65th, 67th, and 68th
p Palgrave has shown that the Anglo- Dissertations on the Antiquities of Italy
Saxon clergy were not exempt, originally have furnished the principal materials of
at least, from the trinoda necessitas im- my text, with Father Paul's Treatise on
posed on all alodial proprietors. They Benefices, especially chaps. 19 and 29;
were better treated on the Continent; Giannone, loc. cit. and 1. iv. c. 12;
and Boniface exclaims, that in no part of 1. v. c. 6; 1.x. c. 12. Schmidt, Hist.
the world was such servitude imposed on des Allemands, t. i. p. 370 ; t. ii. p. 203,
the church as among the English. 462 ; t. iv. p. 202. Fleury, III. Dis-
English Commonwealth, i. 158. But cours sur 1'Hist. Eccles. Du Cange, voc.
when we look at the charters collected Precaria.
in Kemble's Codex Diplomaticus (most r Muratori, Dissert. 74, and Fleury,
or nearly all of them in favour of the Institutions au Droit eccle'siastique, t. i.
church), we shall hardly think they were p. 1 62, refer the origin of parishes to the
ill off, though they might be forced fourth century ; but this must be limited
sometimes to repair a bridge, or send to the most populous parts of the em-
their tenants against the Danes. pire.
Tithes.
142 STATE OF EUROPE CHAP. VII. PART I.
successively as the necessities of a congregation required or
the piety of a landlord suggested, were in fact a sort of
chapels dependent on the cathedral, and served by itinerant
ministers at the bishop's discretion.8 The bishop himself
received the tithes, and apportioned them as he thought fit.
A capitulary of Charlemagne, however, regulates their di-
vision into three parts ; one for the bishop and his clergy,
a second for the poor, and a third for the support of the
fabric of the church.* Some of the rural churches obtained
by episcopal concessions the privileges of baptism and burial,
which were accompanied with a fixed share of tithes and
seem to imply the residence of a minister. The same pri-
vileges were gradually extended to the rest, and thus a
complete parochial division was finally established. But
this was hardly the case in England till near the time of
the conquest."
The slow and gradual manner in which parochial churches
became independent appears to be of itself a sufficient answer
to those who' ascribe a great antiquity to the universal pay-
ment of tithes. There are, however, more direct proofs
that this species of ecclesiastical property was acquired not
only by degrees but with considerable opposition. We find
the payment of tithes first enjoined by the canons of a pro-
vincial council in France, near the end of the sixth century.
8 These were not always itinerant ; suis constituunt, vel de ecclesiis dejici-
commonly, perhaps, they were depend- unt." Thus the churches are recognised
cuts of the lord, appointed by the bishop as the property of the lord ; and the pa-
on his nomination. — Lehuerou, Institut. rish may be considered as an established
Carolingiennes, p. 526, who quotes a ca- division, at least very commonly, so
pitulary of the emperor Lothaire in 825. early as the Carlovingian empire. I do
"De clericis vero laicorum, unde non- not by any means deny that it was par-
nulli eorum conqueri videantur, eo quod tially known in France before that time,
quidam episcopi ad eorum preces nolint Guizot reckons the patronage of
in ecclesiis suis eps, cum utiles sint, ordi- churches by the laity among the circum-
nare, visum nobis fuit, ut . . . . et cum stances which diminished or retarded
caritate et ratione utiles et idonei eli- ecclesiastical power. vXe9onl3.) It may
gantur ; et si laicus idoneum utilemque have been so ; but without this patronage
clericum obtulerit nulla qualibet occa- there would have been very few parish
sione ab episcopo sine ratione certa re- churches. It separated, in some degree,
pellatur ; et si rejiciendus est, propter the interests of the secular clergy from
scandalum vitandum evidenti ratione those of the bishops and the regulars,
manifestetur." Another capitulary of * Schmidt, t. ii. p. 206. This seems
Charles the Bald, in 864, forbids the es- to have been founded on an ancient canon,
tablishment of priests in the churches of F. Paul, c. 7.
patrons, or their ejection without the u Collier's Ecclesiastical History,
bishop's consent: — "De his qui sine p. 229.
consensu episcopi presbyteros in ecclesiis
ECCLES. POWER. DUBING THE MIDDLE AGES. 143
From the ninth to the end of the twelfth, or even later, it
is continually enforced by similar authority .x Father Paul
remarks, that most of the sermons preached about the eighth
century inculcate this as a duty, and even seem to place the
summit of Christian perfection in its performance/ This
reluctant submission of the people to a general and perma-
nent tribute is perfectly consistent with the eagerness dis-
played by them in accumulating' voluntary donations upon
the church. Charlemagne was the first who gave the con-
firmation of a civil statute to these ecclesiastical injunctions ;
no one at least has, so far as I know, adduced any earlier law
for the payment of tithes than one of his capitularies.2 But
it would be precipitate to infer, either that the practice had
not already gained ground to a considerable extent, through
the influence of ecclesiastical authority, or, on the other hand,
that it became universal inconsequence of the commands of
Charlemagne.* In the subsequent ages it was very com-
mon to appropriate tithes, which had originally been payable
to the bishop, either towards the support of particular
churches, or, according to the prevalent superstition, to mo-
nastic foundations.1* These arbitrary consecrations, though
the subject of complaint, lasted, by a sort of prescriptive
right of the landholder, till about the year 1200. It was
nearly at the same time that the obligation of paying tithes,
which had been originally confined to those called predial,
or the fruits of the earth, was extended, at least in theory,
to every species of profit, and to the wages of every kind
of labour.6
* Selden's History of Tithes, vol. iii. which, admits of no question; and I
p. 1108, edit. Wilkins. Tithes are said believe that there are others in con-
by Giannone to have been enforced by firmation.
some papal decrees in the sixth century. a The grant of Ethelwolf in 855
1. iii. c. 6. has appeared to some antiquaries the
y Treatise on Benefices, c. 11. most probable origin of the general right
* Mably (Observations sur 1'Hist. de to tithes in England. [NOTE I.] It
France, t. i. p. 238 et 438) has, with re- is said by Marina that tithes were not
markable rashness, attacked the current legally established in Castile till the
opinion that Charlemagne established reign of Alfonso X. Ensayo sobre las
the legal obligation of tithes, and denied siete partidas, c. 359.
that any of his capitularies bear such an b Selden, p. 1114, et seq. Coke,
interpretation. Those which he quotes 2 Inst. p. 641.
have indeed a different meaning ; but he c Selden's History of Tithes. Trea-
has overlooked an express enactment in tise on Benefices, c. 28. Giannone, 1. x.
789 (Baluzii Capitularia, t. i. p. 253), c. 12.
144 STATE OF EUEOPE CHAP. VII. PART I.
Yet there were many hindrances that thwarted the clergy
spoliation in their acquisition of opulence, and a sort of reflux
procpeurtyh that set sometimes very strongly against them. In
times of barbarous violence nothing can thoroughly com-
pensate for the inferiority of physical strength and prowess.
The ecclesiastical history of the middle ages presents one
long contention of fraud against robbery ; of acquisitions
made by the church through such means as I have described,
and torn from her by lawless power. Those very men who,
in the hour of sickness and impending death, showered the
gifts of expiatory devotion upon her altars, had passed the
sunshine of their lives in sacrilegious plunder. Notwith-
standing the frequent instances of extreme reverence for re-
ligious institutions among the nobility, we should be deceived
in supposing this to be their general character. Rapacity,
not less insatiable than that of the abbots, was commonly
united with a daring fierceness that the abbots could not
resist.d In every country we find continual lamentation over
the plunder of ecclesiastical possessions. Charles Martel is
reproached with having given the first notorious example of
such spoliation. It was not, however, commonly practised
by sovereigns. But the evil was not the less universally
felt. The parochial tithes, especially, as the hand of robbery
falls heaviest upon the weak, were exposed to unlawful
seizure. In the tenth and eleventh centuries nothing was
more common than to see the revenues of benefices in the
hands of lay irnpropriators, who employed curates at the
cheapest rate ; an abuse that has never ceased in the church.6
Several attempts were made to restore these tithes ; but
even Gregory VII. did not venture to proceed in it ;f and
d The church was often compelled to and the uncertainty of its renewal seems
grant leases of her lands, under the name to have given rise to the adjective preca-
of precarice, to laymen, who probably rious.
rendered little or no service in return, In the ninth century, though the pre-
though a rent or census was expressed in tensions of the bishops were never higher,
the instrument. These precarice seem to the church itself was more pillaged
have been for life, but were frequently under pretext of these precarice, and in
renewed. They are not to be confounded other ways, than at any former time. —
with terras censuales, or lands let to a See Du Cange for a long article on Pre-
tenant at rack-rent, which of course cariae.
formed a considerable branch of revenue. e Du Cange, voc. Abbas.
The grant was called precaria from being f Schmidt, t. iv. p. 204. At an as-
obtained at the prayer of the grantee; sembly held at St. Denis in 997, the
ECCLES. POWER. DUKING THE MIDDLE AGES. 145
indeed it is highly probable that they might be held in some
instances by a lawful title.8 Sometimes the property of
monasteries was dilapidated by corrupt abbots, whose acts,
however clandestine and unlawful, it was not easy to revoke.
And both the bishops and convents were obliged to invest
powerful lay protectors, under the name of advocates, with
considerable fiefs, as the price of their assistance against
depredators. But these advocates became too often them-
selves the spoilers, and oppressed the helpless ecclesiastics
for whose defence they had been engaged.11
If it had not been for these drawbacks, the clergy must,
one would imagine, have almost acquired the exclusive pro-
perty of the soil. They did enjoy, according to some
authorities, nearly one half of England, and, I believe, a
greater proportion in some countries of Europe.1 They had
reached, perhaps, their zenith in respect of territorial pro-
perty about the conclusion of the twelfth century .k After
that time the disposition to enrich the clergy by pious
donations grew more languid, and was put under certain
legal restraints, to which I shall hereafter advert, but they
became rather more secure from forcible usurpations.
The acquisitions of wealth by the church were hardly so
remarkable, and scarcely contributed so much to Ecciesias-
, .•> . , ,. ticaljuris-
her greatness, as those innovations upon the ordi- diction.
bishops proposed to restore the tithes to a calculation founded on a passage in
the secular clergy; but such a tumult Knyghton, the revenue of the English
was excited by this attempt, that the church in 1337 amounted to 730,000
meeting was broken up. Recueil des marks per annum. Macpherson's An-
Historiens, t. xi. prsefat. p. 212. nals of Commerce, vol. i. p. 519. His-
g Selden's Hist, of Tithes, p. 1136. toire du Droit public Eccle's. Fran9ois,
The third council of Lateran restrains t. i. p. 214. Anthony Harmer (Henry
laymen from transferring their impro- Wharton) says that the monasteries did
priated tithes to other laymen. Velly, not possess one-fifth of the land; and I
Hist, de France, t. iii. p. 235. This incline to think that he is nearer the
seems tacitly to admit that their posses- truth than Mr. Turner, who puts the
sion was lawful, at least by prescription, wealth of the church at above 28,000
h For the injuries sustained by eccle- knights' fees out of 53,215. The bishops'
siastical proprietors, see Muratori, Dis- lands could not by any means account
sert. 72. Du Cange, v. Advocatus. for the difference; so hat Mr. Turnert
Schmidt, t. ii. p. 220, 470; t. iii. p. 290; was probably deceived by his authority.
t. iv. p. 188, 202. Kecueil des His- k The great age of monasteries in
toriens, t. xi. praefat. p. 184. Martenne, England was the reigns of Henry I.,
Thesaurus Anecdotorum, t. i. p. 595. Stephen, and Henry II. Lyttelton's
Vaissette, Hist, de Languedoc, t. ii. Henry II., vol. ii. p. 329. David I. of
p. 109, and Appendix, passim. Scotland, contemporary with Henry II.,
' Turner's Hist, of England, vol. ii. was also a noted founder of monasteries.
p. 413, from Avesbury. According to Dalrymple's Annals.
VOL. II. L
146 STATE OF EUROPE CHAP. VII. PART I.
nary course of justice which fall under the head of ecclesi-
astical jurisdiction and immunity. It is hardly, perhaps,
necessary to caution the reader that rights of territorial
justice, possessed by ecclesiastics in virtue of their fiefs, are
by no means included in this description. Episcopal juris-
diction, properly so called, may be considered as depending
upon the choice of litigant parties, upon their condition, and
upon the subject matter of their differences.
1. The arbitrative authority of ecclesiastical pastors, if not
coeval with Christianity, grew up very early in the
!" church, and was natural, or even necessary, to an
insulated and persecuted society.™ Accustomed to feel a
strong aversion to the imperial tribunals, and even to con-
sider a recurrence to them as hardly consistent with their
profession, the early Christians retained somewhat of a simi-
lar prejudice even after the establishment of their religion.
The arbitration of their bishops still seemed a less objection-
able mode of settling differences. And this arbitrative juris-
diction was powerfully supported by a law of Constantine,
which directed the civil magistrate to enforce the execution
of episcopal awards. Another edict, ascribed to the same
emperor, and annexed to the Theodosian code, extended the
jurisdiction of the bishops to all causes which either party
chose to refer to it, even where they had already commenced
in a secular court, and declared the bishop's sentence not sub-
ject to appeal. This edict has clearly been proved to be a
forgery. It is evident, by a novel of Valentinian III., about
450, that the church had still no jurisdiction in questions of
a temporal nature, except by means of the joint reference of
contending parties. Some expressions, indeed, used by the
emperor, seem intended to repress the spirit of encroachment
upon the civil magistrates, which had probably begun to
manifest itself. Charlemagne, indeed, in one of his capitu-
laries, is said by some modern writers to have repeated all
the absurd and enormous provisions of the spurious consti-
tution in the Theodosian code.n But this capitulary is
n I Corinth, v. 4. The word sgwft- cive authority, referees. The passage at
vnuivovs, , rendered in our version "of no least tends to discourage suits before a
reputation," has been interpreted by secular j udge.
some to mean persons destitute of coer- " Baluzii Capitularia, t. i. p. 9018.
ECCLES. POWER, DURING THE MIDDLE AGES. 147
erroneously ascribed to Charlemagne. It is only found in
one of the three books subjoined by Benedict Levita to the
four books of capitularies collected by Ansegisus ; these
latter relating only to Charlemagne and Louis, but the
others comprehending many of later emperors and kings.
And, what is of more importance, it seems exceedingly
doubtful whether this is any genuine capitulary at all. It
is not referred to any prince by name, nor is it found in any
other collection. Certain it is, that we do not find the
church, in her most arrogant temper, asserting the full
privileges contained in this capitulary.0
2. If it was considered almost as a general obligation upon
the primitive Christians to decide their civil disputes coercive over
- f ,,.. , iii'i ^e clergy in
by internal arbitration, much more would this be CMI
incumbent upon the clergy. The canons of several councils,
in the fourth and fifth centuries, sentence a bishop or priest
to deposition, who should bring any suit, civil or even cri-
minal, before a secular magistrate. This must, it should
appear, be confined to causes where the defendant was a
clerk, since the ecclesiastical court had hitherto no coercive
jurisdiction over the laity. It was not so easy to induce
laymen, in their suits against clerks, to prefer the episcopal
tribunal. The emperors were not at all disposed to favour
this species of encroachment till the reign of Justinian, who
ordered civil suits against ecclesiastics to be carried only be-
fore the bishops. Yet this was accompanied by a provision
that a party dissatisfied with the sentence might apply to the
secular magistrate, not as an appellant, but a co-ordinate
jurisdiction, for if different judgments were given in the two
courts, the process was ultimately referred to the emperor.p
But the early Merovingian kings adopted the exclusive juris-
diction of the bishop over causes wherein clerks were in-
terested, without any of the checks which Justinian had
provided. Many laws enacted during their reigns, and under
° Gibbon, c. xx. Giannone, 1. ii. c. 8; p This was also established about the
1. iii. c. 6; 1. vi. c. 7. Schmidt, t. ii. same time by Athalaric, king of the
p. 208. Fleury, 7me Discours, and In- Ostrogoths, and of course affected the
stitutions au Droit Ecclesiastique, t. ii. popes who were his subjects. St. Marc,
p. 1. Memoires de 1'Acade'mie des In- t. i. p. 60. Fleury, Hist. Eccles. t. vii.
scriptions, t. xxxix. p. 566. p. 292.
L2
148 STATE OF EUROPE CHAP. VII. PART I.
Charlemagne, strictly prohibit the temporal magistrates from
entertaining complaints against the children of the church.
This jurisdiction over the civil causes of clerks was not
and criminal immediately attended with an equally exclusive
suits. cognizance of criminal offences imputed to them,
wherein the state is so deeply interested, and the church
could inflict so inadequate a punishment. Justinian appears
to have reserved such offences for trial before the imperial
magistrate, though with a material provision that the sen-
tence against a clerk should not be executed without the con-
sent of the bishop or the final decision of the emperor. The
bishop is not expressly invested with this controlling power
by the laws of the Merovingians ; but they enact that he
must be present at the trial of one of his clerks, which pro-
bably was intended to declare the necessity of his concurrence
in the judgment. The episcopal order was indeed absolutely
exempted from secular jurisdiction by Justinian ; a privilege
which it had vainly endeavoured to establish under the earlier
emperors. France permitted the same immunity; Chilperic,
one of the most arbitrary of her kings, did not venture to
charge some of his bishops with treason, except before a
council of their brethren. Finally, Charlemagne seems to
have extended to the whole body of the clergy an absolute
exemption from the judicial authority of the magistrate.*1
3. The character of a cause, as well as of the parties
over parti- engaged, might bring it within the limits of eccle-
cuiar causes. siastical jurisdiction. In all questions simply re-
ligious the church had an original right of decision ; in those
of a temporal nature, the civil magistrate had, by the im-
perial constitution, as exclusive an authority/ Later ages
witnessed strange innovations in this respect, when the
spiritual courts usurped, under sophistical pretences, almost
q Me"moires de 1' Academic, ubi supra, forcibly in the collection published by
Giannone, 1. iii. c. 6. Schmidt, t. ii. Ansegisus under Louis the Debonair,
p. 236. Fleury, ubi supra. (Id. pp. 904 and 1115.) See other proofs
Some of these writers do not state the in Fleury, Hist. Eccles. t. ix. p. 607.
law of Charlemagne so strongly. Never- r Quoties de religione agitur, epi-
theless the words of a capitulary in 789, scopos oportet judicare ; alteras vero
Ut clerici ecclesiastici ordinis si culpam causas quse ad ordinaries cognitores vel
incurrerint apud ecclesiasticos judicen- ad usurn publici juris pertinent, legibus
tur, non apud sseculares, are sufficiently oportet audiri. Lex Arcadii et Honorii
general (Baluz. Capitul. t. i. p. 227); apud Mem. de 1' Academic, t. xxxix.
and the same is expressed still more p. 571.
ECCLES. POWER. DURING THE MIDDLE AGES. 149
the whole administration of justice. But these encroachments
were not, I apprehend, very striking till the twelfth century ;
and as about the same time measures, more or less vigorous
and successful, began to be adopted in order to restrain
them, I shall defer this part of the subject for the present.
In this sketch of the riches and jurisdiction of the hierarchy,
I may seem to have implied their political influence, Political
which is naturally connected with the two former. §Sgy.°
They possessed, however, more direct means of acquiring
temporal power. Even under the Roman emperors they had
found their road into palaces ; they were sometimes mini-
sters, more often secret counsellors, always necessary, but
formidable allies, whose support was to be conciliated and
interference to be respected. But they assumed a far more
decided influence over the new kingdoms of the West. They
were entitled, in the first place, by the nature of those free
governments, to a privilege unknown under the imperial
despotism, that of assisting in the deliberative assemblies of
the nation. Councils of bishops, such as had been convoked
by Constantine and his successors, were limited in their
functions to decisions of faith, or canons of ecclesiastical
discipline. But the northern nations did not so well pre-
serve the distinction between secular and spiritual legislation.
The laity seldom, perhaps, gave their suffrage to the canons
of the church ; but the church was not so scrupulous as to
trespassing upon the province of the laity. Many provisions
are found in the canons of national and even provincial
councils, which relate to the temporal constitution of the
state. Thus one held at Calcluith (an unknown place in
England), in 787, enacted that none but legitimate princes
should be raised to the throne, and not such as were en-
gendered in adultery or incest. But it is to be observed
that, although this synod was strictly ecclesiastical, being
summoned by the pope's legate, yet the kings of Mercia and
Northumberland, with many of their nobles, confirmed the
canons by their signature. As for the councils held under
the Visigoth kings of Spain during the seventh century, it is
not easy to determine whether they are to be considered as
ecclesiastical or temporal assemblies.8 No kingdom was so
* Marina, Teoria de las Cortes, t. i. p. 9.
150 STATE OF EUROPE CHAP. VII. PART I.
thoroughly under the bondage of the hierarchy as Spain/
The first dynasty of France seem to have kept their na-
tional convention, called the Field of March, more distinct
from merely ecclesiastical councils.
The bishops acquired and retained a great part of their
ascendency by a very respectable instrument of power, intel-
lectual superiority. As they alone were acquainted with the
art of writing, they were naturally intrusted with political
correspondence and with the framing of the laws. As they
alone knew the elements of a few sciences, the education of
royal families devolved upon them as a necessary duty. In
the fall of Rome their influence upon the barbarians wore
down the asperities of conquest, and saved the provincials
half the shock of that tremendous revolution. As captive
Greece is said to have subdued her Roman conqueror, so
Rome, in her own turn of servitude, cast the fetters of a moral
captivity upon the fierce invaders of the north. Chiefly
through the exertions of the bishops, whose ambition may
be forgiven for its effects, her religion, her language, in part
even her laws, were transplanted into the courts of Paris
and Toledo, which became a degree less barbarous by
imitation."
Notwithstanding, however, the great authority and privi-
supremacy leges of the church, it was decidedly subject to the
of ae state; supremacy of the crown, both during the con-
tinuance of the Western empire, and after its subversion.
The emperors convoked, regulated, and dissolved universal
councils ; the kings of France and Spain exercised the same
right over the synods of their national churches.x The
Ostrogoth kings of Italy fixed by their edicts the limits
within which matrimony was prohibited on account of con-
sanguinity, and granted dispensations from them/ Though
1 See instances of the temporal power vours to extenuate the royal supremacy,
of the Spanish bishops in Fleury, Hist, but his own work furnishes abundant
Eccles. t. viii. p. 368, 397; t. ix. p. 68, evidence of it; especially 1. vi. c. 19,
&c. &c. For the ecclesiastical independence
u Schmidt, t. i. p. 365. of Spain, down to the eleventh century,
* Encyclope'die, art. Concile. Schmidt, see Marina, Ensayo sobre las siete par-
t. i. p. 384. De Marea, De Concordat tidas, c. 322, &c. ; and De Marca, 1. vi.
tia Sacerdotii et Imperii, 1. ii. c. 9, 11; c. 23.
et 1. iv. passim. * Qiannone, 1. iii. c. 6.
The last of these sometimes endea-
ECCLES. POWER. DURING THE MIDDLE AGES. 151
the Roman emperors left episcopal elections to the clergy
and people of the diocese, in which they were followed by
the Ostrogoths and Lombards, yet they often interfered so
far as to confirm a decision, or to determine a contest. The
kings of France went further, and seem to have invariably
either nominated the bishops, or, what was nearly tanta-
mount, recommended their own candidate to the electors.
But the sovereign who maintained with the greatest vigour
his ecclesiastical supremacy was Charlemagne, especially
Most of the capitularies of his reign relate to the ma^erie'
discipline of the church ; principally indeed taken from the
ancient canons, but not the less receiving an additional sanc-
tion from his authority.2 Some of his regulations, which
appear to have been original, are such as men of high church
principles would, even in modern times, deem infringements
of spiritual independence; that no legend of doubtful autho-
rity should be read in the churches, but only the canonical
books, and that no saint should be honoured whom the whole
church did not acknowledge. These were not passed in a
synod of bishops, but enjoined by the sole authority of the
emperor, who seems to have arrogated a legislative power
over the church which he did not possess in temporal affairs.
Many of his other laws relating to the ecclesiastical constitu-
tion are enacted in a general council of the lay nobility as well
as of prelates, and are so blended with those of a secular
nature that the two orders may appear to have equally con-
sented to the whole. His father Pepin, indeed, left a re-
markable precedent in a council held in 744, where the
Nicene faith is declared to be established, and even a parti-
cular heresy condemned, with the consent of the bishops and
nobles. But whatever share we may imagine the laity in
general to have had in such matters, Charlemagne himself
did not consider even theological decisions as beyond his
province ; and, in more than one instance, manifested a de-
termination not to surrender his own judgment, even in
questions of that nature, to any ecclesiastical authority .a
' BaluziiCapitulana, passim. Schmidt, vised an ecclesiastical theory, which
t. ii. p. 239. Qaillard, Vie de Charle- would now be called Erastian, and per-
magne, t. iii. baps not very short of that of Henry VIII.
a Charlemagne had apparently de- He directs the clergy what to preach in
152 STATE OF EUROPE CHAP. VII. PART I.
This part of Charlemagne's conduct is duly to be taken
into the account before we censure his vast extension of
ecclesiastical privileges. Nothing was more remote from
his character than the bigotry of those weak princes, who
have suffered the clergy to reign under their names. He
acted upon a systematic plan of government, conceived by
his own comprehensive genius, but requiring too continual
an application of similar talents for durable execution. It
was the error of a superior mind, zealous for religion and
learning, to believe that men dedicated to the functions of
the one, and possessing what remained of the other, might,
through strict rules of discipline, enforced by the constant
vigilance of the sovereign, become fit instruments to reform
and civilise a barbarous empire. It was the error of a mag-
nanimous spirit to judge too favourably of human nature,
and to presume that great trusts would be fulfilled and
great benefits remembered.
It is highly probable, indeed, that an ambitious hierarchy
did not endure without reluctance this imperial supremacy of
Charlemagne, though it was not expedient for them to resist
a prince so formidable and from whom they had so much
pretensions to expect. But their dissatisfaction at a scheme of
of the mer- . . .
archymthe government incompatible with their own obiects
ninth cen- ~ p • i i i
tuiy. ot perfect independence produced a violent recoil
under Louis the Debonair, who attempted to act the censor
of ecclesiastical abuses with as much earnestness as his father,
though with very inferior qualifications for so delicate an
his own name, and uses the first person essential to the polity of his age and
in ecclesiastical canons. Yet, if we may with which he would not, for several
judge by the events, the bishops lost no reasons, have wholly dispensed. Yet it
part of their permanent ascendency in the appears, by a remarkable capitulary of
state through this interference, though 811, that he had perceived the inconve-
compelled to acknowledge the supremacy nience of allowing the secular and spi-
of a great mind. By a vigorous repres- ritual powers to clash with each other-
sion of those secular propensities which — Discutiendum est atque intervenien-
were displaying themselves among the dum in quantum se episcopus aut abbas
superior clergy, he endeavoured to render rebus secularibus debeat inserere vel in
their moral influence more effective, quantum comes, vel alter laicus in eccle-
Ihis, however, could not be achieved in siastica negotia. But as the laity him-
the ninth century; nor could it Lave self excepted, had probably interfered
been brought about by any external very little in church affairs, this capitu-
power. Nor was it easily consistent with lary seems to be restrictive of the pre-
the continual presence of the bishops in lates.
national assemblies, which had become
ECCLES. POWER. DURING THE MIDDLE AGES. 153
undertaking. The bishops accordingly were among the
chief instigators of those numerous revolts of his children
which harassed this emperor. They set, upon one occasion,
the first example of an usurpation which was to become very
dangerous to society, the deposition of sovereigns by eccle-
siastical authority. Louis, a prisoner in the hands of his
enemies, had been intimidated enough to undergo a public
penance, and the bishops pretended that, according to a
canon of the church, he was incapable of returning afterwards
to a secular life, or preserving the character of sovereignty .b
Circumstances enabled him to retain the empire in defiance
of this sentence ; but the church had tasted the pleasure of
trampling upon crowned heads, and was eager to repeat the
experiment. Under the disjointed and feeble administration
of his posterity in their several kingdoms, the bishops availed
themselves of more than one opportunity to exalt their tem-
poral power. Those weak Carlovingian princes, in their
mutual animosities, encouraged the pretensions of a common
enemy. Thus Charles the Bald and Louis of Bavaria,
having driven their brother Lothaire from his dominions,
held an assembly of some bishops, who adjudged him un-
b Habitu sseculi se exuens habitum strongly, when he tells us that the bishops
poeniteutis per imposition em manuum deposed Wamba; it may have been a
episcoporum suscepit; ut post tantam voluntary abdication, influenced by su-
talemque pcenitentiam nemo ultra ad perstition, or, perhaps, by disease. A
militiam saecularem redeat. Acta ex- late writer has taken a different view of
auctorationis Ludovici, apud Schmidt, this event, the deposition of Louis at
t. ii. p. 68. There was a sort of prece- Compiegne. It was not, he thinks, une
dent, though not, I think, very apposite, hardiesse sacerdotale, une teme'rite' eccle-
for this doctrine of implied abdication, siastique, maisbienunelachetepolitique.
in the case of Wamba, king of the Visi- Ce n'etait point une tentative pour
goths in Spain, who, having been clothed e'lever 1'autorite religieuse au-dessus de
with a monastic dress, according to a 1'autorite royale dans les affaires tempo-
common superstition, during a dangerous relies ; c'e'tait, au contraire, un abaisse-
illness, was afterwards adjudged by a rnent servile de la premiere devant le
council incapable of resuming his crown ; monde. Fauriel, Hist, de la Gaule
to which he voluntarily submitted. The Me"ridionale, iv. 150. In other words,
story, as told by an original writer, the bishops lent themselves to the aris-
quoted in Baronius ad A.D. 681, is too tocratic faction which was in rebellion
obscure to warrant any positive infer- against Louis. Ranke, as has been seen
ence; though I think we may justly in an early note, thinks that they acted
suspect a fraudulent contrivance between out of revenge for his deviation from the
the bishops and Ervigius, the successor law of 817, which established the unity
of Wamba. The latter, besides his mo- of the empire. The bishops, in fact,
nastic attire, had received the last sacra- had so many secular and personal inter-
ments; after which he might be deemed ests and sympathies, that we cannot
civilly dead. Fleury, 3me Discours sur always judge of their behaviour upon
1'Hist. Ecclesiast., puts this case too general principles.
154 STATE OF EUROPE CHAP. VII. PART I.
worthy to reign, and, after exacting a promise from the two
allied brothers to govern better than he had done, permitted
and commanded them to divide his territories.0 After con-
curring in this unprecedented encroachment, Charles the
Bald had little right to conxplain when, some years after-
wards, an assembly of bishops declared himself to have for-
feited his crown, released his subjects from their allegiance,
and transferred his kingdom to Louis of Bavaria. But, in
truth, he did not pretend to deny the principle which he
had contributed to maintain. Even in his own behalf he
did not appeal to the rights of sovereigns and of the nation
whom they represent. " No one," says this degenerate
grandson of Charlemagne, "ought to have degraded me
from the throne to which I was consecrated, until at least I
had been heard and judged by the bishops, through whose
ministry I was consecrated, who are called the thrones of
God, in which God sitteth, and by whom he dispenses his
judgments, to whose paternal chastisement I was willing to
submit, and do still submit myself."d
These passages are very remarkable, and afford a decisive
proof that the power obtained by national churches, through
the superstitious prejudices then received, and a train of
favourable circumstances, was as dangerous to civil govern-
ment, as the subsequent usurpations of the Roman pontiff,
against which Protestant writers are apt too exclusively to
direct their animadversions. Voltaire, I think, has re-
marked, that the ninth century was the age of the bishops,
as the eleventh and twelfth were of the popes. It seemed
as if Europe was about to pass under as absolute a domina-
tion of the hierarchy, as had been exercised by the priest-
hood of ancient Egypt, or the Druids of Gaul. There is
extant a^ remarkable instrument, recording the election of
Boson king of Aries, by which the bishops alone appear to
have elevated him to the throne, without any concurrence of
the nobility.6 But it is inconceivable that such could have
really been the case ; and if the instrument is genuine, we
must suppose it to have been framed in order to counte-
nance future pretensions. For the clergy, by their exclu-
c Schmidt, t. ii. p. 77. Velly, t. ii. d Schmidt, t. ii. p. 217.
p. 61 ; see too p. 74. e ReCueil des Hiatorieus, t. ix. p. 304.
ECCLES. POWEB. DURING THE MIDDLE AGES. 155
sive knowledge of Latin, had it in their power to mould the
language of public documents for their own purposes ; a cir-
cumstance which should be cautiously kept in mind when
we peruse instruments drawn up during the dark ages.
It was with an equal defiance of notorious truth, that the
bishop of Winchester, presiding as papal legate at an as-
sembly of the clergy in 1141, during the civil war of Stephen
and Matilda, asserted the right ofelecting a king of England
to appertain principally to that order ; and by virtue of this
unprecedented claim raised Matilda to the throne/ Eng-
land, indeed, has been obsequious, beyond most other coun-
tries, to the arrogance of her hierarchy ; especially during
the Anglo-Saxon period, when the nation was sunk in igno-
rance and effeminate superstition. Every one knows the
story of king Edwy, in some form or other, though I
believe it impossible to ascertain the real circumstances of
that controverted anecdote.8 But, upon the supposition least
favourable to the king, the behaviour of Archbishop Odo
and Dunstan was an intolerable outrage of spiritual tyranny.
But while the prelates of these nations, each within his
respective sphere, were prosecuting their system of Riseofthe
encroachment upon the laity, a new scheme was KiJ>wer'
secretly forming within the bosom of the church, to mencement-
enthral both that and the temporal governments of the world
under an ecclesiastical monarch. Long before the earliest
epoch that can be fixed for modern history, and, indeed, to
speak fairly, almost as far back as ecclesiastical testimonies
can carry us, the bishops of Rome had been venerated as first
in rank among the rulers of the church. The nature of this
primacy is doubtless a very controverted subject. It is, how-
ever, reduced by some moderate catholics to little more than
a precedency attached to the see of Rome in consequence
of its foundation by the chief of the apostles, as well as the
dignity of the imperial city.h A sort of general superin-
f Ventilata est causa, says the Legate, et manutenementum promittimus. Gul.
cor am inajori parte cleri Anglise, ad Malmsb. p. 188.
cujus jus potissimum spectat principem g [NOTE II.]
eligere, simulque ordinare. Invocata ita- h These foundations of the Roman
que primo in auxilium Divinitate, filiam primacy are indicated by Valentinian III.,
pacific! regis, &c. in Anglia Norman- a great favourer of that see, in a novel of
niaeque dominam eligimus, et ei fidem the year 455 : Cum igitur sedis aposto-
156 STATE OF EUROPE CHAP. VII. PART I.
tendence was admitted as an attribute of this primacy, so
that the bishops of Reme were entitled, and indeed bound,
to remonstrate, when any error or irregularity came to their
knowledge, especially in the western churches, a greater
part of which had been planted by them, and were con-
nected, as it were by filiation, with the common capital of
the Roman empire and of Christendom.1 Various causes
had a tendency to prevent the bishops of Rome from aug-
menting their authority in the East, and even to diminish
that which they had occasionally exercised ; the institution
of patriarchs at Antioch, Alexandria, and afterwards at
Constantinople, with extensive rights of jurisdiction ; the
difference of rituals and discipline ; but above all, the many
disgusts taken by the Greeks, which ultimately produced
an irreparable schism between the two churches in the
ninth century. But within the pale of the Latin church,
every succeeding age enhanced the power and dignity of
the Roman see. By the constitution of the church, such at
least as it became in the fourth century, its divisions being
arranged in conformity to those of the empire, every pro-
vince ought to have its metropolitan, and every vicariate
its ecclesiastical exarch or primate. The bishop of Rome
presided, in the latter capacity, over the Roman vicariate,
comprehending southern Italy, and the three chief Medi-
terranean islands. But as it happened, none of the ten
provinces forming this division had any metropolitan ; so
that the popes exercised all inetropolitical functions within
them, such as the consecration of bishops, the convocation
licae primatum B. Petri meritum, qui attempt of that church to arrogate a con-
est princeps sacerdotalis coronse, et Ro- trolling power. — See his treatise De
manse dignitas civitatis, sacrse etiam sy- Unitate Ecclesise. [1818.] [NOTE III.]
nodi firmavit auctoritas. The last words l Dupin, De antiqua Ecclesise Dis-
allude to the sixth canon of the Nicene ciplinS,, p. 306, et seqq. Histoire du
council, which establishes, or recognises, Droit public eccle'siastique Frangois,
the patriarchal supremacy, in their re- p. 149. The opinion of the Roman see's
spective districts of the churches of supremacy, though apparently rather a
Rome, Antioch, and Alexandria. De vague and general notion, as it still con-
Marca, de Concordantia Sacerdotii et tinues in those Catholics who deny its
Imperii, 1. i. c. 8. At a much earlier infallibility, seems to have prevailed very
period, Irenseus rather vaguely, and much in the fourth century. Fleury
Cyprian more positively, admit, er rather brings remarkable proofs of this from
assert, the primacy of the church of the writings of Socrates, Sozomen, Am-
Rome, which the latter seems even to mianus Marcellinus, and Optatus. Hist,
have considered as a kind of centre of Eccles. t. iii. p. 282, 320, 449 ; t. iv.
Catholic unity, though he resisted every p. 227.
ECCLES. POWER. DURING THE MIDDLE AGES. 157
of synods, the ultimate decision of appeals, and many other
sorts of authority. These provinces are sometimes called
the Roman patriarchate; the bishops of Rome Patriarchate
having always been reckoned one, generally indeed of Rome-
the first, of the patriarchs ; each of whom was at the head
of all the metropolitans within his limits, but without exer-
cising those privileges which by the ecclesiastical constitution
appertained to the latter. Though the Roman patriarchate,
properly so called, was comparatively very small in extent,
it gave its chief, for the reason mentioned, advantages in
point of authority which the others did not possess.k
I may perhaps appear to have noticed circumstances inte-
resting only to ecclesiastical scholars. But it is important
to apprehend this distinction of the patriarchate from the pri-
macy of Rome, because it was by extending the boundaries
of the former, and by applying the maxims of her admini-
stration in the south of Italy to all the western churches,
that she accomplished the first object of her scheme of usur-
pation, in subverting the provincial system of government
under the metropolitans. Their first encroachment of this
kind was in the province of Illyricum, which they annexed
in a manner to their own patriarchate, by not permitting
any bishops to be consecrated without their consent."1 This
was before the end of the fourth century. Their subsequent
advances were, however, very gradual. About the middle
of the sixth century, we find them confirming the elections
of archbishops of Milan." They came by degrees to exer-
cise, though not always successfully, and seldom without
opposition, an appellant jurisdiction over the causes of
bishops deposed or censured in provincial synods. This,
indeed, had been granted, if we believe the fact, by the
canons of a very early council, that of Sardica in 347, so
k Dupin, de Antiqu£ Eccles. Dis- vicariate of Kome.
ciplina, p. 39, &c. Giannone, 1st. di m Dupin, p. 66. Fleury, Hist. Ec-
Napoli, 1. ii. c. 8 ; 1. iii. c. 6. De Marca, cles. t. v. p. 373. The ecclesiastical pro-
1. i. c. 7. et alibi. There is some dis- viiice of Illyricum included Macedonia,
agreement among these writers as to the Siricius, the author of this encroachment,
extent of the Roman patriarchate, which seems to have been one of the first usurp-
some suppose to have even at first com- ers. In a letter to the Spanish bishops
prehended all the western churches, (A.D. 375) he exalts his own authority
though they admit that, in a more par- very high. De Marca, 1. i. c. 8.
ticular sense, it was confined to the n St. Marc, t. i. p. 139, 153.
158
STATE OF EUROPE
CHAP. VII. PART I.
far as to permit the pope to order a revision of the pro-
cess, but not to annul the sentence.0 Yalentinian III. in-
fluenced by Leo the Great, one of the most ambitious of
pontiffs, had gone a great deal further, and established
almost an absolute judicial supremacy in the Holy See.p
But the metropolitans were not inclined to surrender their
prerogatives ; and upon the whole, the papal authority had
made no decisive progress in France, or perhaps anywhere
beyond Italy, till the pontificate of Gregory I.
This celebrated person was not distinguished by learning,
Gregory i. which he affected to depreciate, nor by his literary
590-604. performances, which the best critics consider as be-
low mediocrity, but by qualities more necessary for his pur-
pose, intrepid ambition and unceasing activity. He main-
tained a perpetual correspondence with the emperors and
their ministers, with the sovereigns of the western kingdoms,
with all the hierarchy of the catholic church ; employing,
as occasion dictated, the language of devotion, arrogance, or
adulation. q Claims hitherto disputed, or half preferred, as-
0 Dupin, p. 109. De Marca, 1. vi.
c. 14. These canons have been ques-
tioned, and Dupin does not seern to lay
much stress on their authority, though I
do not perceive that either he, or Fleury
(Hist. Eccles. t. iii. p. 372), doubts their
genuineness. Sardica was a city of Illy-
ricum, which the translator of Mosheim
has confounded with Sardes.
Consultations or references to the
bishop of Rome, in difficult cases of faith
or discipline, had been common in early
ages, and were even made by provincial
and national councils. But these were
also made to other bishops eminent for
personal merit, or the dignity of their
sees. The popes endeavoured to claim
this as a matter of right. Innocent I.
asserts (A.D. 402) that he was to be
consulted, quoties fidei ratio ventilatur;
and Gelasius (A.D. 492) quantum ad
religionem pertinet, non nisi apostolicse
sedi, juxta canones, debetur summa ju-
dicii totius. As the oak is in the acorn,
so did these maxims contain the system
of Bellarmin. De Marca, 1. i. c. 10;
and 1. vii. 12. Dupin.
p Some bishops belonging to the pro-
vince of Hilary, metropolitan of Aries,
appealed from his sentence to Leo, who
not only entertained their appeal, but
presumed to depose Hilary. This as-
sumption of power would have had little
effect, if it had not been seconded by the
emperor in very unguarded language;
hoc perenni sanctione decernimus, ne
quid tarn episcopis Gallicanis, quam
aliarum provinciarum, contra consuetu-
dinem veterem liceat sine auctoritate
viri venerabilis papse urbis aeternae ten-
tare; sed illis omnibusque pro lege sit,
quidquid sanxit vel sanxerit apostolicae
sedis auctoritas. De Marca, De Concor-
dantia Sacerdotii et Imperii, 1. i. c. 8.
The same emperor enacted, that any
bishop who refused to attend the tribu-
nal of the pope when summoned, should
be compelled by the governor of his pro-
vince; ut quisquis episcoporum ad ju-
dicium Romaui episconi evocatus venire
neglexerit, per moderatorem ejusdem
provincise adesse cogatur. Id. 1. vii. c.
13. Dupin, De ant. Discipl. p. 29 et 171.
q The nattering style in which this
pontiff addressed Brunehautand Phocas,
the most flagitious monsters of his time,
is mentioned in all civil and ecclesiastical
histories. Fleury quotes a remarkable
letter to the patriarchs of Antioch and
Alexandria, wherein he says that St.
Peter has one see, divided into three,
Rome, Antioch, and Alexandria: stoop-
ECCLES. POWER. DURING THE MIDDLE AGES. 159
sumed under his hands a more definite form ; and nations
too ignorant to compare precedents or discriminate prin-
ciples, yielded to assertions confidently made by the authority
which they most respected. Gregory dwelt more than his
predecessors upon the power of the keys, exclusively or at
least principally committed to St. Peter, which had been
supposed in earlier times, as it is now by the Gallican
catholics, to be inherent in the general body of bishops,
joint sharers of one indivisible episcopacy. And thus the
patriarchal rights, being manifestly of mere ecclesiastical
institution, were artfully confounded, or as it were merged,
in the more paramount supremacy of the papal chair.
From the time of Gregory, the popes appear in a great
measure to have thrown away that scaffolding, and relied
in preference on the pious veneration of the people, and on
the opportunities which might occur for enforcing their do-
minion with the pretence of divine authority/
It cannot, I think, be said, that any material acquisitions
of ecclesiastical power were obtained by the successors of
Gregory for nearly one hundred and fifty years.8 As none
ing to this absurdity, and incon&istence s I observe that some modern publi-
with his real system, in order to conci- cations annex considerable importance
liate their alliance against his more im- to a supposed concession of the title of
mediate rival, the patriarch of Constan- Universal Bishop, made by the emperor
tinople. Hist. Eccle's. t. viii. p. 124. Phocas in 606 to Boniface III., and
r Gregory seems to have established even appear to date the papal supremacy
the appellant jurisdiction of the see of from this epoch. Those who have im-
Rome, which had been long in suspense, bibed this notion may probably have
Stephen, a Spanish bishop, having been been misled by a loose expression in
deposed, appealed to Rome. Gregory Mosheim's Ecclesiastical History, vol. ii.
sent a legate to Spain, with full powers p. 169; though the general tenor of that
to confirm or rescind the sentence. He passage by no means gives countenance
says in his letter on this occasion; a to their opinion. Bvit there are several
sede apostolica, quse omnium ecclesi- strong objections to our considering this
arum caput est, causa hsec audienda ac as a leading fact, much less as marking
dirimenda fuerat. De Marca, 1. vii. an era in the history of the papacy. 1 .
c. 18. In writing to the bishops of Its truth, as commonly stated, appears
France, he enjoins them to obey Virgi- more than questionable. The Roman
lius, bishop of Aries, whom he has ap- pontiffs, Gregory I. and Boniface III.,
pointed his legate in France, secundurn had been vehemently opposing the as-
antiquam consuetudinem ; so that if any sumption of this title by the patriarch of
contention should arise in the church, he Constantinople, not as due to themselves,
may appease it by his authority, as vice- but as one to which no bishop could le-
gerent of the apostolic see; auctoritatis gitimately pretend. There would be
suse vigore, vicibus nempe apostolicae something almost ridiculous in the em-
sedis functus, discreta moderatione com- peror's immediately conferring an ap-
pescat. Gregorii Opera, t. ii. p. 783. pellation on themselves, which they had
(edit. Benedict.) Dupin, p. 34. Pas- just disclaimed ; and though this ob-
quier, Recherches de la France, 1. iii. c. 9. jection would not stand against evidence,
160
STATE OF EUKOPE
CHAP. VII. FART I.
of them possessed vigour and reputation equal to his own, it
might even appear that the papal influence was retrograde.
But in effect the principles which supported it were taking
deeper root, and acquiring strength by occasional, though
not very frequent exercise. Appeals to the pope were some-
times made by prelates dissatisfied with a local sentence ;
but his judgment of reversal was not always executed, as
we perceive by the instance of Bishop Wilfrid.1 National
yet when we find no better authority
quoted for the fact than Baronius, who
is no authority at all, it retains consider-
able weight. And indeed the want of
early testimony is so decisive an objec-
tion to any alleged historical fact, that
but for the strange prepossessions of some
men, one might rest the case here.
Fleury takes no notice of this part of the
story, though he tells us that Phocas
compelled the patriarch of Constanti-
nople to resign his title. 2. But if the
strongest proof could be advanced for
the authenticity of this circumstance, we
might well deny its importance. The
concession of Phocas could have been of
no validity in Lombardy, France, and
other western countries, where neverthe-
less the papal supremacy was incom-
parably more established than in the
East. 3. Even within the empire, it
could have had no efficacy after the vio-
lent death of that usurper, which followed
soon afterwards. 4. The title of Uni-
versal Bishop is not very intelligible;
but whatever it meant, the patriarchs of
Constantinople had borne it before, and
continued to bear it ever afterwards.
(Dupin, De antiqua Disciplina, p. 329.)
5. the preceding popes, Pelagius II.
and Gregory I., had constantly dis-
claimed the appellation, though it had
been adopted by some towards Leo the
Great in the council of Chalcedon
(Fleury, t. viii. p. 95); nor does it ap-
pear to have been retained by the suc-
cessors of Boniface. It is even laid down
in the decretum of Gratian, that the pope
is not styled universal: nee etiam Ro-
manus pontifex universalis appellatur
(p. 303, edit. 1591); though some refer
its assumption to the ninth century,
Nouveau Traite de Diplomatique, t. v.
p. 93. In fact it has never been an
usual title. 6. The popes had unques-
tionably exercised a species of supre-
macy for more than two centuries before
this time, which had lately reached a
high point of authority under Gregory I.
The rescript of Valentinian III., in 455,
quoted in a former note, would certainly
be more to the purpose than the letter
of Phocas. 7. Lastly, there are no sen-
sible marks of this supremacy making a
more rapid progress for a century and a
half after the pretended grant of that
emperor. [1818.] The earliest mention
of this transaction that I have found, and
one which puts an end to the pretended
concession of such a title as Universal
Bishop, is in a brief general chronology,
by Bede, entitled "De Temporum Ra-
tione." He only says of Phocas: —
Hie, rogante papa Bonifacio, statuit
sedem Romanes et apostolicse ecclesiae
caput esse omnium ecclesiarum, quia ec-
clesia Constantinopolitana primam se
omnium ecclesiarum scribebat. Bedae
Opera, cum Giles, vol. vi. p. 323. This
was probably the exact truth; and the
subsequent additions were made by some
zealous partisans of Rome, to be seized
hold of in a later age, and turned against
her by some of her equally zealous ene-
mies. The distinction generally made is,
that the pope is "universalis ecclesise
episcopus," but not "episcopus univer-
salis; " that is, he has no immediate juris-
diction in the dioceses of other bishops,
though he can correct them for the undue
exercise of their own. The ITltra-mon-
tanes of course go further.
* I refer to the English historians for
the history of Wilfrid, which neither al-
together supports, nor much impeaches,
the independency of our Anglo-Saxon
church in 700 ; a matter hardly worth so
much contention as Usher and Stilling-
fleet seem to have thought. The con-
secration of Theodore by Pope Vitalian
in 668 is a stronger fact, and cannot be
got over by those injudicious protestants,
who take the bull by the horns. The
history of Wilfrid has been lately put in
ECCLES. POWER. DURING THE MIDDLE AGES. 161
councils were still convoked by princes, and canons enacted
under their authority by the bishops who attended. Though
the church of Lombardy was under great subjection during
this period, yet those of France, and even of England, planted
as the latter had been by Gregory, continued to preserve a
tolerable measure of independence.11 The first striking in-
fringement of this was made through the influence of an
Englishman, Winfrid, better known as St. Boniface, the
apostle of Germany. Having undertaken the con-
J?T<U • • J -L! j-'ll U J.-L St. Boniface.
version of 1 hunngia, and other still heathen coun-
tries, he applied to the pope for a commission, and was
consecrated bishop without any determinate see. Upon
this occasion he took an oath of obedience, and became
ever afterwards a zealous upholder of the apostolical chair.
His success in the conversion of Germany was great, his
reputation eminent, which enabled him to effect a material
revolution in ecclesiastical government. Pelagius II. had,
about 580, sent a pallium, or vest peculiar to metropoli-
tans, to the bishop of Aries, perpetual vicar of the Roman
see in Gaul.x Gregory I. had made a similar present to
other metropolitans. But it was never supposed that they
were obliged to wait for this favour before they received
consecration, until a synod of the French and German
bishops, held at Frankfort in 742, by Boniface, as gynod of
legate of Pope Zachary. It was here enacted, that,
Frankfort.
a light as favourable as possible to him- more than the testimony of Eddius.
self and to the authority of Rome, by Dr. But we see by the rest of Wilfrid's his-
Lingard. We have for this to rely on tory, that it was not easy to put the sen-
Eddius (published in Gale's Scriptores), tence of Rome in execution. The plain
a panegyrist in the usual style of legend- facts are, that having gone to Rome
ary biography, — a style which has, on claiming the see of York, and having
me at least, the effect of producing utter had his claim recognised by the pope,
distrust. Mendacity is the badge of all he ended his days as bishop of Hexham.
the tribe. Bede is more respectable; u Schmidt, t. i. p. 386, 394.
but in this case we do not learn much x Ut ad instar suum, in Galliarum
from him. It seems impossible to deny partibus primi sacerdotis locum obtineat,
that, if Eddius is a trustworthy histo- et quidquid ad gubernationem vel dis-
rian, Dr. Lingard has made out his case; pensationem ecclesiastici status geren-
and that we must own appeals to Rome dum est, servatis patrum regulis, et sedis
to have been recognised in the Anglo- apostolicse constitutis, faciat. Prseterea,
Saxon church. Nor do I perceive any pallium illi concedit, &c. Dupin, p. 34.
improbability in this, considering that Gregory I. confirmed this vicariate to
the church had been founded by Au- Virgilius bishop of Aries, and gave him
gustin, and restored by Theodore, both the power of convoking synods. De
under the authority of the Roman see. Marca, 1. vi. c. 7.
This intrinsic presumption is worth
VOL. II. M
162 STATE OF EUEOPE CHAP. VII. PAKT I.
as a token of their willing subjection to the see of Home,
all metropolitans should request the pallium at the hands
of the pope, and obey -his lawful commands/ This was
construed by the popes to mean a promise of obedience
before receiving the pall, which was changed in after times
by Gregory VII. into an oath of fealty .z
This council of Frankfort claims a leading place as an
epoch in the history of the papacy. Several events ensued,
chiefly of a political nature, which rapidly elevated that
usurpation almost to its greatest height. Subjects of the
throne of Constantinople, the popes had not as yet inter-
fered, unless by mere admonition, with the temporal magis-
trate. The first instance, wherein the civil duties of a nation
and the rights of a crown appear to have been submitted
to his decision, was in that famous reference as to the de-
position of Childeric. It is impossible to consider this in
any other light than as a point of casuistry laid before the
first religious judge in the church. Certainly the Franks
who raised the king of their choice upon their shields never
dreamed that a foreign priest had conferred upon him the
right of governing. Yet it was easy for succeeding advo-
cates of Rome to construe this transaction very favourably
for its usurpation over the thrones of the earth.*
I shall but just glance at the subsequent political revo-
lutions of that period ; the invasion of Italy by Pepin, his
7 Decrevimus, says Boniface, in nostro of sending the pallium to metropolitans
synodali conventu, et confessi sumus was not only confirmed to the pope, but
fidem catholicam, et unitatem et subjec- extended to the other patriarchs, who
tionem Romanae ecclesiae fine tenus ser- had every disposition to become as great
vare, S. Petro et vicario ejus velle sub- usurpers as their more fortunate elder
jici, metropolitanos pallia ab ilia sede brother.
quserere, et, per omnia, prsecepta S. Petri ' De Marca, ubi supra. Schmidt, t. ii.
canonice sequi. De Marca, 1. vi. c. 7. p. 262. According to the latter, this
Schmidt, t. i. p. 424, 438, 446. This oath of fidelity was exacted in the ninth
writer justly remarks the obligation century; which is very probable, since
which Rome had to St. Boniface, who Gregory VII. himself did but fill up the
anticipated the system of Isidore. We sketch which Nicholas I. and John VIII.
have a letter from him to the English had delineated. I have since found this
clergy, with a copy of canons passed in confirmed by Gratian, p. 305.
one of his synods, for the exaltation of a Eginhard says, that Pepin was
the apostolic see, but the church of Eng- made king per auctorttatem Romani pon-
land was not then inclined to acknow- tificis; an ambiguous word, which may
ledge so great a supremacy in Rome, rise to command, or sink to advice, ac-
Collier's Eccles. History, p. 128. cording to the disposition of the inter-
In the eighth general council, that of preter.
Constantinople in 872, this prerogative
ECCLES. POWER. DURING THE MIDDLE AGES. 163
donation of the exarchate to the Holy See, the conquest of
Lombardy by Charlemagne, the patriarchate of Rome con-
ferred upon both these princes, and the revival of the Western
Empire in the person of the latter. These events had a
natural tendency to exalt the papal supremacy, which it is
needless to indicate. But a circumstance of a very different
nature contributed to this in a still greater degree. About
the conclusion of the eighth century, there appeared, under
the name of one Isidore, an unknown person, a collection of
ecclesiastical canons, now commonly denominated False
the False Decretals.b These purported to be Decretals*
rescripts or decrees of the early bishops of Rome ; and their
effect was to diminish the authority of metropolitans over
their suffragans, by establishing an appellant jurisdiction
of the Eoman See in all causes, and by forbidding national
councils to be holden without its consent. Every bishop,
according to the decretals of Isidore, was amenable only to
the immediate tribunal of the pope ; by which one of the
most ancient rights of the provincial synod was abrogated.
Every accused person might not only appeal from an inferior
sentence, but remove an unfinished process before the su-
preme pontiff. And the latter, instead of directing a revision
of the proceedings by the original judges, might annul them
by his own authority; a strain of jurisdiction beyond the
canons of Sardica, but certainly warranted by the more
recent practice of Rome. New sees were not to be erected,
nor bishops translated from one see to another, nor their re-
signations accepted, without the sanction of the pope. They
were still, indeed, to be consecrated by the metropolitan, but
in the pope's name. It has been plausibly suspected that
b The era of the False Decretals has as older than this collection of Adrian ;
not been precisely fixed ; they have but I have not observed the same opinion
seldom been supposed, however, to have in any other writer. The right of ap-
appeared much before 800. But there peal from a sentence of the metropolitan
is a genuine collection of canons pub- deposing a bishop to the Holy See is
lished by Adrian I. in 785, which contain positively recognised in the Capitula-
nearly the same principles, and many of ries of Louis the Debonair (Baluze,
which are copied by Isidore, as well as p. 1 000) ; the three last books of which,
Charlemagne in his Capitularies. De according to the collection of Ansegisus,
Marca, 1. vii. c. 20. Giannone, 1. v. are said to be apostolica auctoritate ro-
c. 6. Dupin, De Antiqua Disciplina, borata, quia his cudendis maxime apos-
p. 133. Fleury, Hist. Eccle's. t. ix. tolica interfuit legatio, p. 1132.
p. 500, seems to consider the decretals
M 2
164 STATE OF EUKOPE CHAP. VII. PART I.
these decretals were forged by some bishop, in jealousy or
resentment ; and their general reception may at least be
partly ascribed to such' sentiments. The archbishops were
exceedingly powerful, and might often abuse their supe-
riority over inferior prelates ; but the whole episcopal aristo-
cracy had abundant reason to lament their acquiescence in
a system of which the metropolitans were but the earliest
victims. Upon these spurious decretals was built the great
fabric of papal supremacy over the different national
churches; a fabric which has stood after its foundation
crumbled beneath it; for no one has pretended to deny,
for the last two centuries, that the imposture is too palpable
for any but the most ignorant ages to credit.0
The Gallican church made for some time a spirited, though
papal en- unavailing struggle against this rising despotism.
croachments GregOry IV., having come into France to abet the
hierarchy, children of Louis the Debonair in their rebellion,
and threatened to excommunicate the bishops who adhered to
the emperor, was repelled with indignation by those prelates.
" If he comes here to excommunicate," said they, " he shall
depart hence excommunicated,"3 In the subsequent reign
of Charles the Bald, a bold defender of ecclesiastical inde-
pendence was found in Hincmar, archbishop of Rheims, the
most distinguished statesman of his age. Appeals to the
pope even by ordinary clerks had become common, and the
provincial councils, hitherto the supreme spiritual tribunal,
as well as legislature, were falling rapidly into decay. The
frame of church government, which had lasted from the third
or fourth century, was nearly dissolved ; a refractory bishop
was sure to invoke the supreme court of appeal, and generally
met there with a more favourable judicature. Hincmar, a
man equal in ambition, and almost in public estimation, to
0 I have not seen any account of the In fact, it was his object to please both
decretals so clear and judicious as in in France and at Rome, to become both
Schmidt's History of Germany, t. ii. an archbishop and a cardinal. He failed
p. 249. Indeed all the ecclesiastical nevertheless of the latter hope ; it being
part of that work is executed in a very impossible at that time (165U) to satisfy
superior manner. See also De Marca, the papal court, without sacrificing al-
1. iii. c. 5 ; 1. vii. c. 20. The latter together the Gallican church and the
writer, from whom I have derived much crown.
information, is by no means a strenuous d De Marca, 1. iv. c. 11. Velly, &c.
adversary of ultra-montane pretensions.
ECCLBS. POWER. DURING THE MIDDLE AGES.
165
any pontiff, sometimes came off successfully in his contentions
with Rome.6 But time is fatal to the unanimity of coalitions ;
the French bishops were accessible to superstitious prejudice,
to corrupt influence, to mutual jealousy. Above all, they
were conscious that a persuasion of the pope's omnipotence
had taken hold of the laity. Though they complained loudly,
and invoked, like patriots of a dying state, names and prin-
ciples of a freedom that Was no more, they submitted almost
in every instance to the continual usurpations of the Holy
See. One of those, which most annoyed their aristocracy, was
the concession to monasteries of exemption from episcopal
authority. These had been very uncommon till about the
eighth century, after which they were studiously multiplied/
c De Marca, 1. iv. c. 68, &c.; 1. vi.
c. 14, 28; l.vii. c. 21. Dupin, p. 133,
&c. Hist, du Droit Socle's. Frangois,
p. 188, 224. Velly, &c. Hiucmar how-
ever was not consistent; for having ob-
tained the see of Rheims in an equi-
vocal manner, he had applied for con-
firmation at Rome, and in other respects
impaired the Gallican rights. Pasquier,
Recherches de la France, 1. iii. c. 12.
f The earliest instance of a papal ex-
emption is in 455, which indeed is a
respectable antiquity. Others scarcely
occur till the pontificate of Zachary in
the middle of the eighth century, who
granted an exemption to Monte Casino,
ita ut nullius juri subjaceat, nisi solius
Romani pontificis. See this discussed
in Giannone, 1. v. c. 6. Precedents for
the exemption of monasteries from epis-
copal jurisdiction occur in Marculfus's
forms compiled towards the end of the
seventh century, but these were by royal
authority. The kings of France were
supreme heads of their national church.
Schmidt, t. i. p. 382. De Marca, 1. iii.
c. 16. Fleury, Institutions au Droit,
t. i. p. 228. Muratori, Dissert. 70
(t. iii. p. 104, Italian), is of opinion that
exemptions of monasteries from episco-
pal visitation did not become frequent in
Italy till the eleventh century ; and that
many charters of this kind are forgeries.
It is held also by some English anti-
quaries, that no Anglo-Saxon monastery
was exempt, and that the first instance
is that of Battle Abbey under the Con-
queror ; the charters of an earlier date
having been forged. Hody on Convo-
cations, p. 20 and 170. It is remarkable
that this grant is made by William,
and confirmed by Lanfranc. Collier,
p. 256. Exemptions became very usual
in England afterwards. Henry, vol. v.
p. 337. It is nevertheless to be ad-
mitted, that the bishops had exercised
an arbitrary, and sometimes a tyranni-
cal power over the secular clergy ; and
after the monks became part of the
church, which was before the close of
the sixth century, they also fell under a
control not always fairly exerted. Both
complained greatly, as the acts of coun-
cils bear witness : — Un fait important
et trop peu remarque" se re"vele ga et la
dans le cours de cette e"poque ; c'est la
lutte des pretres de paroisse centre les
oveques. Guizot, Hist, de la Civilis.
en France, Legon 13. In this conten-
tion the weaker must have given way:
but the regulars sustained by public re-
spect, and having the countenance of the
see of Rome, which began to encroach
upon episcopal authority, came out suc-
cessful in securing themselves by exemp-
tions from the jurisdiction of the bishops.
The latter furnished a good pretext by
their own relaxation of manners. The
monasteries, in the eighth and ninth cen-
turies, seem not to have given occasion to
much reproach, at least in comparison
with the prelacy. Au commencement
du huitieme siecle, l'e"glise etait elle
tombe"e dans un desordre presque e"gal a
celui de la socie'te' civile. Sans supe"-
rieurs et sans infdrieurs a redoiiter, de"-
gage's de la surveillance des m^tropoli-
tains comme des conciles et de 1' influ-
ence des pretres, une foule d'e"veques se
livraient aux plus scandaleux exces.
STATE OF EUKOPE CHAP. VII. PART I.
It was naturally a favourite object with the abbots ; and
sovereigns, in those ages of blind veneration for monastic
establishments, were pleased to see their own foundations
rendered, as it would seem, more respectable by privileges
of independence. The popes had a closer interest in grant-
ing exemptions, which attached to them the regular clergy,
and lowered the dignity of the bishops. In the eleventh
and twelfth centuries, whole orders of monks were declared
exempt at a single stroke ; and the abuse began to awaken
loud complaints, though it did not fail to be aggravated
afterwards.
The principles of ecclesiastical supremacy were readily
and upon applied by the popes to support still more insolent
mStf vem" usurpations. Chiefs by divine commission of the
Lothaire. whole church, every earthly sovereign must be sub-
ject to their interference. The bishops, indeed, had, with the
common weapons of their order, kept their own sovereigns
in check ; and it could not seem any extraordinary stretch
in their supreme head to assert an equal prerogative. Gre-
gory IV., as I have mentioned, became a party in the revolt
against Louis I. ; but he never carried his threats of excom-
munication into effect. The first instance, where the Roman
pontiffs actually tried the force of their arms against a sove-
reign, was the excommunication of Lothaire, king of Lor-
raine, and grandson of Louis the Debonair. This prince had
repudiated his wife upon unjust pretexts, but with the ap-
probation of a national council, and had subsequently mar-
ried his concubine. Nicholas I., the actual pope, despatched
two legates to investigate this business, and decide according
to the canons. They hold a council at Metz, and confirm the
divorce and marriage. Enraged at this conduct of his am-
bassadors, the pope summons a council at Borne, annuls the
sentence, deposes the archbishops of Treves and Cologne,
and directs the king to discard his mistress. After some
shuffling on the part of Lothaire he is excommunicated ; and,
in a short time, we find both the king and his prelates, who
had begun with expressions of passionate contempt towards
the pope, suing humbly for absolution at the feet of Adrian II.,
successor of Nicholas, which was not granted without diffi-
culty. In all its most impudent pretensions, the Holy See
ECCLES. POWER. DURING THE MIDDLE AGES. 167
has attended to the circumstances of the time. Lothaire had
powerful neighbours, the kings of France and Germany,
eager to invade his dominions on the first intimation from
Rome ; while the real scandalousness of his behaviour must
have intimidated his conscience, and disgusted his subjects.
Excommunication, whatever opinions may be entertained
as to its religious efficacy, was originally nothing Exco?mm-
more in appearance than the exercise of a right nications-
which every society claims, the expulsion of refractory mem-
bers from its body. No direct temporal disadvantages at-
tended this penalty for several ages ; but as it was the most
severe of spiritual censures, and tended to exclude the object
of it not only from a participation in religious rites, but in
a considerable degree from the intercourse of Christian
society, it was used sparingly, and upon the gravest occasions.
Gradually, as the church became more powerful and more
imperious, excommunications were issued upon every pro-
vocation, rather as a weapon of ecclesiastical warfare than
with any regard to its original intention. There was cer-
tainly some pretext for many of these censures, as the only
means of defence within the reach of the clergy, when their
possessions were lawlessly violated.8 Others were founded
upon the necessity of enforcing their contentious jurisdiction,
which, while it was rapidly extending itself over almost all
persons and causes, had not acquired any proper coercive
process. The spiritual courts in England, whose jurisdiction
is so multifarious, and, in general, so little of* a religious
nature, had till lately no means even of compelling an ap-
pearance, much less of enforcing a sentence, but by excom-
munication.11 Princes, who felt the inadequacy of their
own laws to secure obedience, called in the assistance of
more formidable sanctions. Several capitularies of Charle-
magne denounce the penalty of excommunication against
incendiaries, or deserters from the army. Charles the Bald
procured similar censures against his revolted vassals. Thus
the boundary between temporal and spiritual offences grew
g Schmidt, t. iv. p. 217. Fleury, In- piendo, as a process in contempt, was
stitutions au Droit, t. ii. p. 192. abolished in England, but retained in
h By a recent statute, 5<3 G. Ill, Ireland,
c. 127, the writ De excommunicate ca-
168 STATE OF EUROPE CHAP. VII. PART I.
every day less distinct ; and the clergy were encouraged to
fresh encroachments as they discovered the secret of ren-
dering them successful,1
The civil magistrate ought undoubtedly to protect the just
rights and lawful jurisdiction of the church. It is not so
evident that he should attach temporal penalties to her cen-
sures. Excommunication has never carried such a pre-
sumption of moral turpitude as to disable a man, upon any
solid principles, from the usual privileges of society. Super-
stition and tyranny, however, decided otherwise. The sup-
port due to church censures by temporal judges is vaguely
declared in the capitularies of Pepin and Charlemagne. It
became, in later ages, a more established principle in France
and England, and, I presume, in other countries. By our
common law, an excommunicated person is incapable of being
a witness, or of bringing an action ; and he may be detained
in prison until he obtains absolution. By the Establishments
of St. Louis, his estate, or person, might be attached by the
magistrate.15 These actual penalties were attended by marks
of abhorrence and ignominy still more calculated to make an
impression on ordinary minds. They were to be shunned,
like men infected with leprosy, by their servants, their friends,
and their families. Two attendants only, if we may trust a
current history, remained with Robert king of France, who,
on account of an irregular marriage, was put to this ban by
Gregory V. ; and these threw all the meats which had passed
his table into the fire.m Indeed, the mere intercourse with a
proscribed person incurred what was called the lesser excom-
munication, or privation of the sacraments, and required
penitence and absolution. In some places, a bier was set
before the door of an excommunicated individual, and stones
thrown at his windows : a singular method of compelling
his submission.11 Everywhere, the excommunicated were
debarred of a regular sepulture, which, though obviously a
1 Me"m.derAcad.desInscript.t.xxxix. with Dr. Cosens (Gibson's Codex,
p. 596, &c. p. 1102) that the writ De excommun.
k Ordonnances des Eois, t. i. p. 121. capiendo is a privilege peculiar to the
But an excommunicated person might English church,
sue in the lay, though not in the spiritual m Velly, t. ii.
court. ^ No law seems to have been so n Vaissette, Hist, de Languedoc, t. iii.
severe in this respect as that of England; Appendix, p. 350. Du Cange, v. Ex-
though it is not strictly accurate to say communicatio.
Interdicts.
ECCLES. POWER. DURING THE MIDDLE AGES. 169
matter of police, has, through the superstition of consecrating
burial grounds, been treated as belonging to ecclesiastical
control. Their carcasses were supposed to be incapable of
corruption, which seems to have been thought a privilege
unfit for those who had died in so irregular a manner.0
But as excommunication, which attacked only one and
perhaps a hardened sinner, was not always effica-
cious, the church had recourse to a more compre-
hensive punishment. For the offence of a nobleman she put
a county, for that of a prince, his entire kingdom, under an
interdict, or suspension of religious offices. No stretch of
her tyranny was perhaps so outrageous as this. During an
interdict, the churches were closed, the bells silent, the dead
unburied, no rite but those of baptism and extreme unction
performed. The penalty fell upon those who had neither
partaken nor could have prevented the offence, and the of-
fence was often but a private dispute, in which the pride
of a pope or bishop had been wounded. Interdicts were so
rare before the time of Gregory VII., that some have re-
ferred them to him as their author ; instances may, how-
ever, be found of an earlier date, and especially that which
accompanied the above-mentioned excommunication of
Robert king of France. They were afterwards issued not
unfrequently against kingdoms, but in particular districts
they continually occurred.p
This was the mainspring of the machinery that the clergy
set in motion, the lever by which they moved the world.
From the moment that these interdicts and excommunica-
tions had been tried, the powers of the earth might be said
to have existed only by sufferance. Nor was the validity of
such denunciations supposed to depend upon their justice.
The imposer indeed of an unjust excommunication was guilty
of a sin ; but the party subjected to it had no remedy but
submission. He who disregards such a sentence, says
Beaumanoir, renders his good cause bad.q And, indeed,
0 Du Cange v. Imblocatus: where p Giannone, 1. vii. c. 1. Schmidt,
several authors are referred to, for the t. iv. p. 220. Dupin, De antiqua Eccl.
constant opinion among the members of Disciplina, p. 288. St. Marc, t. ii. p. 535.
the Greek church, that the bodies of ex- Fleury, Institutions, t. ii. p. 200.
communicated persons remain in statu q p. 261.
quo.
170 STATE OF EUROPE CHAP. VII. PART I.
without annexing so much importance to the direct conse-
quences of an ungrounded censure, it is evident that the
received theory of religion concerning the indispensable ob-
ligation and mysterious efficacy of the rights of communion
and confession must have induced scrupulous minds to make
any temporal sacrifice rather than incur their privation. One
is rather surprised at the instances of failure, than of success,
in the employment of these spiritual weapons against sove-
reigns or the laity in general. It was perhaps a fortunate
circumstance for Europe, that they were not introduced,
upon a large scale, during the darkest ages of superstition.
In the eighth or ninth centuries they would probably have
met with a more implicit obedience. But after Gregory
VII., as the spirit of ecclesiastical usurpation became more
violent, there grew up by slow degrees an opposite feeling
in the laity, which ripened into an alienation of sentiment
from the church, and a conviction of that sacred truth
which superstition and sophistry have endeavoured to eradi-
cate from the heart of man, that no tyrannical government
can be founded on a divine commission.
Excommunications had very seldom, if ever, been levelled
Further at the head of a sovereign, before the instance of
usurpation of T , . TT. . . .°
the popes. jLothaire. His ignominious submission, and the
general feebleness of the Carlovingian line, produced a repe-
tition of the menace at least, and in cases more evidently be-
yond the cognizance of a spiritual authority. Upon the death
of this Lothaire, his uncle Charles fhe Bald, having possessed
himself of Lorraine, to which the emperor Louis II. had
juster pretensions, the pope Adrian II. warned him to desist,
declaring that any attempt upon that country would bring
down the penalty of excommunication. Sustained by the
intrepidity of Hincmar, the king did not exhibit his usual
pusillanimity, and the pope in this instance failed of success/
But John VIII., the next occupier of the chair of St. Peter,
carried his pretensions to a height which none of his prede-
cessors had reached. The Carlovingian princes had formed
an alliance against Boson, the usurper of the kingdom of
Aries. The pope writes to Charles the Fat : " I have adopted
r De Marca, 1. iv. c. 11.
ECCLES. POWER. DUKING THE MIDDLE AGES. 171
the illustrious prince Boson as my son ; be content therefore
with your own kingdom, for I shall instantly excommunicate
all who attempt to injure my son." s In another letter to the
same king, who had taken some property from a convent, he
enjoins him to restore it within sixty days, and to certify by
an envoy that he had obeyed the command, else an excom-
munication would immediately ensue, to be followed by still
severer castigation if the .king should not repent upon the
first punishment.1 These expressions seem to intimate a
sentence of deposition from his throne, and thus anticipate
by two hundred years the famous era of Gregory VII., at
which we shall soon arrive. In some respects John VIII.
even advanced pretensions beyond those of Gregory. He
asserts very plainly a right of choosing the emperor, and may
seem indirectly to have exercised it in the election of Charles
the Bald, who had not primogeniture in his favour.11 This
prince, whose restless ambition was united with meanness
as well as insincerity, consented to sign a capitulation on
his coronation at Rome, in favour of the pope and church, a
precedent which was improved upon in subsequent ages.x
Rome was now prepared to rivet her fetters upon sovereigns,
and at no period have the condition of society and the circum-
stances of civil government been so favourable for her am-
bition. But the consummation was still suspended,
and even her progress arrested, for more than a
hundred and fifty years. This dreary interval is century>
filled up, in the annals of the papacy, by a series of revo-
lutions and crimes. Six popes were deposed, two murdered,
one mutilated. Frequently two or even three competitors,
among whom it is not always possible by any genuine
criticism to distinguish the true shepherd, drove each other
alternately from the city. A few respectable names appear
thinly scattered through this darkness ; and sometimes, per-
haps, a pope who had acquired estimation by his private
virtues may be distinguished by some encroachment on the
rights of princes, or the privileges of national churches. But
in general the pontiffs of that age had neither leisure nor
8 Schmidt, t. ii. p. 260. u Baluz. Capitularia, t. ii. p. 251.
* Durioribus deinceps sciens te ver- Schmidt, t. ii. p. 197.
beribus erudiendum. Schmidt, p. 261. * Id. p. 199»
172 STATE OF EUROPE CHAP. VII. PART I.
capacity to perfect the great system of temporal supremacy,
and looked rather to a vile profit from the sale of episcopal
confirmations, or of exemptions to monasteries/
The corruption of the head extended naturally to all other
corruption members of the chnrch. All writers concur in stig-
Of morals. matizing the dissoluteness and neglect of decency
that prevailed among the clergy. Though several codes of
ecclesiastical discipline had been compiled by particular
prelates, yet neither these nor the ancient canons were much
regarded. The bishops, indeed, who were to enforce them,
had most occasion to dread their severity. They were ob-
truded upon their sees, as the supreme pontiffs were upon
that of Rome, by force or corruption. A child of five years
old was made archbishop of Rheims. The see of Narbonne
was purchased for another at the age of ten.z By this re-
laxation of morals the priesthood began to lose its hold upon
the prejudices of mankind. These are nourished chiefly in-
deed by shining examples of piety and virtue, but also, in a
superstitious age, by ascetic observances, by the fasting and
watching of monks and hermits, who have obviously so bad
a lot in this life, that men are induced to conclude that
they must have secured a better reversion in futurity. The
regular clergy accordingly, or monastic orders, who prac-
tised, at least apparently, the specious impostures of self-
mortification, retained at all times a far greater portion of
respect than ordinary priests, though degenerated them-
selves, as was admitted, from their primitive strictness.
Two crimes, or at least violations of ecclesiastical law, had
Neglect of become almost universal in the eleventh centurv,
rules of i • j i • i • • i •
celibacy. and excited general indignation : the marriage or
concubinage of priests, and the sale of benefices. By an
effect of those prejudices in favour of austerity, to which I
have just alluded, celibacy had been, from very early times,
enjoined as an obligation upon the clergy. It was, perhaps,
permitted, that those already married for the first time, and
to a virgin, might receive ordination, and this, after pre-
y Schmidt, t. ii. p. 414. Mosheim. church to have bishops under twenty
St. Marc. Muratori, Ann. d'ltalia, pas- years old. Id. p. 149. Even the pope
sim- . Benedict IX. is said to have been only
Vaissette, Hist, de Languedoc, t. ii. twelve, but this has been doubted,
p. 252. It was almost general in the
ECCLES. POWER. DURING THE MIDDLE AGES. 173
vailing for a length of time in the Greek church, was sanc-
tioned by the council of Trullo in 69 1 ,a and has ever since
continued one of the distinguishing features of its discipline.
The Latin church, however, did not receive these canons,
and has uniformly persevered in excluding the three orders
of priests, deacons, and subdeacons, not only from contracting
matrimony, but from cohabiting with wives espoused before
their ordination. The- prohibition, however, during some
ages existed only in the letter of her canons. In every
country, the secular or parochial clergy kept women in their
houses, upon more or less acknowledged terms of intercourse,
by a connivance of their ecclesiastical superiors,which almost
amounted to a positive toleration. The sons of priests were
capable of inheriting by the lawof France and also of Castile.b
a This council was held at Constan- pulse of the passions." Ang.- Sax.
tinople in the dome of the palace, called Church, p. 176. Whatever may have
Trullus, by the Latins. The nomina- been the case in England, those who look
tive Trullo, though solcecistical, is used, at the abstract of the canons of French
I believe, by ecclesiastical writers in and Spanish councils, in Dupin's Eccle-
English. St. Marc, t. i. p. 294. Art de siastical History, from the sixth to the
verifier les Dates, t. i. p. 1 57. Fleury, eleventh century, will find hardly one
Hist. Eccl^s. t. ix. p. 110. Bishops are wherein there is not some enactment
not within this permission, and cannot against bishops or priests retaining wives
retain their wives by the discipline of the in their houses. Such provisions were not
Greek church. Lingard says of the repeated certainly without reason; so that
Anglo-Saxon Church: — " During more the remark of Fleury, t. xi. p. 594, that
than 200 years from the death of Au- he has found no instance of clerical mar-
gustin, the laws respecting clerical celi- riage before 893, cannot weigh for a
bacy, so galling to the natural propensi- great deal. It is probable that bishops
ties of man, but so calculated to enforce did not often marry after their consecra-
an elevated idea of the sanctity which tion; but this eannot be presumed of
becomes the priesthood, were enforced priests. Southey, in his Vindicise Ec-
with the utmost rigour: but during part clesise Anglicanse, p. 290, while he
of the ninth century and most of the produces some instances of clerical matri-
tenth, when the repeated and sanguinary mony, endeavours to mislead the reader
devastations of the Danes threatened the into the supposition that it was even
destruction of the hierarchy no less than conformable to ecclesiastical canons.*
of the government, the ancient canons b Recueil des Historiens, t. xi. pre-
opposed but a feeble barrier to the im- face. Marina, Ensayo sobre las siete
* A late writer, who has glosed over every fact in ecclesiastical history which
could make against his own particular tenets, asserts: — "In the earliest ages of
the church no restriction whatever had been placed on the clergy in this respect."
Palmer's Compendious Ecclesiastical History, p. 115. This may be, and I be-
lieve it is, very true of the Apostolical period; but the "earliest ages" are gene-
rally understood to go further : and certainly the prohibition of marriage to priests
was an established custom of some antiquity at the time of the Nicene Council.
The question agitated there was, not whether priests should marry, contrary as it
was admitted by their advocate to a.^a.la. UxxWaj ynt^oa-i;, but whether married
men should be ordained. I do not see any difference in principle ; but the church
had made one.
174 STATE OF EUROPE CHAP. VII. PART I.
Some vigorous efforts had been made in EnglandbyDunstan,
with the assistance of King Edgar, to dispossess the married
canons, if not the parochial clergy, of their benefices ; but
the abuse, if such it is to be considered, made incessant pro-
gress till the middle of the eleventh century. There was
certainly much reason for the rulers of the church to restore
this part of their discipline, since it is by cutting off her
members from the charities of domestic life, that she secures
their entire affection to her cause, and renders them, like
veteran soldiers, independent of every feeling but that of
fidelity to their commander and regard to the interests of
their body. Leo IX. accordingly, one of the first pontiffs
who retrieved the honour of the apostolic chair, after its long
period of ignominy, began in good earnest the difficult work
of enforcing celibacy among the clergy.0 His successors
never lost sight of this essential point of discipline. It was
a struggle against the natural rights and strongest affections
of mankind, which lasted for several ages, and succeeded
only by the toleration of greater evils than those it was in-
tended to remove. The laity, in general, took part against
the married priests, who were reduced to infamy and want,
or obliged to renounce their dearest connexions. In many
parts of Germany, no ministers were left to perform divine
services.d But perhaps there was no country where the
rules of celibacy met with so little attention as in England.
It was acknowledged in the reign of Henry I. that the
greater and better part of the clergy were married, and that
prince is said to have permitted them to retain their wives.6
partidas, c. 221, 223. This was by vir- de patria expellebantur, pauci sua reti-
tue of the general indulgence shown by nuere. Langebek, Script. Rerum Da-
the customs of that country to concu- nicarum, t. i. p. 380. The prohibition
binage, or baragania ; the children of was repeated by Waldemar II. in 1222,
such an union always inheriting in de- so that there seems to have been much
fault of those born in solemn wedlock, difficulty found. Id. p. 287 and p. 272.
Ibid. e Wilkins, Concilia, p. 387. Chroni-
c St. Marc, t. iii. p. 152, 164, 219, con Saxon. Collier, p. 248, 286, 294.
602, &c. Lyttelton, vol. iii. p. 328. The third
d Schmidt, t. iii. p. 279. Martenne, Lateran council fifty years afterwards
Thesaurus Anecdotorum, t. i. p. 230. speaks of the detestable custom of keep-
A Danish writer draws a still darker ing concubines long used by the English
picture of the tyranny exercised towards clergy. Cum in Anglia prava et detes-
the married clergy, which if he does not tabili consuetudine et longo tempore
exaggerate, was severe indeed: alii mem- fuerit obtentum, ut clerici in domibus
bris truncabantur, alii occidebantur, alii suis fornicarias habeant. Labbe', Con-
ECCLES. POWEE.
DURING THE MIDDLE AGES.
175
But the hierarchy never relaxed in their efforts, and all the
councils, general or provincial, of the twelfth century, utter
cilia, t. x. p. 1633. Eugenius IV. sent
a legate to impose celibacy on the Irish
clergy. Lyttelton's Henry II. vol. ii.
p. 42.
The English clergy long set at nought
the fulminations of the pope against
their domestic happiness ; and the com-
mon law, or at least irresistible custom,
seems to have been their shield. There
is some reason to believe that their chil-
dren were legitimate for the purposes of
inheritance, which, however, I do not
assert. The sons of priests are men-
tioned in several instruments of the
twelfth and thirteenth centuries ; but we
cannot be sure that they were not born
before their father's ordination, or that
they were reckoned legitimate.*
An instance however occurs in the
Rot. Cur. Regis, A.D. 1194, where the
assize find that there has been no presen-
tation to the church of Dunstan, but the
parsons have held it from father to son.
Sir Francis Palgrave, in his Introduction
to these records (p. 29), gives other
proofs of this hereditary succession in
benefices. Giraldus Cambrensis, about
the end of Henry II.'s reign (apud
Wright's Political Songs of England,
p. 353), mentions the marriage of the
parochial clergy as almost universal.
More sacerdotum parochialium Angliae
fere cunctorum damnabili quidem et
detestabili, publicam secum habebat
comitem individuam, et in foco focariam,
et in cubiculo concubinam. They were
called focarice, as living at the same
hearth; and this might be tolerated,
perhaps, on pretence of service ; but the
fellowship, we perceive, was not confined
to the fireside. It was about this time
that a poem, De Concubinis Sacerdotum,
commonly attributed to Walter Mapes,
but alluding by name to Pope Inno-
cent III., humorously defends the un-
canonical usage. It begins thus : —
" Prisciani regula penitus cassatur,
Sacerdos per hie et JKEC olim declina-
batur,
per
latur,
Cum per nostrum praesulem hcec amo-
veatur."
The last lines are better known, hav-
ing been often quoted : —
" Ecce jam pro clericis multum alle-
gavi,
Necnon pro presbyteris multa compro-
bavi;
Pater-noster nunc pro me, quoniam
peccavi,
Dicat quisque presbyter cum sua
suavi."
Poems ascribed to Mapes, p. 171. (Cam-
den Society, 1841.)
Several other poems in this very cu-
rious volume allude to the same subject.
In a dialogue between a priest and a
scholar, the latter having taxed him with
keeping a presbytem in his house, the
parson defends himself by recrimina-
tion : — •
" Malo cum presbytera pulcra forni-
cari,
Servituros domino filios lucrari,
Quam vagas satellites per antra sec-
tari;
Est inhonestissinrum sic dehonestari."
(p. 256.)
John, on occasion of the interdict
pronounced against him in 1208, seized
the concubines of the priests, and com-
pelled them to redeem themselves by a
fine. Presbyterorum et clericorum fo-
carise per totam Angliam a ministris regis
captse sunt, et ad se redimendum graviter
compulsse. Matt. Paris, p. 190. This is
omitted by Lingard.
It is said by Raumer (Gesch. der Ho-
henstauffen, vi. 235), that there was a
married bishop of Prague during the
pontificate of Innocent III., and that the
custom of clerical marriages lasted in
Hungary and Sweden to the end of the
thirteenth century.
The marriages of English clergy are
* Among the witnesses to some instruments in the reign of Edward I., printed
by Mr. Hudson Gurney from the court-rolls of the manor of Keswick in Norfolk,
we have more than once Walter filius presbyteri. But the rest are described by the
father's surname, except one, who is called filius Beatricis ; and as he may be sus-
pected of being illegitimate, we cannot infer the contrary as to the priest's son.
176 STATE OF EUROPE CHAP. YII. PART I.
denunciations against concubinary priests/ After that age
we do not find them so frequently mentioned ; and the
abuse by degrees, though not suppressed, was reduced within
limits at which the church might connive.
Simony, or the corrupt purchase of spiritual benefices,
was the .second characteristic reproach of the clergy
in the llth century. The measures taken to re-
press it deserve particular consideration, as they produced
Episcopal effects of the highest importance in the history of
elections. ^ middle ages> According to the primitive cus-
tom of the church, an episcopal vacancy was filled up by
election of the clergy arid people belonging to the city or
diocese. The subject of their choice was, after the establish-
ment of the federate or provincial system, to be approved or
rejected by the metropolitan and his suffragans, and, if ap-
proved, he was consecrated by them.8 It is probable that,
in almost every case, the clergy took a leading part in the
selection of their bishops ; but the consent of the laity was
absolutely necessary to render it valid ,b They were, how-
ever, by degrees excluded from any real participation, first
in the Greek, and finally in the western church. But this
was not effected till pretty late times ; the people fully pre-
served their elective rights at Milan in the eleventh century,
and traces of their concurrence may be found both in France
and Germany in the next age.*
noticed and condemned in some provin- bishop's licence to cohabit with a mate,
cial constitutions of 1237. Matt. Paris, Harmer's [Wharton's] Observations on
p. 381. And there is, even so late as Burnet, p. 11. I find a passage in Ni-
1404, a mandate by the bishop of Exeter cholas de Clemangis about 1400 quoted
against married priests. Wilkins, Con- in Lewis's Life of Pecock, p. 30. Pie-
cilia, t. iii. p. 277. risque in diocesibus, rectores parochiarum
f Quidam sacerdotes Latini, says In- ex certo et conducto cum his prselatis
nocentlll., in domibus suis habentcon- pretio, passim et publice concubinas te-
cubinas, et nonnulli aliquas sibi non me- nent. This, however, does not amount
tuunt desponsare. Opera Innocent III., to a direct licence.
p. 558. See also p. 300, and p. 407. g Marca, De Concordantia, &c. 1. vi.
The latter cannot be supposed a very c. 2.
common case, after so many prohibi- h Father Paul on Benefices, c. 7.
tions ; the more usual practice was to ! De Marca, ubi supra. Schmidt,
keep a female in their houses, under t. iv. p. 173. The form of election of a
some pretence of relationship or servi- bishop of Puy, in 1053, runs thus:
tude, as is still said to be usual in Ca- clerus, populus, et militia elegimus.
tholic countries. Du Cange, v. Focaria. Vaissette, Hist, de Languedoc, t. ii.
A writer of respectable authority asserts, Appendix, p. 220. Even Gratian seems
that the clergy frequently obtained a to admit in one place, that the laity had
ECCLES. POWER. DURING THE MIDDLE AGES. 177
It does not appear that the early Christian emperors inter-
posed with the freedom of choice any further than to make
their own confirmation necessary in the great patriarchal
sees, such as Rome and Constantinople, which were fre-
quently the objects of violent competition, and to decide in
controverted elections.11 The Gothic and Lombard kings of
Italy followed the same line of conduct.111 But in the French
monarchy a more extensive authority was assumed by the
sovereign. Though the practice was subject to some varia-
tion, it may be said generally, that the Merovingian kings,
the line of Charlemagne, and the German empe*ors of the
house of Saxony, conferred bishoprics either by direct nomi-
nation, or, as was more regular, by recommendatory letters
to the electors.11 In England, also, before the conquest,
bishops were appointed in the witenagemot; and even in
the reign of William, it is said that Lanfranc was raised to
the see of Canterbury by consent of parliament.0 But, in-
dependently of this prerogative, which length of time and the
tacit sanction of the people have rendered unquestionably
legitimate, the sovereign had other means of controlling the
election of a bishop. Those estates and honours which com-
pose the temporalities of the see, and without which the
naked spiritual privileges would not have tempted an avari-
cious generation, had chiefly been granted by former kings,
and were assimilated to lands held on a beneficiary tenure.
a sort of share though no decisive voice, Baluz. Capitul.t. i. p. 21. Charlemagne
in filling up an episcopal vacancy. Elec- is said to have adhered to this limi-
tio clericorum est, petitio plebis. Decret. tation, leaving elections free, and only
1. i. distinctio 62. And other subsequent approving the person, and conferring
passages confirm this. investiture on him. F. Paul on Bene-
k Gibbon, c. 20. St. Marc, Abre'ge" fices, c. xv. But a more direct influ-
Chronologique, t. i. p. 7. ence was restored afterwards. Ivon,
m Fra Paolo on Benefices, c. ix. Gian- bishop of Chartres about the year 1100,
none, 1. iii. c. 6; 1. iv. c. 12. St. Marc, thus concisely expresses the several
t. i. p. 37. parties concurring in the creation of a
* Schmidt, t. i. p. 386; t. ii. p. 245,487. bishop: eligente clero, suffragante po-
This interference of the kings was per- pulo, dono regis, per manum metropoli-
haps not quite conformable to their own tani, approbante Romano pontifice. Du
laws, which only reserved to them the Chesne, Script. Rerum Gallicarum, t. iv.
confirmation. Episcopo decedente, says p. 174.
a constitution of Clotaire II. in 615, in ° Lyttelton's Hist, of Henry II., vol.
loco ipsius, qui a metropolitano ordinari iv. p. 144. But the passage, which he
debet, a provincialibus, a clero et populo quotes from the Saxon chronicle, is not
eligatur : et si persona condigna fuerit, found in the best edition,
per ordiuationem principis ordinetur.
VOL. II. N
178 STATE OF EUROPE CHAP. VII. PART I.
As they seemed to partake of the nature of fiefs, they re-
quired similar formalities ; investiture by the lord,
Investitures. A, n n ' f\\ \
and an oath of fealty by the tenant. Charlemagne
is said to have introduced this practice ; and, by way of
visible symbol, as usual in feudal institutions, to have put the
ring and crozier into the hands of the newly-consecrated
bishop. And this continued for more than two centuries
afterwards without exciting any scandal or resistance.1"
The church has undoubtedly surrendered part of her in-
dependence in return for ample endowments and temporal
power ; m>r could any claim be more reasonable than that
of feudal superiors to grant the investiture of dependent fiefs.
But the fairest right may be sullied by abuse ; and the
sovereigns, the lay-patrons, the prelates of the tenth and
eleventh centuries, made their powers of nomination and in-
vestiture subservient to the grossest rapacity .q According to
the ancient canons, a benefice was avoided by any simoniacal
payment or stipulation. If these were to be enforced, the
church must almost be cleared of its ministers. Either
through bribery in places where elections still prevailed, or
through corrupt agreements with princes, or, at least, cus-
tomary presents to their wives and ministers, a large pro-
portion of the bishops had no valid tenure in their sees.
The case was perhaps worse with inferior clerks ; in the
church of Milan, which was notorious for this corruption,
not a single ecclesiastic could stand the test, the archbishop
exacting a price for the collation of every benefice/
The bishops of Eome, like those of inferior sees, were
imperial regularly elected by the citizens, laymen as well as
confirmation -,.*'. T> i • •
of popes. ecclesiastics. J3ut their consecration was deferred
until the popular choice had received the sovereign's sanction.
The Eomans regularly despatched letters to Constantinople
or to the exarchs of Eavenna, praying that their election of a
p De Marca, p. 416. Giannone, 1. vi. furnish a good specimen of the eleventh
c. 7. century.
q Boniface, marquis of Tuscany, father r St. Marc, t. iii. p. 65, 188, 219, 230,
of the countess Matilda, and by far the 296, 568. Muratori, A.D. 958, 1057,
greatest prince in Italy, was flogged be- &c. Fleury, Hist. Eccles. t. xiii. p. 73.
fore the altar by an abbot, for selling The sum however appears to have been
benefices. Muratori, ad ann. 1046. The very small: rather like a fee than a
offence was much more common than bribe,
the punishment, but the two combined
ECCLES. POWER. DURING THE MIDDLE AGES. 179
pope might be confirmed. Exceptions, if any, are infre-
quent while Rome was subject to the eastern empire.8 This,
among other imperial prerogatives, Charlemagne might con-
sider as his own. He possessed the city, especially after his
coronation as emperor, in full sovereignty ; and even before
that event had investigated, as supreme chief, some accusa-
tions preferred against the pope Leo III. No vacancy of
the papacy took place after Charlemagne became emperor;
and it must be confessed that, in the first which happened
under Louis the Debonair, Stephen IV. was consecrated in
haste without that prince's approbation.1 But Gregory IV.,
his successor, waited till his election had been confirmed ;
and, upon the whole, the Carlovingian emperors, though less
uniformly than their predecessors, retained that mark of
sovereignty." But during the disorderly state of Italy which
followed the last reigns of Charlemagne's posterity, while the
sovereignty and even the name of an emperor were in abey-
ance, the supreme dignity of Christendom was conferred only
by the factious rabble of its capital. Otho the Great, in
receiving the imperial crown, took upon him the prerogatives
of Charlemagne. There is even extant a decree of Leo VIII.,
which grants to him and his successors the right of naming
future popes. But the authenticity of this instrument is
denied by the Italians.* It does not appear that the Saxon
emperors went to such a length as nomination, except in one
instance (that of Gregory V. in 996) ; but they sometimes,
not uniformly, confirmed the election of a pope, according to
ancient custom. An explicit right of nomination was how-
ever conceded to the emperor Henry III. in 1047, as the
only means of rescuing the Roman church from the disgrace
and depravity into which it had fallen. Henry appointed two
or three very good popes ; acting in this against the warnings
8 Le Blanc, Dissertation sur 1'Auto- dissertation, t. iv. p. 1167, though ad-
rite des Empereurs. This is subjoined mitting some interpolations. Pagi, in
to his Traite des Monnoyes; but not in Baronium, t. iv. p. 8, seemed to me to
all copies, which makes those that want have urged some weighty objections:
it less valuable. St. Marc and Muratori, and Muratori, Annali d'ltalia, A.D. 962,
passim. speaks of it as a gross imposture, in
1 Muratori, A.D. 817. St. Marc. which he probably goes too far. It ob-
u Le Blanc. Schmidt, t. ii. p. 186. tained credit rather early, and is ad-
St. Marc, t. i. p. 387, 393, &c. mitted into the Decretum of Gratian,
St. Marc has defended the authen- notwithstanding its obvious tendency,
ticity of this instrument in a separate p. 211, edit. 1591.
N 2
180 STATE OF EUROPE CHAP. VII. PART I.
of a selfish policy, as fatal experience soon proved to his
family/
This high prerogative was perhaps not designed to extend
beyond Henry himself. But, even if it had been transmis-
sible to his successors, the infancy of his son Henry IV. and
the factions of that minority precluded the possibility of its
Decree of exercise. Nicolas II., in 1059, published a decree
Nicolas IL which restored the right of election to the Eonians ;
but with a remarkable variation from the original form. The
cardinal bishops (seven in number, holding sees in the neigh-
bourhood of Borne, and consequently suffragans of the pope
as patriarch or metropolitan) were to choose the supreme
pontiff, with the concurrence first of the cardinal priests and
deacons (or ministers of the parish churches of Rome), and
afterwards of the laity. Thus elected, the new pope was
to be presented for confirmation to Henry, " now king, and
hereafter to become emperor," and to such of his successors
as should personally obtain that privilege.2 This decree is
the foundation of that celebrated mode of election in a con-
clave of cardinals which has ever since determined the
headship of the church. It was intended not only to ex-
clude the citizens, who had indeed justly forfeited their
primitive right, but as far as possible to prepare the way for
an absolute emancipation of the papacy from the imperial
control ; reserving only a precarious and personal conces-
sion to the emperors, instead of their ancient legal prero-
gative of confirmation.
The real author of this decree, and of all other vigorous
Gregory vii. measures adopted by the popes of that age, whether
A.D. 1073. .por t^e assertion of their independence, or the re-
storation of discipline, was Hildebrand, archdeacon of the
church of Rome, by far the most conspicuous person of the
eleventh century. Acquiring by his extraordinary qualities
an unbounded ascendency over the Italian clergy, they
regarded him as their chosen leader, and the hope of their
common cause. He had been empowered singly to nominate
. _ y St. Marc. Muratori. Schmidt. Stru- the consent of two-thirds of the college
vius. necessary for a pope's election. Labbe,
z St. Marc, t. iii. p. 276. The first Concilia, t. x. p. 1508.
canon of the third Lateran council makes
ECCLES. POWER. DURING THE MIDDLE AGES. 181
a pope on the part of the Romans, after the death of
Leo IX., and compelled Henry III. to acquiesce in his
choice of Victor II.a No man could proceed more fearlessly
towards his object than Hildebrand, nor with less attention
to conscientious impediments. Though the decree of Ni-
colas II., his own work, had expressly reserved the right
of confirmation of'the young king of Germany, yet, on the
death of that pope, Hildebrand procured the election and
consecration of Alexander II., without waiting for any au-
thority.b During this pontificate he was considered as
something greater than the pope, who acted entirely by his
counsels. On Alexander's decease, Hildebrand, long since
the real head of the church, was raised with enthusiasm to
its chief dignity, and assumed the name of Gregory VII.
Notwithstanding the late precedent at the election of Alex-
ander II., it appears that Gregory did not yet con- m8 differ-
sider his plans sufficiently mature to throw off the HeCn?ywiV.
yoke altogether, but declined to receive consecration until he
had obtained the consent of the king of Germany.0 This
moderation was not of long continuance. The situation of
Germany speedily afforded him an opportunity of displaying
his ambitious views. Henry I V., through a very bad educa-
tion, was arbitrary and dissolute ; the Saxons were engaged
in a desperate rebellion ; and secret disaffection had spread
among the princes to an extent of which the pope was much
better aware than the king.d He began by excommunicating
some of Henry's ministers, on pretence of simony, and made
it a ground of remonstrance that they were not instantly
dismissed. His next step was to publish a decree, or rather
to renew one of Alexander II., against lay investitures.6
The abolition of these was a favourite object of Gregory, and
formed an essential part of his general scheme for emanci-
pating the spiritual, and subjugating the temporal power.
The ring and crosier, it was asserted by the papal advocates,
were the emblems of that power which no monarch could
bestow ; but even if a less offensive symbol were adopted in
a St. Marc, p. 97. day of his election, p. 554.
b Id. p. 306. d Schmidt. St. Marc. These two are
c Id. p. 552. He acted, however, as my principal authorities for the contest
pope, corresponding in that character between the church and the empire.
with bishops of all countries, from the e St. Marc, t. iii. p. 670.
182 STATE OF EUROPE CHAP. VII. PART I.
investitures, the dignity of the church was lowered, and her
purity contaminated, when her highest ministers were com-
pelled to solicit the patronage or the approbation of laymen.
Though the estates of bishops might, strictly, be of temporal
right, yet, as they had been inseparably annexed to their
spiritual office, it became just, that what was first in dignity
and importance should carry with it those accessory parts.
And this was more necessary than in former times, on
account of the notorious traffic which sovereigns made of
their usurped nomination to benefices, so that scarcely any
prelate sat by their favour whose possession was not in-
validated by simony.
The contest about investitures,, though begun by Gregory
VII., did not occupy a very prominent place during his pon-
tificate ; its interest being suspended by other more extra-
ordinary and important dissensions between the church and
empire. The pope, after tampering some time with the dis-
affected party in Germany, summoned Henry to appear at
Kome, and vindicate himself from the charges alleged by his
subjects. Such an outrage naturally exasperated a young
and passionate monarch. Assembling a number of bishops
and other vassals at Worms, he procured a sentence that
Gregory should no longer be obeyed as lawful pope. But
the time was past for those arbitrary encroachments, or at
least high prerogatives, of former emperors. The relations of
dependency between church and state were now about to be
reversed. Gregory had no sooner received accounts of the
proceedings at Worms than he summoned a council in the
Lateran palace, and by a solemn sentence not only excom-
municated Henry, but deprived him of the kingdoms of
Germany and Italy, releasing his subjects from their alle-
giance, and forbidding them to obey him as sovereign.
Thus Gregory VII. obtained the glory of leaving all his
predecessors behind, and astonishing mankind by an act of
audacity and ambition which the most emulous of his suc-
cessors could hardly surpass/
f The sentence of Gregory VII. their duty to resist a sovereign against
against the emperor Henry was directed, whom they are in rebellion, and will not
we should always remember, to persons be very scrupulous in examining conclu-
already well disposed to reject his autho- eions which fall in with their inclinations
rity. Men are glad to be told that it is and interests. Allegiance was in those
ECCLES. POWEE. DURING THE MIDDLE AGES. 183
The first impulses of Henry's mind on hearing this de-
nunciation were indignation and resentment. But, like other
inexperienced and misguided sovereigns, he had formed an
erroneous calculation of his own resources. A conspiracy,
long prepared, of which the dukes of Suabia and Carinthia
were the chiefs, began to manifest itself; some were alienated
by his vices, and others jealous of his family; the rebellious
Saxons took courage ; the bishops, intimidated by excom-
munications, withdrew from his side ; and he suddenly found
himself almost insulated in the midst of his dominions. In
this desertion, he had recourse, through panic, to a miserable
expedient. He crossed the Alps, with the avowed deter-
mination of submitting, and seeking absolution from the pope.
Gregory was at Canossa, a fortress near Reggio, belonging
to his faithful adherent, the countess Matilda. It
_ -i . rr\i A'D-
was in a winter or unusual severity. Ine emperor
was admitted, without his guards, into an outer court of the
castle, and three successive days remained from morning till
evening, in a woollen shirt and with naked feet, while
Gregory, shut up with the countess, refused to admit him to
his presence. On the fourth day he obtained absolution,
but only upon condition of appearing on a certain day to
learn the pope's decision, whether or no he should be restored
to his kingdom, until which time he promised not to assume
the ensigns of royalty.
This base humiliation, instead of conciliating Henry's
adversaries, forfeited the attachment of his friends. In his
turbulent ages easily thrown off, and the runt in regem, ut electores suos juste
right of resistance was in continual ex- judicare et regali providentia gubernare
ercise. To the Germans of the eleventh satageret, quod pactum ille postea prse-
century, a prince unfit for Christian varicari et contemnere non cessavit, &c.
communion would easily appear unfit to Ergo, et absque sedis apostolicse judicio
reign over them ; and though Henry had principes eum pro rege merito rel'utare
not given much real provocation to the possent, cum pactum adimplere contem-
pope, his vices and tyranny might seem serit, quod iis pro electione sua promi-
to challenge any spiritual censure, or serat; quo non adimpleto, nee rex esse
temporal chastisement. A nearly con- poterat. Vita Greg. VII. in Muratori,
temporary writer combines the two jus- Script. Rer. Ital. t. iii. p. 34-2.
tifications of the rebellious party. Nemo Upon the other hand, the friends and
Romanorurn pontificem reges a regno supporters of Henry, though ecclesiastics,
deponere posse denegabit, quicunque protested against this novel stretch of
decreta sanctissimi Papce Gregorii non prerogative in the Roman see. Several
proscribenda judicabit. Ipse enim vir proofs of this are adduced by Schmidt,
apostolicus Preeterea, liberi ho- t. iii. p. 315.
mines Henricum eo pacto eibi praeposue*
184 STATE OF EUROPE ' CHAP. VII. PART I.
contest with the pope he had found a zealous support in the
principal Lombard cities, among whom the married and
simoniacal clergy had great influence.8 Indignant at his
submission to Gregory, whom they affected to consider as
an usurper of the papal chair, they now closed their gates
against the emperor, and spoke openly of deposing him. In
this singular position between opposite dangers, Henry retrod
his late steps, and broke off' his treaty with the pope ; pre-
ferring, if he must fall, to fall as the defender rather than
the betrayer of his imperial rights. The rebellious princes
of Germany chose another king, Rodolph duke of Suabia,
on whom Gregory, after some delay, bestowed the crown,
with a Latin verse, importing that it was given by virtue of
the original commission of St. Peter.11 But the success of
this pontiff in his immediate designs was not answerable to
his intrepidity. Henry both subdued the German rebellion,
and carried on the war with so much vigour, or rather so
little resistance, in Italy, that he was crowned in Rome by
the antipope Guibert, whom he had raised in a council of his
partisans to the government of the church instead of Gregory.
The latter found an asylum under the protection of Roger
Guiscard at Salerno, where he died an exile. ' His
mantle, however, descended upon his successors,
especially Urban II. and Paschal II., who strenuously perse-
vered in the great contest for ecclesiastical independence ; the
former with a spirit and policy worthy of Gregory VII., the
latter with steady, but disinterested prejudice.1 They raised
g There had been a kind of civil war Landulf favour the married clerks ; and
at Milan for about twenty years before were perhaps themselves of that descrip-
this time, excited by the intemperate tion. Muratori.
zeal of some partisans who endeavoured h Petra dedit Petro, Petrus diadema
to execute the papal decrees against irre- Rodolpho.
gular clerks by force. The history of ' Paschal II. was so conscientious in
these feuds has been written by two con- his abhorrence of investitures, that he
temporaries, Arnulf and Landulf, pub- actually signed an agreement with
lished in the 4th volume of Muratori's Henry V. in 1110, whereby the prelates
Scriptores Eerum Italicarum; sufficient were to resign all the lands and other
extracts from which will be found in St. possessions which they held in fief of the
Marc, t. iii. p. 230, &c., and in Mura- emperor, on condition of the latter re-
tori's Annals. The Milanese clergy set nouncing the right of investiture, which
up a pretence to retain wives, under the indeed, in such circumstances, would fall
authority of their great archbishop, St. of itself. This extraordinary concession,
Ambrose, who, it seems, has spoken with as may be imagined, was not very satis-
more indulgence of this practice than factory to the cardinals and bishops about
most of the fathers. Both Arnulf and Paschal' s court, more worldly-minded
ECCLES. POWER. DURING THE MIDDLE AGES. 185
up enemies against Henry IV. out of the bosom of his family,
instigating the ambition of two of his sons successively,
Conrad and Henry, to mingle in the revolts of Germany.
But Rome, under whose auspices the latter had not scrupled
to engage in an almost parricidal rebellion, was soon disap-
pointed by his unexpected tenaciousness of that obnoxious
prerogative which had occasioned so much of his father's
misery. He steacfily refused to part with the right of investi-
ture ; and the empire was still committed in open hostility
with the church for fifteen years of his reign. But Henry
V. being stronger in the support of his German vassals than
his father had been, none of the popes with whom he was
engaged had the boldness to repeat the measures of Gregory
VII. At length, each party grown weary of this compro-
® . ' L i J misedby
ruinous contention, a treaty was agreed upon be- concordat of
i i r* i- TT i • i Calixtus.
tween the emperor and Oahxtus 11., which put an A.D. 1122.
end by compromise to the question of ecclesiastical investi-
tures. By this compact, the emperor resigned for ever all
pretence to invest bishops by the ring and crosier, and re-
cognised the liberty of elections. But in return, it was
agreed that elections should be made in his presence, or
that of his officers ; and that the new bishop should receive
his temporalities from the emperor by the sceptre.k
Both parties in the concordat at Worms receded from so
much of their pretensions, that we might almost hesitate to
determine which is to be considered as victorious. On the
one hand, in restoring the freedom of episcopal elections, the
emperors lost a prerogative of very long standing, and almost
necessary to the maintenance of authority over not the least
turbulent part of their subjects. And though the form of
investiture by the ring and crosier seemed in itself of no im-
portance, yet it had been in effect a collateral security against
the election of obnoxious persons. For the emperors, detain-
ing this necessary part of the pontificals until they should
confer investiture, prevented a hasty consecration of the new
than himself, nor to those of the einpe- to be without riches, than to enjoy them
ror's party, whose joint clamour soon put on condition of doing homage to laymen,
a stop to the treaty. St. Marc, t. iv. k St. Marc, t. iv. p. 1093. Schmidt,
p. 976. A letter of Paschal to Anselm t. iii. p. 178. The latter quotes the
(Schmidt, t. iii. p. 304) seems to imply Latin words,
that he thought it better for the church
STATE OF EUROPE CHAP. VII. PART I.
bishop, after which, the vacancy being legally filled, it would
not be decent for them to withhold the temporalities. But
then, on the other hand, they preserved by the concordat their
feudal sovereignty over the estates of the church, in defiance
of the language which had recently been held by its rulers.
Gregory VII. had positively declared in the Late ran council
of 1080, that a bishop or abbot receiving investiture from a
layman should not be reckoned as a prelate."1 The same
doctrine had been maintained by all his successors, without
any limitation of their censures to the formality of the ring
and crosier. But Calixtus II. himself had gone much fur-
ther, and absolutely prohibited the compelling ecclesiastics to
render any service to laymen on account of their benefices.11
It is evident that such a general immunity from feudal obli-
gations for an order who possessed nearly half the lands in
Europe struck at the root of those institutions by which the
fabric of society was principally held together. This com-
plete independency had been the aim of Gregory's disciples ;
and by yielding to the continuance of lay-investitures in any
shape, Calixtus may, in this point of view, appear to have
relinquished the principal object of contention.0
m St. Marc, t. iv. p. 774. A bishop of an unnecessary ceremony, he still re-
Placentia asserts that prelates dis- tained the substance. The right which
honoured their ordei; by putting their he assumed of nominating bishops and
hands, which held the body and blood of abbots was left unimpaired." Hist, of
Christ, between those of impure laymen. Engl. ii. 169. But if this nomination by
p. 956. The same expressions are used the crown was so great an abuse, why
by others, and are levelled at the form did the popes concede it to Spain and
of feudal homage, which, according to France ? The real truth is, that no
the principles of that age, ought to have mode of choosing bishops is altogether
been as obnoxious as investiture. unexceptionable. But, upon the whole,
n Id. p. 1061, 1067. nomination by the crown is likely to
0 Ranke observes that according to work better than any other, even for the
the concordat of Worms predominant religious good of the church. As a
influence was yielded to the emperor in means of preserving the connexion of the
Germany, and to the pope in Italy; an clergy with the state, it is almost indis-
agreement, however, which was not ex- pensable.
pressed with precision, and which con- Schmidt observes, a-? to Germany, that
tained the germ of fresh disputes. Hist, the dispute about investitures was not
of Reform, i. 34. But even if this victory wholly to the advantage of the church;
should be assigned to Rome in respect of though she seemed to come out success-
Germany, it does not seem equally clear fully, yet it produced a hatred on the
as to England. Lingard says of the part of the laity, and, above all, a deter-
agreement between Henry I. and Pas- mination in the princes and nobility to
challl.:— "Upon the whole, the church grant no more lands over which their
gained little by this compromise. It suzerainty was to be disputed, iii. 269.
might check but did not abolish the The emperors retained a good deal — the
principal abuse. If Henry surrendered regale, or possession of the temporalities
ECCLES. POWER. DUKING THE MIDDLE AGES. 187
The emperors were not the only sovereigns whose practice
of investiture excited the hostility of Rome, although they
sustained the principal brunt of the war. A similar contest
broke out under the pontificate of Paschal II. with Henry I.
of England ; for the circumstances of which, as they contain
nothing peculiar, I refer to our own historians. It is remark-
able that it ended in a compromise not unlike that adjusted
at Worms ; the king renouncing all sorts of investitures,
while the pope consented that the bishop should do homage
for his temporalities. This was exactly the custom of France,
where investiture by the ring and crosier is said not to have
prevailed ;p and it answered the main end of sovereigns by
keeping up the feudal dependency of ecclesiastical estates.
But the kings of Castile were more fortunate than the rest ;
discreetly yielding to the pride of Rome, they obtained
what was essential to their own authority, and have always
possessed, by the concession of Urban II., an absolute privi-
lege of nomination to bishoprics in their dominions. q An
early evidence of that indifference of the popes towards the
real independence of national churches, to which subsequent
ages were to lend abundant confirmation.
When the emperors had surrendered their pretensions to
interfere in episcopal elections, the primitive mode into)ductk»n
of collecting the suffrages of clergy and laity in con- LctFons.ar
junction, or at least of the clergy with the laity's assent and
ratification, ought naturally to have revived. But in the
twelfth century, neither the people, nor even the general body
of the diocesan clergy, were considered as worthy to exercise
during a vacancy; the prerogative, on a sine pretio tamen investire solenniter —
disputed election, of investing whichever imply nothing more than a formality,
candidate they pleased; above all, per- The emperor is, as it were, commanded
haps, the recognition of a great principle, to invest the bishop after consecration,
that the church was, as to its temporal But in practice the emperors always
estate, the subject of the civil magistrate, conferred the investiture before conse-
The feudal element of society was so cration. Schmidt, iv. 153.
opposite to the ecclesiastical, that what- P Histoire du Droit public ecclesias-
ever was gained by the former was so tique Franyois; p. 261. I do not fully
much subtracted from the efficacy of rely on this authority,
the latter. This left an importance to q F. Paul on Benefices, c. 24. Zurita,
the imperial investiture after the Calixtin Anales de Aragon, t. iv. p. 305. Fleury
concordat, which was not intended pro- says that the kings of Spain nominate to
bably by the pope. For the words, as bishoprics by virtue of a particular in-
quoted by Schmidt (iii. 301) — Habeat diligence, renewed by the pope for the
imperatoria dignitas electum libere, con- life of each prince. Institutions au
secratum canonice, regaliter per sceptrum Droit, t. i. p. 106.
188 STATE OF EUROPE CHAP. VII. PART I.
this function. It soon devolved altogether upon the chapters
of cathedral churches/ The original of these may be traced
very high. In the earliest ages we find a college of pres-
bytery consisting of the priests and deacons, assistants as a
council of advice, or even a kind of parliament, to their
bishops. Parochial divisions, and fixed ministers attached
to them, were not established till a later period. But the
canons, or cathedral clergy, acquired afterwards a more dis-
tinct character. They were subjected by degrees to certain
strict observances, little differing, in fact, from those imposed
on monastic orders. They lived at a common table, they
slept in a common dormitory, their dress and diet were regu-
lated by peculiar laws. But they were distinguished from
monks by the right of possessing individual property, which
was afterwards extended to the enjoyment of separate pre-
bends or benefices. These strict regulations, chiefly im-
posed by Louis the Debonair, went into disuse through the
relaxation of discipline ; nor were they ever effectually
restored. Meantime the chapters became extremely rich ;
and as they monopolized the privilege of electing bishops,
it became an object of ambition with noble families to obtain
canonries for their younger children, as the surest road to
ecclesiastical honours and opulence. Contrary, therefore, to
the general policy of the church, persons of inferior birth
have been rigidly excluded from these foundations.8
The object of Gregory VII., in attempting to redress
tnose more flagrant abuses which for two centuries
had deformed the face of the Latin church, is not
incapable, perhaps, of vindication, though no sufficient apo-
logy can be offered for the means he employed. But the
r Fra Paolo (Treatise on Benefices, Otho IV. in the capitulation upon his
c. 24) says that between 1122 and 1145 accession. Hist, des Allemands, t. iv.
it became a rule almost everywhere p. 175. Fleury thinks that chapters had
established, that bishops should be not an exclusive election till the end of
chosen by the chapter. Schmidt, how- the twelfth century. The second Lateran
ever, brings a few instances where the council in 1139 represses their attempts
consent of the nobility and other laics is to engross it. Institutions au Droit
expressed, though perhaps little else than Eccle's. t. i. p. 100.
a matter of form. Innocent II. eeems " Schmidt, t. ii. p. 224, 473 ; t. iii.
to have been the first who declared that p. 281. Encyclopedic, art. Chanoine!
whoever had the majority of the chapter F. Paul on Benefices, c. 16. Fleury'
in his favour should be deemed duly 8nie Discours sur 1'Hist. Eccle's.
elected; and this was confirmed by
ECCLES. POWER, DURING THE MIDDLE AGES. 189
disinterested love of reformation, to which candour might
ascribe the contention against investitures, is belied by the
general tenor of his conduct, exhibiting an arrogance with-
out parallel, and an ambition that grasped at universal and
unlimited monarchy. He may be called the common
enemy of all sovereigns, whose dignity as well as independ-
ence mortified his infatuated pride. Thus we find him
menacing Philip I. of France, who had connived at the
pillage of some Italian merchants and pilgrims, not only
with an interdict, but a sentence of deposition.1 Thus too
he asserts, as a known historical fact, that tbe kingdom of
Spain had formerly belonged, by special right, to St. Peter ;
and by virtue of this imprescriptible claim, he grants to a
certain count de Rouci all territories which he should
reconquer from the Moors, to be held in fief from the Holy
See by a stipulated rent." A similar pretension he makes
to the kingdom of Hungary, and bitterly reproaches its
sovereign, Solomon, who had done homage to the emperor,
in derogation of St. Peter, his legitimate lord.x It* was
convenient to treat this apostle as a great feudal suzerain,
and the legal principles of that age were dexterously applied
to rivet more forcibly the fetters of superstition.7
While temporal sovereigns were opposing so inadequate a
resistance to a system of usurpation contrary to all precedent,
and to the common principles of society, it was not to be
expected that national churches should persevere in opposing
1 St. Marc, t. iii. p. 628. Fleury, cupiens, hanc concessionem abapostolica
Hist. Eccles. t. xiii. p. 281, 284. sede obtinuit, ut partem illam, unde pa-
u The language he employs is worth ganos suo studio et adjuncto sibialiorum
quoting, as a specimen of his style: Non auxilio expellere possit, sub conditione
later 3 vos credimus, regnum Hispaniae inter nos factae pactiouis ex parte Sti.
ab antique juris sancti Pebri fuisse, et Petri possideret. Labbe, Concilia, t. x.
adhuc licet diu a paganis sit occupatum, p. 10. Three instances occur in the
lege tamen justitise non evacuata, nulli Corps Diplomatique of Duniont, where
mortalium, sed soli apostolicse sedi ex a duke of Dalmatia (t. i. p. 53), a count
sequo pertinere. Quod enim auctore of Provence (p. 58), and a count of Bar-
Deo semel in proprietates ecclesiarum celona (ibid.), put themselves under the
juste pervenerit, manente Eo, ab usu feudal superiority and protection of Gre-
quidem, sed ab earum jure, occasione gory VII. The motive was sufficiently
transeuntis temporis, sine legitima con- obvious.
cessione divelli non poterit. Itaque x St. Marc, t. iii. p. 624, 674. Schmidt,
Comes Evalus de Roceio, cujus fainam p. 73.
apud vos haud obscuram esse putamus, y The character and policy of Gre-
terram illam ad honorem Sti. Petri in- gory VII. are well discussed by Schmidt,
gredi, et a paganorum manibus eripere t. iii. p. 307.
190 STATE OF EUROPE CHAP. VII. PART I.
pretensions for which several ages had paved the way.
Gregory VII. completed the destruction of their liberties.
The principles contained in the decretals of Isidore, hostile
as they were to ecclesiastical independence, were set aside as
insufficient to establish the absolute monarchy of Rome. By
a constitution of Alexander II., during whose pontificate
Hildebrand himself was deemed the effectual pope, no bishop
in the catholic church was permitted to exercise his functions
until he had received the confirmation of the Holy See :z a
provision of vast importance, through which, beyond perhaps
any other means, Home has sustained, and still sustains, her
temporal influence, as well as her ecclesiastical supremacy.
The national churches, long abridged of their liberties by
gradual encroachments, now found themselves subject to an
undisguised and irresistible despotism. Instead of affording
protection to bishops against their metropolitans, under an
insidious pretence of which the popes of the ninth century
had subverted the authority of the latter, it became the
favourite policy of their successors to harass all prelates with
citations to Rome.a Gregory obliged the metropolitans to
attend in person for the pallium.b Bishops were summoned
even from England and the northern kingdoms to receive the
commands of the spiritual monarch. William the Conqueror
having made a difficulty about permitting his prelates to
obey these citations, Gregory, though in general on good
terms with that prince, and treating him with a deference
which marks the effect of a firm character in repressing the
ebullitions of overbearing pride,0 complains of this as a per-
secution unheard of among pagans.d The great quarrel be-
tween Archbishop Anselm and his two sovereigns, William
Rufus and Henry I., was originally founded upon a similar
refusal to permit his departure for Rome.
This perpetual control exercised by the popes over eccle-
Authonty siastical, and in some degree over temporal affairs,
legates, was maintained by means of their legates, at once
the ambassadors and the lieutenants of the Holy See. Pre-
z St. Marc, p. 460. c St. Marc, p. 628, 788. Schmidt, t. iii.
a Schmidt, t. iii. p. 80, 322. p. 82.
b Id. t. iv. p. 170. d St- Marc t> iv> p 761> Collier,
p. 252.
ECCLES. POWER. DURING THE MIDDLE AGES. 191
viously to the latter part of the tenth age these had been
sent not frequently and upon special occasions. The lega-
tine or vicarial commission had generally been intrusted to
some eminent metropolitan of the nation within which it
was to be exercised ; as the archbishop of Canterbury was
perpetual legate in England. But the special commis-
sioners, or legates- a latere, suspending the pope's ordinary
vicars, took upon themselves an unbounded authority over
the national churches, holding councils, promulgating canons,
deposing bishops, and issuing interdicts at their discretion.
They lived in splendour at the expense of the bishops of
the province. This was the more galling to the hierarchy,
because simple deacons were often invested with this dig-
nity, which set them above primates. As the sovereigns of
France and England acquired more courage, they consider-
ably abridged this prerogative of the Holy See, and resisted
the entrance of any legates into their dominions without
their consent.6
From the time of Gregory VII. no pontiff thought of
awaiting the confirmation of the emperor, as in earlier ages,
before he was installed in the throne of St. Peter. On the
contrary, it was pretended that the emperor was himself to
be confirmed by the pope. This had indeed been broached
by John VIII. two hundred years before Gregory/ It was
still a doctrine not calculated for general reception ; but the
popes availed themselves of every opportunity which the
temporising policy, the negligence or bigotry of sovereigns
threw into their hands. Lothaire coming to receive the im-
perial crown at Rome, this circumstance was commemorated
by a picture in the Lateran palace, in which, and in two Latin
verses subscribed, he was represented as doing homage to the
, e De Marca, 1. vi. c. 28, 30, 31. these words into the mouth of Jesus
Schmidt, t. ii. p. 498; t. iii. p. 312, 320. Christ, as addressed to Pope Victor II.
Hist, du Droit Public Ecol. Frar^ois, Ego claves totius universalis ecclesiae
p. 250. Fleury, 4me Discours sur 1'Hist. ineae tuis manibus tradidi, et super earn
Eccles. c. 10. te mihi vicarium posxii, quam proprii
f Vide supra. It appears manifest sanguinis effusione redemi. Et si pauca
that the scheme of temporal sovereignty sunt ista, etiam monarchias addidi : immo
was only suspended by the disorders of sublato rege de medio totius Romani
the Roman See in the tenth century, imperil vacantis tibi jura pernaisi.
Peter Damian, a celebrated writer of the Schmidt, t. iii. p. 78.
age of Hildebrand, and his friend, puts
192 STATE OF EUROPE CHAP. VII. PART I.
pope.8 When Frederic Barbarossa came upon the same
occasion, he omitted to hold the stirrup of
Adrian IV., who, in his turn, refused to give him
the usual kiss of peace ; nor was the contest ended but by the
emperor's acquiescence, who was content to follow the pre-
cedents of his predecessors. The same Adrian, expostulating
with Frederic upon some slight grievance, reminded him of
the imperial crown which he had conferred, and declared his
willingness to bestow, if possible, still greater benefits. But
the phrase employed (majora beneficia) suggested the idea
of a fief; and the general insolence which pervaded Adrian's
letter confirming this interpretation, a ferment arose among
the German princes, in a congress of whom this letter was
delivered. "From whom then," one of the legates was
rash enough to say, udoes the emperor hold his crown,
except from the pope? " which so irritated a prince of Wit-
telsbach, *that he was with difficulty prevented from cleaving
the priest's head with his sabre.b Adrian IV, was the only
Englishman that ever sat in the papal chair. It might, per-
haps, pass for a favour bestowed on his natural sovereign,
when tie granted to Henry II. the kingdom of Ireland ; yet
the language of this donation, wherein he asserts all islands
to be the exclusive property of St. Peter, should not have
had a very pleasing sound to an insular monarch.
I shall not wait to comment on the support given to
innocent m. Becket by Alexander III., which must be familiar
1194-1216. to the English reader, nor on his speedy canoniza-
tion ; a reward which the church has always held out to its
most active friends, and which may be compared to titles of
nobility granted by a temporal sovereign.1 But the epoch
when the spirit of papal usurpation was most strikingly dis-
played was the pontificate of Innocent III. In each of the
g Rex venit ante fores, jurans prius h Muratori, ubi supra. Schmidt, t. iii.
urbis honores : p. 393.
Post homo fit papse, sumit quo ' The first instance of a solemn papal
dante coronam. ~ canonization is that of St. Udalric by
Muratori, Annali, A.D. 1157. John XVI. in 993. However, the me-
tropolitans continued to meddle with
There was a pretext for this artful this sort of apotheosis till the pontificate
line. Lothaire had received the estate of Alexander III., who reserved it, as a
of Matilda in fief from the pope, with a choice prerogative, to the Holy See. Art
reversion to Henry the Proud, his son- de verifier les Dates, t. i. p. 247 and
in-law. Schmidt, p. 349. 290.
ECCLES. POWER. DURING THE MIDDLE AGES. 193
three leading objects which Rome has pursued, independent
sovereignty, supremacy over the Christian church, control
over the princes of the earth, it was the fortune of this pontiff
to conquer. He realized, as we have seen in another place,
that fond hope of so many of his predecessors, a dominion
over Rome and the central parts of Italy. During his pon-
tificate, Constantinople was taken by the Latins ; and how-
ever he might seem to regret a diversion of the crusaders,
which impeded the recovery of the Holy Land, he exulted
in the obedience of the new patriarch, and the reunion of
the Greek church. Never, perhaps, either before or since,
was the great eastern schism in so fair a way of being
healed ; even the kings of Bulgaria and of Armenia acknow-
ledged the supremacy of Innocent, and permitted his inter-
ference with their ecclesiastical institutions.
The maxims of Gregory VII. were now matured by more
than a hundred years, and the right of trampling m^extraor-
upon the necks of kings had been received, at tenSnT6
least, among churchmen, as an inherent attribute of the
papacy. " As the sun and the moon are placed in the firma-
ment," (such is the language of Innocent,) " the greater as
the light of the day, and the lesser of the night ; thus are
there two powers in the church ; the pontifical, which, as
having the charge of souls, is the greater ; and the royal,
which is the less, and to which the bodies of men only are
intrusted."k Intoxicated with these conceptions, (if we may
apply such a word to successful ambition,) he thought no
quarrel of princes beyond the sphere of his jurisdiction.
" Though I cannot judge of the right to a fief," said Innocent
to the kings of France and England, " yet it is my province
to judge where sin is committed, and my duty to prevent all
public scandals." Philip Augustus, who had at that time the
worse in his war with Richard, acquiesced in this sophism ;
the latter was more refractory, till the papal legate began to
menace him with the rigour of the church.m But the king
k Vita Innocentii Tertii in Muratori, data fide promisit se ad mandatum ipsius
Scriptores Kerum Ital. t. iii. pars i. pacem yel treugas cum rege Anglise
p. 448. This life is written by a con- initurum. Bichardus autem rex Angliae
temporary. St. Marc, t. v. p. 325. se difficilem ostendebat. Sed cum idem
Schmidt, t. iv. p. 227. legatus ei cepit rigorem ecclesiasticum in-
m Philippus rex Franciae in manu ejus tentare, saniori ductus consilio acquievit.
VOL. II. O
194 STATE OF EUROPE CHAP. VII. PART I.
of England, as well as his adversary, condescended to ob-
tain temporary ends by an impolitic submission to Rome.
We have a letter from Innocent to the king of Navarre,
directing him, on pain of spiritual censures, to restore some
castles which he detained from Richard.n And the latter
appears to have entertained hopes of recovering his ransom
paid to the emperor and duke of Austria, through the pope's
interference.0 By such blind sacrifices of the greater to the
less, of the future to the present, the sovereigns of Europe
played continually into the hands of their subtle enemy.
Though I am not aware that any pope before Innocent
III. had thus announced himself as the general arbiter of
differences and conservator of the peace throughout Christen-
dom, yet the scheme had been already formed, and the public
mind was in some degree prepared to admit it. Gerohus,
a writer who lived early in the twelfth century, published a
theory of perpetual pacification, as feasible certainly as some
that have been planned in later times. All disputes among
princes were to be referred to the pope. If either party re-
fused to obey the sentence of Rome, he was to be excom-
municated and deposed. Every Christian sovereign was to
attack the refractory delinquent, under pain of a similar for-
feiture.1* A project of this nature had not only a magnifi-
cence flattering to the ambition of the church, but was cal-
culated to impose upon benevolent minds, sickened by the
cupidity and oppression of princes. No control but that of
religion appeared sufficient to restrain the abuses of society ;
while its salutary influence had already been displayed both
in the Truce of God, which put the first check on the custom
of private war, and more recently in the protection afforded
to crusaders against all aggression during the continuance of
their engagement. But reasonings from the excesses of liberty
in favour of arbitrary government, or from the calamities of
Vita Innocentii Tertii, t. iii. pars i. p. had he interfered to procure Eichard's
503. release from prison: though Eleanor
n Innocentii Opera (Colonise, 1574), wrote him a letter, in which she asks,
P'o124. "Has not God given you the power to
Id. p. 134. Innocent actually wrote govern nations and kings ?" Velly, Hist,
some letters for this purpose, but without de France, t. iii. p. 382.
any effect, nor was he probably at all p Schmidt, t. iv. p. 232.
solicitous about it. p. 139 and 141 . Nor
ECCLES. POWER. DURING THE MIDDLE AGES. 195
national wars in favour of universal monarchy, involve the
tacit fallacy, that perfect, or at least superior, wisdom and
virtue will be found in the restraining power. The ex-
perience of Europe was not such as to authorize so candid
an expectation in behalf of the Roman See.
There were certainly some instances, where the temporal
supremacy of Innocent III., however usurped, may appear
to have been exerted beneficially. He directs one of his
legates to compel the observance of peace between the kings
of Castile and Portugal, if necessary, by excommunication
and interdict/1 He enjoins the king of Aragon to restore
his coin which he had lately debased, and of which great
complaint had arisen in his kingdom/ Nor do I question
his sincerity in these, or in any other cases of interference
with civil government. A great mind, such as Innocent III.
undoubtedly possessed, though prone to sacrifice every other
object to ambition, can never be indifferent to the beauty
of social order and the happiness of mankind. But, if we
may judge by the correspondence of this remarkable person,
his foremost gratification was the display of unbounded power.
His letters, especially to ecclesiastics, are full of unprovoked
rudeness. As impetuous as Gregory VII., he is unwilling
to owe anything to favour; he seems to anticipate denial,
heats himself into anger as he proceeds, and where he com-
mences with solicitation, seldom concludes without a menace.8
An extensive learning in ecclesiastical law, a close observa-
tion of whatever was passing in the world, an unwearied
diligence, sustained his fearless ambition.4 With such a
temper, and with such advantages, he was formidable beyond
q Innocent. Opera, p. 146. creditor had now refused to accept it;
r p. 378. and directs them to inquire into the facts,
s p. 31, 73, 76, &c. &c. and if they prove truly stated, to compel
* The following instance may illus- the creditor by spiritual censures to re-
trate the character of this pope, and his store the premises, reckoning their rent
spirit of governing the whole world, as during the time of his mortgage as part
much as those of a more public nature, of the debt, and to receive the remainder.
He writes to the chapter of Pisa, that one Id. t. ii. p. 17. It must be admitted
Rubeus, a citizen of that place, had com- that Innocent III. discouraged in general
plained to him, that, having mortgaged those vexatious and dilatory appeals from
a house and garden for two hundred and inferior ecclesiastical tribunals to the
fifty -two pounds, on condition that he court of Rome, which had gained ground
might redeem it before a fixed day, within before his time, and especially in the
which time he had been unavoidably pontificate of Alexander III.
prevented from raising the money, the
o 2
196 STATE OF EUROPE CHAP. VII. PAET I.
all his predecessors, and perhaps beyond all his successors.
On every side, the thunder of Rome broke over the heads of
princes. A certain -Swero is excommunicated for usurping
the crown of Norway. A legate, in passing through Hun-
gary, is detained by the king : Innocent writes in tolerably
mild terms to this potentate, but fails not to intimate that
he might be compelled to prevent his son's accession to the
throne. The king of Leon had married his cousin, a prin-
cess of Castile. Innocent subjects the kingdom to an inter-
dict. When the clergy of Leon petition him to remove it,
because, when they ceased to perform their functions, the
laity paid no tithes, and listened to heretical teachers when
orthodox mouths were mute, he consented that divine service
with closed doors, but not the rites of burial, might be per-
formed.11 The king at length gave way, and sent back his
wife. But a more illustrious victory of the same kind was
obtained over Philip Augustus, who, having repudiated Isem-
burga of Denmark, had contracted another marriage. The
conduct of the king, though not without the usual excuse of
those times, nearness of blood, was justly condemned ; and
Innocent did not hesitate to visit his sins upon the people by
a general interdict. This, after a short demur from some
bishops, was enforced throughout France ; the dead lay un-
buried, and the living were cut off from the offices of religion,
till Philip, thus subdued, took back his divorced wife. The
submission of such a prince, not feebly superstitious, like his
predecessor Robert, nor vexed with seditions, like the em-
peror Henry IV., but brave, firm, and victorious, is perhaps
the proudest trophy in the scutcheon of Rome. Compared
with this, the subsequent triumph of Innocent over our pusil-
lanimous John seems cheaply gained, though the surrender
of a powerful kingdom into the vassalage of the pope may
strike us as a proof of stupendous baseness on one side, and
audacity on the other.x Yet, under this very pontificate, it
u Innocent. Opera, t. ii. p. 411. Vita had any object to attain, and even Ed-
Innocent III. ward I. for some years: the latest pay-
x The stipulated annual payment of ment on record is in the seventeenth of
1000 marks was seldom made by the his reign. After a long discontinuance,
kings of England : but one is almost it was demanded in the fortieth of Ed-
ashamed that it should ever have been so. ward III. (1366), but the parliament
Henry III. paid it occasionally when he unanimously declared that John had no
ECCLES. POWER. DURING THE MIDDLE AGES. 197
was not unparalleled. Peter II., king of Aragon, received
at Rome the belt of knighthood and the royal crown from
the hands of Innocent III. ; he took an oath of perpetual
fealty and obedience to him and his successors ; he surren-
dered his kingdom, and accepted it again to be held by an
annual tribute, in return for the protection of the apostolic
See/ This strange conversion of kingdoms into spiritual
fiefs was intended as the price of security from ambitious
neighbours, and may be deemed analogous to the change
of alodial into feudal, or, more strictly, to that of lay into
ecclesiastical tenure, which was frequent during the turbu-
lence of the darker ages.
I have mentioned already that among the new pretensions
advanced by the Roman See, was that of confirming the
election of an emperor. It had however been asserted rather
incidentally, than in a peremptory manner. But the doubtful
elections of Philip and Otho after the death of Henry YI.
gave Innocent III. an opportunity of maintaining more posi-
tively this pretended right. In a decretal epistle addressed
to the duke of Zahringen, the object of which is to direct
him to transfer his allegiance from Philip to the other com-
petitor, Innocent, after stating the mode in which a regular
election ought to be made, declares the pope's immediate
authority to examine, confirm, anoint, crown, and consecrate
the elect emperor, provided he shall be worthy ; or to reject
him, if rendered unfit by great crimes, such as sacrilege,
heresy, perjury, or persecution of the church ; in default of
election, to supply the vacancy ; or, in the event of equal
suffrages, to bestow the empire upon any person at his dis-
cretion.2 The princes of Germany were not much influenced
right to subject the kingdom to a superior right electum irnperatorem examinare,
without their consent; which put an end approbare, et inungere, consecrare et
for ever to the applications. Prynne's coronare, si est dignus ; vel rejicere si est
Constitutions, vol. iii. indignus, ut quia sacrilegus, excommuni-
7 Zurita, Anales de Aragon, t. i. f. 91. catus, tyrannus, fatuus et hsereticus, pa-
This was not forgotten towards the latter ganus, perjurus, vel ecclesise persecutor,
part of the same century, when Peter III. Et electoribus nolentibus eligere, Papa
was engaged in the Sicilian war, and supplet. Et data paritate vocum eli-
served as a pretence for the pope's sen- gentium, necaccedentemajoreconcordia,
tence of deprivation. Papa potest gratificari cui vult. The
: Decretal. 1. i. tit. 6, c. 34, com- epistle itself is, if possible, more strongly
monly cited Venerabilem. The rubric or expressed,
synopsis of this epistle asserts the pope's
198 STATE OF EUEOPB CHAP. VII. PART I.
by this hardy assumption, which manifests the temper of
Innocent III. and of his court, rather than their power. But
Otho IV. at his cognation by the pope signed a capitula-
tion, which cut off several privileges enjoyed by the em-
perors, even since the concordat of Calixtus, in respect of
episcopal elections and investitures."a
a Schmidt, t. iv. p. 149, 175.
EOCLES. POWER. DURING THE MIDDLE AGES. 199
TART II.
Continual Progress of the Papacy — Canon Law — Mendicant Orders —
dispensing Power — Taxation of the Clergy by the Popes — Encroachments
on Hights of Patronage — Mandats, Reserves, &c. — General disaffection
towards the See of Rome in the thirteenth Century — Progress of Ecclesias-
tical Jurisdiction — Immunity of the Clergy in Criminal Cases — Restraints
imposed upon their Jurisdiction — upon their Acquisition of Property —
Boniface VIII. — his Quarrel with Philip the Fair — its Termination —
Gradual Decline of Papal Authority — Louis of Bavaria — Secession to
Avignon and Return to Rome — Conduct of Avignon Popes — Contested
Election of Urban and Clement produces the great Schism — Council of Pisa
— Constance — Basle — Methods adopted to restrain the Papal Usurpations
in England, Germany, and France — Liberties of the Gallican Church —
Decline of the Papal Influence in Italy.
THE noon-day of papal dominion extends from the ponti-
ficate of Innocent III. inclusively to that of Bo- papaiautho-
niface VIII. ; or, in other words, through the ffi^tL6
thirteenth century. Rome inspired during this age century-
all the terror of her ancient name. She was once more the
mistress of the world, and kings were her vassals. I have
already anticipated the two most conspicuous instances when
her temporal ambition displayed itself, both of which are
inseparable from the civil history of Italy .a In the first of
these, her long contention with the house of Suabia, she
finally triumphed. After his deposition by the council of
Lyons, the affairs of Frederic II. went rapidly into d?cay.
With every allowance for the enmity of the Lombards and
the jealousies of Germany, it must be confessed that his
proscription by Innocent IV. and Alexander IV. was the
main cause of the ruin of his family. There is, however,
no other instance, to the best of my judgment, where the
pretended right of deposing kings has been successfully
exercised. Martin IV. absolved the subjects of Peter of
Aragon from their allegiance, and transferred his crown to
a prince of France : but they did not cease to obey their
lawful sovereign. This is the second instance which the
a See above, Chapter III.
200 STATE OF EUKOPE CHAP. VII. TART II.
thirteenth century presents of interference on the part ofthe
popes in a great temporal quarrel. As feudal lords of Naples
and Sicily, they had indeed some pretext for engaging in
the hostilities between the houses of Anjou and Aragon, as
well as for their contest with Frederic II. But the pontiffs
of that age, improving upon the system of Innocent III.,
and sanguine with past success, aspired to render every Eu-
ropean kingdom formally dependent upon the see of Rome.
Thus Boniface VIII., at the instigation of some emissaries
from Scotland, claimed that monarchy as paramount lord,
and interposed, though vainly, the sacred panoply of eccle-
siastical rights to rescue it from the arms of Edward I.b
This general supremacy effected by the Roman church
over mankind in the twelfth and thirteenth centu-
ries, derived material support from the promulgation
of the canon law. The foundation of this jurisprudence is
laid in the decrees of councils, and in the rescripts or decretal
epistles of popes to questions propounded upon emergent
doubts relative to matters of discipline and ecclesiastical
economy. As the jurisdiction of the spiritual tribunals in-
creased, and extended to a variety of persons and causes, it
became almost necessary to establish an uniform system for
the regulation of their decisions. After several minor com-
pilations had appeared, Gratian, an Italian monk, published,
about the year 1 140, his Decretum, or general collection of
canons, papal epistles, and sentences of fathers, arranged
and digested into titles and chapters, in imitation of the
Pandects, which very little before had begun to be studied
again with great diligence.0 This work of Gratian, though
it seems rather an extraordinary performance for the age
when it appeared, has been censured for notorious incorrect-
ness as well as inconsistency, and especially for the authority
given in it to the false decretals of Isidore, and consequently
to the papal supremacy. It fell, however, short of what was
required in the progress of that usurpation. Gregory IX.
caused the five books of Decretals to be published by Rai-
mond de Pennafort in 1234. These consist almost entirely
b Dalrymple's Annals of Scotland, date of its appearance (iii. 343); but
vol. i. p. 267. others bring it down some years later.
c Tiraboschi has fixed on 1140, as the
ECCLES. POWER. DURING THE MIDDLE AGES. 201
of rescripts issued by the later popes, especially Alexander
III., Innocent III., Honorius III., and Gregory himself.
They form the most essential part of the canon law, the De-
cretum of Gratian being comparatively obsolete. In these
books we find a regular and copious system of jurisprudence,
derived in a great measure from the civil law, but with con-
siderable deviation, and possibly improvement. Boniface
VIII. added a sixth part, thence called the Sext, itself di-
vided into five books, in the nature of a supplement to the
other five, of which it follows the arrangement, and composed
of decisions promulgated since the pontificate of Gregory IX.
New constitutions were subjoined by Clement V. and John
XXII., under the name of Clementines and Extravagantes
Johannis ; and a few more of later pontiffs are included in the
body of canon law, arranged as a second supplement after the
manner of the Sext, and called Extravagantes Communes.
The study of this code became of course obligatory upon
ecclesiastical judges. It produced a new class of legal prac-
titioners, or canonists ; of whom a great number added, like
their brethren the civilians, their illustrations and comment-
aries, for which the obscurity and discordance of many pas-
sages, more especially in the Decretum, gave ample scope.
From the general analogy of the canon law to that of Justi-
nian, the two systems became in a remarkable manner col-
lateral and mutually intertwined, the tribunals governed by
either of them borrowing their rules of decision from the
other in cases where their peculiar jurisprudence is silent or
of dubious interpretation."1 But the canon law was almost
entirely founded upon the legislative authority of the pope ;
the decretals are in fact but a new arrangement of the bold
epistles of the most usurping pontiffs, and especially of Inno-
cent III., with titles or rubrics comprehending the substance
of each in the compiler's language. The superiority of eccle-
siastical to temporal power, or at least the absolute inde-
pendence of the former, may be considered as a sort of key-
note which regulates every passage in the canon law.6 It
d Duck, De Usu Juris Civilis, 1. i. sed obsequuntur. Decretum, distinct.
c. 8. 10. Statutum generale laicorum ad ec-
e Constitutiones principum ecclesias- clesias vel ad ecclesiasticas personas, vel
ticis constitutionibus non preeminent, eorum bona, in earum prgejudicium non
202 STATE OF EUEOPE CHAP. VII. PART II.
is expressly declared, that subjects owe no allegiance to an
excommunicated lord, if after admonition he is not recon-
ciled to the church/ -And the rubric prefixed to the decla-
ration of Frederic II.'s deposition in the council of Lyons
asserts that the pope may dethrone the emperor for lawful
causes.8 These rubrics to the decretals are not perhaps of
direct authority as part of the law ; but they express its
sense so as to be fairly cited instead of it.h By means of
her new jurisprudence, Rome acquired in every country a
powerful body of advocates, who, though many of them
were laymen, would, with the usual bigotry of lawyers, de-
fend every pretension or abuse, to which their received
standard of authority gave sanction.1
Next to the canon law, I should reckon the institution of
the mendicant orders among those circumstances which prin-
Mendicant cipally contributed to the aggrandizement of Rome.
By the acquisition, and in some respects the en-
joyment, or at least ostentation, of immense riches, the ancient
monastic orders had forfeited much of the public esteem.k
Austere principles as to the obligation of evangelical poverty
were inculcated by the numerous sectaries of that age, and
eagerly received by the people, already much alienated from
an established hierarchy. No means appeared so efficacious
to counteract this effect as the institution of religious societies,
extenditur. Decretal. 1. i. tit. 2, c. 10. Tiraboschi, Storia Delia Litteratura,
Qusecunque a principibus in ordinibus t. iv. andv.; Giannone, 1. xiv. c. 3; 1. xix.
vel in ecclesiasticis rebus decreta inve- c. 3; 1. xxii. c. 8. Fleury, Institutions au
niuntur, nullius auctoritatis esse mon- Droit Ecclesiastique, t. i. p. 10, and 5me
strantur. Decretum, distinct. 96. Discours sur I'Histoire Eccles. Duck,
f Domino excomrnunicato manente, De Usu Juris Civilis, 1. i. c. 8. Schmidt,
subditi fidelitatem non debent ; et si t. iv. p. 39. F. Paul, Treatise of Bene-
longo tempore in ea perstiterit, et moni- fices, c. 31. I fear that my few citations
tus non pareat ecclesise, ab ejus debito from the canon law are not made scien-
absolvuntur. Decretal. 1. v. tit. 37, c. 18. tifically; the proper mode of reference
I must acknowledge, that the decretal is to the first word; but the book and
epistle of Honorius III. scarcely warrants title are rather more convenient ; and
this general proposition of the rubric, there are not many readers in England
though it seems to lead to it. who will detect this impropriety.
g Papa imperatorem deponere potest k It would be easy to bring evidence
ex causis legitimis. 1. ii. tit. 13, c. 2. from the writings of every successive
h If I understand a bull of Gregory century to the general viciousness of the
XIII., prefixed to his recension of the regular clergy, whose memory it is some-
canon law, he confirms the rubrics or times the fashion to treat with respect,
glosses along with the text : but I cannot See particularly Muratori, Dissert. 65 ;
speak with certainty as to his meaning. and Fleury, 8me Discours. The latter
1 For the canon law, I have con- observes that their great wealth was the
suited, besides the Corpus Juris Canonici, cause of this relaxation in discipline.
ECCLES. POWER. DUBING THE MIDDLE AGES. 203
strictly debarred from the insidious temptations of wealth.
Upon this principle were founded the orders of Mendicant
Friars, incapable, by the rules of their foundation, of possess-
ing estates, and maintained only by alms and pious remu-
nerations^ Of these the two most celebrated were formed by
St. Dominic and St. Francis of Assisi, and established by
the authority of Honorius III. in 1216 and 1223. These
great reformers, who have produced so extraordinary an
effect upon mankind, were of very different characters : the
one, active and ferocious, had taken a prominent part in the
crusade against the unfortunate Albigeois, and was among
the first who bore the terrible name of inquisitor ; while the
other, a harmless enthusiast, pious and sincere, but hardly of
sane mind, was much rather accessory to the intellectual than
to the moral degradation of his species. Various other men-
dicant orders were instituted in the thirteenth century ; but
most of them were soon suppressed, and besides the two
principal, none remain but the Augustin and the Carmelites."1
These new preachers were received with astonishing ap-
probation by the laity, whose religious zeal usually depends a
good deal upon their opinion of sincerity and disinterested-
ness in their pastors. And the progress of the Dominican
and Franciscan friars in the thirteenth century bears a re-
markable analogy to that of our English Methodists. Not
deviating from the faith of the church, but professing rather
to teach it in greater purity, and to observe her ordinances
with greater regularity, while they imputed supineness and
corruption to the secular clergy, they drew round their ser-
mons a multitude of such listeners as in all ages are attracted
by similar means. They practised all the stratagems of
itinerancy, preaching in public streets, and administering the
communion on a portable altar. Thirty years after their
institution, an historian complains that the parish churches
were deserted, that none confessed, except to these friars, in
short, that the regular discipline was subverted.11 This un-
controlled privilege of performing sacerdotal functions, which
their modern antitypes assume for themselves, was conceded
m Mosheim's Ecclesiastical History, de 1'Universite de Paris, t. i. p. 318.
Fleury, 8me Discours. Crevier, Histoire n Matt. Paris, p. 607.
204 STATE OF EUROPtf CHAP. VII. PART II.
to the mendicant orders by the favour of Rome. Aware of
the powerful support they might receive in turn, the pontiffs
of the thirteenth century accumulated benefits upon the dis-
ciples of Francis and Dominic. They were exempted from
episcopal authority ; they were permitted to preach or hear
confessions without leave of the ordinary,0 to accept of
legacies, and to inter in their churches. Such privileges
could not be granted without resistance from the other
clergy ; the bishops remonstrated, the university of Paris
maintained a strenuous opposition ; but their reluctance
served only to protract the final decision. Boniface VIII.
appears to have peremptorily established the privileges and
immunities of the mendicant orders in 1295.p
It was naturally to be expected, that the objects of such
extensive favours would repay their benefactors by a more
than usual obsequiousness and alacrity in their service. Ac-
cordingly, the Dominicans and Franciscans vied with each
other in magnifying the papal supremacy. Many of these
monks became eminent in canon law and scholastic theology.
The great lawgiver of the schools, Thomas Aquinas, whose
opinions the Dominicans especially treat as almost infallible,
went into the exaggerated principles of his age in favour of
the see ofRome.q And as the professors of those sciences
took nearly all the learning and logic of the times to their
own share, it was hardly possible to repel their arguments
by any direct reasoning. But this partiality of the new
monastic orders to the popes must chiefly be understood to
apply to the thirteenth century, circumstances occurring in
the next, which gave in some degree a different complexion
to their dispositions in respect of the Holy See.
0 Another reason for preferring the ford, vol. i. p. 376, 480. (Gutch's edi-
friars is given by Archbishop Peckham; tion.)
quoniam casus episcopales, reservati epi- q It was maintained by the enemies
scopis ab hpmine, vel a jure, communiter of the mendicants, especially William St.
a Deum timentibus episcopis ipsis fra- Amour, that the pope could not give
tribus committuntur, et non presbyteris, them a privilege to preach or perform the
quorum simplicitas non sufficit^ aliis diri- other duties of the parish priests. Thomas
gendis. Wilkins, Concilia, t. ii. p. 169. Aquinas answered, that a bishop might
p Crevier, Hist, de FUniversite de perform any spiritual functions within his
Paris, t. i. et t. ii. passim. Fleury, ubi diocese, or commit the charge to another
supra. Hist, du Droit Ecclesiastique instead, and that the pope, being to the
Francois, t. i. p. 394, 396, 446. Collier's whole church what a bishop is to his
Ecclesiastical History, vol. i. p. 437, diocese, might do the same every where.
448, 452. Wood's Antiquities of Ox- Crevier, t. i. p. 474.
ECCLES. POWER. DURING THE MIDDLE AGES. 205
We should not overlook, among the causes that contri-
buted to the dominion of the popes, their prerogative of dis-
pensing with ecclesiastical ordinances. The most remarkable
exercise of this was as to the canonical impediments of matri-
mony. Such strictness as is prescribed by the ^Pjj^; of
Christian religion with respect to divorce was very marriage,
unpalatable to the barbarous nations. They in fact paid it
little regard ; under the Merovingian dynasty, even private
men put away their wives at pleasure/ In many capitu-
laries of Charlemagne, we find evidence of the prevailing
licence of repudiation and even polygamy.8 The principles
which the church inculcated were in appearance the very re-
verse of this laxity, yet they led indirectly to the same effect.
Marriages were forbidden, not merely within the limits which
nature, or those inveterate associations which we call nature,
have rendered sacred, but as far as the seventh degree of col-
lateral consanguinity, computed from a common ancestor/
Not only was affinity, or relationship by marriage, put upon
the same footing as that by blood ; but a fantastical con-
nexion, called spiritual affinity, was invented in order to pro-
hibit marriage between a sponsor and godchild. An union,
however innocently contracted, between parties thus circum-
stanced, might at any time be dissolved, and their subsequent
cohabitation forbidden ; though their children, I believe, in
cases where there had been no knowledge of the impediment,
were not illegitimate. One readily apprehends the facilities
of abuse to which all this led ; and history is full of disso-
r Marculfi Formulae, 1. ii. c. 30. dieted by other passages in the Capi-
8 Although a man might not marry tularies.
again, when his wife had taken the veil, * See the canonical computation ex-
he was permitted to do so, if she was plained in St. Marc, t. iii. p. 376. Also
infected with the leprosy. Compare in Blackstone's Law Tracts, Treatise on
Capitularia Pippini, A.D. 752 and 755. Consanguinity. In the eleventh century,
If a woman conspired to murder her an opinion began to gain ground in Italy,
husband, he might re-marry. Id. A.D. that third cousins might marry, being in
753. A large proportion of Pepin's laws the seventh degree according to the civil
relate to incestuous connexions and di- law. Peter Damian, a passionate abettor
vorces. One of Charlemagne seems to of Hildebrand and his maxims, treats
imply, that polygamy was not unknown this with horror, and calls it an heresy,
even among priests. Si sacerdotes plu- Fleury, t. xiii. p. 152. St. Marc, ubi
res uxores habuerint, sacerdotio priven- supra. This opinion was supported by a
tur; quia ssecularibus deteriores sunt. reference to the Institutes of Justinian ;
Capitul. A.D. 769. This seems to a proof, among several others, how much
imply that their marriage with one was earlier that book was known than is vui-
allowable, which nevertheless is contra- garly supposed.
206 STATE OF EUROPE CHAP. VII. PART II.
lutions of marriage, obtained by fickle passion or cold-hearted
ambition, to which the church has not scrupled to pander on
some suggestion of relationship. It is so difficult to conceive,
I do not say any reasoning, but any honest superstition,
which could have produced those monstrous regulations, that
I was at first inclined to suppose them designed to give, by a
side wind, that facility of divorce which a licentious people
demanded, but the church could not avowedly grant. This
refinement would however be unsupported by facts. The
prohibition is very ancient, and was really derived from the
ascetic temper which introduced so many other absurdities."
It was not until the twelfth century that either this or any
other established rules of discipline were supposed liable to
arbitrary dispensation ; at least the stricter churchmen had
always denied that the pope could infringe canons, nor had he
asserted any right to do so.x But Innocent III. laid down
as a maxim, that out of the plentitude of his power, he might
lawfully dispense with the law ; and accordingly granted,
among other instances of this prerogative, dispensations
from impediments of marriage to the emperor Otho IV.y
Similar indulgences were given by his successors, though
they did not become usual for some ages. The fourth
Lateran Council in 1215 removed a great part of the re-
straint, by permitting marriages beyond the fourth degree,
or what we call third cousins ;z and dispensations have been
made more easy, when it was discovered that they might be
converted into a source of profit. They served a more im-
portant purpose by rendering it necessary for the princes of
Europe, who seldom could marry into one another's houses
without .transgressing the canonical limits, to keep on good
terms with the court of Rome, which, in several instances
u Gregory I. pronounces matrimony nonieal penances, but not prospectively
to be unlawful as far as the seventh de- to authorize a breach of discipline. Gra-
gree ; and even, if I understand his mean- tian asserts that the pope is not bounds
ing, as long as any relationship could by the canons ; in which, Fleury observes,
be traced; which seems to have been the he goes beyond the False Decretals,
maxim of strict theologians, though not Septieme Discours, p. 291.
absolutely enforced. _ Du Cange, v. y Secundum plenitudinem potestatis
Generatio. Fleury, Hist. Eccles. t. ix. de jure possumus supra jus dispensare.
p. 211. Schmidt, t. iv. p. 235.
x De Marca, 1. iii. cc. 7, 8, 14. z Fleury, Institutions au Droit Ec-
Schmidt, t. iv. p. 235. Dispensations clesiastique, t. i. p. 296.
were oi-iginally granted only as to ca-
ECCLES. POWER. DURING THE MIDDLE AGES.
207
that have been mentioned, fulminated its censures against
sovereigns who lived without permission in what was con-
sidered an incestuous union.
The dispensing power of the popes was exerted in several
cases of a temporal nature, particularly in the legiti- Dispensa.
mation of children, for purposes even of succession. ^ZilTy
This Innocent III. claimed as an indirect conse- oaths*
quence of his right to remove the canonical impediment
which bastardy offered to ordination ; since it would be
monstrous, he says, that one who is legitimate for spiritual
functions should continue otherwise in any civil matter.a
But the most important and mischievous species of dispen-
sations was from the observance of promissory oaths. Two
principles are laid down in the decretals : that an oath dis-
advantageous to the church is not binding ; and that one ex-
torted by force was of slight obligation, and might be annulled
by ecclesiastical authority.1" As the first of these maxims
gave the most unlimited privilege to the popes of breaking
all faith of treaties which thwarted their interest or passion,
a privilege which they continually exercised,0 so the second
a Decretal. 1. iv. tit. 17, c. 13.
b Jurameiitum contra utilitatem eccle-
siasticam prsestitum non tenet. Decre-
tal. 1. ii. tit. 24, c. 27, et Sext. 1. i. tit. 11,
c. 1. Aju/amento per metum extorto
ecclesia solet absolvere, et ejus trans -
gressores ut peccantes mortaliter non
punientur. Eodem lib. et tit. c. 15. The
whole of this title in the decretals upon
oaths seems to have given the first open-
ing to the lax casuistry of succeeding
times.
c Take one instance out of many. —
Piccinino, the famous condottiere of the
fifteenth century, had promised not to
attack Francis Sforza, at that time en-
gaged against the pope. Eugenius IV.
(the same excellent person who had an-
nulled the compactata with the Hussites,
releasing those who had sworn to them,
and who afterwards made the king of
Hungary break his treaty with Amu-
rath II.) absolves him from this promise,
on the express ground that a treaty dis-
advantageous to the church ought not
to be kept. Sismondi, t. ix. p. 190. The
church, in that age, was synonymous with
the papal territories in Italy.
It was in conformity to this sweeping
principle of ecclesiastical utility, that
Urban VI. made the following solemn
and general declaration against keeping
faith with heretics. Attendentes quod
huj usmodi confoederationes, colligationes,
et ligae seu conventiones factae cum hu-
j usmodi haereticis seu schismaticis post-
quam tales efiecti eraut, sunt temerarise,
illicitaa, et ipso jure nullse, (etsi forte ante
ipsorum lapsum in schisma, seu hseresin
initse sen factae fuissent), etiam si forent
juramento vel fide data firmatae, aut con-
firmatione apostolica vel quacunque fir-
mitate alift roboratse, postquam tales, ut
praemittitur, sunt eflecti. Rymer, t. vii.
p. 352.
It was of little consequence that all
divines and sound interpreters of canon
law maintain that the pope cannot dis-
pense with the divine or moral law, as
De Marca tells us, 1. iii. c. 15, though he
admits that others of less sound judgment
assert the contrary ; as was common
enough, I believe, among the Jesuits at
the beginning of the seventeenth century.
His power of interpreting the law was
of itself a privilege of dispensing with it.
208 STATE OF EUROPE CHAP. VII. PAKT II.
was equally convenient to princes weary of observing en-
gagements towards their subjects or their neighbours. They
protested with a bad grace against the absolution of their
people from allegiance by an authority to which they did not
scruple to repair in order to bolster up their own perjuries.
Thus Edward I., the strenuous assertor of his temporal
rights, and one of the first who opposed a barrier to the en-
croachments of the clergy, sought at the hands of Clement
V. a dispensation from his oath to observe the great statute
against arbitrary taxation.
In all the earlier stages of papal dominion, the supreme
Encroach- head of the church had been her guardian and
™ope8°nthe protector i and this beneficent character appeared
freedom of r . . . .-. i / P .» i
elections. to receive its consummation in the result of that
arduous struggle which restored the ancient practice of free
election to ecclesiastical dignities. Not long however after
this triumph had been obtained, the popes began by little
and little to interfere with the regular constitution. Their
first step was conformable indeed to the prevailing system
of spiritual independency. By the concordat of Calixtus, it
appears that the decision of contested elections was reserved
to the emperor, assisted by the metropolitan and suffragans.
In a few cases during the twelfth century, this imperial pre-
rogative was exercised, though not altogether undisputed."1
But it was consonant to the prejudices of that age to deem
the supreme pontiffa more natural judge, as in other cases of
appeal. The point was early settled in England, where a
doubtful election to the arch bishopric of York, under Stephen,
was referred to Rome, and there kept five years in litigation.6
Otho IV. surrendered this among other rights of the empire
to Innocent III. by his capitulation ; f and from that pon-
d Schmidt, t. iii. p. 299; t. iv. p. 149. f Schmidt, t. iv. p. 149. One of these
According to the concordat, elections was the spolium, or moveable estate of a
ought to be made in the presence of the bishop, which the emperor was used to
emperor, or his officers; but the chap- seize upon his decease, p. 154. It was
ters contrived to exclude them by de- certainly a very leonine prerogative ; but
grees, though not perhaps till the thir- the popes did not fail, at a subsequent
teenth century. Compare Schmidt, t. time, to claim it for themselves. Fleury,
iii. p. 296; t. iv. p. 146. Institutions au Droit, t. i. p. 425. Len-
e Henry's Hist, of England, vol. v. fant, Concile de Constance, t. ii. p.
p. 324. Lyttelton's Henry II., vol. i. 130.
p. 356.
ECCLES. POWER. DUKING THE MIDDLE AGES. 209
tificate the papal jurisdiction over such controversies became
thoroughly recognized. But the real aim of Innocent, and
perhaps of some of his predecessors, was to dispose of
bishoprics, under pretext of determining contests, as a matter
of patronage. So many rules were established, so Andonrights
many formalities required by their constitutions, in- of Patronase-
corpora ted afterwards into the canon law, that the court of
Rome might easily find means of annulling what had been
done by the chapter, and bestowing the see on a favourite
candidate^ The popes soon assumed not only a right of
decision, but of devolution ; that is, of supplying the want of
election, or the unfitness of the elected, by a nomination of
their own.h Thus Archbishop Langton, if not absolutely
nominated, was at least chosen in an invalid and compulsory
manner by the order of Innocent III. ; as we may read in
our English historians. And several succeeding archbishops
of Canterbury equally owed their promotion to the papal
prerogative. Some instances of the same kind occurred in
Germany, and it became the constant practice in Naples.1
While the popes were thus artfully depriving the chapters
of their right of election to bishoprics, they inter-
fered in a more arbitrary manner with the collation
of inferior benefices. This began, though in so insensible a
manner as to deserve no notice but for its consequences,
with Adrian IV., who requested some bishops to confer the
next benefice that should become vacant on a particular
clerk.k Alexander III. used to solicit similar favours.m
These recommendatory letters were called mandate. But
though such requests grew more frequent than was acceptable
to patrons, they were preferred in moderate language, and
could not decently be refused to the apostolic chair. Even
Innocent III. seems in general to be aware that he is not
g F. Paul, c. 30. Schmidt, t. iv. p. nus, confirmabitur.
177, 247. A person canonically disqualified when
h Thus we find it expressed, as cap- presented to the pope for confirmation
tiously as words could be devised, in was said to be postulatus, not electus.
the decretals, 1. i. tit. 6, c. 22. Electus a ' Giannone, 1. xiv. c. 6 ; 1. xix. c. 5.
majori et saniori parte capituli, si est, et k St. Marc, t. v. p. 41. Art de verifier
erat idoneus tempore electionis, confirma- les Dates, t. i. p. 288. Encyclope'die,
bitur; si autem erit indignus in ordini- art. Mandats.
bus sciential vel setate, et fuit scienter m Schmidt, t. iv. p. 239.
ekctus, electus aminori parte, si est dig-
VOL. II. P
210 STATE OF EUROPE CHAP. VII. PART II.
asserting a right ; though in one instance, I have observed
his violent temper break out against the chapter of Poitiers,
who had made some demur to the appointment of his clerk,
and whom he threatens with excommunication and interdict.11
But, as we find in the history of all usurping governments,
time changes anomaly into system, and injury into right ;
examples beget custom, and custom ripens into law ; and
the doubtful precedent of one generation becomes the fun-
damental maxim of another. Honorius III. requested that
two prebends in every church might be preserved for the
Holy See ; but neither the bishops of France nor England,
to whom he preferred this petition, were induced to comply
with it.0 Gregory IX. pretended to act generously in
limiting himself to a single expectative, or letter directing
a particular clerk to be provided with a benefice in every
church.p But his practice went much further. No country
was so intolerably treated by this pope arid his successors as
England, throughout the ignominious reign of Henry III.
Her church seemed to have been so richly endowed only as
the free pasture of Italian priests, who were placed, by the
mandatory letters of Gregory IX. and Innocent IV., in all
the best benefices. If we may trust a solemn remonstrance
in the name of the whole nation, they drew from England,
in the middle of the thirteenth century, sixty or seventy
thousand marks every year ; a sum far exceeding the royal
revenue.q This was asserted by the English envoys at the
council of Lyons. But the remedy was not to be sought in
remonstrances to the court of Rome, which exulted in the
success of its encroachments. There was no defect of spirit
in the nation to oppose a more adequate resistance ; but the
weak-minded individual upon the throne sacrificed the public
interest sometimes through habitual timidity,, som-j times
through silly ambition. If England however suffered more
remarkably, yet other countries were far from being un-
touched. A German writer about the beginning of the
fourteenth century mentions a cathedral, where, out of about
thirty-five vacancies of prebends that had occurred within
n Innocent. III. Opera, p. 502. P F. Paul on Benefices, c. 30.
0 Matt. Paris, p. 267. De Marca, q M. Paris, p. 579. 740.
1. iv. c. 9.
ECCLES. POWER. DURING THE MIDDLE AGES.
211
twenty years, the regular patron had filled only two.r The
case was not very different in France, where the continual
usurpations of the popes produced the celebrated Pragmatic
Sanction of St. Louis. This edict, the authority of which,
though probably without cause, has been sometimes disputed,
contains three important provisions ; namely, that all prelates
and other patrons shall enjoy their full rights as to the
collation of benefices, according to the canons ; that churches
shall possess freely their rights of election; and that no tax
or pecuniary exaction shall be levied by the pope, without
consent of the king, and of the national church.8 We do
not find, however, that the French government acted up to
the spirit of this ordinance ; and the Holy See continued to
invade the rights of collation with less ceremony than they
had hitherto used. Clement IY. published a bull in 1266,
r Schmidt, t. vi. p. 104.
8 Ordonnances des Rois de France,
t. i. p. 97. Objections have been made
to the authenticity of this edict, and in
particular that we do not find the king
to have had any previous differences with
the see of Rome; on the contrary, he
was just indebted to Clement IV. for
bestowing the crown of Naples on his
brother the Count of Provence. Velly
has defended it, Hist, de France, t. vi.
p. 57; and in the opinion of the
learned Benedictine editors of L'Art de
verifier les Dates, t. i. p. 585, cleared up
all difficulties as to its genuineness. In
fact, however, the Pragmatic Sanction of
St. Louis stands by itself, and can only
be considered as a protestation against
abuses which it was still impossible to
suppress.
Of this law, which was published in
1268, Sismondi says: — En lisant la prag-
matique sanction, on se demande avec
e*tonnement ce qui a pu causer sa prodi-
gieuse celebrite. Elle ii'introduit aucun
droit nouveau ; elle ne change rien a 1' or-
ganisation ecclesiastique; elle declare
seulement que tous les droits existans
seront conserves, que toute la legislation
canonique soit exe"cutee. A 1' exception
de 1'article v., sur les levees d'argent de la
cour de Rome, elle ne contient rien que
cette cour n'eut pu publier elle-meme;
et quant a cet article, qui paroit seul
dirige contre la chambre apostolique,
il n'est pas plus precis que ceux que
bien d'autres rois de France, d'An-
gleterre et d' Allemagne, avaient deja pro-
mulguees a plusieurs reprises et toujours
sans effet. Hist, des Franc, v. 106. But
Sismondi overlooks the fourth article,
which enacts that all collations of benefices
shall be made according to the maxims
of councils and fathers of the church.
This was designed to repress the dis-
pensations of the pope; and if the
French lawyers had been powerful
enough, it would have been successful in
that object. He goes on, indeed, himself
to say : — Ce qui changea la pragmatique
sanction en une barriere puissante contre
les usurpations de la cour de Rome, c'est
que les legistes s'en emparereut; ils pri-
rent soin de 1'expliquer, de la commenter;
plus elle etait vague, et plus, entre leurs
mains habiles, elle pouvoit recevoir d' ex-
tension. Elle suffisait seule pour ga-
rantir toutes les libertes du royaume;
une fois que les parlemens dtoient re-
solus de ne jamais permettre qu'elle fut
violee, tout empietement de la cour de
Rome ou des tribunaux eccle'siastiques,
toute levee de deniers ordonnde par elle,
toute election irreguliere, toute excom-
munication, tout interdit, qui touchoient
1'autorite royale ou les droits du sujet,
furent denoncds par les legistes en parle-
ment, comme contraires aux franchises
des eglises de France, et k la pragma-
tique sanction. Ainsi s'introduisait 1'ap-
pel comme d'abus, qui reussit seul a
contenir la jurisdiction ecclesiastique
dans de justes bornes.
v 2
212 STATE OF EUROPE CHAP. VII. PART II.
which, after asserting an absolute prerogative of the supreme
pontiff to dispose of all preferments, whether vacant or in
reversion, confines itself in the enacting words to the re-
servation of such benefices as belong to persons dying at
Rome (vacantes in curia).1 These had for some time been
reckoned as a part of the pope's special patronage; and their
number, when all causes of importance were drawn to his
tribunal, when metropolitans were compelled to seek their
pallium in person, and even by a recent constitution exempt
abbots were to repair to Rome for confirmation," not to
mention the multitude who nocked thither as mere courtiers
and hunters after promotion, must have been very consi-
derable., Boniface VIII. repeated this law of Clement IV.
in a still more positive tone ;x and Clement V. laid down as
a maxim, that the pope might freely bestow, as universal
patron, all ecclesiastical benefices.7 In order to render these
tenable by their Italian courtiers, the canons against pluralities
and non-residence were dispensed with ; so that individuals
were said to have accumulated fifty or sixty preferments.2
provisions, It was a consequence from this extravagant prin-
reserves.&c. cipiej that faQ p0pe might prevent the ordinary
collator upon a vacancy ; and as this could seldom be done
with sufficient expedition in places remote from his court,
that he might make reversionary grants during the life of
an incumbent, or reserve certain benefices specifically for his
own nomination.
The persons as well as estates of ecclesiastics were secure
papal tax- from arbitrary taxation, in all the kingdoms founded
ation of the • > •, i i i -i
dergy. upon the ruins oi the empire, both by the common
liberties of freemen, and more particularly by their own im-
munities and the horror of sacrilege.* Such at least was
their legal security, whatever violence might occasionally be
practised by tyrannical princes. But this exemption was
compensated by annual donatives, probably to a large amount,
* Sext. Decretal. 1. iii. t. iv. c. 2. extended the vacancy in curia to all
F. Paul on Benefices, c. 35. This writer places within two days' journey of the
thinks the privilege of nominating bene- papal court.
fices vacant in curia to have been among y F. Paul, c. 35.
the first claimed by the popes, even before z Id. c. 33, 34, 35. Schmidt, t. iv.
the usage of mandats. c. 30. p. 104.
u Matt. Paris, p. 817. a Muratori, Dissert. 70. Schmidt,
* Sext. Decretal. 1. iii. t. iv. c. 3. He t. iii. p. 211.
ECCLES. POWER. DURING THE MIDDLE AGES. 213
which the bishops and monasteries were accustomed, and as
it were compelled, to make to their sovereigns.1" They
were subject also, generally speaking, to the feudal servi-ces
and prestations. Henry I. is said to have extorted a sum
of money from the English church.0 But the first eminent
instance of a general tax required from the clergy was the
famous Saladine tithe ; a tenth of all moveable estate, im-
posed by the kings of France and England upon all their
subjects, with the consent of their great councils of prelates
and barons, to defray the expense of their intended crusade.
Yet even this contribution, though called for by the imminent
peril of the Holy Land after the capture of Jerusalem, was
not paid without reluctance ; the clergy doubtless anticipating
the future extension of such a precedent/ Many years had
not elapsed, when a new demand was made upon them, but
from a different quarter. Innocent III. (the name continually
recurs when we trace the commencement of an usurpation)
imposed in 1 1 99 upon the whole church a tribute of one
fortieth of moveable estate, to be paid to his own collectors ;
but strictly pledging himself that the money should only be
applied to the purposes of a crusade.6 This crusade ended,
as is well known, in the capture of Constantinople. But
the word had lost much of its original meaning ; or rather
that meaning had been extended by ambition and bigotry.
Gregory IX. preached a crusade against the emperor Fre-
deric, in a quarrel which only concerned his temporal prin-
cipality ; and the church of England was taxed by his
authority to carry on this holy war.f After some opposi-
b Schmidt, t. iii. p. 211. Du Cange, v. 1253, 'the most learned Englishman of
Dona. his time, and the first who had any tinc-
c Eadmer, p. 83. ture of Greek literature. Matthew Paris
d Schmidt, t. iv. p. 212. Lyttelton's gives him a high character, which he
Henry II., vol. iii. p. 472. Velly, t. iii. deserved for his learning and integrity;
p. 316. one of his commendations is for keeping
e Innocent. Opera, p. 266. a good table. But Grosstete appears to
f M. 'Paris, p. 470. It was hardly have been imbued in a great degree with
possible for the clergy to make any ef- the spirit of his age, as to ecclesiastical
fective resistance to the pope, without power, though unwilling to yield it up
unravelling a tissue which they had been, to the pope : and it is a strange thing to
assiduously weaving. One English pre- reckon him among the precursors of the
late distinguished himself in this reign Reformation. M. Paris, p. 754. Bering-
by his strenuous protestation against all ton's Literary History of the Middle
abuses of the church. This was Robert Ages, p. 378.
Grosstete, bishop of Lincoln, who died in
214 STATE OF EUKOPE CHAP. VII. PART II.
tion the bishops submitted ; and from that time no bounds
were set to the rapacity of papal exactions. The usurers of
Cahors and Lombardy, residing in London, took up the trade
of agency for the pope ; and in a few years, he is said, partly
by levies of money, partly by the revenues of benefices, to
have plundered the kingdom of 950,000 marks ; a sum
equivalent, perhaps, to not less than fifteen millions sterling
at present. Innocent IV., during whose pontificate the
tyranny of Koine, if we consider her temporal and spiritual
usurpations together, seems to have reached its zenith, hit
upon the device of ordering the English prelates to furnish
a certain number of men at arms to defend the church at
their expense. This would soon have been commuted into
a standing escuage instead of military serviced But the
demand was perhaps not complied with, and we do not find
it repeated. Henry III.'s pusillanimity would not permit
any effectual measures to be adopted ; and indeed he some-
times shared in the booty, and was indulged with the produce
of taxes imposed upon his own clergy to defray the cost of
his projected war against Sicily.h A nobler example was
set by the kingdom of Scotland : Clement IV. having, in
1267, granted the tithes of its ecclesiastical revenues for one
of his mock crusades, King Alexander III., with the con-
currence of the church, stood up against this encroachment,
and refused the legate permission to enter his dominions.1
Taxation of the clergy was not so outrageous in other coun-
tries ; but the popes granted a tithe of benefices to St. Louis
for each of his own crusades, and also for the expedition of
Charles of Anjou against Manfred.k In the council of
Lyons, held by Gregory X. in 1274, a general tax in the
same proportion was imposed on all the Latin church, for
the pretended purpose of carrying on a holy war.m
g M. Paris, p. 613. It would be stance of English ecclesiastical history
endless to multiply proofs from Matthew during the reign of Henry III. may be
Paris, which indeed occur in almost every collected from Henry, and still better
page. His laudable zeal against papal from Collier.
tyranny, on which some protestaiit ' Dalrymple's Annals of Scotland,
writers have been so pleased to dwell, vol. i. p. 179.
was a little stimulated by personal feel- * k Velly, t. iv. p. 343; t. v. p. 343;
ings for the abbey of St. Alban's; and t. vi. p. 47.
the same remark is probably applicable m Idem, t. vi. p. 308. St. Marc, t. vi.
to his love of civil liberty. p. 347.
h Kymer, t. i. p. 599, &c. The sub-
ECCLES. POWER. DURING THE MIDDLE AGES. 215
These gross invasions of ecclesiastical property, however
submissively endured, produced a very general dis- ejection
affection towards the court of Rome. The reproach courTo?/the
of venality and avarice was not indeed cast for the Eome-
first time upon the sovereign pontiffs ; but it had been con-
fined, in earlier ages, to particular instances, not affecting the
bulk of the catholic church. But, pillaged upon every slight
pretence, without law and without redress, the clergy came
to regard their once paternal monarch as an arbitrary op-
pressor. All writers of the thirteenth and following centuries
complain in terms of unmeasured indignation, and seem
almost ready to reform the general abuses of the church.
They distinguished however clearly enough between the
abuses which oppressed them and those which it was their
interest to preserve, nor had the least intention of waving
their own immunities and authority. But the laity came to
more universal conclusions. A spirit of inveterate hatred
grew up among them, not only towards the papal tyranny,
but the whole system of ecclesiastical independence. The
rich envied and longed to plunder the estates of the superior
clergy; the poor learned from the Waldenses and other
sectaries to deem such opulence incompatible with the cha-
racter of evangelical ministers. The itinerant minstrels
invented tales to satirize vicious priests, which a predisposed
multitude eagerly swallowed. If the thirteenth century was
an age of more extravagant ecclesiastical pretensions than
any which had preceded, it was certainly one in which the
disposition to resist them acquired greater consistence.
To resist had indeed become strictly necessary, if the tem-
poral governments of Christendom would occupy Progress ?f
any better station than that of officers to the hier- JuriSeSdna
archy. I have traced already the first stage of that ecclesi-.
astical jurisdiction, which, through the partial indulgence
of sovereigns, especially Justinian and Charlemagne, had
become nearly independent of the civil magistrate. Several
ages of confusion and anarchy ensued, during which the su-
preme regal authority was literally suspended in France, and
not much respected in some other countries. It is natural to
suppose that ecclesiastical jurisdiction, so far as even that
216 STATE OF EUROPE CHAP. VII. PART II.
was regarded in such barbarous times, would be esteemed tbe
only substitute for coercive law, and the best security against
wrong. But I am not aware that it extended itself beyond
its former limits, till about the beginning of the twelfth cen-
tury. From that time it rapidly encroached upon the secular
tribunals, and seemed to threaten the usurpation of an ex-
clusive supremacy over all persons and causes. The bishops
gave the tonsure indiscriminately, in order to swell the list
of their subjects. This sign of a clerical state, though below
the lowest of their seven degrees of ordination, implying no
spiritual office, conferred the privileges and immunities of the
profession on all who wore an ecclesiastical habit, and had
only once been married.11 Orphans and widows, the stranger
and the poor, the pilgrim and the leper, under the appellation
of persons in distress (miserabiles personae), came within the
peculiar cognizance and protection of the church ; nor could
they be sued before any lay tribunal. And the whole body
of crusaders, or such as merely took the vow of engaging in
a crusade, enjoyed the same clerical privileges.
But where the character of the litigant parties could not,
even with this large construction, be brought within their
pale, the bishops found a pretext for their jurisdiction in the
nature of the dispute. Spiritual causes alone, it was agreed,
could appertain to the spiritual tribunal. But the word was
indefinite ; and according to the interpreters of the twelfth
century, the church was always bound to prevent and chas-
tise the commission of sin. By this sweeping maxim, which
we have seen Innocent III. apply to vindicate his control
over national quarrels, the common differences of individuals,
which generally involve some charge of wilful injury, fell
into the hands of a religious judge. One is almost sur-
prised to find that it did not extend more universally, and
might praise the moderation of the church. Real actions, or
n Clerici qui cum imicis et virginibus Philip the Bold, however, had sub-
contraxerunt, si tonsuram et vestes de- jected these married clerks to taxes, and
ferant clericales, privilegium retineant later ordinances of the French kings ren-
prsesenti declaranms edicto, hujus- dered them amenable to temporal juris-
modi clericos conjugates pro commissis diction ; from which, in Naples, by va-
ab iis excessibus vel delictis, trahi non rious provisions of the Angevin line,
posse criminaliter aut civiliter ad judi- they always continued free. Giannone,
cium saeculare. Bonifacius Octavus, in 1. xix. c. 5.
iSext. Decretal. 1. iii. tit. ii. c. i.
ECCLES. POWER. DURING THE MIDDLE AGES. 217
suits relating to the property of land, were always the exclu-
sive province of the lay court, even where a clerk was the
defendant.0 But the ecclesiastical tribunals took cognizance
of breaches of contract, at least where an oath had been
pledged, and of personal trusts.p They had not only an ex-
clusive jurisdiction over questions immediately matrimonial,
but a concurrent one with the civil magistrate in France,
though never in England, over matters incident to the nup-
tial contract, as claims of marriage portion and of dower.q
They took the execution of testaments into their hands, on
account of the legacies to pious uses, which testators were
advised to bequeath/ In process of time, and under favour-
able circumstances, they made still greater strides. They
pretended a right to supply the defects, the doubts, or the
negligence of temporal judges ; and invented a class of mixed
causes, whereof the lay or ecclesiastical jurisdiction took pos-
session according to priority. Besides this extensive autho-
rity in civil disputes, they judged of some offences, which
naturally belong to the criminal law, as well as of some
others, which participate of a civil and criminal nature.
Such were perjury, sacrilege, usury, incest, and adultery ; s
from the punishment of all which the secular magistratere-
frained, at least in England, after they had become the pro-
vince of a separate jurisdiction. Excommunication still con-
tinued the only chastisement which the church could directly
inflict. But the bishops acquired a right of having their own
prisons for lay offenders/ and the monasteries were the ap-
propriate prisons of clerks. Their sentences of excommuni-
0 Decretal. 1. ii. t. ii. Ordonnances lowed the example of his father, Alfonso
des Rois, t. i. p. 40 (A.D. 1189). In X., in favouring their encroachments,
the council of Lambeth in 1261, the The church of Scotland seems to have
bishops claim a right to judge inter cleri- had nearly the same jurisdiction as that
cos suos, vel inter laicos conquerentes et of England. Pinkerton's Hist, of Scot-
clericos defendentes, in personalibus ac- land, vol. i. p. 173.
tionibus super contractions, aut delictis 8 It was a maxim of the canon, as well
aut quasi ; i. e. quasi delictis. Wilkins, as the common law, that no person should
Concilia, t. i. p. 747. be punished twice for the same offence;
p Ordonnances des Rois, p. 319 (A.D. therefore, if a clerk had been degraded,
1290). or a penance imposed on a layman, it was
q Id. p. 40, 121, 220, 319. supposed unjust to proceed against him
r Id. p. 319. Glanvil, 1. vii. c. 7. in a temporal court.
Sancho IV. gave the same jurisdiction to * Charlemagne is said by Giannone to
the clergy of Castile, Teoriade las Cortes, have permitted the bishops to have
t. nil p. 20; and in other respects fol- prisons of their own. 1. vi. c. 7.
218 STATE OF EUROPE CHAP. VII. PART II.
cation were enforced by the temporal magistrate by im-
prisonment or sequestration of effects ; in some cases by
confiscation or death.11 •
The clergy did not forget to secure along with this juris-
and immu- diction their own absolute exemption from the cri-
nity> minal justice of the state. This, as I have above
mentioned, had been conceded to them by Charlemagne ; and
this privilege was not enjoyed by clerks in England before
the conquest; nor do we find it proved by any records long
afterwards ; though it seems, by what we read about the
constitutions of Clarendon, to have grown into use before
the reign of Henry II. As to France and Germany, I can- '
not pretend to say that the law of Charlemagne, granting an
exemption from ordinary criminal process, was ever abro-
gated. The False Decretals contain some passages in favour
of ecclesiastical immunity which Gratian repeats in his col-
lection.x About the middle of the twelfth century the prin-
ciple obtained general reception, and Innocent III. decided it
to be an inalienable right of the clergy, whereof they could
not be divested even by their own consent/ Much less were
any constitutions of princes, or national usages, deemed of
force to abrogate such an important privilege.2 These, by
the canon law, were invalid when they affected the rights
and liberties of holy church .a But the spiritual courts were
charged with scandalously neglecting to visit the most atro-
cious offences of clerks with such punishment as they could
inflict. The church could always absolve from her own
censures; and confinement in a monastery, the usual sentence
" Giannone, 1. xix. c. 5,t. iii. Schmidt, erint, sive una super causis ecclesiasticis,
t. iv. p. 195;^ t. vi. p. 125. Fleury, 7me sive queead forum ecclesiasticum rations
Discours, Mem. de 1'Acad. des Inscript. personarum, negotiorum, vel rerum de
t. xxxix. p. 603. Ecclesiastical juris- jure vel deantiquaconguetudinepertinere
diction not having been uniform in dif- noscuntur.
ferent ages and countries, it is difficult, x Fleury, 7me Discours.
without much attention, to distinguish * Fleury, 7me Disc. Institutions au
its general and permanent attributes from Droit Ecclcs. t. ii. p. 8.
those less completely established. Its de- z In criminalibus causis in nullo casu
scription, as given in the Decretals, lib. ii. possunt clerici ab aliquo quam ab eccle-
tit. 11., De foro competent!, does not sup- siastico judice condemnari, etiamsi con-
port the pretensions made by the canon- suetudo regia habeat ut fures a judicibus
ists, nor come up to the sweeping de» szccularibus judicentur. Decretal. 1. i.
finition of ecclesiastical jurisdiction by tit. i. c. 8.
Boniface VIII. in the Sext. 1. iii. tit. a Decret, distinct. 96.
xxiii. c. 40, sive anib«c partes hoc volu-
ECCLES. POWER. DURING THE MIDDLE AGES. 219
upon criminals, was frequently slight and temporary. Se-
veral instances are mentioned of heinous outrages that
remained nearly unpunished through the shield of ecclesi-
astical privileged And as the temporal courts refused
their assistance to a rival jurisdiction, the clergy had no
redress for their own injuries, and even the murder of a
priest at one time, as we are told, was only punishable by
excommunication .c
Such an incoherent medley of laws and magistrates, upon
the symmetrical arrangement of which all social Endeavours
economy mainly depends, could not fail to produce ^siu™"
a violent collision. Every sovereign was interested Ensland-
in vindicating the authority of the constitutions which had
been formed by his ancestors, or by the people whom he
governed. But the first who undertook this arduous work,
the first who appeared openly against ecclesiastical tyranny,
was our Henry II. The Anglo-Saxon church, not so much
connected as some others with Eome, and enjoying a sort of
barbarian immunity from the thraldom of canonical discipline,
though rich, and highly respected by a devout nation, had
never, perhaps, desired the thorough independence upon
secular jurisdiction at which the continental hierarchy aimed.
William the Conqueror first separated the ecclesiastical from
the civil tribunal, and forbad the bishops to judge of spiritual
causes in the hundred court.d His language is, however,
too indefinite to warrant any decisive proposition as to the
nature of such causes ; probably they had not yet been
carried much beyond their legitimate extent. Of clerical
b Collier, vol. i. p. 351. It is laid earl sat together in the court of the county
down in the canon laws that a layman or hundred ; and, as we may infer from
cannot be a witness in a criminal case the tenor of this charter, ecclesiastical
against a clerk. Decretal. 1. ii. tit. xx. matters were decided loosely, and rather
c. 14. by the common law than according to the
c Lyttelton's Henry II., vol. iii. p. 332. canons. This practice had been already
This must be restricted to that period of forbidden by some canons enacted under
open hostility between the church and Edgar, id. p. 83; but apparently with
state. little effect. The separation of the civil
d Ut nullus episcopus vel archidiaco- and ecclesiastical tribunals was not made
nus de legibus episcopalibus amplius in in Denmark till the reign of Nicolas, who
Hundret placita teneant, nee causarn quae ascended the throne in 1105. Langebek,
ad regimen animarum pertinet, ad ju- Script. Rer. Danic. t. iv. p. 380. Others
dicium ssecularium hominuin adducant. refer the law to St. Canut, about 1080.
Wilkins, Leges Anglo-Saxon., 230. t. ii. p. 209.
Before the conquest the bishop and
220 STATE OF EUEOPE CHAP. VII. PART II.
exemption from the secular arm we find no earlier notice
than in the coronation oath of Stephen ; which, though
vaguely expressed, may he construed to include it,e But I
am not certain that the law of England had unequivocally
recognised that claim at the time of the constitutions of
Clarendon. It was at least an innovation, which the legis-
lature might without scruple or transgression of justice abolish.
Henry II., in that famous statute, attempted in three re-
spects to limit the jurisdiction assumed by the church ; as-
serting for his own judges the cognizance of contracts, how-
ever confirmed by oath, and of rights of advowson, and also
that of offences committed by clerks, whom, as it is gently
expressed, after conviction or confession the church ought
not to protect/ These constitutions were the leading sub-
ject of difference between the king and Thomas a Becket.
Most of them were annulled by the pope, as derogatory to
ecclesiastical liberty. It is not improbable, however, that if
Louis VII. had played a more dignified part, the see of
Rome, which an existing schism rendered dependent upon
the favour of those two monarchs, might have receded in
some measure from her pretensions. But France implicitly
giving way to the encroachments of ecclesiastical power, it
became impossible for Henry completely to withstand them.
The constitutions of Clarendon, however, produced some
effect, and, in the reign of Henry III. more unremitted and
successful efforts began to be made to maintain the inde-
pendence of temporal government. The judges of the king's
court had until that time been themselves principally eccle-
siastics, and consequently tender of spiritual privileges.g But
now abstaining from the exercise of temporal jurisdiction, in
obedience to the strict injunctions of their canons,h the clergy
gave place to common lawyers, professors of a system very
discordant from their own. These soon began to assert the
supremacy of their jurisdiction by issuing writs of prohibition,
whenever the ecclesiastical tribunals passed the boundaries
e Ecclesiasticaruni personarum et om- f Wilkins, Leges Anglo-Saxon, p. 323.
mum clericorum, et rerum eorum jus- Lyttelton's Henry II. Collier, &c.
titiam et potestatem, et distributionem « Dugdale's Origines Juridicales, c. 8.
honorum ecclesiasticorum, in rnanu epis- h Decretal. 1. i. tit. xxxvii. c. 1. Wil-
coporum esse perhibeo, et confirmo. kins, Concilia, t. ii. p. 4.
Wilkins, Leges Anglo-Saxon, p. 310.
ECCLES. POWER. DURING THE MIDDLE AGES. 221
which approved use had established.1 Little accustomed to
such control, the proud hierarchy chafed under the bit ;
several provincial synods protest against the pretensions of
laymen to judge the anointed ministers, whom they were
bound to obey ;k the cognizance of rights of patronage and
breaches of contract is boldly asserted ;m but firm and
cautious, favoured by the nobility, though not much by the
king, the judges receded not a step, and ultimately fixed a
barrier which the church was forced to respect." In the
ensuing reign of Edward I., an archbishop acknowledges the
abstract right of the king's bench to issue prohibitions;0
and the statute entitled Circumspecte agatis, in the thirteenth
year of that prince, while by its mode of expression it seems
designed to guarantee the actual privileges of spiritual juris-
diction, had a tendency, especially with the disposition of the
judges, to preclude the assertion of some which are not
therein mentioned. Neither the right of advowson nor any
temporal contract are specified in this act as pertaining to the
church ; and accordingly the temporal courts have ever since
maintained an undisputed jurisdiction over them.p They
succeeded also partially in preventing the impunity of crimes
perpetrated by clerks. It was enacted by the statute of
1 Prynne has produced several ex- p The statute Circumspecte agatis, for
tracts from the pipe-rolls of Henry II., it is acknowledged as a statute, though
where a person has been fined quia placi- not drawn up in the form of one, is
tavit de laico feodo in curia christiaui- founded upon an answer of Edward I. to
tatis. And a bishop of Durham is fined the prelates who had petitioned for some
five hundred marks quia tenuit placitum modification of prohibitions. Collier,
de advocatione cujusdam ecdesice in curia always prone to exaggerate church au-
christianitatis. Epistle dedicatory to thority, insinuates that the jurisdiction
Prynne's Records, vol. iii. Glanville gives of the spiritual court over breaches of
the form of a writ of prohibition to the contract, even without oath, is preserved
spiritual court for inquiring de feodo by this statute; but the express words of
laico; for it had jurisdiction over lauds the king show that none whatever was
in frankalmoign. This is conformable to intended; and the archbishop complains
the constitutions of Clarendon,, and bitterly of it afterwards. Wilkins, Con-
shows that they were still in force. See cilia, t. ii. p. 118. Collier's Ecclesiast.
also Lyttelton's Henry II., vol. iii. p. 97. History, vol. i. p. 487. So far from
k Cum judicandi Christos do mini having any cognizance of civil contracts
nulla sit laicis attributa potestas, apud not confirmed by oath, to which I am
quos manet necessitas obsequendi Wil- not certain that the church ever pre-
kins, Concilia, t. i, p. 747. tended in any country, the spiritual court
^ Id. ibid; et t. ii. p. 90. had no jurisdiction at all, even where an
n Vide Wilkins, Concilia, t. ii. passim, oath had intervened, unless there was a
0 Licet prohibitiones hujusrnodi a deficiency of proof by writing or wit-
curia christianissimi regis nostri juste nesses. Glanvil, 1. x. c. 12. Constitut.
proculdubio, ut diximus, concedantur. Clarendon, art. 15.
Id. t. ii. p. 100, and p. 115.
222 STATE OF EUROPE CHAP. VII. PART II.
Westminster, in 1275, or rather a construction was put upon
that act, which is obscurely worded, that clerks indicted for
felony should not be "delivered to their ordinary, until an
inquest had been taken of the matter of accusation ; and, if
they were found guilty, that their real and personal estate
should be forfeited to the crown. In later times, the clerical
privilege was not allowed till he party had pleaded to the
indictment, and being duly convict, as is the practice at
present/1
The civil magistrates of France did not by any means
Less vigorous exert themselves so vigorously for their emancipa-
in France. fiOUf rpj^ same or rather worse usurpations ex-
isted, and the same complaints were made, under Philip
Augustus, St. Louis, and Philip the Bold ; but the laws of
those sovereigns tend much more to confirm than to re-
strain ecclesiastical encroachments.1" Some limitations were
attempted by the secular courts ; and an historian gives us
the terms of a confederacy among the French nobles in
1246, binding themselves by oath not to permit the spiritual
judges to take cognizance of any matter, except heresy,
marriage, and usury.8 Unfortunately, Louis IX. was almost
as little disposed as Henry III. to shake off the yoke of
ecclesiastical dominion. But other sovereigns in the same
period, from various motives, were equally submissive. Fre-
deric II. explicitly adopts the exemption of clerks from
criminal as well as civil jurisdiction of seculars.* And Al-
q 2 Inst. p. 163. This is not likely r It seems dedueible from a law of
to mislead a well-informed reader ; but Philip Augustus, Ordounances des Rois,
it ought, perhaps, to be mentioned, that t. i. p. 39, that a clerk convicted of some
by the " clerical privilege" we are only heinous offences might be capitally
to understand what is called benefit of punished after degradation; yet a subse-
clergy; which in fact is, or rather was, quent ordinance, p. 43, renders this
till recent alterations of the law since the doubtful ; and the theory of clerical im-
first edition of this work, no more than munity became afterwards more fully
the remission of capital punishment for established,
the first conviction of felony; and that 8 Matt. Paris, p. 629.
not for the clergy alone, but for all cul- * Statuimus, ut nullus ecclesiasticam
prits alike. • They were not called upon personam,incriminaliqu8estionevelcivili,
at any time, I believe, to prove their trahere ad judicium sseculare prsesumat.
claim as clergy, except by reading the Ordonnances des Eois de France, t. i.
neck-verse, after trial and conviction in p. 611, where this edict is recited and
the king's court. They were then in approved by Louis Hutin. Philip the
strictness to be committed to the ordi- Bold had obtained leave from the pope
nary or ecclesiastical superior, which to arrest clerks accused of heinous crimes,
probably was not often done. on condition of remitting them to the
ECCLES. POWER. DURING THE MIDDLE AGES. 223
fonso X. introduced the same system in Castile; a kingdom
where neither the papal authority nor the independence of
the church had obtained any legal recognition until the pro-
mulgation of his code, which teems with all the principles of
the canon law.u It is almost needless to mention that all
ecclesiastical powers and privileges were incorporated with
the jurisprudence of the kingdom of Naples, which, especially
after the accession of the Angevin line, stood in a peculiar
relation of dependence upon the Holy See.x
The vast acquisitions of landed wealth made for many
aajes by bishops, chapters, and monasteries, began Restraints on
° J -I'l n • mi alienations in
at length to excite the jealousy ot sovereigns. 1 hey mortmain.
perceived that, although the prelates might send their stipu-
lated proportion of vassals into the field, yet there could not
be that active co-operation which the spirit of feudal tenures
required, and that the national arm was palsied by the dimi-
nution of military nobles. Again the reliefs upon succession,
and similar dues upon alienation, incidental to fiefs, were
entirely lost when they came into the hands of these undying
corporations, to the serious injury of the feudal superior.
Nor could it escape reflecting men, during the contest about
investitures, that if the church peremptorily denied the
supremacy of the state over her temporal wealth, it was but
a just measure of retaliation, or rather self-defence, that the
state should restrain her further acquisitions. Prohibitions
of gifts in mortmain, though unknown to the lavish devotion
of the new kingdoms, had been established by some of the
Roman emperors, to check the overgrown wealth of the
hierarchy/ The first attempt at a limitation of this descrip-
tion in modern times was made by Frederic Barbarossa,
who, in 1158, enacted that no fief should be transferred
either to the church or otherwise, without the permission of
bishop's court for trial. Hist, du Droit One provision of Robert king of Naples
Eccl. Frang. t. i. p. 426. A council at is remarkable: it extends the immunity
Bourges, held in 1276, had so absolutely of clerks to then- concubines. Ibid,
condemned all interference of the secular Villani strongly censures a law made
power with clerks, that the king was at Florence, in 1345, taking away the
obliged to solicit this moderate favour, personal immunity of clerks in criminal
P. 421. cases. Though the state could make
Marina, Ensayo Historico-Critico such a law, he says, it had no right to do
sobre las siete Partidas, c. 320, &c. Hist, so against the liberties of holy church,
du Droit Eccles. Frang. t. i. p. 442. 1. xii. c. 43.
x Giannone, 1. xix. c. v.; 1. xx. c. 8. y Giannone, 1. iii.
224 STATE OF EUROPE CHAP. VII. PART II.
the superior lord. Louis IX. inserted a provision of the same
kind in his Establishments.2 Castile had also laws of a
similar tendency.* A licence from the crown is said to have
been necessary in England before the conquest for alienations
in mortmain ; but however that may be, there seems no
reason to imagine that any restraint was put upon them by
the common law before Magna Charta ; a clause of which
statute was construed to prohibit all gifts to religious houses,
without the consent of the lord of the fee. And by the 7th
Edward I. alienations in mortmain are absolutely taken
away ; though the king might always exercise his preroga-
tive of granting a licence, which was not supposed to be
affected by the statute.b
It must appear I think to every careful inquirer, that the
Boniface papal authority, though manifesting outwardly more
show of strength every year, had been secretly
undermined, and lost a great deal of its hold upon public
opinion, before the accession of Boniface VIII., in 1294, to
the pontifical throne. The clergy were rendered sullen by
demands of money, invasions of the legal right of patronage,
and unreasonable partiality to the mendicant orders ; a part
of the mendicants themselves had begun to declaim against
the corruptions of the papal court ; while the laity, subjects
alike and sovereigns, looked upon both the head and the
members of the hierarchy with jealousy and dislike. Boni-
face, full of inordinate arrogance and ambition, and not suffi-
ciently sensible of this gradual change in human opinion,
endeavoured to strain to a higher pitch the despotic preten-
sions of former pontiffs. As Gregory VII. appears the most
usurping of mankind till we read the history of Innocent III.,
so Innocent III. is thrown into shade by the superior audacity
of Boniface VIII. But independently of the less favourable
dispositions of the public, he wanted the most essential quality
for an ambitious pope, reputation for integrity. He was sus-
pected of having procured through fraud the resignation of
his predecessor Celestine V., and his harsh treatment of that
z Ordonnances des Rois, p. 213. See a Marina, Ensayo sobre las siete Par-
too p. 303, and alibi. Du Cange, v. tidas, c. 235.
Manus morta. Anwrtissiment, in Deni- b 2 Inst. p. 74. Blackstone, vol. ii.
sart, and other French law-books. Fleury, c. 18.
Instit. au Droit, t. i. p. 350.
ECCLES. POWER. DURING THE MIDDLE AGES. 225
worthy man afterwards seems to justify the reproach. His
actions however display the intoxication of extreme self-
confidence. If we may credit some historians, he appeared
at the Jubilee in 1 300, a festival successfully instituted by
himself to throw lustre around his court and fill his trea-
sury,0 dressed in imperial habits, with the two swords borne
before him, emblems of his temporal as *well as spiritual
dominion over the earth.d
It was not long after his elevation to the pontificate, before
Boniface displayed his temper. The two most HIS disputes
PI L ' n TT T»I -T i T-I • with the king
powerful sovereigns of Europe, rhilip the Fair of England,
and Edward I., began at the same moment to attack in a
very arbitrary manner the revenues of the church. The
English clergy had, by their own voluntary grants, or at least
those of the prelates in their name, paid frequent subsidies
to the crown, from the beginning of the reign of Henry III.
They had nearly in effect waived the ancient exemption, and
retained only the common privilege of English freemen to
tax themselves in a constitutional manner. But Edward I.
came upon them with demands so frequent and exorbitant,
that they were compelled to take advantage of a bull issued
by Boniface, forbidding them to pay any contribution to the
state. The king disregarded every pretext, and seizing their
goods into his hands, with other tyrannical proceedings, ulti-
mately forced them to acquiesce in his extortion. It is
remarkable, that the pope appears to have been passive
throughout this contest of Edward I. with his clergy. But
it was far otherwise in France. Philip the Fair
had imposed a tax on the ecclesiastical order with-
out their consent, a measure perhaps unprecedented, yet not
The Jubilee was a centenary com- rastellos, rastellantes pecuniam infinitam.
memoration, in honour of St. Peter and Auctor apud Muratori, Annali d'ltalia.
St. Paul, established by Boniface VIII. Plenary indulgences were granted by
on the faith of an imaginary precedent a Boniface to all who should keep their
century before. The period was soon jubilee at Home, and I suppose are still
reduced to fifty years, and from thence to to be had on the same terms. Matteo
twenty-five, as it still continues. The Villani gives a curious account of the
court of Rome, at the next jubilee, will throng at Rome in 1350.
however read with a sigh the description d Giannone, 1. xxi. c. 3. Velly, t. vii.
given of that in 1300. Papa innumera- p. 149. I have not observed any good
bilem pecuniam ab iisdem recepit, quia authority referred to for this fact, which
die et nocte duo clerici stabant ad altare is however in the character of Boniface,
sancti Pauli, tenentes in eorum manibus
VOL. II. Q
and of
France.
226 STATE OF EUROPE CHAP. VII. PART II.
more odious than the similar exactions of the king of Eng-
land. Irritated by some previous differences, the pope issued
his bull known by the initial words Clericis laicos, absolutely
forbidding the clergy of every kingdom to pay, under what-
ever pretext of voluntary grant, gift, or loan, any sort of
tribute to their government without his special permission.
Though France was not particularly named, the king under-
stood himself to be intended, and took his revenge by a pro-
hibition to export money from the kingdom. This produced
angry remonstrances on the part of Boniface ; but the Gal-
lican church adhered so faithfully to the crown, and showed
indeed so much willingness to be spoiled of their money, that
he could not insist upon the most unreasonable propositions
of his bull, and ultimately allowed that the French clergy
might assist their sovereign, by voluntary contributions,
though not by way of tax.
For a very few years after these circumstances, the pope
and king of France appeared reconciled to each other ; and
the latter even referred his disputes with Edward I. to the
arbitration of Boniface, " as a private person, Benedict of
Gaeta (his proper name), and not as pontiff;" an almost
nugatory precaution against his encroachment upon temporal
authority.6 But a terrible storm broke out in the first year
of the fourteenth century. A bishop of Pamiers, who had
been sent as legate from Boniface with some complaint, dis-
played so much insolence, and such disrespect towards the
king, that Philip, considering him as his own subject, was
provoked to put him under arrest, with a view to institute a
criminal process. Boniface, incensed beyond measure at this
violation of ecclesiastical and legatine privileges, published
several bulls addressed to the king and clergy of France,
e Walt. Hemingford, p. 150. The but Velly has repeated mere falsehoods
award of Boniface, which he expresses from Mezeray and Baillet, while he
himself to make both as pope and Bene- refers to the instrument itself in Rymer,
diet of Gaeta, is published in Rymer, which disproves them. Hist, de France,
t. ii. p. 819, and is very equitable. . Ne- t. vii. p. 139. M. Gaillard, one of the
vertheless, the French historians agreed most candid critics in history that France
to charge him with partiality towards ever produced, pointed out the error of
Edward, and mention several proofs of it, her common historians in the Me"m. de
which do not appear in the bull itself. TAcade'inie des Inscriptions, t. xxxix.
Previous to its publication, it was allow- p. 642 ; and the editors of L'Art de vi-
able enough to follow common fame ; rifier les Dates have also rectified it.
ECCLES. POWER. DURING THE MIDDLE AGES. 227
charging the former with a variety of offences, some o them
not at all concerning the church, and commanding the latter
to attend a council which he had summoned to meet at Rome.
In one of these instruments, the genuineness of which does
not seem liable to much exception, he declares in concise and
clear terms that the king was subject to him in temporal as
well as spiritual matters. This proposition had not hitherto
been explicitly advanced, and it was now too late to advance
it. Philip replied by a short letter in the rudest language,
and ordered his bulls to be publicly burned at Paris. Deter-
mined, however, to show the real strength of his opposition,
he summoned representatives from the three orders of his
kingdom. This is commonly reckoned the first assembly of
the States General. The nobility and commons disclaimed
with firmness the temporal authority of the pope, and con-
veyed their sentiments to Rome through letters addressed to
the college of cardinals. The clergy endeavoured to steer a
middle course, and were reluctant to enter into an engage-
ment not to obey the pope's summons ; yet they did not
hesitate unequivocally to deny his temporal jurisdiction.
The council however opened at Rome ; and notwithstand-
ing the king's absolute prohibition, many French prelates
held themselves bound to be present. In this assembly
Boniface promulgated his famous constitution, denominated
Unam sanctam. ' The church is one body, he therein de-
clares, and has one head. Under its command are two
swords, the one spiritual, the other temporal ; that to be used
by the supreme pontiff himself; this by kings and knights,
by his licence and at his will. But the lesser sword must
be subject to the greater, and the temporal to the spiritual
authority. He concludes by declaring the subjection of every
human being to the see of Rome to be an article of necessary
faith/ Another bull pronounces all persons of whatever
rank obliged to appear when personally cited before the
Uterque est in potestate ecclesiae, auctoritatem spiritali subjici potestati.
spiritalis scilicet gladius et material is. — Porro subesse Romano pontifici omni
Sed is quidem pro ecclesia, ille vero ab humanae creaturse declaramus, dicimus,
ecclesia exercendus : ille sacerdotis, is definimus et pronunciamus omnino esse
manu regum ac militum, sed ad nutum de necessitate fidei. Extravagant. 1. i.
et patientiam sacerdotis. Oportet autem tit. viii. c. 1.
gladium esse sub gladio, et temporalem
Q2
228 STATE OF EUROPE CHAP. VII. PART II.
audience or apostolical tribunal at Kome ; " since such is our
pleasure, who, by divine permission, rule the world." Finally,
as the rupture with Philip grew more evidently irreconcile-
able, and the measures pursued by that monarch more hostile,
he not only excommunicated him, but offered the crown of
France to the emperor Albert I. This arbitrary transference
of kingdoms was, like many other pretensions of that age,
an improvement upon the right of deposing excommunicated
sovereigns. Gregory VII. would not have denied, that a
nation, released by his authority from it allegiance, must
re-enter upon its original right of electing a new sovereign.
But Martin IV. had assigned the crown of Aragon to Charles
of Valois; the first instance, I think, of such an usurpation
of power, but which was defended by the homage of Peter II.,
who had rendered his kingdom feudally dependent, like
Naples, upon the Holy See.g Albert felt no eagerness to
realize the liberal promises of Boniface ; who was on the
point of issuing a bull, absolving the subjects of Philip from
their allegiance, and declaring his forfeiture, when a very
unexpected circumstance interrupted all his projects.
It is not surprising, when we consider how unaccustomed
men were in those ages to disentangle the artful sophisms,
and detect the falsehoods in point of fact, whereon the papal
supremacy had been established, that the king of France
should not have altogether pursued the course mostbecoming
his dignity and the goodness of his cause. He gave too
much the air of a personal quarrel with Boniface to what
should have been a resolute opposition to the despotism of
Rome. Accordingly, in an assembly of his states at Paris,
he preferred virulent charges against the pope, denying him
to have been legitimately elected, imputing to him various
g Innocent IV. had, however, in 1245, cretal. 1. i. tit. viii. c. 2. Art de verifier
appointed one Bolon, brother to Sancho les Dates, t. i. p. 778.
II., king of Portugal, to be a sort of co- Boniface invested James II. of Aragon
adjutor in the government of that king- with the crown of Sardinia, over which,
dom, enjoining the barons to honour him however, the see of Rome had always
as their sovereign, at the same time de- pretended to a superiority, by virtue of
claring that he did not intend to deprive the concession (probably spurious) of
the king, or his lawful issue, if he should Louis the Debonair. He promised
have any, of the kingdom. But this was Frederic king of Sicily the empire of
founded on the request of the Portuguese Constantinople, which, I suppose, was
nobility themselves, who were dissatisfied not a fief of the Holy See. Giannone,
with Sancho's administration. Sext. De- 1. xxi. c. 3.
ECCLES. POWER. DUKING THE MIDDLE AGES. 229
heresies, and ultimately appealing to a general council and
a lawful head of the church. These measures were not very
happily planned ; and experience had always shown, that
Europe would not submit to change the common chief of her
religion for the purposes of a single sovereign. But Philip
succeeded in an attempt apparently more bold and singular.
Nogaret, a minister who had taken an active share in all the
proceedings against Boniface, was secretly despatched into
Italy, and joining with some of the Colonna family, pro-
scribed as Ghibelins, and rancorously persecuted by the pope,
arrested him at Anagnia, a town in the neighbourhood of
Rome, to which he had gone without guards. This violent
action was not, one would imagine, calculated to place the
king in an advantageous light ; yet it led accidentally to a
favourable termination of his dispute. Boniface was soon
rescued by the inhabitants of Anagnia ; but rage brought on
a fever, which en^ed in his death ; and the first act of his
successor, Benedict XL, was to reconcile the king of France
to the Holy See.h
The sensible decline of the papacy is to be dated from the
pontificate of Boniface VIII., who had strained its authority
to a higher pitch than any of his predecessors. There is a
spell wrought by uninterrupted goodfortune, which captivates
men's understanding, and persuades them against reasoning
and analogy, that violent power is immortal and irresistible.
The spell is broken by the first change of success. We have
seen the working and the dissipation of this charm with a
rapidity to which the events of former times bear as remote
a relation as the gradual processes of nature to her deluges
and her volcanoes. In tracing the papal empire over man-
kind, we have no such marked and definite crisis of revolution.
But slowly, like the retreat of waters, or the stealthy pace of
old age, that extraordinary power over human opinion has
been subsiding for five centuries. I have already observed,
that the symptoms of internal decay may be traced further
back. But as the retrocession of the Roman terminus under
Adrian gave the first overt proof of decline in the ambitious
energies of that empire, so the tacit submission of the suc-
h Velly, Hist, de France, t. vii. p. 109-258. Crevier, Hist, de FUniversite de
Paris, t. ii. p. 170, &c.
230 STATE OF EUROPE CHAP. VII. PART II.
cessors of Boniface VIII. to the king of France might have
been hailed by Europe as a token that their influence was be-
ginning to abate. Imprisoned, insulted, deprived eventually
of life by the violence of Philip, a prince excommunicated,
and who had gone all lengths in defying and despising the
papal jurisdiction, Boniface had every claim to be avenged
by the inheritors of the same spiritual dominion. When
Benedict XI. rescinded the bulls of his predecessor, and
admitted Philip the Fair to communion without insisting
on any concessions, he acted perhaps prudently, but gave a
fatal blow to the temporal authority of Koine.
Benedict XI. lived but a few months, and his successor,
Removal of Clement V., at the instigation, as is commonly sup-
Kli^non4, posed, of the king of France, by whose influence he
A.D. 1305. fjad keen e]ected, took the extraordinary step of
removing the papal chair to Avignon. In this city it re-
mained for more than seventy years ; a perjpd which Petrarch
and other writers of Italy compare to that of the Babylonish
captivity. The majority of the cardinals was always French,
and the popes were uniformly of the same nation. Timidly
dependent upon the court of France, they neglected the in-
terests and lost the affections of Italy. Rome, forsaken by
her sovereign, nearly forgot her allegiance ; what remained
of papal authority in the ecclesiastical territories was exer-
cised by cardinal legates, little to the honour or advantage
of the Holy See. Yet the series of Avignon pontiffs were
far from insensible to Italian politics. These occupied on
the contrary the greater part of their attention. But en-
gaging in them from motives too manifestly selfish, and be-
ing regarded as a sort of foreigners from birth and residence,
they aggravated that unpopularity and bad reputation which
from various other causes attached itself to their court.
Though none of the supreme pontiffs after Boniface VIII.
contest of venturedupoii suchexplicitassumptions of a general
LoSS <3Ith jurisdiction over sovereigns by divine right as he had
ina- made in his controversy with Philip, they main-
tained one memorable struggle for temporal power against
the emperor Louis of Bavaria. Maxims long boldly repeated
without contradiction, and engrafted upon the canon law,
passed almost for articles of faith among the clergy and
ECCLES. POWER. DUKING THE MIDDLE AGES. 231
those who trusted in them ; and in despite of all ancient
authorities, Clement V. laid it down, that the popes, having
transferred the Koman empire from the Greeks to the Ger-
mans, and delegated the right of nominating an emperor to
certain electors, still reserved the prerogative of approving
the choice, and of receiving from its subject upon his coro-
nation an oath of fealty and obedience.1 This had a regard
to Henry Y II., who denied that his oath bore any such inter-
pretation, and whose measures, much to the alarm of the
court of Avignon, were directed towards the restoration of
his imperial rights in Italy. Among other things, he con-
ferred the rank of vicar of the empire upon Matteo Yisconti,
lord of Milan. The popes had for some time pretended to
possess that vicariate_, during a vacancy of the empire ; and
after Henry's death, insisted upon Yisconti's surrender of
the title. Several circumstances, for which I refer to the
political historians of Italy, produced a war between the
pope's legate and the Yisconti family. The emperor Louis
sent assistance to the latter, as heads of the Ghibelin or im-
perial party. This interference cost him above twenty years
of trouble. John XXII., a man as passionate and ambitious
as Boniface himself, immediately published a bull in which
he asserted the right of administering the empire during its
vacancy (even in Germany, as it seems from the generality
of his expression), as well as of deciding in a doubtful choicfe
of the electors, to appertain to the HolySee ; and commanded
Louis to lay down his pretended authority, until the supreme
jurisdiction should determine upon his election. Louis's
election had indeed been questionable ; but that contro-
versy was already settled in the field of Muhldorf, where
he had obtained a victory over his competitor the duke of
Austria ; nor had the pope ever interfered to appease a
1 Eomani principes, &c Ro- potestas eligendi regem, in imperatorem
mano pontifici, a quo approbationem per • postmodum promovendum, pertinet, ad-
sonse ad imperialis celsitudinis apicem stringere vinculo juramenti, &c. Cle-
assumendse, necnon unctionem, consecra- rnent, 1. ii. t. ix. The terms of the oath,
tionern et imperil coronam accipiunt, sua as recitefc in this constitution, do not
submittere capita non reputarunt indig- warrant the pope's interpretation, but
man, seque illi et eidem ecclesise, qu<e a imply only that the emperor shall be the
Gruocisimperiumtraustulitiu Gerinanos, advocate or defender of the church,
et a qua ad certos eorurn priueipes jus et
232 STATE OF EUROPE CHAP. VII. PART II.
civil war during several years that Germany had been inter-
. nally distracted by the dispute. The emperor not
yielding to tjiis peremptory order was excommu-
nicated ; his vassals were absolved from their oath of fealty,
and all treaties of alliance between him and foreign princes
annulled. Germany however remained firm ; and if Louis
himself had manifested more decision of mind, arid uni-
formity in his conduct, the court of Avignon must have
signally failed in a contest, from which it did not in fact
come out very successful. But while at one time he went
intemperate lengths against John XXII., publishing scan-
dalous accusations in an assembly of the citizens of Rome,
and causing a Franciscan friar to be chosen in his room,
after an irregular sentence of deposition, he was always
anxious to negotiate terms of accommodation, to give up
his own active partisans, and to make concessions the most
derogatory to Jhis independence and dignity. From John
indeed he had nothing to expect; but Benedict XII. would
gladly have been reconciled, if he had not feared the kings
of France and Naples, political adversaries of the emperor,
who kept the Avignon popes in a sort of servitude. His
successor, Clement VI., inherited the implacable animosity
of John XXII. towards Louis, who died without obtaining
the absolution he had long abjectly solicited.k
• Though the want of firmness in this emperor's character
spirit of re- gave sometimes a momentary triumph to the
paptfusirp- popes, it is evident that their authority lost ground
during the continuance of this struggle. Their
right of confirming imperial elections was expressly denied
by a diet held at Frankfort in 1338, which established as
a fundamental principle that the imperial dignity depended
upon God alone, and that whoever should be chosen by a
majority of the electors became immediately both king and
emperor, with all prerogatives of that station, and did not
require the approbation of the pope.m This law, confirmed as
k Schmidt, Hist, des Allemands, t. iv. immediate* ex solo Deo, et quod de jure
p. 446-536, seems the bes£ modern et imperil consuetudine antiquitus appro-
authority for this contest between the bata postquam aliquis eligitur in impera-
empire and papacy.- See also Struvius, torem sive regem ab electoribus imperil
Corp. Hist. German, p. 591. concorditer, vel major! parte eorundern.
m Quod imperialis diguitas et potestas statim ex sola electioue est rex verus et
ECCLES. POWER. DURING THE MIDDLE AGES. 233
it was by subsequent usage, emancipated the German empire,
which was immediately concerned in opposing the papal
claims. But some who were actively engaged in these trans-
actions took more extensive views, and assailed the whole
edifice of temporal power which the Roman see had been
constructing for more than two centuries. Several men of
learning, among whom Dante, Ockham, and Marsilius of
Padua are the most conspicuous, investigated the founda-
tions of this superstructure, and exposed their insufficiency.11
Literature, too long the passive handmaid of spiritual despot-
ism, began to assert her nobler birthright of ministering to
liberty and truth. Though the writings of these opponents
of Rome are not always reasoned upon very solid prin-
ciples, they at least taught mankind to scrutinize what had
been received with implicit respect, and prepared the way
for more philosophical discussions. About this time a new
class of enemies had unexpectedly risen up against the
rulers of the church. These were a part of the Franciscan
order, who had seceded from the main body on account
of alleged deviations from the rigour of their primitive rule.
Their schism was chiefly founded upon a quibble about the
right of property in things consumable, which they main-
tained to be incompatible with the absolute poverty pre-
scribed to them. This frivolous sophistry was united with the
wildest fanaticism ; and as John XXII. attempted to re-
press their follies by a cruel persecution, they proclaimed
aloud the corruption of the church, fixed the name of Anti-
christ upon the papacy, and warmly supported the emperor
Louis throughout all his contention with the Holy See.0
imperator Romanorum censendus et no- the temporal supremacy of the church,
minandus, et eidem debet ab omnibus This is published among other tracts of
imperio subjectis obediri, et adminis- the same class in Goldastus, Monarchia
trandi jura imperii, et csetera facieudi, Imperii, p. 13. This dialogue is trans-
quse ad imperatorem verum pertinent, lated entire in the Songe du Vergier, a
plenariam habet potestatem, nee Papse more celebrated performance, ascribed
sive sedis apostolicsB aut alicujus alte- to Raoul de Presles under Charles V.
rius approbatione, confirmatione, auctori- ° The schism of the rigid Franciscans
tateindigetvelcensensu. Schmidt, p. 5 13. or Fratricelli is one of the most singular
11 Giannone, 1. xxii. c. 8. Schmidt, parts of ecclesiastical history, and had a
t. vi. p. 152. Dante was dead before material tendency both to depress the
these events, but his principles were the temporal authority of the papacy, and to
same. Ockham had already exerted his pave the way for the Reformation. It is
talents in the same cause by writing, in fully treated by Mosheim, cent. 13 and
behalf of Philip IV., against Boniface, a 14; and by Crevier, Hist, de I'Uuiversite
dialogue between a knight and a clerk on de Paris, t. ii. p. 233-2G4-, &c.
234 STATE OF EUROPE CHAP. VII. PART II.
Meanwhile the popes who sat at Avignon continued to
Eapadtyof invade with surprising rapaciousness the patronage
popfsn.°n and revenues of the church. The mandats or letters
directing a particular clerk to he preferred seem to have
given place in a great degree to the more effectual method of
appropriating benefices by reservation or provision, which
was carried to an enormous extent in the fourteenth century.
John XXII., the most insatiate of pontiffs, reserved to him-
self all the bishoprics in Christendom.1" Benedict XII.
assumed the privilege for his own life of disposing of all
benefices vacant by cession, deprivation, or translation. Cle-
ment VI. naturally thought that his title was equally good
with his predecessor's, and continued the same right for his
own time ; which soon became a permanent rule of the
Roman chancery. q Hence the appointment of a prelate to
a rich bishopric was generally but the first link in a chain of
translation, which the pope could regulate according to his in-
terest. Another capital innovation was made by John XXII.
in the establishment of the famous tax called annates, or first
fruits of ecclesiastical benefices, which he imposed for his
own benefit. These were one year's value, estimated ac-
cording to a fixed rate in the books of the Roman chancery,
and payable to the papal collectors throughout Europe/
Various other devices were invented to obtain money, which
these degenerate popes, abandoning the magnificent schemes
of their predecessors, were content to seek as their principal
object. John XXII. is said to have accumulated an almost
incredible treasure, exaggerated perhaps by the ill-will of his
contemporaries ;8 but it may be doubted whether even his
p Fleury, Institutions, &c. t. i. p. 368. themselves. De Marca, ibid. It is no-
F. Paul on Benefices, c. 37. ticed as a remarkable thing of Innocent
q F. Paul, c. 38. Translations of IV., that he gave the pall to a German
bishops had been made by the authority archbishop, without accepting anything,
of the metropolitan, till Innocent III. Schmidt, t. iv. p. 172. The original and
reserved this prerogative to the Holy See. nature of annates is copiously treated in
De Marca, 1. vi. c. 8. Lenfant, Concile de Constance, t. ii. p.
r F. Paul, c. 38. Fleury, p. 424. 133.
De Marca, 1. vi. c. 10. Pasquier, 1. iii. 8 G. Villani puts this at 25,000,000
c. 28. The popes had long been in the of florins, which it is hardly possible to
habit of receiving a pecuniary gratuity believe. The Italians were credulous
when they granted the pallium to an enough to listen to any report against the
archbishop, though this was reprehended popes of Avignon. 1. xi. c. 20. Gianuone,
by strict men and even condemned by 1. xxii. c. 8.
ECCLES. POWER. DURING THE MIDDLE AGES. 235
avarice reflected greater dishonour on the church than the
licentious profuseness of Clement VL*
These exactions were too much encouraged by the kings
of France, who participated in the plunder, or at least re-
quired the mutual assistance of the popes for their own im-
posts on the clergy. John XXII. obtained leave of Charles
the Fair to levy a tenth of ecclesiastical revenues ;u and
Clement VI., in return, granted two tenths to Philip of
Valois for the expenses of his war. A similar tax was raised
by the same authority towards the ransom of John.x These
were contributions for national purposes unconnected with
religion, which the popes had never before pretended to
impose, and which the king might properly have levied
with the consent of his clergy, according to the practice of
England. But that consent might not always be ob-
tained with ease, and it seemed a more expeditious method
to call in the authority of the pope. A manlier spirit was
displayed by our ancestors. It was the boast of England
to have placed the first legal barrier to the usurpations of
Rome, if we except the insulated Pragmatic Sanction of
St. Louis, from which the practice of succeeding ages in
France entirely deviated. The English barons had, in a
letter addressed to Boniface VI II., absolutely disclaimed his
temporal supremacy over their crown, which he had attempted
to set up by intermeddling in the quarrel of Scotland/ This
letter, it is remarkable, is nearly coincident in point of time
with that of the French nobility ; and the two combined may
be considered as a joint protestation of both kingdoms, and a
testimony to the general sentiment among the superior ranks
of the laity. A very few years afterwards, the parliament
of Carlisle wrote a strong remonstrance to Clement V. against
the system of provisions and other extortions, including that
of first fruits, which it was rumoured, they say, he was
* For the corruption of morals at astique, t. ii. p. 245. Villaret, t. ix.
Avignon during the secession, see De p. 431. It became a regular practice
Sade, Vie de Pe"trarque, t. i. p. 70, and for the king to obtain the pope's con-
several other passages. sent to lay a tax on his clergy; though
u Continuator Gul. de Nangis, in he sometimes applied first to themselves.
Spicilegio d'Achery, t. iii. p. 86 (folio Gamier, t. xx. p. 141.
edition); itamiseram ecclesiam, says this y Kymer, t. ii. p. 373. Collier, vol. i.
monk, uiius tondet, alter excoriat. p. 725.
x Fleury, Institut. au Droit Eccl&d-
236 STATE OF EUROPE CHAP. VII. PAET II.
meditating to demand/ But the court of Avignon was not
to be moved by remonstrances; and the feeble administration
of Edward II. gave way to ecclesiastical usurpations at home
as well as abroad.a His magnanimous son took a bolder
line. After complaining ineffectually to Clement VI. of the
enormous abuse which reserved almost all English benefices
to the pope, and generally for the benefit of aliens,b he
passed in 1350 the famous statute of provisors. This act,
reciting one supposed to have been made at the parliament
of Carlisle, which, however, does not appear,0 and com-
plaining in strong language of the mischief sustained through
continual reservations of benefices, enacts that all elections
and collations shall be free, according to law, and that, in
case any provision or reservation should be made by the
court of Rome, the king should for that turn have the
collation of such a benefice, if it be of ecclesiastical election
or patronage.d This devolution to the crown, which seems
a little arbitrary, was the only remedy that could be effectual
against the connivance and timidity of chapters and spiritual
patrons. We cannot assert that a statute so nobly planned
was executed with equal steadiness. Sometimes by royal
dispensation, sometimes by neglect or evasion, the papal
bulls of provision were still obeyed, though fresh laws were
enacted to the same effect as the former. It was found on
examination in 1 367, that some clerks enjoyed more than
twenty benefices by the pope's dispensation.6 And the par-
liaments both of this and of Richard II.'s reign invariably
* Rotuli Parliament!, vol. i. p. 204. whereas there is not the least resemblance
This passage, hastily read, has led Collier in the words, and very little, if any, in the
and other English writers, such as Henry substance. Blackstone, in consequence,
and Blackstone, into the supposition that mistakes the nature of that act of Ed-
annates were imposed by Clement V. ward I., and supposes it to have been
But the concurrent testimony of foreign made against papal provisions, to which
authors refers this tax to John XXII. as I do not perceive even an allusion,
the canon law also shows. Extravagant. Whether any such statute was really
Communes, 1. iii. tit. ii. c. 11. made in the Carlisle parliament of 35
a The statute called Articuli cleri, in E. I., as is asserted both in 25 E. III.
1316, was directed rather towards con- and in the roll of another parliament,
firming than limiting the clerical immu- 17 E. III. (Rot. Paii. t. ii. p. 144), is
nity in criminal cases. hard to decide; and perhaps those who
b Collier, p. 546. examine this point will have to choose
c It is singular, that Sir E. Coke between wilful suppression and wilful
should assert, that this act recites, and is interpolation,
founded upon, the statute 35 E. I. De d 25 E. III. stat. 6.
asportatis religiosorum (2 Inst. 580) ; e Collier, p. 568.
ECCLES. POWER. DURING THE MIDDLE AGES. '237
complain of the disregard shown to the statutes of provisors.
This led to other measures, which I shall presently mention.
The residence of the popes at Avignon gave very general
offence to Europe, and they could not themselves Return of
avoid perceiving the disadvantage of absence from Rome.
their proper diocese, the city of St. Peter, the source of all
their claims to sovereign authority. But Rome, so long
abandoned, offered but an inhospitable reception : Urban V.
returned to Avignon, after a short experiment of the capital ;
and it was not till 1376, that the promise, often repeated
and long delayed, of restoring the papal chair to the metro-
polis of Christendom, was ultimately fulfilled by Gregory XI.
His death, which happened soon afterwards, prevented, it is
said, a second flight that he was preparing. This was followed
by the great schism, one of the most remarkable events in
ecclesiastical history. It is a difficult and by no means contested
an interesting question to determine the validity of urblnV/
that contested election, which distracted the Latin ^element
church for so many years. All contemporary testi- A>D- 13n>
monies are subject to the suspicion of partiality in a cause
where no one was permitted to be neutral. In one fact
however there is a common agreement, that the cardinals,
of whom the majority were French, having assembled in
conclave, for the election of a successor to Gregory XI.,
were disturbed by a tumultuous populace, who demanded
with menaces a Roman, or at least, an Italian pope. This
tumult appears to have been sufficiently violent to excuse,
and in fact did produce, a considerable degree of intimidation.
After some time, the cardinals made choice of the archbishop
of Bari, a Neapolitan, who assumed the name of Urban VI.
His election satisfied the populace, and tranquillity was re-
stored. The cardinals announced their choice to the absent
members of their college, and behaved towards Urban as
their pope for several weeks. But his uncommon harshness
of temper giving them offence, they withdrew to a neigh-
bouring town, and protesting that his election had been
compelled by the violence of the Roman populace, annulled
the whole proceeding, and chose one of their own number,
who took the pontifical name of Clement VII. Such are
the leading circumstances which produced the famous schism.
238 STATE OF EUROPE CHAP. VII. PART II.
Constraint is so destructive of the essence of election, that
suffrages given through actual intimidation ought, I think,
to be held invalid, even without minutely inquiring whether
the degree of illegal force was such as might reasonably
overcome the constancy of a firm mind. It is improbable
that the free votes of the cardinals would have been bestowed
on the archbishop of Bari ; and I should not feel much
hesitation in pronouncing his election to have been void.
But the sacred college unquestionably did not use the earliest
opportunity of protesting against the violence they had
suffered ; and we may infer almost with certainty, that if
Urban 's conduct had been more acceptable to that body, the
world would have heard little of the transient riot at his
election. This however opens a delicate question in juris-
prudence ; namely, under what circumstances acts, not only
irregular, but substantially invalid, are capable of receiving
a retro-active confirmation by the acquiescence and acknow-
ledgment of parties concerned to oppose them. And upon
this, I conceive, the great problem of legitimacy between
Urban and Clement will be found to depend/
Whatever posterity m ay have judged about the pretensions
of these competitors, they at that time shared the obedience
of Europe in nearly equal proportions. Urban remained at
Rome; Clement resumed the station of Avignon. To the
The Great former adhered Italy, the Empire, England, and
schism. tne nations of the north ; the latter retained in his
allegiance France, Spain, Scotland, and Sicily. Fortunately
for the church, no question of religious faith intermixed itself
with this schism ; nor did any other impediment to reunion
exist, than the obstinacy and selfishness of the contending
parties. As it was impossible to come to any agreement on
the original merits, there seemed to be no means of healing
the wound but by the abdication of both popes and a fresh
undisputed election. This was the general wish of Europe,
but urged with particular zeal by the court of France, and
f Leufant has collected all the original Avignon are not. The modern Italian
testimonies on both sides in the first book writers express no doubt about the le-
of his Concile de Pise. No positive de- gitimacy of Urban; the French at most
cision has ever been made on the subject, intimate, that Clement's pretensions were
but the Roman popes are numbered in not to be wholly rejected,
the commonly received list, and those of
ECCLES. POWER. DURING THE MIDDLE AGES. 239
above all, by the university of Paris, which esteems this
period the most honourable in her annals. The cardinals
however of neither obedience would recede so far from their
party as to suspend the election of a successor upon a vacancy
of the pontificate, which would have at least removed one half
of the obstacle. The Roman conclave accordingly placed
three pontiffs successively, Boniface IX., Innocent VI., and
Gregory XII., in the seat of Urban VI. ; and the cardinals
at Avignon, upon the death of Clement in 1391, elected
Benedict XIII. (Peter de Luna), famous for his inflexible
obstinacy in prolonging the schism. He repeatedly promised
to sacrifice his dignity for the sake of union. But there was
no subterfuge to which this crafty pontiff had not recourse in
order to avoid compliance with his word, though importuned,
threatened, and even besieged in his palace at Avignon.
Fatigued by his evasions, France withdrew her obedience,
and the Gallican church continued for a few years without
acknowledging any supreme head. But this step, which
was rather the measure of the university of Paris than of the
nation, it seemed advisable to retract ; and Benedict was
again obeyed, though France continued to urge his resigna-
tion. A second subtraction of obedience, or at least decla-
tion of neutrality, was resolved upon, as preparatory to the
convocation of a general council. On the other hand, those
who sat at Rome displayed not less insincerity. Gregory
XII. bound himself by oath on his accession to abdicate
when it should appear necessary. But while these rivals were
loading each other with the mutual reproach of schism, they
drew on themselves the suspicion of at least a virtual col-
lusion in order to retain their respective stations. At length
the cardinals of both parties, wearied with so much dissimu-
lation, deserted their masters, and summoned' a general
council to meet at Pisa.g
The council assembled at Pisa deposed both Gregory and
Benedict, without deciding in any respect as to their council of
pretensions, and elected Alexander V. by its own Ao>.'i4o9.
supreme authority. This, authority, however, was not uni-
versally recognised ; the schism, instead of being healed,
s Villaret. Lenfant, Concile de Pise. Crevier, Hist, de I'Universite' de Paris,
t. iii.
240 STATE OF EUEOPE CHAP. VII. PART II.
became more desperate ; for as Spain adhered firmly to
Benedict, arid Gregory was not without supporters, there
were now three contending pontiffs in the church. A general
council was still, however, the favourite and indeed the sole
remedy ; and John XXIIL, successor of Alexander Y., was
ofconstance, reluctantly prevailed upon, or perhaps trepanned,
A.D. Hi4. 'lRfo convoking one to meet at Constance. In this
celebrated assembly he was himself deposed ; a sentence
which he incurred by that tenacious clinging to his dignity,
after repeated promises to abdicate, which had already proved
fatal to his competitors. The deposition of John, confessedly
a legitimate pope, may strike us as an extraordinary measure.
But, besides the opportunity it might afford of restoring union,
the council found a pretext for this sentence in his enormous
vices, which indeed they seem to have taken upon common
fame without any judicial process. The true motive, how-
ever, of their proceedings against him was a desire to make
a signal display of a new system which had rapidly gained
ground, and which I may venture to call the whig principles
of the catholic church. A great question was at issue,
whether the polity of that establishment should be an abso-
lute, or an exceedingly limited monarchy. The papal tyranny,
long endured and still increasing, had excited an active spirit
of reformation which the most distinguished ecclesiastics of
France and other countries encouraged. They recurred, as
far as their knowledge allowed, to a more primitive discipline
than the canon law, and elevated the supremacy of general
councils. But in the formation of these they did not scruple
to introduce material innovations. The bishops have usually
been considered the sole members of ecclesiastical assemblies.
At Constance, however, sat and voted not only the chiefs of
monasteries, but the ambassadors of all Christian princes, the
deputies of universities, with a multitude of inferior theo-
logians, and even doctors of law.h These were naturally
accessible to the pride of sudden elevation, which enabled
them to control the strong and humiliate the lofty. In
h Lenfant, Concile de Constance, t. i. only on questions relating to the settle-
p. 107 (edit. 1727). Crevier, t. iii. p. ment of the church. But the second
405. It was agreed that the ambassadors order of ecclesiastics were allowed to
could not vote upon articles of faith, but vote generally.
ECCLES. POWER. DUKING THE MIDDLE AGES. 241
addition to this, the adversaries of the court of Rome carried
another not less important innovation. The Italian bishops,
almost universally in the papal interests, were so numerous
that if suffrages had been taken by the head, their preponder-
ance would have impeded any measures of transalpine nations
towards reformation. It was determined, therefore, that
the council should divide itself into four nations, the Italian,
the German, the French, and the English, each with equal
rights; and that every proposition having been separately dis-
cussed, the majority of the four should prevail.1 This revo-
lutionary spirit was very unacceptable to the cardinals, who
submitted reluctantly, and with a determination, that did not
prove altogether unavailing, to save their papal monarchy by
a dexterous policy. They could not, however, prevent the
famous resolutions of the fourth and fifth sessions, which
declare ; that the council has received by divine right, an
authority to which every rank, even the papal, is obliged to
submit, in matters of faith, in the extirpation of the present
schism, and in the reformation of the church both in its
head and its members; and that every person, even a pope,
who shall obstinately refuse to obey that council, or any other
lawfully assembled, is liable to such punishment as shall be
necessary .k These decrees are the great pillars of that mo-
derate theory with respect to the papal authority, which
distinguished the Gallican church, and is embraced, I pre-
sume, by almost all laymen and the major part of ecclesiastics
on this side of the Alps.™ They embarrass the more popish
churchmen as the Revolution does our English tories ; some
' This separation of England, as a At a time when a very different spirit
co-equal limb of the council, gave great prevailed, the English bishops under
umbrage to the French, who maintained Henry II. and Henry III. had claimed
that, like Denmark and Sweden, it ought as a right, that no more than four of their
to have been reckoned along with Ger- number should be summoned to a general
many. The English deputies came down council. Hoveden,p. 320; Carte, vol. ii.
with a profusion of authorities to prove p. 84. This was like boroughs praying
the antiquity of their monarchy, for to be released from sending members to
which they did not fail to put in requi- parliament.
sition the immeasurable pedigrees of Ire- k Id. p. 164. Crevier, t. iii. p. 417.
land. Joseph of Arimathea, who planted m This was written in 1816. The pre-
Christianity and his stick at Glastonbury, sent state of opinion among those who
did his best to help the cause. The recent belong to the Gallican church, has be-
victory of Azincourt, I am inclined to come exceedingly different from what it
think, had more weight with the council, was in the last two centuries. (1847.)
Lenfant, t. ii. p. 46.
VOL. II. R
242 STATE OF EUROPE CHAP. VII. PART II.
boldly impugn the authority of the council of Constance,
while others chicane upon the interpretation of its decrees.
Their practical importance is not, indeed, direct ; universal
councils exist only in 'possibility ; but the acknowledgment
of a possible authority paramount to the see of Rome has
contributed, among other means, to check its usurpations.
The purpose for which these general councils had been
required, next to that of healing the schism, was the re-
formation of abuses. All the rapacious exactions, all the
scandalous venality of which Europe had complained, while
unquestioned pontiffs ruled at Avignon, appeared light in
comparison of the practices of both rivals during the schism.
Tenths repeatedly levied upon the clergy, annates rigorously
exacted and enhanced by new valuations, fees annexed to the
complicated formalities of the papal chancery, were the means
by which each half of the church was compelled to reimburse
its chief for the subtraction of the other's obedience. Boni-
face IX., one of the Roman line, whose fame is a little worse
than that of his antagonists, made a gross traffic of his pa-
tronage ; selling the privileges of exemption from ordinary
jurisdiction, of holding benefices in commendam, and other
dispensations invented for the benefit of the Holy See.n
Nothing had been attempted at Pisa towards reformation.
At Constance the majority were ardent and sincere ; the
representatives of the French, German, and English churches
met with a determined, and, as we have seen, not always
unsuccessful resolution to assert their ecclesiastical liberties.
They appointed a committee of reformation, whose recom-
mendations, if carried into effect, would have annihilated
almost entirely that artfully constructed machinery by which
Rome had absorbed so much of the revenues and patronage
of the church. But men, interested in perpetuating these
abuses, especially the cardinals, improved the advantages
which a skilful government always enjoys in playing against
a popular assembly. They availed themselves of the jealousies
arising out of the division of the council into nations, which
exterior political circumstances had enhanced. France, then
at war with England, whose pretensions to be counted as a
n Lenfant, Hist, du Concile de Pise, passim. Crevier. Villaret. Schmidt.
Collier.
ECCLES. POWER. DURING THE MIDDLE AGES. 243
fourth nation she had warmly disputed, and not well disposed
towards the emperor Sigismund, joined with the Italians
against the English and German members 'of the council in
a matter of the utmost importance, the immediate election
of a pope before the articles of reformation should be finally
concluded. These two nations, in return, united with the
Italians to choose the cardinal Colonna, against the advice of
the French divines, who objected to any member of the
sacred college. The court of Rome were gainers in both
questions. Martin V., the new pope, soon evinced his
determination to elude any substantial reform. After pub-
lishing a few constitutions tending to redress some of the
abuses that had arisen during the schism, he contrived to
make separate conventions with the several nations, and as
soon as possible dissolved the council.0
By one of the decrees passed at Constance, another general
council was to be assembled in five years, a second at the
end of seven more, and from that time a similar represent-
ation of the church was to meet every ten years. Martin V.
accordingly convoked a council at Pavia, which, on account
of the plague, was transferred to Siena ; but nothing of im-
portance was transacted by this assembly.1* That which he
summoned seven years afterwards to the city of 0fBaSie,
Basle had very different results. The pope, dying A<D> 1433*
before the meeting of this council, was succeeded by Eu-
genius I\7., who, anticipating the spirit of its discussions,
attempted to crush its independence in the outset, by trans-
ferring the place of session to an Italian city. No point was
reckoned so material in the contest between the popes and
reformers, as whether a council should sit in Italy or beyond
the Alps. The council of Basle began, as it proceeded, in
open enmity to the court of Rome. Eugenius, after several
years had elapsed in more or less hostile discussions, exerted '
his prerogative of removing the assembly to Ferrara, and
from thence to Florence. For this he had a specious pretext
in the negotiation, then apparently tending to a prosperous
0 Lenfant, Concile de Constance. The sketch of the council; and Schmidt
copiousness as well as impartiality of this (Hist, des Allemands, t. v.) is worthy
work j ustly render it an almost excln sive of attention .
authority. Crevier (Hist, de TUni- p Leufant, Guerre des Hussites, t. i.
versite de Paris, t. iii.) has given a good p. 223.
R2
244 STATE OF EUROPE CHAP. VII. PAKT II.
issue, for the reunion of the Greek church ; a triumph,
however transitory, of which his council at Florence obtained
the glory. On the other hand, the assembly at Basle, though
much weakened by the defection of those who adhered to
Eugenius, entered into compacts with the Bohemian insur-
gents, more essential to the interests of the church than any
union with the Greeks, and completed the work begun at
Constance by abolishing the annates, the reservations of
benefices, and other abuses of papal authority. In this it
received the approbation of most princes ; but when, pro-
voked by the endeavours of the pope to frustrate its decrees,
it proceeded so far as to suspend and even to depose him,
neither France nor Germany concurred in the sentence.
Even the council of Constance had not absolutely asserted a
right of deposing a lawful pope, except in case of heresy,
though their conduct towards John could not otherwise be
justified."1 This question indeed of ecclesiastical public law
seems to be still undecided. The fathers of Basle acted
however with greater intrepidity than discretion, and not
perhaps sensible of the change that was taking place in
public opinion, raised Amadeus, a retired duke of Savoy, to
the pontifical dignity by the name of Felix V. They thus re-
newed the schism, and divided the obedience of the Catholic
church for a few years. The empire however, as well as
Trance, observed a singular and not very consistent neutral-
ity ; respecting Eugenius as a lawful pope, and the assembly
at Basle as a general council. England warmly supported
Eugenius, and even adhered to his council at Florence ;
Aragon and some countries of smaller note acknowledged
Felix. But the partisans of Basle became every year weaker;
and Nicolas V., the successor of Eugenius, found no great
difficulty in obtaining the cession of Felix, and terminating
this schism. This victory of the court of Rome over the
q The council of Basle endeavoured violent step against Eugenius; but the
to evade this difficulty, by declaring minor theologians, the democracy of
Eugenius a relapsed heretic. Lenfant, the Catholic church, whose right of
Guerre des Hussites, t. ii. p. 98. But, as suffrage seems rather an anomalous in-
the church could discover no heresy in fringement of episcopal authority, pressed
his disagreement with that assembly, it with much heat and rashness. See a
the sentence of deposition gained little curious passage on this subject in a
strength by this previous decision. The speech of the Cardinal of Aries. Lenfant,
bishops were unwilling to take this t. ii. p. 225.
ECCLES. POWER. DUKING THE MIDDLE AGES. 245
council of Basle nearly counterbalanced the disadvantageous
events at Constance, and put an end to the project of fixing
permanent limitations upon the head of the church by means
of general councils. Though the decree that prescribed the
convocation of a council every ten years was still unrepealed,
no absolute monarchs have ever more dreaded to meet the
representatives of their people, than the Roman pontiffs have
abhorred the name of those ecclesiastical synods : once alone,
and that with the utmost reluctance, has the catholic church
been convoked since the council of Basle ; but the famous
assembly to which I allude does not fall within the scope
of my present undertaking/
It is a natural subject of speculation, what would have
been the effects of these universal councils, which were so
popular in the fifteenth century, if the decree passed at
Constance for their periodical assembly had been regularly
observed. Many catholic writers, of the moderate or cisal-
pine school, have lamented their disuse, and ascribed to it
that irreparable breach which the Reformation has made in
the fabric of their church. But there is almost an absurdity
in conceiving their permanent existence. What chemistry
could have kept united such heterogeneous masses, fur-
nished with every principle of mutual repulsion ? Even in
early times, when councils, though nominally general, were
composed of the subjects of the Roman empire, they had
been marked by violence and contradiction : what then could
have been expected from the delegates of independent king-
doms, whose ecclesiastical polity, whatever may be said of
the spiritual unity of the church, had long been far too inti-
mately blended with that of the state to admit of any general
controul without its assent ? Nor, beyond the zeal, unques-
tionably sincere, which animated their members, especially
at Basle, for the abolition of papal abuses, is there anything
to praise in their conduct, or to regret in their cessation.
The statesman, who dreaded the encroachments of priests
r There is not, I believe, any sufficient its transactions with his history of the
history of the council of Basle. Lenfant Hussite war, which is commonly quoted
designed to write it from the original under the title of History of the Council
acts, but finding his health decline, inter- of Basle. Schmidt, Crevier, Villaret,
mixed some rather imperfect notices of are still my other authorities.
246 STATE OF EUROPE CHAP. VII. PART II.
upon the civil government, the Christian, who panted to
see his rites and faith purified from the corruption of ages,
found no hope of improvement in these councils. They
took upon themselves" the pretensions of the popes whom
they attempted to supersede. By a decree of the fathers at
Constance, all persons, including princes, who should oppose
any obstacle to a journey undertaken by the emperor Sigis-
mund, in order to obtain the cession of Benedict, are de-
clared excommunicated, and deprived of their dignities,
whether secular or ecclesiastical.8 Their condemnation of
Huss and Jerome of Prague, and the scandalous breach of
faith which they induced Sigismund to commit on that oc-
casion, are notorious. But perhaps it is not equally so, that
this celebrated assembly recognised by a solemn decree the
flagitious principle which it had practised, declaring that Huss
was unworthy, through his obstinate adherence to heresy, of
any privilege ; nor ought any faith or promise to be kept with
him, by natural, divine, or human law, to the prejudice of
the catholic religion.* It will be easy to estimate the claims
of this congress of theologians to our veneration, and to
weigh the retrenchment of a few abuses against the formal
sanction of an atrocious maxim.
8 Lenfant, t. i. p/439. can I determine how far the imperial
1 Nee aliqua sibi fides aut promissio, safe-conduct was a legal protection within
de jure naturali, divino, et humano, fuerit the city of Constance. 5. Sigismund
in prejudicium Catholicae fidei obser- was persuaded to acquiesce in the capital
vanda. Lenfant, t. i. p. 491. punishment of Huss, and even to make
This proposition is the great disgrace it his own act (Lenfant, p. 409), by
of the council in the affair of Huss. But which he manifestly broke his engage-
the violation of his safe-conduct being a ment. 6. It is evident, that in this he
famous event in ecclesiastical history, acted by the advice and sanction of the
and which has been very much disputed council, who thus became accessory to
with some degree of erroneous state- the guilt of his treachery,
ment on both sides, it may be proper to The great moral to be drawn from the
give briefly an impartial summary. 1. story of John Huss's condemnation is,
Huss came to Constance with a safe- that no breach of faith can be excused by
conduct of the emperor very loosely our opinion of ill desert in the party, or
worded, and not directed to any indivi- by a narrow interpretation of our own
duals. Lenfant, t. i. p. 59. 2. This engagements. Every capitulation ought
pass however was binding upon the em- to be construed favourably for the weaker
peror himself, and was so considered by side. In such cases, it is emphatically
him, when he remonstrated against the true, that if the letter killeth, the spirit
arrest of Huss. Id. p. 73, 83. 3. It should give life.
was not binding on the council, who Gerson, the most eminent theologian
possessed no temporal power, but had a of his age, and the coryphaeus of the
right to decide upon the question of party that opposed the transalpine prin-
heresy. 4. It is not manifest by what ciples, was deeply concerned in this atro-
civil authority Huss was arrested, nor cious business. Crevier, p. 432.
ECCLES. POWER. DUEING THE MIDDLE AGES. 247
It was not however necessary for any government of
tolerable energy to seek the reform of those abuses which
affected the independence of national churches, and the in-
tegrity of their regular discipline, at the hands of a general
council. Whatever difficulty there might be in overturning
the principles founded on the decretals of Isidore, and sanc-
tioned by the prescription of many centuries, the more flagrant
encroachments of papal tyranny were fresh innovations,
some within the actual generation, others easily to be traced
up, and continually disputed. The principal European
nations determined, with different degrees indeed of energy,
to make a stand against the despotism of Rome. In this
resistance England was not only the first engaged, but the
most consistent ; her free parliament preventing, as far as
the times permitted, that wavering policy to which a court
is liable. We have already seen, that a foundation was laid
in the statute of provisors under Edward III. In the next
reign, many other measures tending to repress the inter-
ference of Rome were adopted, especially the great statute of
prsemunire, which subjects all persons bringing papal bulls
for translation of bishops and other enumerated purposes
into the kingdom to the penalties of forfeiture and perpetual
imprisonment.11 This act received, and probably was de-
signed to receive, a larger interpretation than its language
appears to warrant. Combined with the statute of provisors,
it put a stop to the pope's usurpation of patronage, which
had impoverished the church and kingdom of England for
nearly two centuries. Several attempts were made to over-
throw these enactments ; the first parliament of Henry IV.
gave a very large power to the king over the statute of pro-
visors, enabling him even to annul it at his pleasured This
however does not appear in the statute-book. Henry indeed,
like his predecessors, exercised rather largely his prerogative
of dispensing with the law against papal provisions ; a pre-
rogative which, as to this point, was itself taken away by an
act of his own, and another of his son Henry V.y But the
16 Eic. JI. c. 5. the "execrable statute" of prsemunire;
x Rot. Parl. vol. iii. p. 428. enjoining Archbishop Chicheley to pro-
y 7 H. IV. c. 8 ; 3 H. V. c. 4. Mar- cure its repeal. Collier, p. 653. Chiche-
tin V. published an angry bull against ley did all in his power; but the com-"
248 STATE OF EUROPE CHAP. VII. TAUT II.
statute always stood unrepealed ; and it is a satisfactory
proof of the ecclesiastical supremacy of the legislature, that
in the concordat made by Martin Y. at the council of Con-
stance with the English nation, we find no mention of re-
servation of benefices, of annates, and the other principal
grievances of that age ; z our ancestors disdaining to accept
by compromise with the pope any modification or even con-
firmation of their statute law. They had already restrained
another flagrant abuse, the increase of first fruits by Boni-»
face IX. ; an act of Henry IY. forbidding any greater sum
to be paid on that account than had been formerly ac-
customed.*
It will appear evident to every person acquainted with
influence of the contemporary historians, and the proceedings
tenets. of parliament, that besides partaking in the general
resentment of Europe against the papal court, England was
under the influence of a peculiar hostility to the clergy,
arising from the dissemination of the principles of Wicliff?
All ecclesiastical possessions were marked for spoliation by
the system of this reformer ; and the house of commons
more than once endeavoured to carry it into effect, pressing
Henry IY. to seize the temporalities of the church for public
exigencies.0 This recommendation, besides, its injustice, was
not likely to move Henry, whose policy had been to sus-
tain the prelacy against their new adversaries. Ecclesiasti-
cal jurisdiction was kept in better controul than formerly by
the judges of common law, who, through rather a strained con-
struction of the statute of pnmnun ire, extended its penalties
mons were always inexorable on this Walsingham in the former passage, are
head, p. 636; and the archbishop even not corroborated by any thing in the re-
incurred Mai'tin's resentment by it. Wil- cords. But as it is unlikely that so par-
kins, Concilia, t. iii. p. 483. ticular a narrative should have no foun-
z Lenfant, t. ii. p. 444. dation, Hume has plausibly conjectured
a 6 H. IV. c. 1. that the roll has been wil rally mutilated.
b See, among many other passages, As this suspicion occurs in other in-
the articles exhibited by the Lollards to stances, it would be desirable to ascer-
parliament against the clergy in 1394. tain, by examination of the original rolls,
Collier gives the substance of them, and whether they bear any external marks
they are noticed by Henry ; but they are of injury. The mutilators, however,
at full length in Wilkins, t. iii. p. 221. if such there were, have left a great deal.
c Walsingham, p. 371, 379. Rot. The rolls of Henry IV. and V.'s par-
Parl. 11 H. IV. vol. iii. p. 645. The liaments are quite full of petitions against
remarkable circumstances detailed by the clergy.
ECCLES. POWER. DURING THE MIDDLE AGES. 249
to the spiritual courts, when they transgressed their limits.d
The privilege of clergy in criminal cases still remained ; but
it was acknowledged not to comprehend high treason.6
Germany, as well as England, was disappointed of her
hopes of general reformation by the Italian party at Con-
stance ; but she did not supply the want of the council's
decrees with sufficient decision. A concordat with concordats
it IT , • TT i n , i • ' L> L of Aschaffen-
Martm V. left the pope in possession of too great a burg.
part of his recent usurpations/ This however was repug-
nant to the spirit of Germany, which called for a more
thorough reform with all the national roughness and honesty.
The diet of Mentz during the continuance of the council of
Basle adopted all those regulations hostile to the papal in-
terests which occasioned the deadly quarrel between that
assembly and the court of Rome.8 But the German empire
was betrayed by Frederic III., and deceived by an accom-
plished but profligate statesman, his secretary JEneasSylvius.
Fresh concordats, settled at Aschaffenburg in 1448, nearly
upon a footing of those concluded with Martin V., surren-
dered great part of the independence for which Germany
had contended. The pope retained his annates, or at least a
sort of tax in their place ; and instead of reserving benefices
arbitrarily, he obtained the positive right of collation during
six alternate months of every year. Episcopal elections were
freely restored to the chapters, except in case of translation,
when the pope still continued to nominate ; as he did also,
if any person, canonically unfit, were presented to him for
d 3 Inst. p. 121. Collier, vol. i. p. question. The pope excommunicated all
668. who were concerned in Scrope's death,
e 2 Inst. p. 634; where several in- and it cost Henry a large sum to obtain
stances of priests executed for coining absolution. But Boniface IX. was no
and other treasons are adduced. And arbiter of the English law. Edward IV.
this may also be inferred from 25 E. III. granted a strange charter to the clergy,
stat. 3. c. 4; and from 4 H. IV. c. 3. not only dispensing with the statutes of
Indeed the benefit of clergy has never praemunire, but absolutely exempting
been taken away by statute from high them from temporal jurisdiction in cases
treason. This renders it improbable of treason as well as felony. Wilkins,
that Chief Justice Gascoyne should, as Concilia, t. iii. p. 583. Collier, p. 678.
Carte tells us, vol. ii. p. 664, have re- This, however, being an illegal grant,
fused to try Archbishop Scrope for trea- took no effect, at least after his death,
son, on the ground that no one could f Lenfant, t. ii. p. 428. Schmidt, t. v.
lawfully sit in judgment on a bishop for p. 131.
his life. Whether he might have de- e Schmidt, t. v. p. 221. Lenfant.
clined to try him as a peer is another
250 STATE OF EUEOPE CHAP. VII. PART II.
confirmation.11 Such is the concordat of AschafFenburg, by
which the catholic principalities of the empire have always
been governed, though reluctantly acquiescing in its dis-
advantageous provisions. Rome, for the remainder of the
fifteenth century, not satisfied with the terms she had im-
posed, is said to have continually encroached upon the right
of election.1 But she purchased too dearly her triumph
over the weakness of Frederic III. ' and the Hundred
Grievances of Germany, presented to Adrian YI. by the
diet of Nuremberg in 1522, manifested the working of a
long-treasured resentment, that had made straight the path
before the Saxon reformer.
I have already taken notice that the Castilian church was
Papal en- in the first ages of that monarchy nearly independent
of Rome. But after many gradual encroachments,
fae C0(|e 0£ jawg promulgated by Alfonso X. had
incorporated a great part of the decretals, and thus given
the papal jurisprudence an authority, which it nowhere else
possessed, in national tribunals.151 That richly endowed
hierarchy was a tempting spoil. The popes filled up its
benefices by means of expectatives and reserves with their
own Italian dependents. We find the cortes of Palencia in
1388 complaining that strangers are beneficed in Castile,
through which the churches are ill supplied, and native
scholars cannot be provided, and requesting the king to take
such measures in relation to this as the kings of France,
Aragon, and Navarre, who do not permit any but natives
to hold benefices in their kingdoms. The king answered
to this petition, that he would use his endeavours to that
end.m And this is expressed with greater warmth by a
cortes of 1473, who declare it to be the custom of all Chris-
h Schmidt, t. v. p. 250; t. vi. p. 94, Germanorum, p. 1041, 1061. Several
&c. He observes that there is three little disputes with the pope indicate the
times as much money at present as in spirit that was fermenting in Germany
the fifteenth century: if therefore the throughout the fifteenth century. But
annates are now felt as a burthen, what this is the proper subject of a more de-
must they have been? p. 113. To this tailed ecclesiastical history, and should
Eome would answer : if the annates form an introduction to that of the Ee-
were but sufficient for the pope's main- formation.
tenance at that time, what must they k Marina, Ensayo Historico-Critico,
be now? c. 320, &c.
1 Schmidt, p. 98. ./Eneas Sylvius, m Id. Teoria de las Cortes, t. iii. p.
Epist. 309, and 371; and De Moribus 120.
ECCLES. POWER. DURING THE MIDDLE AGES. 251
tian nations that foreigners should not be promoted to bene-
fices, urging the discouragement of native learning, the decay
of charity, the bad performance of religious rites and other
evils arising from the non-residence of beneficed priests, and
request the king to notify to the court of Rome, that no
expectative or provision in favour of foreigners can be re-
ceived in future.11 This petition seems to have passed into
a law ; but I am ignorant of the consequences. Spain cer-
tainly took an active part in restraining the abuses of pon-
tifical authority at the councils of Constance and Basle ; to
which I might add the name of Trent, if that assembly were
not beyond my province.
France, dissatisfied with the abortive termination of her
exertions during the schism, rejected the concordat checks on
offered by Martin V., which held out but a promise gga}nauth0'
of imperfect reformation.0 She suffered in conse- France<
quence the papal exactions for some years, till the decrees
of the council of Basle prompted her to more vigorous efforts
for independence, and Charles VII. enacted the famous
Pragmatic Sanction of Bourges.p This has been deemed a
sort of Magna Charta of the Gallican church ; for though
the law was speedily abrogated, its principle has remained
fixed as the basis of ecclesiastical liberties. By the Prag-
matic Sanction a general council was declared superior to
the pope ; elections of bishops were made free from all con-
troul ; mandats or grants in expectancy, and reservations of
benefices, were taken away ; first fruits were abolished. This
defalcation of wealth, which had now become dearer than
power, could not be patiently borne at Koine. Pius II., the
same JEneas Sylvius who had sold himself to oppose the
council of Basle in whose service he had been originally dis-
tinguished, used every endeavour to procure the repeal of
this ordinance. With Charles VII. he had no success ; but
Louis XI., partly out of blind hatred to his father's memory,
partly from a delusive expectation that the pope would sup-
port the Angevin faction in Naples, repealed the Pragmatic
n Teoria de las Cortes, t. ii. p. 364. lie Eccles. Francois, t. ii. p. 234. Fleury,
Mariana, Hist. Hispan. 1. xix. c. 1 . Institutions au Droit. Crevier, t. iv.
0 Viilaret, t. xv. p. 12G. p. 100. Pasquier, Recherches de la
p Idem, p. 263. Hist, du Droit Pub- France, 1. iii. c. 27.
252 STATE OF EUEOPE CHAP. VII. PART II.
Sanction.*1 This maybe added to other proofs,"that Louis XI.,
even according to the measures of worldly wisdom, was
not a wise politician. His people judged from better
feelings ; the parliament of Paris constantly refused to enre-
gister the revocation of that favourite law, and it continued in
many respects to be acted upon until the reign of Francis I.r
At the States'General of Tours, in 1484, the inferior clergy,
seconded by the two other orders, earnestly requested that
the Pragmatic Sanction might be confirmed ; but the prelates
were timid or corrupt, and the regent Anne was unwilling
to risk a quarrel with the Holy See.8 This unsettled state
continued, the Pragmatic Sanction neitherquite enforced nor
quite repealed, till Francis I., having accommodated the
differences of his predecessor with Eome, agreed upon a final
concordat with Leo X , the treaty that subsisted for almost
three centuries between the papacy and the kingdom of
France.* Instead of capitular election or papal provision, a
new method was devised for filling the vacancies of episcopal
sees. The king was to nominate a fit person, whom the
pope was to collate. The one obtained an essential patronage,
the other preserved his theoretical supremacy. Annates
were restored to the pope ; a concession of great import-
ance. He gave up his indefinite prerogative of reserving
benefices, and received only a small stipulated patronage.
This convention met with strenuous opposition in France ;
the parliament of Paris yielded only to force ; the university
hardly stopped short of sedition ; the zealous Gallicans have
ever since deplored it, as a fatal wound to their liberties.
There is much exaggeration in this, as far as the relation of
the Gallican church to Rome is concerned ; but the royal
nomination to bishoprics impaired of course the independence
of the hierarchy. Whether this prerogative of the crown
were upon the whole beneficial to France, is a problem that I
cannot affect to solve; in this country there seems little doubt
that capitular elections, which the statute of Henry VIII.
q Villaret, and Gamier, t. xvi. Ore- s Gamier, t. xix. p. 216, and 321.
vier, t. iv. p. 256, 274. * Id. t. xxiii. p. 151. Hist, du Droit
r Gamier, t. xvi. p. 432; t. xvii. p. Public Ecclds. Fr. t. ii. p. 243. Fleury,
222, et alibi. Crevier, t. iv. p. 318, et Institutions au Droit, t. i. p. 107.
alibi.
ECCLES. POWER. DURING THE MIDDLE AGES. 253
has reduced to a name, would long since have degenerated
into the corruption of close boroughs ; but the circumstances
of the Gallican establishment may not have been entirely
similar, and the question opens a variety of considerations,
that do not belong to my present subject.
From the principles established during the schism, and in
the Pragmatic Sanction of Bourges, arose the far- Liberties of
famed liberties of the Gallican church, which ho- church. lc<
nourably distinguished her from other members of the Roman
communion. These have been referred by French writers to
a much earlier era ; but except so far as that country par-
ticipated in the ancient ecclesiastical independence of all-
Europe, before the papal encroachments had subverted it,
I do not see that they can be properly traced above the
fifteenth century. Nor had they acquired even at the ex-
piration of that age the precision and consistency which was
given in later times by the constant spirit of the parliaments
and universities, as well as by the best ecclesiastical authors,
with little assistance from the crown, which, except in a few
periods of disagreement with Rome, has rather been disposed
to restrain the more zealous Gallicans. These liberties
therefore do not strictly fall within my limits ; and it will be
sufficient to observe, that they depended upon two maxims ;
one, that the pope does not possess any direct or indirect
temporal authority ; the other, that his spiritual jurisdiction
can only be exercised in conformity with such parts of the
canon law as are received by the kingdom of France. Hence
the Gallican church rejected a great part of the Sext and
Clementines, and paid little regard to modern papal bulls,
which in fact obtained validity only by the king's appro-
bation.11
The pontifical usurpations which were thus restrained,
affected, at least in their direct operation, rather the Ecclesiastical
church than the state ; and temporal governments restrained.11
would only have been half emancipated, if their national
hierarchies had preserved their enormous jurisdiction.* Eng-
u Fleury, Institutions au Droit, t. ii. limiting the papal authority which a
p. 226, &c., and Discours sur les Libertds sincere member of that communion can
de 1'Eglise Gallicane. The last editors ' attain. See notes, p. 417, and 445.
of this dissertation go far beyond Fleury, x It ought always to be remembered
and perhaps reach the utmost point in that ecclesiastical and not merely papal,
254 STATE OF EUROPE CHAP. VII. PART II.
land, in this also, began the work, and had made a consider-
able progress, while the mistaken piety or policy of Louis IX.
and his successors had laid France open to vast encroach-
ments. The first method adopted in order to check them
was rude enough ; by seizing the bishop's effects when he
exceeded his jurisdiction/ This jurisdiction, according to
the construction of churchmen, became perpetually larger :
even the reforming council of Constance give an enu-
meration of ecclesiastical causes far beyond the limits ac-
knowledged in England, or perhaps in France.2 But the
Parliament of Paris, instituted in 1304, gradually established
a paramount authority over ecclesiastical as well as civil
tribunals. Their progress was indeed very slow. At a
famous assembly in 1329 before Philip of Valois, his advo-
cate-general, Peter deCugnieres, pronounced along harangue
against the excesses of spiritual jurisdiction. This is a cu-
rious illustration of that branch of legal and ecclesiastical
history. It was answered at large by some bishops, and the
king did not venture to take any active measures at that
time.a Several regulations were however made in the four-
teenth century, which took away the ecclesiastical cogni-
zance of adultery, of the execution of testaments, and other
causes which had been claimed by the clergy .b Their im-
munity in criminal matters was straitened by the introduc-
tion of privileged cases, to which it did not extend ; such as
encroachments are what civil governments pudence towards such a prince as Edward
and the laity in general have had to re- did not succeed ; but it is interesting to
sist; a point, which some very zealous follow the track of the star which was
opposers of Rome have 'been willing to now rather receding, though still fierce,
keep out of sight. The latter arose out y De Marca, De Concordantia, 1. iv.
of the former, and perhaps were in some c. 18.
respects less objectionable. But the true z Id. c. 15. Lenfant, Cone, de Con-
enemy is what are called High-church stance, t. ii. p. 331. De Marca, 1. iv.
principles; be they maintained by a pope, c. 15, gives us passages from one Duran-
a bishop, or apresbyter. Thus Archbishop dus about 1 309, complaining that the lay
Stratford writes to Edward III.: Duo judges invaded ecclesiastical jurisdiction,
sunt,quibusprincipaliterregiturmundus, and reckoning the cases subject to the
sacra pontificals auctoritas, et regalis latter, under which he includes feudal
ordinata pptestas : in quibus est pondus and criminal causes in some circum-
tanto gravius et sublimius sacerdotum, stances, and also those in which the tem-
quanto et de regibus illi in divino reddi- poral judges are in doubt; si quid ambi-
turi sunt examine rationem; et ideo guum inter judices sseculares oriatur.
scire debet regia celsitudo ex illorum vos a Velly, t. viii. p. 234. Fleury, In-
dependere judicio, non illos ad vestram ' stitutions, t. ii. p. 12. Hist, du Droit
dingi posse voluntatem. Wilkins, Con- Eccle's. Fran^ t. ii. p. 86.
cilia, t. ii. p. 663. This amazing im- b Villaret, t. xi. p. 182.
ECCLES. POWER. DURING THE MIDDLE AGES. 255
treason, murder, robbery, and other heinous offences.6 The
parliament began to exercise a judicial controul over episco-
pal courts. It was not however till the beginning of the
sixteenth century, according to the best writers, that it de-
vised its famous form of procedure, the "appeal because of
abuse." d This, in the course of time, and through the de-
cline of ecclesiastical power, not only proved an effectual
barrier against encroachments of spiritual jurisdiction, but
drew back again to the lay court the greater part of those
causes which by prescription, and indeed by law, had apper-
tained to a different cognizance. Thus testamentary, and
even in a great degree, matrimonial causes were decided by
the parliament ; and in many other matters, that body, being
the judge of its own competence, narrowed, by means of the
appeal because of abuse, the boundaries of the opposite
jurisdiction. e This remedial process appears to have been
more extensively applied than our English writ of prohibi-
tion. The latter merely restrains the interference of the
ecclesiastical courts in matters which the law has not com-
mitted to them. But the parliament of Paris considered
itself, I apprehend, as conservator of the liberties and dis-
cipline of the Gallican church ; and interposed the appeal
because of abuse, whenever the spiritual court, even in its
proper province, transgressed the canonical rules by which
it ought to be governed/
While the bishops of Rome were losing their general in-
fluence over Europe, they did not gain more esti- Decline of
. T , 1T • • j j 11 p papal influ-
mation in Italy. It is indeed a problem ot some enceinitaiy.
difficulty, whether they derived any substantial advantage
from their temporal principality. For the last three cen-
0 Fleury, Institutions an Droit, t. ii. Fleury, Institutions au Droit E cole's.
p. 138. In the famous case of Balue, a Frangois, t. ii. p. 221. De Marca, De
bishop and cardinal, whom Louis XL Concordantia Sacerdotii et Imperii, 1. iv.
detected in a treasonable intrigue, it was c. 19. The last author seerns to carry it
contended by the king that he had a right rather higher.
to punish him capitally. Du Clos. Vie e Fleury, Institutions, t. ii. p. 42, &c.
de Louis XL t. i. p. 422. Garnier, f De Marca, De Concordantia, 1. iv.
Hist, de France, t. xvii. p. 330. Balue c. 9. Fleury, t. ii. p. 224. In Spain,
was confined for many years in a small even now, says De Marca, bishops or
iron cage, which till lately was shown in clerks not obeying royal mandates that
the castle of Loches. inhibit the excesses of ecclesiastical
d Pasquier, 1. iii. c. 33. Hist, du courts, are expelled from the kingdom and
Droit Eccles. Francois, t. ii. p. 119. deprived of the rights of denizenship.
256 STATE OF EUROPE CHAP. VII.1PABT II.
turies it has certainly been conducive to the maintenance of
their spiritual supremacy, which, in the complicated relations
of policy, might have been endangered by their becoming the
subjects of any particular sovereign. But I doubt whether
their real authority over Christendom in the middle ages was
not better preserved by a state of nominal dependence upon
the empire, without much effective controul on one side, or
many temptations to worldly ambition on the other. That
covetousness of temporal sway which, having long prompted
their measures of usurpation and forgery, seemed, from the
time of Innocent III. and Nicolas III., to reap its gratifica-
tion, impaired the more essential parts of the papal authority.
In the fourteenth and fifteenth centuries, the popes degraded
their character by too much anxiety about the politics of
Italy. The veil woven by religious awe was rent asunder,
and the features of ordinary ambition appeared without dis-
guise. For it was no longer that magnificent and original
system of spiritual power, which made Gregory VII., even
in exile, a rival of the emperor, which held forth redress
where the law could not protect, and punishment where it
could not chastise, which fell in sometimes with superstitious
feeling, and sometimes with political interest. Many might
believe that the pope could depose a schismatic prince, who
were disgusted at his attacking an unoffending neighbour.
As the cupidity of the clergy in regard to worldly estate had
lowered their character every where, so the similar conduct
of their head undermined the respect felt for him in Italy.
The censures of the church, those excommunications and
interdicts which had made Europe tremble, became gradu-
ally despicable as well as odious, when they were lavished
in every squabble for territory, which the pope was pleased to
make his owri.g Even the crusades, which had already been
tried against the heretics of Languedoc, were now preached
against all who espoused a different party from the Roman
see in the quarrels of Italy. Such were those directed at
g In 1290, Pisa was put under an in- the pope to adopt towards a free city!
terdict for having conferred the signiory Six years before the Venetians had been
on the count of Montefeltro : and he was interdicted, because they would not allow
ordered, on pain of excommunication, to " their gallies to be hired by the king of
lay down the government within a month. Naples. But it would be almost endless
Muratori ad aun. A curious style for to quote every instance.
ECCLES. POWER. DURING THE MIDDLE AGES. 257
Frederic II., at Manfred, and at Matteo Visconti, accom-
panied by the usual bribery, indulgences, and remission of
sins. The papal interdicts of the fourteenth century wore a
different complexion from those of former times. Though
tremendous to the imagination, they had hitherto been con-
fined to spiritual effects, or to such as were connected with
religion, as the prohibition of marriage and sepulture. But
Clement V., on account of an attack made by the Venetians
upon Ferrara in 1309, proclaimed the whole people in-
famous, and incapable for three generations of any office,
their goods, in every part of the world, subject to confisca-
tion, and every Venetian, wherever he might be found, liable
to be reduced into slavery.11 A bull in the same terms was
published by Gregory XT. in 1376 against the Florentines.
From the termination of the schism, as the popes found
their ambition thwarted beyond the Alps, it was diverted
more and more towards schemes of temporal sovereignty.
In these we do not perceive that consistent policy which
remarkably actuated their conduct as supreme heads of the
church. Men generally advanced in years, and born of noble
Italian families, made the papacy subservient to the eleva-
tion of their kindred, or to the interests of a local faction.
For such ends they mingled in the dark conspiracies of that
bad age, distinguished only by the more scandalous turpitude
of their vices from the petty tyrants and intriguers with
whom they were engaged. In the latter part of the fifteenth
century, when all favourable prejudices were worn away,
those who occupied the most conspicuous station in Europe
disgraced their name by more notorious profligacy than
could be paralleled in the darkest age that had preceded; and
at the moment beyond which this work is not carried, the
invasion of Italy by Charles VIII., I must leave the pon-
tifical throne in the possession of Alexander VI.
It has been my object in the present chapter to bring
within the compass of a few hours' perusal the substance of
a great and interesting branch of history ; not certainlywith
such extensive reach of learning as the subject might require,
but from sources of unquestioned credibility. Unconscious
h Muratori.
VOL. II. S
258 STATE OF EUROPE CHAP. VII. PART II.
of any partialities that could give an oblique bias to my
mind, I have not been very solicitous to avoid offence, where
offence is so easily taken. Yet there is one misinterpreta-
tion of my meaning which I would gladly obviate. I have
not designed, in exhibiting without disguise the usurpations
of Rome during the middle ages, to furnish materials for
unjust prejudice or unfounded distrust. It is an advan-
tageous circumstance for the philosophical inquirer into
the history of ecclesiastical dominion, that, as it spreads it-
self over the vast extent of fifteen centuries, the dependence
of events upon general causes, rather than on transitory
combinations or the character of individuals, is made more
evident, and the future more probably foretold from a consi-
deration of the past, than we are apt to find in political his-
tory. Five centuries have now elapsed, during every one
of which the authority of the Roman see has successively
declined. Slowly and silently receding from their claims
to temporal power, the pontiffs hardly protect their dilapi-
dated citadel from the revolutionary concussions of modern
times, the rapacity of governments, and the growing averse-
ness to ecclesiastical influence. But if thus bearded by
unmannerly and threatening innovation, they should occa-
sionally forget that cautious policy which necessity has pre-
scribed, if they should attempt (an unavailing expedient !)
to revive institutions which can be no longer operative, or
principles that have died away, their defensive efforts will
not be unnatural, nor ought to excite either indignation or
alarm. A calm, comprehensive study of ecclesiastical
history, not in such scraps and fragments as the ordinary
partisans of our ephemeral literature obtrude upon us, is
perhaps the best antidote to extravagant apprehensions.
Those who know what Rome has once been are best able
to appreciate what she is ; those who have seen the thunder-
bolt in the hands of the Gregories and the Innocents will
hardly be intimidated at the sallies of decrepitude, the
impotent dart of Priam amidst the crackling ruins of
Troy.'
' It is again to be remembered tliat this paragraph was written in 1816
ECCLES. POWER. DURING THE MIDDLE AGES. 259
NOTES TO CHAPTER VII.
NOTE I. P. 146.
THIS grant is recorded in two charters differing materially
from each other ; the first transcribed in Ingulfus's history
of Croyland, and dated at Winchester on the Nones of
November, 855 ; the second extant in two chartularies, and
bearing date at Wilton, April 22, 854. This is marked by
Mr. Kemble as spurious (Codex Ang.-Sax. Diplom. ii. 52) ;
and the authority of Ingulfus is not sufficient to support the
first. The fact, however, that Ethelwolf made some great
and general donation to the church rests on the authority of
Asser, whom later writers have principally copied. His
words are : — " Eodem quoque anno [855] Adelwolfus
verierabilis, rex Occidentalium Saxonum, decimam totius
regni sui partem ab omni regali servitio et tributo liberavit,
et in sempiterno grafio in cruce Christi, pro redemptione
animse SUSB et antecessorum suorum, Uni et Trino Deo
immolavit." (Gale, XV Script, iii. 156.)
It is really difficult to infer any thing from such a passage ;
but whatever the writer may have meant, or whatever truth
there may be in his story, it seems impossible to strain his
words into a grant of tithes. The charter in Ingulfus rather
leads to suppose, but that in the Codex Diplomaticus deci-
sively proves, that the grant conveyed a tenth part of the
land, and not of its produce. Sir F. Palgrave, by quoting
only the latter charter, renders Selden's hypothesis, that the
general right to tithes dates from this concession of Ethel-
wolf, even more untenable than it is. Certainly the charter
copied by Ingulfus, which Sir F. Palgrave passes in silence,
s 2
260 STATE OF EUROPE NOTES TO
does grant " decimam partem bonorum ;" that is, I presume,
of chattels, which, as far as it goes, implies a tithe ; while
the words applicable to land are so obscure and apparently
corrupt, thatSelden might be warranted in giving them the
like construction, Both charters probably are spurious ; but
there may have been an extensive grant to the church, not
only of immunity from the trinoda necessitous, which they
express, but of actual possessions. Since, however, it must
have been impracticable to endow the church with a tenth
part of appropriated lands, it might possibly be conjectured,
that she took a tenth part of the produce, either as a com-
position, or until means should be found of putting her in
possession of the soil. And although, according to the
notions of those times, the actual property might be more
desirable, it is plain to us that a tithe of the produce was
of much greater value than the same proportion of the land
itself.
NOTE II. P. 158.
Two living writers of the Eoman Catholic communion,
Dr. Milner, in his History of Winchester, and Mr. Lingard,
in his Antiquities of the Anglo-Saxon Church, contend that
Elgiva, whom some protestant historians are willing to re-
present as the queen of Edwy, was but his mistress ; and
seem inclined to justify the conduct of Odo and Dunstan to-
wards this unfortunate couple. They are unquestionably so
far right, that few, if any, of those writers, who have been
quoted as authorities in respect of this story, speak of the
lady as a queen or lawful wife. I must, therefore, strongly
reprobate the conduct of Dr. Henry, who, calling Elgiva
queen, and asserting that she was married, refers, at the
bottom of his page, to William of Malmsbury, and other
chroniclers, who give a totally opposite account ; especially
as he does not intimate, by a single expression, that the
nature of her connexion with the king was equivocal. Such
a practice, when it proceeds, as I fear it did in this instance,
CHAP. VII. DURING THE MIDDLE AGES. 261
not from oversight, but from prejudice, is a glaring vio-
lation of historical integrity, and tends to render the use
of references, that great improvement of modern history,
a sort of fraud upon the reader. The subject, since the
first publication of these volumes, has been discussed by
Dr. Lingard in his histories both of England arid of the
Anglo-Saxon Church, by the Edinburgh reviewer of that
history, vol. xlii. (Mr, Allen), and by other late writers.
Mr. Allen has also given a short dissertation on the subject,
in the second edition of his Inquiry into the Royal Pre-
rogative, posthumously published. It must ever be impos-
sible, unless unknown documents are brought to light, to
clear up all the facts of this litigated story. But though
some protestant writers, as I have said, in maintaining the
matrimonial connexion of Edwy and Elgiva, quote autho-
rities who give a different colour to it, there is a presumption
of the marriage from a passage of the Saxon Chronicle,
A.D. 958 (wanting in Gibson's edition, but discovered by
Mr. Turner, and now restored to its place by Mr. Petrie),
which distinctly says that Archbishop Odo separated Edwy
the king and Elgiva, because they were too nearly related.
It is therefore highly probable that she was queen, though
Dr. Lingard seems to hesitate. This passage was written
as early as any other which we have on the subject, and in
a more placid and truthful tone.
The royalty, however, of Elgiva will be out of all possible
doubt, if we c*an depend on a document, being a reference to
a charter, in the Cotton library (Claudius, B. vi.), wherein
she appears as a witness. Turner says of this : — " Had
the charter even been forged, the monks would have taken
care that the names appended were correct." This Dr. Lin-
gard inexcusably calls " confessing that the instrument is of
very doubtful authenticity."
The Edinburgh reviewer, who had seen the manuscript,
believes it genuine, and gives an account of it. Mr. Kemble
has printed it without mark of spuriousness. (Cod. Diplom.
vol. v. p. 378.) In this document we have the names of
.ZElfgifu the king's wife, and of .ZEthelgifu the king's wife's
mother. The signatures are merely recited, so that the
document itself cannot be properly styled a charter ; but we
262 STATE OF EUROPE NOTES TO
are only concerned with the testimony it bears to the exist-
ence of the queen Elgiva and her mother.
If this charter, thus recited, is established, we advance a
step, so as to prove the existence of a mother and daughter,
bearing nearly the same names, and such names as appa-
rently imply royal blood, the latter being married to Edwy.
This would tend to corroborate the coronation story, divest-
ing it of the gross exaggerations of the monkish biographers
and their followers. It might be supposed that the young
king, little more than a boy, retired from the drunken
revelry of his courtiers to converse, and perhaps romp, with
his cousin and her mother ; that Dunstan audaciously broke
in upon him, and forced him back to the banquet; that both
he and the ladies resented this insolence as it deserved, and
drove the monk into exile, and that the marriage took
place.
It is more difficult to deal with the story, originally re-
lated by the biographer of Odo, that after his marriage Edwy
carried off a woman with whom he lived, and whom Odo
seized and sent out of the kingdom. This lady is called by
Eadmer, una de praescriptis mulieribus ; whence Dr. Lingard
assumes her to have been Ethelgiva, the queen's mother.
This was in his History of England (i. 517) ; but in the
second edition of the Antiquities of the Anglo-Saxon Church
he is far less confident than either in the first edition of that
work, or in his history. In fact, he plainly confesses, that
nothing can be clearly made out beyond the circumstances
of the coronation.
Although the writers before the conquest do not bear
witness to the cruelties exercised on some woman connected
with the king, either as queen or mistress, at Gloucester,
yet the subsequent authorities of Eadmer, Osbern, and
Malmsbury may lead us to believe that there was truth in
the main facts, though we cannot be certain that the person
so treated was the queen Elgiva. If indeed their accounts
are accurate, it seems at first that they do not agree with
their predecessors ; for they represent the lady as being in
the king's company up to his flight from the insurgents :—
" Regem cum adultera fugitantem persequi non desistunt."
But though we read in the Saxon Chronicle that Odo
CHAP. VII. DURING THE MIDDLE AGES. 263
divorced Edwy and Elgiva, we are not sure that they sub-
mitted to the sentence. It is, therefore, possible, that she
was with him in this disastrous flight, and having fallen into
the hands of the pursuers, was put to death at Gloucester.
True it is, that her proximity of blood to the king would
not warrant Osbern to call her adultera ; but bad names
cost nothing. Malmsbury's words look more like it, if we
might supply something, " proxime cognatam invadens
uxorem [cujusdam ?] ejus forma deperibat ; " but as they
stand in his text, they defy my scanty knowledge of the
Latin tongue. On the whole, however, no reliance is to
be placed on very passionate and late authorities. What is
manifest alone is, that a young king was persecuted and
dethroned by the insolence of monkery exciting a supersti-
tious people against him.
NOTE III. Page 159.
I AM induced, by further study, to modify what is said in
the text with respect to the well known passages in Irenseus
and Cyprian. The former assigns, indeed, a considerable
weight to the Church of Rome, simply as testimony to
apostolical teaching ; but this is plainly not limited to the
bishop of that city, nor is he personally mentioned. It is
therefore an argument, and no slight one, against the pre-
tended supremacy rather than the contrary.
The authority of Cyprian is not, perhaps, much more to
the purpose. For the only words in his treatise De Unitate
EcclesiaB, which assert any authority in the chair of St.
Peter, or indeed connect Rome with Peter at all, are inter-
polations not found in the best manuscripts, or in the oldest
editions. They are printed within brackets in the best
modern ones. (See James on Corruptions of Scripture in
the Church of Rome, 1612.) True it is, however, that in his
Epistle to Cornelius, bishop of Rome, Cyprian speaks of
" Petri cathedram, atque ecclesiam principalem unde unitas
sacerdotalis exorta est." (Epist. lix. in edit. Lip. 1838 ; Iv.
264 STATE OF EUKOrE NOTES TO
in Baluze and others.) And in another he exhorts Stephen,
successor of Cornelius, to write a letter to the bishops of
Gaul, that they should depose Marcian of Aries for adher-
ing to the Noyatian heresy. (Epist. Ixviii., or Ixvii.) This
is said to be found in very few manuscripts. Yet it seems
too long, and not sufficiently to the purpose, for a popish
forgery. All bishops of the catholic church assumed a
right of interference with each other by admonition ; and
it is not entirely clear from the language, that Cyprian
meant anything more authoritative ; though I incline, on
the whole, to believe that, when on good terms with the
see of Rome, he recognised in her a kind of primacy de-
rived from that of St. Peter.
The case, nevertheless, became very different when she
was no longer of his mind. In a nice question which arose,
during the pontificate of this very Stephen, as to the re-
baptism of those to whom the rite had been administered by
heretics, the bishop of Home took the negative side ; while
Cyprian, with the utmost vehemence, maintained the con-
trary. Then we find no more honeyed phrases about the
principal church and the succession to Peter, but a very
different style : — " Cur in tantum Stephani, fratris nostri,
obstinatio dura prorupit ? " (Epist. Ixxiv.) And a corre-
spondent of Cyprian, doubtless a bishop, Firmilianus by
name, uses more violent language : — " Audacia et insolentia
ejus — aperta et manifesta Stephani stultitia — de episcopates
sui loco gloriatur, et se successionem Petri tenere contendit."
(Epist. Ixxv.) Cyprian proceeded to summon a council of
the African bishops, who met, seventy-eight in number, at
Carthage. They all agreed to condemn heretical baptism
as absolutely invalid. Cyprian addressed them, requesting
that they would use full liberty, not without a manifest re-
flection on the pretensions of Rome : — " ISTeque eniin
quisquam nostrum episcopum se esse episcoporum consti-
tuit, aut tyrannico terrore ad obsequendi necessitate!!! col-
legas suos adigit, quando habeat omnis episcopus pro licen-
tia libertatis et potestatis suae arbitrium proprium, tamque
judicari ab alio non possit, quam nee ipse potest alterurn
judicare." We have here an allusion to what Tertullian
had called horrenda vox, " episcopus episcoporum ; " mani-
CHAP. VII. DUKING THE MIDDLE AGES. 265
festly intimating that the see of Rome had begun to assert
a superiority and right of controul, by the beginning of the
third century, but at the same time that it was not generally
endured. Probably the notion of their superior authority,
as witnesses of the faith, grew up in the Church of Rome
very early; and when Victor, towards the end of the se-
cond century, excommunicated the churches of Asia for a
difference as to the time of keeping Easter, we see the ger-
mination of that usurpation, that tyranny, that uncharita-
bleness, which reached its culminating point in the centre
of the mediaeval period.
266 STATE OF EUROPE CHAP. VJII. PART 1.
CHAPTER VIII.
THE CONSTITUTIONAL HISTORY OF ENGLAND.
PART I.
The Anglo-Saxon Constitution — Sketch of Anglo-Saxon History — Succession
to the Crown — Orders of Men — Thanes and Ceorls — Witenagemot — •
Judicial System — Division into Hundreds — County Court — Trial ly
Jury — its Antiquity investigated — Law of Frank-Pledge — its several
Stages — Question of Feudal Tenures before the Conquest.
No unbiassed observer, who derives pleasure from the wel-
fare of his species, can fail to consider the long and uninter-
ruptedly increasing prosperity of England as the most beauti-
ful phenomenon in the history of mankind. Climates more
propitious may impart more largely the mere enjoyments of
existence ; but in no other region have the benefits that poli-
tical institutions can confer been diffused over so extended a
population ; nor have any people so well reconciled the dis-
cordant elements of wealth, order, and liberty. These ad-
vantages are surely not owing to the soil of this island, nor
to the latitude in which it is placed ; but to the spirit of its
laws, from which, through various means, the characteristic
independence and industriousness of our nation have been
derived. The constitution, therefore, of England must be
to inquisitive men of all countries, far more to ourselves, an
object of superior interest; distinguished, especially, as it is
from all free governments of powerful nations which history
has recorded, by its manifesting, after the lapse of several
centuries, not merely no symptom of irretrievable decay, but
a more expansive energy. Comparing long periods of time,
it may be justly asserted that the administration of govern-
ment has progressively become more equitable, and the pri-
vileges of the subject more secure ; and, though it would be
both presumptuous and unwise to express an unlimited con-
fidence as to the durability of liberties, which owe their
ENGLISH CONST. DURING THE MIDDLE AGES. 267
greatest security to the constant suspicion of the people, yet,
if we calmly reflect on the present aspect of this country, it
will probably appear, that whatever perils may threaten our
constitution are rather from circumstances altogether uncon-
nected with it than from any intrinsic defects of its own. It
will be the object of the ensuing chapter to trace the gradual
formation of this system of government. Such an investi-
gation, impartially conducted, will detect errors diametrically
opposite ; those intended to impose on the populace, which,
on account of their palpable absurdity and the ill faith with
which they are usually proposed, I have seldom thought it
worth while directly to repel ; and those which better in-
formed persons are apt to entertain, caught from transient
reading, and the misrepresentations of late historians, but
easily refuted by the genuine testimony of ancient times.
The seven very unequal kingdoms of the Saxon Hep-
tarchy, formed successively out of the countries
wrested from the Britons, were 'origin ally indepen-
dent of each other. Several times, however, a powerful
sovereign acquired a preponderating influence over his neigh-
bours, marked perhaps by the payment of tribute. Seven
are enumerated by Bede as having thus reigned over the
whole of Britain ; an expression which must be very loosely
interpreted/ Three kingdoms became at length predomi-
nant ; those of Wessex, Mercia, and Northumberland. The
first rendered tributary the small estates of the South-East,
and the second that of the Eastern Angles. But Egbert,
king of Wessex, not only incorporated with his own mo-
narchy the dependent kingdoms of Kent and Essex, but
obtained an acknowledgment of his superiority from Mer-
cia and Northumberland ; the latter of which, though the
most extensive of any Anglo-Saxon state, was too much
weakened by its internal divisions to offer any resistance.13
Still however the kingdoms of Mercia, East Anglia, and
Northumberland remained under their ancient line of sove-
reigns •, nor did either Egbert or his five immediate succes-
sors assume the title of any other crown than Wessex.0
a [NOTE I.] will, Occidentalium Saxorum rex; and
b Chronicon Saxonicum, p. 70. Asserius never gives him any other name.
Alfred denominates himself in his But his son Edward the Elder takes the
268 STATE OF EUEOPE CHAP. VIII. PART I.
The destruction of those minor states was reserved for a
different enemy. About the end of the eighth century the
northern pirates began to ravage the coast of England.
Scandinavia exhibited in that age a very singular condition
of society. Her population, continually redundant in those
barren regions which gave it birth, was cast out in search of
plunder upon the ocean. Those who loved riot rather than
famine embarked in large armaments under chiefs of legiti-
mate authority as well as approved valour. Such were the
Sea-kings, renowned in the stories of the North : the
younger branches, commonly, of royal families, who in-
herited, as it were, the sea for their patrimony. Without
any territory but on the bosom of the waves, without any
dwelling but their ships, these princely pirates were obeyed
by numerous subjects, and intimidated mighty nations.'1
Their invasions of England became continually more for-
midable : and, as their confidence increased, they began first
to winter, and ultimately to form permanent settlements in
the country. By their command of the sea, it was easy for
them to harass every part of an island presenting such an
extent of coast as Britain ; the Saxons, after a brave resist-
ance, gradually gave way, and were on the brink of the
same servitude or extermination which their own arms had
already brought upon the ancient possessors.
From this imminent peril, after the three dependent king-
doms, Mercia, Northumberland and East Anglia, had been
overwhelmed, it was the glory of Alfred to rescue the
Anglo-Saxon monarchy. Nothing less than the appearance
of a hero so undesponding, so enterprising, and so just,
could have prevented the entire conquest of England. Yet
he never subdued the Danes, nor became master of the
whole kingdom. The Thames, the Lea, the Ouse, and the
Roman road called Watling-street, determined the limits of
Alfred's dominion.6 To the north-east of this boundary
were spread the invaders, still denominated the armies of
title of Rex Anglorum on his coins. Vid. Anglo-Saxons, in which valuable work
Numismata Anglo-Saxon, in Hickes's almost every particular that can illus-
Thesaurus, vol. ii. trate our early annals will be found.
d For these Vikingr, or Sea-kings, a e Wilkins, Leges Anglo-Saxon, p. 47.
new and interesting subject, I would Chron. Saxon, p. 99.
refer to Mr. Turner's History of the
ENGLISH CONST. DUKINU THE MIDDLE AGES. '269
East Anglia and Northumberland ;f a name terribly expres- .
sive of foreign conquerors, who retained their warlike con-
federacy, without melting into the mass of their subject
population. Three able and active sovereigns, Edward,
Athelstan, and Edmund, the successors of Alfred, pursued
the course of vie ory, and not only rendered the English
monarchy co-extensive with the present limits of England,
but asserted at least a supremacy over the bordering nations.g
Yet even Edgar, the most powerful of the Anglo-Saxon
kings, did not venture to interfere with the legal customs of
his Danish subjects.11
Under this prince, whose rare fortune as well as judicious
conduct procured him the surname of Peaceable, the king-
dom appears' to have reached its zenith of prosperity. But
his premature death changed the scene. The minority and
feeble character of Ethelred II. provoked fresh incursions
of our enemies beyond the German sea. A long series of
disasters, and the inexplicable treason of those to whom the
public safety was intrusted, overthrew the Saxon line, and
established Canute of Denmark upon the throne.
The character of the Scandinavian nations was in some
measure changed from what it had been during their first
invasions. They had embraced the Christian faith ; they
were consolidated into great kingdoms ; they had lost some
of that predatory and ferocrous spirit which a religion in-
vented, as it seemed, for pirates had stimulated. Those
too who had long been settled in England, became gradually
more assimilated to the natives, whose laws and language
were not radically different from their own. Hence the
accession of a Danish line of kings produced neither any evil
nor any sensible change of polity. But the English still
outnumbered their conquerors, and eagerly returned, when
an opportunity arrived, to the ancient stock. Edward the
Confessor, notwithstanding his Norman favourites, was en-
deared by the mildness of his character to the English nation,
and subsequent miseries gave a kind of posthumous credit
f Chronicon Saxon, passim. It seems now to be ascertained by the
g [NOTE II.] comparison of dialects, that the inhabit -
h Wilkins, Leges Anglo-Saxon, p. 83. ants from the Humber, or at least the
In 106 1, after a revolt of the Northum- Tyne, to the Firth of Forth, were chiefly
briaiis, Edward the Confessor renewed Danes.
the laws of Canute. Chronic. Saxon.
270 STATE OF EUROPE CHAP. VIII. PART I.
to a reign not eminent either for good fortune or wise
government.
In a stage of civilization so little advanced as that of the
succession to Anglo-Saxons, and under circumstances of such
the crown, incessant peril, the fortunes of a nation chiefly de-
pend upon the wisdom and valour of its sovereigns. No free
people, therefore, would intrust their safety to blind chance,
and permit an uniform observance of hereditary succession
to prevail against strong public expediency. Accordingly, the
Saxons, like most other European nations, while they limited
the inheritance of the crown exclusively to one royal family,
were not very scrupulous about its devolution upon the
nearest heir. It is an unwarranted assertion of Carte, that
the rule of the Anglo-Saxon monarchy was " lineal agnatic
succession, the blood of the second son having no right until
the extinction of that of the eldest." * Unquestionably the
eldest son of the last king, being of full age, and not. mani-
festly incompetent, was his natural and probable successor ;
nor is it perhaps certain, that he always waited for an elec-
tion to take upon himself the rights of sovereignty, although
the ceremony of coronation, according to the ancient form,
appears to imply its necessity. But the public security in
those times was thought incompatible with a minor king ;
and the artificial substitution of a regency, which stricter
notions of hereditary right have introduced, had never
occurred to so rude a people. Thus, not to mention those
instances which the obscure times of the Heptarchy exhibit,
Ethelred I., as some say, but certainly Alfred, excluded the
progeny of their elder brother from the throne.k Alfred,
in his testament, dilates upon his own title, which he builds
upon a triple foundation, the will of his father, the compact
of his brother Ethelred, and the consent of the West-Saxon
nobility .m A similar objection to the government of an in-
fant seems to have rendered Athelstan, notwithstanding his
reputed illegitimacy, the public choice upon the death of
1 Vol. i. p. 365. Blackstone lias la- raise an insurrection against Edward the
boured to prove the same proposition; Elder, was son of Ethelbert. The Saxon
but his knowledge of English history was Chronicle only calls him the king's
rather superficial. cousin; which he would be as the son of
k Chronicon Saxon, p. 99. Hume Ethelred.
says, that Ethelwold, who attempted to m Spelinan, Vita Alfredi, Appendix.
ENGLISH CONST. DURING THE MIDDLE AGES. 271
Edward the Elder. Thus too the sons of Edmund I. were
postponed to their uncle Edred, and, again, preferred to his
issue. And happy might it have been for England if this
exclusion of infants had always obtained. But upon the
death of Edgar, the royal family wanted some prince of
mature years to prevent the crown from resting upon the
head of a child ; n and hence the minorities of Edward II.
and Ethelred II. led to misfortunes which overwhelmed for
a time both the house of Cerdic and the English nation.
The Anglo-Saxon monarchy, during its earlier period,
seems to have suffered but little from that insubor- influence Of
dination among the superior nobility, which ended governors.
in dismembering the empire of Charlemagne. Such kings as
Alfred and Athelstan were not likely to permit it. Arid the
English counties, each under its own alderman, were not of
a size to encourage the usurpations of their governors. But
when the whole kingdom was subdued, there arose, unfor-
tunately, a fashion of intrusting great provinces to the ad-
ministration of a single earl. Notwithstanding their union,
Mercia, Northumberland, and East Anglia were regarded in
some degree as distinct parts of the monarchy. A difference
of laws, though probably but slight, kept up this separation.
Alfred governed Mercia by the hands of a nobleman who
had married his daughter Ethelfleda ; and that lady after her
husband's death held the reins with a masculine energy till
her own ; when her brother Edward took the province into
his immediate command.0 But from the era of Edward II.'s
succession, the provincial governors began to overpower the
royal authority, as they had done upon the continent.
England under this prince was not far removed from the
condition of France under Charles the Bald. In the time of
Edward the Confessor, the whole kingdom seems to have
been divided among five earls,p three of whom were Godwin
n According to the historian of Ram- the ceorl. It was not a title of office till
sey, a sort of interregnum took place on the eleventh century, when it was used as
Edgar's death ; his son's birth not being synonymous to alderman, for a governor
thought sufficient to give him a clear of a county or province. After the con-
right during infancy. 3 Gale, XV. Script, quest, it superseded altogether the more
P- 413. ancient title. Selden's titles of Honour,
0 Chronicon Saxon. vol. iii. p. 638 (edit. Wilkins), and An-
p The word earl (eorl) meant origin- glo-Saxon writings puss im.
ally a man of noble birth, as opposed to
272 STATE OF EUROPE CHAP. VIII. PART I.
and his sons Harold and Tostig. It cannot be wondered at,
that the royal line was soon supplanted by the most powerful
and popular of these leaders, a prince well worthy to have
founded a new dynasty, if his eminent qualities had not
yielded to those of a still more illustrious enemy.
There were but two denominations of persons above the
Distribution class of servitude, Thanes and Ceorls ; the owners
andCeoriT and the cultivators of land, or rather, perhaps, as a
more accurate distinction, the gentry and the inferior people.
Among all the northern nations, as is well known, the
weregild, or compensation for murder, was the standard
measure of the gradations of society. In the Anglo-Saxon
laws we find two ranks of freeholders; the first, called
King's Thanes, whose lives were valued at 1 200 shillings ;
the second of inferior degree, whose composition was half
that sum.q That of a ceorl was 200 shillings. The nature
of this distinction between royal and lesser thanes is very
obscure ; and I shall have something more to say of it pre-
sently. However the thanes in general, or Anglo-Saxon
gentry, must have been very numerous. A law of Ethelred
directs the sheriff to take twelve of the chief thanes in every
hundred, as his assessors on the bench of justice/ And
from Domesday Book we may collect that they had formed
a ppetty large class, at least in some counties, under Edward
the Confessor.8
The composition for the life of a ceorl was, as has been
condition of ss^^ 200 shillings. If this proportion to the value
the ceoris. Of a thane points out the subordination of ranks, it
certainly does not exhibit the lower freemen in a state of
complete abasement. The ceorl was not bound, at least
universally, to the land which he cultivated ; * he was occa-
sionally called upon to bear arms for the public safety ; u he
q Wilkins, p. 40, 43, 64, 72, 101. classes of society mentioned in Domesday
r Id. p. 117. seems at present unattainable.
8 Domesday Book having been com- * Legis Alfredi, c. 33. in Wilkins.
piled by different sets of commissioners, This text is not unequivocal ; and I con-
their language has sometimes varied in fess that a law of Ina (c. 39) has rather
describing the same class of persons. The a contrary appearance. But the condi-
liberi homines, of whom we find continual tion of all ceoris need not be supposed
mention in some counties, were perhaps to have been the same ; and in the latter
not different from the thaini, who occur period this can be shown to have been
in other places. But this subject is very subject to much diversity,
obscure; and a clear apprehension of the u Leges Inse, c. 51. ibid.
ENGLISH CONST. DURING THE MIDDLE AGES. 273
was protected against personal injuries, or trespasses on his
land ; x he was capable of property, and of the privileges
which it conferred. If he came to possess five hydes of
land (or about 600 acres), with a church and mansion of
his own, he was entitled to the name and rights of a thane.7
And if by owning five hydes of land he became a thane, it
is plain that he might possess a less quantity without reach-
ing that rank. There were, therefore, ceorls with land of
their own, and ceorls without land of their own ; ceorls who
might commend themselves to what lord they pleased, and
ceorls who could not quit the land on which they lived,
owing various services to the lord of the manor, but always
freemen, and capable of becoming gentlemen/
Some might be inclined to suspect that the ceorls were
sliding more and more towards a state of servitude before
the conquest.a The natural tendency of such times of
rapine, with the analogy of a similar change in France,
leads to this conjecture. But there seems to be no proof of
it ; and the passages which recognise the capacity of a ceorl
to become a thane are found in the later period of Anglo-
Saxon law. Nor can it be shown, as I apprehend, by any
authority earlier than that of Glanvil, whose treatise was
written about 1180, that the peasantry of England were
reduced to that extreme debasement which our law-books
call villenage, a condition which left them no civil rights
with respect to their lord. For, by the laws of William the
Conqueror, there was still a composition fixed for the murder
of a villein or ceorl, the strongest proof of his being, as it
was called, law-worthy, and possessing a rank however sub-
ordinate, in political society. And this composition was due
to his kindred, not to the lord.b Indeed, it seems positively
x Leges Alfred!, c. 31, 35. sense, in "ire cum terra ubi voluerit,"
y Leges Athelstani, ibid. p. 70, 71. or "quserere dominum ubi voluerit,"
2 It is said in the introduction to which meet our eyes perpetually in the
the Supplementary Records of Domes- first volume of Domesday. The dif-
day, which I quote from Cooper's Ac- ference of phrases in this record must,
count of Public Eecords (i. 223), that in great measure, be attributed to that
the word commendatio is confined to the of the persons employed,
three counties in the second volume of a If the laws that bear the name of
Domesday, except that it occurs twice William are, as is generally supposed,
in the Inquisitio Eliensis for Cam- those of his predecessor Edward, they
bridgeshire. But, if this particular were already annexed to the soil. p. 225.
word does not occur, we have the b Wilkins, p. 221.
VOL. II. T
274 STATE OF EUROPE CHAP. VIII. PART I.
declared in another passage, that the cultivators, though
bound to remain upon the land, were only subject to certain
services.0 Again, the treatise denominated the Laws of
Henry I., which, though not deserving that appellation, must
be considered as a contemporary document, expressly men-
tions the twyhinder or villein as a freeman.d Nobody can
doubt that the villani and bordarii of Domesday Book, who
are always distinguished from the serfs of the demesne, were
the ceorls of Anglo-Saxon law. And I presume that the
socmen, who so frequently occur in that record, though far
more in some counties than in others, were ceorls more
fortunate than the rest, who by purchase had acquired free-
holds, or by prescription and the indulgence of their lords
had obtained such a property in the outlands allotted to
them, that they could not be removed, and in many instances
might dispose of them at pleasure. They are the root of a
noble plant, the free socage tenants, or English yeomanry,
whose independence has stamped with peculiar features
both our constitution and our national character.6
Beneath the ceorls in political estimation were the con-
British quered natives of Britain. In a war so long and
natives. so obstinately maintained as that of the Britons
against their invaders, it is natural to conclude that in a
great part of the country the original inhabitants were almost
extirpated, and that the remainder were reduced into ser-
vitude. This, till lately, has been the concurrent opinion of
our antiquaries ; and, with some qualification, I do not see
why it should not still be received/ In every kingdom of
the continent, which was formed by the northern nations
out of the Eoman empire, the Latin language preserved its
superiority, and has much more been corrupted through
ignorance and want of a standard, than intermingled with
their original idiom. But our own language is, and has
been from the earliest times after the Saxon conquest, essen-
tially Teutonic, and of the most obvious affinity to those
dialects which are spoken in Denmark and Lower Saxony.
With such as are extravagant enough to controvert so evident
' Wilkins, p. 225. e [NoTE in i
d Leges Henr. I. c. 70 and 76, in f [NOTE IV.]
Wilkins.
ENGLISH CONST. DURING THE MIDDLE AGES. 275
a truth it is idle to contend ; and those who believe great part
of our language to be borrowed from the Welsh may doubt-
less infer that great part of our population is derived from
the same source. g If we look through the subsisting Anglo-
Saxon records, there is not very frequent mention of British
subjects. But some undoubtedly there were in a state of free-
dom, and possessed of landed estate. A Welshman (that is, a
Briton), who held five hydes, was raised, like a ceorl, to the
dignity of thane.h In the composition, however, for their
lives, and consequently in their rank in society, they were
inferior to the meanest Saxon freemen. The slaves,
who were frequently the objects of legislation, rather
for the purpose of ascertaining their punishments than of
securing their rights, may be presumed, at least in early
times, to have been part of the conquered Britons. For
though his own crimes, or the tyranny of others, might
possibly reduce a Saxon ceorl to this condition,1 it is in-
conceivable that the lowest of those who won England with
their swords should in the establishment of the new king-
doms have been left destitute of personal liberty.
g It is but just to mention a partial adopt these names from the conquered;
exception, according to a considerable and thus, after the lapse of twelve cen-
authority, to what has been said in the turies and innumerable civil convulsions,
text as to the absence of British roots in the principal words of the class described
the English language ; though it can but yet prevail in the language of our peo-
slightly affect the general proposition, pie, and partially in our literature.
Mr. Kemble remarks the number of Many, then, of the words which we seek
minute distinctions, in describing the in vain in the Anglo-Saxon dictionaries,
local features of a country, which abound are, in fact, to be sought in those of the
in the Anglo -Saxon charters, and the dim- Cymri, from whose practice they were
cul ties which occur in their explanation, adopted by the victorious Saxons, in all
One of these relates to the language it- parts of the country; and they are not
self. " It cannot be doubtful that local Anglo-Saxon, but Welsh (*'. e. foreign,
names, and those devoted to distinguish Wylisc), very frequently unmodified
the natural features of a country, possess either in meaning or pronunciation."
an inherent vitality, which even the ur- Preface to Codex Diplom. vol. iii. p. 15.
gency of conquest is frequently unable Though this bears intrinsic marks of
to destroy. A race is rarely so entirely probability, it is yet remarkable that, in
removed as not to form an integral, al- a long list of descriptive words which
though subordinate, part of the new state immediately follows, there are not six
based upon its ruins; and in the case for which Mr. Kemble suggests a Cam-
where the cultivator continues to be oc- brian root; and of these some, such as
cupied with the soil, a change of master comb, a valley, belong to parts of Eng-
will not necessarily lead to the abandon- land where the British long kept their
ment of the names by which the land ground.
itself, and the instruments or processes b Leges Inge, p. 18. Leg. Atheist,
of labour, are designated. On the con- p. 71.
trary, the conquering race are apt to ' Leges Inee, c. 24.
T 2
276 STATE OF EUROPE CHAP. VIII. PART I.
The great council by which an Anglo-Saxon king was
The witen- guided in all the main acts of government bore the
appellation of Witenageniot, or the assembly of the
wise men. All their laws express the assent of this council ;
and there are instances where grants made without its con-
currence have been revoked. It was composed of prelates
and abbots, of the aldermen of shires, and, as it is generally
expressed, of the noble and wise men of the kingdom.k
Whether the lesser thanes, or inferior proprietors of lands,
were entitled to a place in the national council, as they cer-
tainly were in the shiregemot, or county-court, is not easily
to be decided. Many writers have concluded, from a passage
in the History of Ely, that no one, however nobly born,
could sit in the witenagernot, so late at least as the reign of
Edward the Confessor, unless he possessed forty hydes of
land, or about five thousand acres.m But the passage in
question does not unequivocally relate to the witenagemot ;
and being vaguely worded by an ignorant monk, who perhaps
had never gone beyond his fens, ought notto be assumed as
an incontrovertible testimony. Certainly so very high a
qualification cannot be supposed to have been requisite in
the kingdoms of the Heptarchy ; nor do we find any col-
lateral evidence to confirm the hypothesis. If, however, all
the body of thanes or freeholders were admissible to the
witenagemot, it is unlikely that the privilege should have
been fully exercised. Very few, I believe, at present ima-
gine that there was any representative system in that age ;
much less that the ceorls or inferior freemen had the smallest
share in the deliberations of the national assembly. Every
argument which a spirit of controversy once pressed into
this service has long since been victoriously refuted.11
It has been justly remarked by Hume, that among a
judicial people who lived in so simple a manner as these
power. Anglo-Saxons, the judicial power is always of more
consequence than the legislative. The liberties of these
Anglo-Saxon thanes were chiefly secured, next to their
k Leges Anglo-Saxon, in Wilkins, nobilis esset, inter proceres tune nume-
passim. raxi-non potuit. 3 Gale, p. 513.
m Quoniam ille quadraginta hydarum n [NoTE V.]
terrae dominium minime obtineret, licet
ENGLISH CONST. DURING THE MIDDLE AGES. 277
swords and their free spirits, by the inestimable right of
deciding civil and criminal suits in their own county-court ;
an institution which, having survived the conquest, and con-
tributed in no small degree to fix the liberties of England
upon a broad and popular basis, by limiting the feudal
aristocracy, deserves attention in following the history of
the British constitution.
The division of the kingdom into counties, and of these
into hundreds and decennaries, for the purpose of Division into
........ T r-r^ i i Counties,
administering justice, was not peculiar to England. Hundreds,
T ,, 11 i>T7 IT u j f L andTyth-
In the early laws ot .b ranee and .Lombardy, frequent ings.
mention is made of the hundred-court, and now and then of
those petty village-magistrates who in England were called
ty thing-men. It has been usual to ascribe the establishment
of this system among our Saxon ancestors to Alfred, upon
the authority of Ingulfus, a writer contemporary with the
conquest. But neither the biographer of Alfred, Asserius,
nor the existing laws of that prince bear testimony to the
fact. With respect indeed to the division of counties, and
their government by aldermen and sheriffs, it is certain that
both existed long before his time ;° and the utmost that can
be supposed is that he might in some instances have ascer-
tained an unsettled boundary. There does not seem to be
equal evidence as to the antiquity of the minor divisions.
Hundreds, I think, are first mentioned in a law of Edgar,
and tythings in one of'Canute.p But as Alfred, it must be
remembered, was never master of more than half the king-
dom, the complete distribution of England into these dis-
tricts cannot, upon any supposition, be referred to him.
0 Counties, as well as the alderman waste taken together. Introduction to
who presided over them, are mentioned Domesday, i. 185. But this implies
in the laws of Ina, c. 36. equality of size, which is evidently not
For the division of counties, which the case. A passage in the Dialogus
were not always formed in the same age, de Scaccario (p. 31) is conclusive: —
nor on the same plan, see Palgrave, i. Hyda a primitiva institutione in cen-
116. We do not know much about the turn acris constat: hundredus est ex
inland counties in general ; those on the hydarum aliquot centenariis, sed non
coasts are in general larger, and are determinatis ; quidam enim ex pluribus,
mentioned in history. All we can say quidam ex paucioribus hydis constat.
is, that they all existed at the conquest p Wilkins, p. 87, 136. The former,
as at present. The hundred is supposed however, refers to them as an ancient in-
by Sir H. Ellis, on the authority of an stitution: quoeratur centurite couventus,
ancient record, to have consisted of an sicut antea institutum erat.
hundred hydes of land, cultivated and
278 STATE OF EUROPE CHAP. VIII. PART I.
There is, indeed, a circumstance observable in this di-
vision, which seems to indicate that it could not have taken
place at one time, nor upon one system ; I mean the ex-
treme inequality of hundreds in different parts of England,
Whether the name be conceived to refer to the number of
free families, or of landholders, or of petty vills, forming
so many associations of mutual assurance or frank-pledge,
one can hardly doubt that, when the term was first applied,
a hundred of one or other of these were comprised, at an
average reckoning, within the district. But it is impossible
to reconcile the varying size of hundreds to any single
hypothesis. The county of Sussex contains sixty-five, that
of Dorset forty-three ; while Yorkshire has only twenty-six ;
and Lancashire but six. No difference of population, though
the south of England was undoubtedly far the best peopled,
can be conceived to account for so prodigious a disparity.
I know of no better solution than that the divisions of the
north, properly called wapentakes,q were planned upon a
different system, and obtained the denomination of hundreds
incorrectly, after the union of all England under a single
sovereign.
Assuming, therefore, the name and partition of hundreds
to have originated in the southern counties, it will rather, I
think, appear probable, that they contained only an hundred
free families, including the ceorls as well as their landlords.
If we suppose none but the latter to have been numbered, we
should find six thousand thanes in Kent, and six thousand
five hundred in Sussex; a reckoning totally inconsistent
with any probable estimate.1" But though we have little
direct testimony as to the population of those times, there is
one passage which falls in very sufficiently with the former
supposition. Bede says that the kingdom of the South
Saxons, comprehending Surrey as well as Sussex, contained
seven thousand families. The county of Sussex alone is
divided into sixty-five hundreds, which comes at least close
enough to prove that free families, rather than proprietors,
were the subject of that numeration. And this is the inter-
q Leges Edwardi Confess, c. 33. as to render this supposition quite ridi-
r It would be easy to mention parti- culous.
cular hundreds in these counties, so small
ENGLISH CONST. DUKING THE MIDDLE AGES. 279
pretation of Da Cange and Muratori, as to the Centense
and Decanise of their own ancient laws.
I cannot but feel some doubt, notwithstanding a passage
in the laws ascribed to Edward the Confessor,8 whether the
tything-man ever possessed any judicial magistracy over his
small district. He was, more probably, little different from
a petty constable, as is now the case, I believe, wherever
that denomination of office is preserved. The court of the
hundred was held, as on the continent, by its own cente-
narius, or hundred-man, more often called alderman, and in
the Norman times bailiff or constable, but under the sheriff's
writ. It is, in the language of the law, the sheriff's tourn
and leet. And, in the Anglo-Saxon age, it was a court of
justice for suitors within the hundred, though it could not
execute its process beyond that limit. It also punished
small offences, and was intrusted with the "view of frank-
pledge," and the maintenance of the great police of mutual
surety. In some cases, that is, when the hundred was com-
petent to render judgment, it seems that the county-court
could only exercise an appellant jurisdiction for denial of
right in the lower tribunal. But in course of time the
former and more celebrated court, being composed of far
more conspicuous judges, and held before the bishop and the
earl, became the real arbiter of important suits ; and the
court-leetfell almost entirely into disuse as a civil jurisdiction,
contenting itself with punishing petty offences and keeping up
a local police/ It was, however, to the county-court County.
that an English freeman chiefly looked for the main- court>
tenance of his civil rights. In this assembly, held twice in
the year by the bishop and the alderman," or, in his absence,
the sheriff, the oath of allegiance was administered to all
freemen, breaches of the peace were inquired into, crimes
were investigated, and claims were determined. I assign all
8 Leges Edwardi Confess, p. 203. times belonged. Every county had its
Nothing, as far as I know, confirms this alderman; but the name is not applied
passage, which hardly tallies with what in written documents to magistrates of
the genuine Anglo-Saxon documents con- boroughs before the conquest. Pal-
tain as to the judicial arrangements of grave, ii. 350. He thinks, however,
that period. that London had aldermen from time
I [NOTE VI.] immemorial. After the conquest the
II The alderman was the highest rank title seems to have become appropriated
after the royal family, to which he some- to municipal magistrates.
280 STATE OF EUKOPE CHAP. VIII. PART I.
these functions to the county-court upon the supposition that
no other subsisted during the Saxon times, and that the
separation of the sheriff's tourn for criminal jurisdiction had
not yet taken place ; which, however, I cannot pretend to
determined
A very ancient Saxon instrument, recording a suit in the
suit in the county-court, under the reign of Canute, has been
county-court. pUblished bj Hickes, and may be deemed worthy of
a literal translation in this place. " It is made known by
this writing, that in the shire-gemot (county-court) held at
Agelnothes-stane (Aylstonin Herefordshire), in the reign of
Canute, there sat Athelstan the bishop, and Eanig the alder-
man, and Edwin his son, and Leofwin Wulfig's son ; and
Thurkil the White and Tofig came there on the king's
business ; and there were Bryning the sheriff, and Athel-
weard of Frome, and Leofwin of Frome, and Goodric of
Stoke, and all the thanes of Herefordshire. Then came to
the mote Edwin son of Enneawne, and sued his mother for
some lands called Weolintun and Cyrdeslea. Then the
bishop asked who would answer for his mother. Then
answered Thurkil the White, and said that he would, if he
knew the facts, which he did not. Then were seen in the mote
three thanes, that belonged to Feligly (Fawley, five miles
from Aylston), Leofwin of Frome, -ZEgelwig the Red, and
Thinsig Stsegthman ; and they went to her, and inquired
what she had to say about the lands which her son claimed.
She said that she had no land which belonged to him, and fell
into a noble passion against her son, and calling for Leofleda
her kinswoman, the wife of Thurkil, thus spake to her before
them : ' This is Leofleda my kinswoman, to whom I give
my lands, money, clothes, and whatever I possess after my
life :' and this said, she thus spake to the Thanes : ' Behave
like Thanes, and declare my message to all the good men in
the mote, and tell them to whom I have given my lands,
and all my possessions, and nothing to my son ;' and bade
them be witnesses to this. And thus they did, rode to the
mote, and told all the good men what she had enjoined
them. Then Thurkil the White addressed the mote, and
x This point is obscure; but I do not tinguish the civil from the criminal tri-
perceive that the Anglo-Saxon laws dis- bunal.
ENGLISH CONST. DURING THE MIDDLE AGES. 281
requested all the thanes to let his wife have the lands which
her kinswoman had given her; and thus they did, and
Thurkil rode to the church of St. Ethelbert, with the leave
and witness of all the people, and had this inserted Jn a
book in the church."7
It may be presumed from the appeal made to the thanes
present at the county-court, and is confirmed by other ancient
authorities,2 that all of them, and they alone, to the exclu-
sion of inferior freemen, were the judges of civil controver-
sies. The latter indeed were called upon to attend its meet-
ings, or, in the language of our present law, were suitors to
the court, and it was penal to be absent. But this was on
account of other duties, the oath of allegiance which they
were to take, or the frank-pledges into which they were to
enter, not in order to exercise any judicial power ; unless we
conceive that the disputes of the ceorls were decided by
judges of their own rank. It is more important to remark
the crude state of legal process and inquiry which this in-
strument denotes. Without any regular method of instituting
or conducting causes, the county-court seems to have had
nothing to recommend it but, what indeed is no trifling
matter, its security from corruption and tyranny ; and in
the practical jurisprudence of our Saxon ancestors, even at
the beginning of the eleventh century, we perceive no ad-
vance of civility and skill from the state of their own savage
progenitors on the banks of the Elbe. No appeal could be
made to the royal tribunal, unless justice was denied in the
county-court.* This was the great constitutional judicature
in all questions of civil right. In another instrument, pub-
lished by Hickes, of the age of Ethelred II., the tenant of
lands which were claimed in the king's court refused to
y Hickes, Dissertatio Epistolaris, p. 4, for proof of the assertion. The book
in Thesaurus Antiquitatum Septentrion, kept in the church of St. Ethelbert,
vol. iii. " Before the conquest," says Gur- wherein Thurkil is said to have inserted
don (on Courts-Baron, p. 589), " grants the proceedings of the county-court, may
were enrolled in the shire-book in public or may not have been a public record,
shire-mote, after proclamation made for z Id. p. 3. Leges Henr. Primi, c.
any to come in that could claim the lands 29.
conveyed; and this was as irreversible as a Leges Eadgari, p. 77; Canuti, p.
the modern fine with proclamations, or 136; Henrici Primi, c. 34. I quote
recovery." This may be so ; but the the latter freely as Anglo-Saxon, though
county-court has at least long ceased to posterior to the conquest; their spirit
be a court of record; and one would ask being perfectly of the former period.
282 STATE OF EUROPE CHAP. VIII. PART I.
submit to the decree of that tribunal, without a regular trial
in the county ; which was accordingly granted.b There
were, however, royal judges, who either by way of appeal
from the lower courts, or in excepted cases, formed a para-
mount judicature ; but how their court was composed under
the Anglo-Saxon sovereigns I do not pretend to assert.0
It had been a prevailing opinion that trial by jury may
Trial by be referred to the Anglo-Saxon age, and common
jury. tradition has ascribed it to the wisdom of Alfred.
In such an historical deduction of the English government
as I have attempted, an institution so peculiarly characteris-
tic deserves every attention to its origin ; and I shall there-
fore produce the evidence which has been supposed to bear
upon this most eminent part of our judicial system. The
first text of the Saxon laws which may appear to have such
a meaning is in those of Alfred. " If any one accuse a
king's thane of homicide, if he dare to purge himself (ladian),
let him do it along with twelve king's thanes." u If any one
accuse a thane of less rank (laessa maga) than a king's
thane, let him purge himself along with eleven of his equals,
and one king's thane."d This law, which Nicholson con-
tends to mean nothing but trial by jury, has been referred
by Hickes to that ancient usage of compurgation, where the
accused sustained his own oath by those of a number of his
friends, who pledged their knowledge, or at least their
belief, of his innocence.6
In the canons of the Northumbrian clergy we read as
follows : " If a king's thane deny this (the practice of
heathen superstitions), let twelve be appointed for him, and
let him take twelve of his kindred (or equals, maga) and
twelve British strangers ; and if he fail, then let him pay
for his breach of law twelve half-marcs : If a landholder (or
b Dissertatio Epistolaris, p. 5. ensis, p. 469. Chron. Sax. p. 169. In
c Madox, History of the Exchequer, the Leges Henr. I. c. lo, the limits of
p. 65, will not admit the existence of any the royal and local jurisdictions are de-
court analogous to the Curia Regis be- fined, as to criminal matters, and seem to
fore the conquest; all pleas being deter- have been little changed since the reign of
mined in the county. There are, how- Canute, p. 135. [1818.] [NoTE VII.]
ever, several instances of decisions before d Leges Alfredi, p. 47.
the king; and in some cases it seems that e Nicholson, Prefatio ad Leges Anglo-
the witenagemot had a judicial authority. Saxon. Wilkinsii, p. 10. Hickes, Dis-
Leges Canuti, p. 135, 136. Hist. Eli- sertatio Epistolaris.
ENGLISH CONST. DURING THE MIDDLE AGES. 283
lesser thane) deny the charge, let as many of his equals and
as many strangers betaken as for a royal thane; and if he
fail, let him pay six half-marcs : If a ceorl deny it, let as
many of his equals and as many strangers be taken forjiim
as for the others ; and if he fail, let him pay twelve orae for
his breach of law."f It is difficult at first sight to imagine
that these thirty-six so selected were merely compurgators,
since it seems absurd that the judge should name indifferent
persons, who without inquiry were to make oath of a party's
innocence. Some have therefore conceived that, in this and
other instances where compurgators are mentioned, they
were virtually jurors, who, before attesting the facts, were
to inform their consciences by investigating them. There
are however passages in the Saxon laws, nearly parallel to
that just quoted, which seem incompatible with this inter-
pretation. Thus by a law of Athelstan, if any one claimed
a stray ox as his own, five of his neighbours were to be
assigned, of whom one was to maintain the claimant's oath.s
Perhaps the principle of these regulations, and indeed of the
whole law of compurgation, is to be found in that stress laid
upon general character which pervades the Anglo-Saxon
jurisprudence. A man of ill reputation was compelled to
undergo a triple ordeal in cases where a single one sufficed
for persons of credit ; a provision rather inconsistent with
the trust in a miraculous interposition of Providence which
was the basis of that superstition. And the law of frank-
pledge proceeded upon the maxim that the best guarantee of
every man's obedience to the government was to be sought
in the confidence of his neighbours. Hence, while some com-
purgators were to be chosen by the sheriff, to avoid partiality
and collusion, it was still intended that they should be re-
sidents of the vicinage, witnesses of the defendant's previous
life, and competent to estimate the probability of his ex-
culpatory oath. For the British strangers, in the canon
quoted above, were certainly the original natives, more in-
termingled with their conquerors, probably, in the provinces
north of the Humber than elsewhere, and still denominated
strangers, as the distinction of races was not done away.
f Wilkins, p. 100. g Leges Athelstani, p. 58.
284 STATE OF EUROPE CHAP. VIII. PART I.
If in this instance we do not feel ourselves warranted to
infer the existence of trial by jury, still less shall we find
even an analogy to it in an article of the treaty between
England and Wales, during the reign of Ethelred II.
" Twelve persons skilled in the law, six English and six
Welsh, shall instruct the natives of each country, on pain of
forfeiting their possessions, if, except through ignorance
they give false information."11 This is obviously but a regu-
lation intended to settle disputes among the Welsh and
English, to which their ignorance of each other's customs
might give rise.
By a law of the same prince, a court was to be held in
every wapentake, where the sheriff and twelve principal
thanes should swear that they would neither acquit any
criminal nor convict any innocent person.1 It seems more
probable that these thanes were permanent assessors to the
sheriff, like the scabini so frequently mentioned in the early
laws of France and Italy, than jurors indiscriminately se-
lected. This passage, however, is stronger than those which
have been already adduced ; and it may be thought, perhaps,
with justice, that at least the seeds of our present form of
trial are discoverable in it. In the History of Ely we twice
read of pleas held before twenty-four judges in the court of
Cambridge ; which seems to have been formed out of seve-
ral neighbouring hundreds.1"
But the nearest approach to a regular jury, which has
been preserved in our scanty memorials of the Anglo-Saxon
age, occurs in the history of the monastery of Ramsey. A
controversy relating to lands between that society and a
certain nobleman was brought into the county-court ; when
each party was heard in his own behalf. After this com-
mencement, on account probably of the length and difficulty
of the investigation, it was referred by the court to thirty-six
thanes, equally chosen by both sides.m And here we begin
to perceive the manner in which those tumultuous assemblies,
the mixed body of freeholders in their county-court, slid
gradually into a more steady and more diligent tribunal.
h Legis Ethelredi, p. 125. k Hist. Eliensis, in Gale's Scriptores,
1 p. 117. iii. p. 471 and 478.
"' Hist. Ramsey, id. p. 415.
ENGLISH CONST. DURING THE MIDDLE AGES. 285
But this was not the work of a single age. In the Con-
queror's reign we find a proceeding very similar to the case
of Ramsey, in which the suit has been commenced in the
county-court, before it was found expedient to remit it to a
select body of freeholders. In the reign of William Rufus,
and down to that of Henry II., when the trial of writs of
right by the grand assize was introduced, Hickes has dis-
covered other instances of the original usage.11 The language
of Domesday Book lends some confirmation to its existence
at the time of that survey ; and even our common legal ex-
pression of trial by the country seems to be derived from a
period when the form was literally popular.
In comparing the various passages which I have quoted,
it is impossible not to be struck with the preference given to
twelve, or some multiple of it, in fixing the number either of
judges or compurgators. This was not peculiar to England.
Spelman has produced several instances of it in the early
German laws. And that number seems to have been re-
garded with equal veneration in Scandinavia.0 It is very
immaterial from what caprice or superstition this predi-
lection arose. But its general prevalence shows that, in
searching for the origin of trial by jury, we cannot rely for
a moment upon any analogy which the mere number affords.
I am induced to make this observation, because some of the
passages which have been alleged by eminent men for the
purpose of establishing the existence of that institution before
the conquest, seem to have little else to support them.p
There is certainly no part of the Anglo-Saxon polity
which has attracted so much the notice of modern LaW of
times as the law of frank-pledge, or mutual responsi- frank-Pledse-
bility of the members of a tything for each other's abiding
the course of justice. This, like the distribution of hundreds
and ty things themselves, and like trial by jury, has been
generally attributed to Alfred ; and of this, I suspect, we
must also deprive him. It is not surprising that the great
services of Alfred to his people in peace and in war should
n Hickesii Dissertatio Epistolaris, p. vol. xxxi. p. 115: a most learned and
33, 36. elaborate essay.
0 Spelman's Glossary, voc. Jurata. Du p [NOTE VIII.]
Cange, voc. Nembda. Edinb. Review,
286 STATE OF EUROPE CHAP. VIII. PART I.
have led posterity to ascribe every institution, of which the
beginning was obscure, to his contrivance, till his fame has
become almost as fabulous in legislation as that of Arthur in
arms. The English nation redeemed from servitude, and
their name from extinction; the lamp of learning refreshed,
when scarce a glimmer was visible ; the watchful observance
of justice and public order; these are the genuine praises of
Alfred, and entitle him to the rank he has always held in
men's esteem, as the best and greatest of English kings.
But of his legislation there is little that can be asserted with
sufficient evidence ; the laws of his time that remain are
neither numerous nor particularly interesting ; and a loose
report of late writers is not sufficient to prove that he com-
piled a dom-boc, or general code for the government of his
kingdom.
An ingenious and philosophical writer has endeavoured to
found the law of frank-pledge upon one of those general prin-
ciples to which he always loves to recur. " If we look upon
a tything/' he says, " as regularly composed often families,
this branch of its police will appear in the highest degree
artificial and singular ; but if we consider that society as of
the same extent with a town or village, we shall find that
such a regulation is conformable to the general usage of
barbarous nations, and is founded upon their common notions
of justice." q A variety of instances are then brought for-
ward, drawn from the customs of almost every part of the
world, wherein the inhabitants of a district have been made
answerable for crimes and injuries imputed to one of them.
But none of these fully resemble the Saxon institution of
which we are treating. They relate either to the right of
reprisals, exercised with respect to the subjects of foreign
countries, or to the indemnification exacted from the district,
as in our modern statutes which give an action in certain
cases of felony again$t the hundred, for crimes which its
internal police was supposed capable of preventing. In the
Irish custom, indeed, which bound the head of a sept to bring
forward every one of his kindred who should be charged
with any heinous crime, we certainly perceive a strong ana-
q Millar on the English Government, vol. i. p. 189.
ENGLISH CONST. DURING THE MIDDLE AGES. 287
logy to the Saxon law, not as it latterly subsisted, but under
one of its prior modifications. For I think that something
of a gradual progression may be traced to the history of this
famous police, by following the indications afforded by those
laws through which alone we become acquainted with its
existence.
The Saxons brought with them from their original
forests at least as much roughness as any of the nations
which overturned the Koman empire ; and their long
struggle with the Britons could not contribute to polish their
manners. The royal authority was weak ; and little had
been learned of that regular system of government which
the Franks and Lombards had acquired from the provincial
Romans, among whom they were mingled. No people
were so much addicted to robbery, to riotous frays, and to
feuds arising out of family revenge, as the Anglo-Saxons.
Their statutes are filled with complaints that the public peace
was openly violated, and with penalties which seem by their
repetition to have been disregarded. The vengeance taken
by the kindred of a murdered man was a sacred right,
which no law ventured to forbid, though it was limited by
those which established a composition, and by those which
protected the family of the murderer from their resentment.
Even the author of the laws ascribed to the Confessor speaks
of this family warfare, where the composition had not been
paid, as perfectly lawful/ But the law of composition tended
probably to increase the number of crimes. Though the
sums imposed were sometimes heavy, men paid them with
the help of their relations, or entered into voluntary associa-
tions, the purposes whereof might often be laudable, but
which were certainly susceptible of this kind of abuse. And
many led a life of rapine, forming large parties of ruffians,
who committed murder and robbery with little dread of
punishment.
Against this disorderly condition of society the wisdom of
our English kings, with the assistance of their great councils,
r Parentibus occisi fiat emendatio, vel taken from some older laws, or at least
guerra eorum portetur. Wilkins, p. 199. traditions. I do not conceive that this
This, like many other parts of that private revenge was tolerated by law after
spurious treatise, appears to have been the conquest.
288 STATE OF EUROPE CHAP. VIII. PART I.
was employed in devising remedies, which ultimately grew
up into a peculiar system. No man could leave the shire to
which he belonged without the permission of its alderman.8
No man could be without a lord, on whom he depended ;
though he might quit his present patron, it was under the
condition of engaging himself to another. If he failed in
this, his kindred were bound to present him in the county-
court, and to name a lord for him themselves. Unless this
were done, he might be seized by any one who met him as a
robber.1 Hence, notwithstanding the personal liberty of the
peasants, it was not very practicable for one of them to quit
his place of residence. A stranger guest could not be re-
ceived more than two nights as such ; on the third the host
became responsible for his inmate's conduct."
The peculiar system of frank-pledges seems to have passed
through the following very gradual stages. At first an
accused person was obliged to find bail for standing his
trial.x At a subsequent period his relations were called
upon to become sureties for payment of the composition and
other fines to which he was liable/ They were even subject
to be imprisoned until payment was made, and this im-
prisonment was commutable for a certain sum of money.
The next stage was to make persons already convicted, or of
suspicious repute, give sureties for their future behaviour.2
It is not till the reign of Edgar that we find the first general
law, which places every man in the condition of the guilty or
suspected, and compels him to find a surety, who shall be
responsible for his appearance when judicially summoned.*
This is perpetually repeated and enforced in later statutes,
during his reign and that of Ethelred. Finally, the laws of
Canute declare the necessity of belonging to some hundred
and ty thing, as well as of providing sureties ;b and it may,
perhaps, be inferred, that the custom* of rendering every
member of a tything answerable for the appearance of all
the rest, as it existed after the conquest, is as old as the
reign of this Danish monarch.
8 Leges Alfred!, c. 33. * Leges Edwardi Senioris, p. 53.
Leges Athelstani, p. 56. z Leges Athelstani, p. 57, c. 6, 7, 8.
1 Leges Edwardi Confess, p. 202. a Leges Eadgari, p. 78.
* Leges Lotharii [regis Cantii], p. 8. b Leges Canuti, p. 137.
ENGLISH CONST. CUBING THE MIDDLE AGES. 289
It is by no means an accurate notion which the writer to
whom I have already adverted has conceived, that " the
members of every tything were responsible for the conduct
of one another; and that the society, or their leader, might
be prosecuted and compelled to make reparationfor an injury
committed by any individual." Upon this false apprehension
of the nature of frank-pledges the whole of his analogical
reasoning is founded. It is indeed an error very current
in popular treatises, and which might plead the authority of
some whose professional learning should have saved them
from so obvious a misstatement. But in fact the members of
a tything were no more than perpetual bail for each other.
" The greatest security of the public order (say the laws
ascribed to the Confessor) is that every man must bind
himself to one of those societies which the English in general
call freeborgs, and the people of Yorkshire ten men's tale."c
This consisted in the responsibility of ten men, each for the
other, throughout every village in the kingdom ; so that if
one of the ten committed any fault, the nine should produce
him in justice ; where he should make reparation by his own
property or by personal punishment. If he fled from justice,
a mode was provided, according to which the tything might
clear themselves from participation in his crime or escape ;
in default of such exculpation, and the malefactor's estate
proving deficient, they were compelled to make good the
penalty. And it is equally manifest from every other pas-
sage in which mention is made of this ancient institution,
that the obligation of the tything was merely that of
permanent bail, responsible only indirectly for the good
behaviour of their members.
Every freeman above the age of twelve years was required
^to be enrolled in some tything.d In order to enforce this
essential part of police, the courts of the tourn and leet
were erected, or rather perhaps separated from that of the
county. The periodical meetings of these, whose duty it
was to inquire into the state of ty things, whence they were
called the view of frank-pledge, are regulated in Magna
Charta. But this custom, which seems to have been in full
0 Leges Edwardi, in Wilkins, p. 201. d Leges Canuti, p. 136.
VOL. II. u
290 STATE OF EUEOPE CHAP. VIII. PART I.
vigour when Bracton wrote, and is enforced by a statute of
Edward II., gradually died away in succeeding times,6 Ac-
cording to the laws ascribed to the Confessor, which are
perhaps of insufficient authority to fix the existence of any
usage before the Conquest, lords, who possessed a baronial
jurisdiction, were permitted to keep their military tenants
and the servants of their household under their own peculiar
frank-pledge.f Nor was any freeholder, in the age of Brac-
ton, bound to be enrolled in a tything.8
It remains only, before we conclude this sketch of the
Feudal te- Anglo-Saxon system, to consider the once famous
nures, whe- . •'. , ITT n n t t
ther known question respecting the establishment of feudal
before the -1 • Tt *-"i IIP i/^t mi
conquest tenures in England before the Conquest. The posi-
tion asserted by Sir Henry Spelman in his Glossary, that
lands were not held feudally before that period, having been
denied by the Irish judges in the great case of tenures, he
was compelled to draw up his treatise on Feuds, in which it
is more fully maintained. Several other writers, especially
Hickes, Madox, and Sir Martin Wright, have taken the
same side. But names equally respectable might be thrown
into the opposite scale ; and I think the prevailing bias of
e Stat. 18 E. II. Traces of the ac- It is very remarkable that there is no
tual view of frank-pledge appear in Corn- appearance of the frank-pledge in that
wall as late as the 10th of Henry VI. part of England which had formed the
Rot. Parliam. vol. iv. p. 403. And in- kingdom of Northumberland. Vol. i.
deed Selden tells us (Janus Anglorum, p. 202. This indeed contradicts a pas-
t. ii. p. 993) that it was not quite obso- sage quoted in the text from the laws of
lete in his time. The form may, for Edward the Confessor, which Sir F. P.
aught I know, be kept up in some parts suspects to be interpolated. But we find
of England at this day. For some reason a presentment by the county of West-
which I cannot explain, the distribution moreland in 20 Ed. I.: — Comitatus
by tens was changed into one by dozens, recordatur quod nulla Englescheria pre-
Briton, c. 29, and Stat. 18 E. II. sentatur in comitatu isto, nee murdrum,
f p. 202. nee est aliqua decenna nee visus franc-
g Sir F. Palgrave, who does not admit plegii nee manupastus in comitatu isto,
the application of some of the laws cited nee unquam fuit in partibus borealibus
in the text, says:— " At some period, citra Trentam. Ibidem. "Itisimpos-
towards the close of the Anglo-Saxon sible to speak positively to a negative
monarchy, the free-pledge was certainly proposition; and in the vast mass of these
established in the greater part of Wessex most valuable records, all of which are
and Mercia, though, even there, some still unindexed, some entry relating to
special exceptions existed. The system the collective frank-pledge may be con-
was developed between the accession of cealed. Yet from their general tenor, I
Canute and the demise of the Conqueror: doubt whether any will be discovered."
— and it is not improbable but that the The immense knowledge of records pos-
Normans completed what the Danes had sessed by Sir F. P. gives the highest
begun." Vol. ii. p. 123. weight to his judgment.
ENGLISH CONST. DUKING THE MIDDLE AGES. 291
modern antiquaries is in favour of at least a modified
affirmative as to this question.
Lands are commonly supposed to have been divided,
among the Anglo-Saxons, into bocland and folkland. The
former was held in full propriety, and might be conveyed
by boc or written grant : the latter was occupied by the
common people, yielding rent or other service, and perhaps
without any estate in the land, but at the pleasure of the
owner. These two species of tenure might be compared to
freehold and copyhold, if the latter had retained its original
dependence upon the will of the lord.11 Bocland was de-
visable by will ; it was equally shared among the children ;
it was capable of being entailed by the person under whose
grant it was originally taken ; and in case of a treacherous
or cowardly desertion from the army, it was forfeited to the
crown.1 But a different theory, at least as to the nature of
folkland, has lately been maintained by writers of very
great authority.1"
It is an improbable, and even extravagant supposition,
that all these hereditary estates .of the Anglo-Saxon free-
holders were originally parcels of the royal demesne, and
consequently that the king was once the sole proprietor in
his kingdom. Whatever partitions were made upon the
conquest of a British province, we may be sure that the
shares of the army were coeval with those of the general.
The great mass of Saxon property could not have been held
by actual beneficiary grants from the crown. However, the
royal demesnes were undoubtedly very extensive. They
continued to be so, even in the time of the Confessor, after
the donations of his predecessors. And several instruments
granting lands to individuals, besides those in favour of the
church, are extant. These are generally couched in that
h This supposition may plead the folkland alodial ; the second takes folk-
great authorities of Somner and Lye, the land for feudal. I cannot satisfy myself
Anglo-Saxon lexicographers, and appears whether thainland and reveland, which
to me far more probable than the theory occur sometimes in Domesday Book,
of Sir John Dalrymple, in his essay on merely correspond with the other two
Feudal Property, or that of the author of denominations.
a discourse on the Bocland and Folkland ' Wilkins, p. 43, 145. The latter
of the Saxons, 1775, whose name, I think, law is copied from one of Charlemagne's
was Ibbetson. The first of these sup- Capitularies. Baluze, p. 767.
poses bocland to have been feudal, and k [NOTE IX..]
u 2
292 STATE OF EUROPE CHAP. VIII. PART I.
style of full and unconditional conveyance, which is observ-
able in all such charters of the same age upon the continent.
Some exceptions, however, occur ; the lands bequeathed by
Alfred to certain of his nobles were to return to his family
in default of male heirs ; and Hickes is of opinion that the
royal consent, which seems to have been required for the
testamentary disposition of some estates, was necessary on
account of their beneficiary tenure.m
All the freehold lands of England, except some of those
belonging to the church, were subject to three great public
burthens ; military service in the king's expeditions, or at
least in defensive war,n the repair of bridges, and that of
royal fortresses. These obligations, and especially the first,
have been sometimes thought to denote a feudal tenure.
There is, however, a confusion into which we may fall by
not sufficiently discriminating the rights of a king as chief
lord of his vassals, and as sovereign of his subjects. In •
every country, the supreme power is entitled to use the arm
of each citizen in the public defence. The usage of all na-
tions agrees with common reason in establishing this great
principle. There is nothing therefore peculiarly feudal in
this military service of landholders ; it was due from the
alodial proprietors upon the continent, it was derived from
their German ancestors, it had been fixed, probably, by the
legislatures of the Heptarchy upon the first settlement in
Britain.
It is material however to observe that a thane forfeited
his hereditary freehold by misconduct in battle ; a penalty
more severe than was inflicted upon alodial proprietors on
the continent. We even find in the earliest Saxon laws, that
the sithcundman, who seems to have corresponded to the in-
ferior thane of later times, forfeited his land by neglect of
attendance in war ; for which an alodialist in France would
only have paid his heribannum, or penalty.0 Nevertheless,
as the policy of different states may enforce the duties of
m Dissertatio Epistolaris, p. 60. freeholder had to render was of the latter
n This duty is by some expressed kind.
rata expeditio; by others, hostis pro- ° Leges Inge, p. 23. Du Cange, voc.
pulsio, which seems to make no small dif- Heribannum. By the laws of Canute,
ference. But unfortunately, most of the p. 135, a fine only was imposed for this
military service which an Anglo-Saxon offence.
ENGLISH CONST. DUKING THE MIDDLE AGES. 293
subjects by more or less severe sanctions, I do not know
that a law of forfeiture in such cases is to be considered as
positively implying a feudal tenure.
But a much stronger presumption is afforded by passages
that indicate a mutual relation of lord and vassal among
the free proprietors. The most powerful subjects have not
a natural right to the service of other freemen. But in the
laws enacted during the Heptarchy, we find that the sith-
cundman, or petty gentleman, might be dependent on a
superior lord.p This is more distinctly expressed in some
ecclesiastical canons, apparently of the tenth century, which
distinguish the king's thane from the landholder, who de-
pended upon a lord/1 Other proofs of this might be
brought from the Anglo-Saxon laws/ It is not however
sufficient to prove a mutual relation between the higher and
lower order of gentry, in order to establish the existence of
feudal tenures. For this relation was often personal, as I
have mentioned more fully in another place, and bore the
name of commendation. And no nation was so rigorous as
the English in compelling every man, from the king's thane
to the ceorl, to place himself under a lawful superior. Hence
the question is not to be hastily decided on the credit of a few
passages that express this gradation of dependence ; feudal
vassalage, the object of our inquiry, being of a real, not a
personal nature, and resulting entirely from the tenure of
particular lands. But it is not unlikely that the personal
relation of client, if I may use that word, might in a multi-
tude of cases be changed into that of vassal. And certainly
many of the motives which operated in France to produce a
very general commutation of alodial into feudal tenure might
have a similar influence in England, where the disorderly
condition of society made it the interest of every man to
obtain the protection of some potent lord.
The word thane corresponds in its derivation to vassal ;
and the latter term is used by Asserius, the contemporary
biographer of Alfred, in speaking of the nobles of that
prince.8 In their attendance, too, upon the royal court, and
p p. 10, 23. r p. 71, 144, 145.
q Wilkins, p. 101. B Alfredus cum paucis suis nobilibus
294 STATE OF EUKOPE CHAP. VIII. PABT I.
the fidelity which was expected from them, the king's thanes
seem exactly to have resembled that class of followers, who,
under different appellations, were the guards as well as cour-
tiers of the Frank and Lombard sovereigns. But I have
remarked that the word thane is not applied to the whole
body of gentry in the more ancient laws, where the word
eorl is opposed to the ceorl or roturier, and that of sitli-
cundmarf to the royal thane. It would be too much to
infer from the extension of this latter word to a large class
of persons, that we should interpret it with a close attention
to etymology, a very uncertain guide in almost all investi-
gations.
For the age immediately preceding the Norman invasion,
we cannot have recourse to a better authority than Domesday
Book. That incomparable record contains the names of
every tenant, and the conditions of his tenure, under the Con-
fessor, as well as the time of its compilation ; and seems to
give little countenance to the notion, that a radical change in
the system of our laws had been effected during the interval.
In almost every page, we meet with tenants either of the
crown, or of other lords, denominated thanes, freeholders
(liberi homines), or socagers (socmanni). Some of these,
it is stated, might sell their lands to whom they pleased ;
others were restricted from alienation. Some, as it is ex-
pressed, might go with their lands whither they would ; by
which I understand the right of commending themselves to
any patron of their choice. These of course could not be
feudal tenants in any proper notion of that term. Others
could not depart from the lord whom they served ; not cer-
et etiam cum quibusdam militibus et print; but I have found one of Edgar,
Vassallis. p. 166. Mobiles Vassalli Su- A.D. 967. Cod. Diplomat, iii. 11. I think
mertunensis pagi, p. 167. Yet Hickes that Mr. Spence, in the ninth and tenth
objects to the authenticity of a charter chapters of his learned work, has too
ascribed to Edgar, because it contains much blended the Anglo-Saxon mem of a
the word Vassallus, "quam a Nortman- lord with the continental vassal; which
nis Angli habuerunt." Dissertatio Epis- is a petitio principii. Certainly the word
tol. p. 7. was of rare use in England; and the
The word vassattus occurs not only in authenticity of Asserius, whom I have
the suspicious charter of Cenulf, quoted quoted as a contemporary biographer of
in a subsequent note, but in one A.D. 952 Alfred, which is the common opinion, has
(Codex Diplomat, ii. 303), to which I been called in question by Mr. Wright,
was led by Mr. Spence (Equitable Ju- who refers that life to the age of the
risdiction, p. 44), who quotes another Conquest. Archseologia, vol. xxix.
from p. 323, which is probably a mis- * Wilkins, p. 3, 7, 23, &c.
ENGLISH CONST. DURING THE MIDDLE AGES. 295
tainly, that they were personally bound to the soil, but that
so long as they retained it, the seigniory of the superior could
not be defeated.11 But I am not aware that military service
is specified in any instance to be due from one of these
tenants ; though it is difficult to speak as to a negative pro-
position of this kind with any confidence.
No direct evidence appears as to the ceremony of homage
or the oath of fealty before the Conquest. The feudal ex-
action of aid in certain prescribed cases seems to have been
unknown. Still less could those of wardship and marriage
prevail, which were no general parts of the great feudal
system. The English lawyers, through an imperfect ac-
quaintance with the history of feuds upon the continent,
have treated these unjust innovations as if they had formed
essential parts of the system, and sprung naturally from the
relation between lord and vassal. And, with reference to
the present question, Sir Henry Spelman has certainly laid
too much stress upon them in concluding that feudal tenures
did not exist among the Anglo-Saxons, because their lands
were not in ward, nor their persons sold in marriage. But I
cannot equally concur with this eminent person in denying
the existence of reliefs during the same period. If the heriot,
which is first mentioned in the time of Edgar x (though it
may probably have been an established custom long before),
were not identical with the relief, it bore at least a very strong
analogy to it. A charter of Ethelred's interprets one word
by the other/ In the laws of William, which re-enact those
of Canute concerning heriots, the term relief is employed as
synonymous.2 Though the heriot was in later times paid
in chattels, the relief in money, it is equally true that
u It sometimes weakens a proposition, Tres Angli tenuerunt Darneford
which is capable of innumerable proofs, T. R. E. et non poterant ab ecclesia
to take a very few at random; yet the separari. Dud ex iis reddebant v. soli-
following casual specimens will illustrate dos, et tertius serviebat sicut Thainus.
the common language of Domesday p. 68.
Book. Has terras qui tenuerunt T. R. E. qu6
Hsec tria maneria tenuit Ulveva tern- voluerunt ire poterunt, prater unum
pore regis Edwardi et potuit ire cum Seric vocatum, qui in Ragendal tenuit
terra quo volebat. p. 85. iii carucatas terrse; sed non poterat cum
Toti emit- earn T. R. E. (temp, regis ea alicubi recedere. p. 235.
Edwardi) de ecclesia Malmsburiensi ad x Selden's Works, vol ii. p. 1620.
setatem trium hominum; et infra hunc y Hist. Ramseiens., p. 430.
terminum poterat ire cum ea ad quern z Leges Canuti, p. 144. Leges Gu-
vellet domiuum. p. 72. lielnii, p. 223.
296 STATE OF EUROPE CHAP. VIII. PAET I.
originally the law fixed a sum of money in certain cases for
the heriot, and a chattel for the relief. And the most plau-
sible distinction alleged by Spelrnan, that the heriot is by
law due from the personal estate, but the relief from the heir,
seems hardly applicable to that remote age, when the law of
succession as to real and personal estate was not different.
It has been shown in another place, how the right of ter-
ritorial jurisdiction was generally, and at last inseparably,
connected with feudal tenure. Of this right we meet fre-
quent instances in the laws and records of the Anglo-Saxons,
though not in those of an early date. A charter of Edred
grants to the monastery of Croyland soc, sac, toll team and
infangthef ; words which generally went together in the de-
scription of these privileges, and signify the right of holding
a court to which all freemen of the territory should repair,
of deciding pleas therein, as well as of imposing amerce-
ments according to law, of taking tolls upon the sale of
goods, and of punishing capitally a thief taken in the fact
within the limits of the manor.a Another charter from the
Confessor grants to the abbey of Eamsey similar rights over
all who were suitors to the sheriffs court, subject to military
service, and capable of landed possessions ; that is, as I con-
ceive, all who were not in servitude.b By a law ofEthelred
none but the king could have jurisdiction over a royal thane.0
And Domesday Book is full of decisive proofs, that the
English lords had their courts wherein they rendered justice
to their suitors, like the continental nobility; privileges which
are noticed with great precision in that record, as part of the
statistical survey. For the right of jurisdiction at a time
a Ingulfus, p. 35. I do not pretend to Mr. Kemble is of opinion that the
assert the authenticity of these charters, words granting territorial jurisdiction do
which at all events are nearly as old as not occur in any genuine charter before
the Conquest. Hickes calls most of them the Confessor. Codex Diplom. i. 43.
in question. Dissert. Epist. p. 66 ; but They are of constant occurrence in those
some later antiquaries seem to have been of the first Norman reigns. But the
more favourable. Archseologia, vol. xviii. Normans did not understand them, and
p. 49. Nouveau Traite* de Diplomatique, the words are often misspelled. He
t. i. p. 348. thinks, therefore, that the rights were
b Hist. Ramsey, p. 454. older than the Conquest, and accounts
0 p. 118. This is the earliest allusion, for the rare mention of -them by the
if I am not mistaken, to territorial juris- somewhat unsatisfactory supposition that
diction in the Saxon laws. Probably it they were so inherent in the possession
was not frequent till near the end of the of land as not to require particular notice,
tenth century. See Spence, Equit. Juris, pp. 64, 68.
ENGLISH CONST. DURING THE MIDDLE AGES. 297
when punishments were almost wholly pecuniary, was a
matter of property, and sought from motives of rapacity as
well as pride.
Whether therefore the law of feudal tenures can be said to
have existed in England before the Conquest must be left to
every reader's determination. Perhaps any attempt to de-
cide it positively would end in a verbal dispute. In tracing
the history of every political institution, three things are to
be considered, the principle, the form, and the name. The
last will probably not be found in any genuine Anglo-Saxon
record/ Of the form, or the peculiar ceremonies and
incidents of a regular fief, there is some, though not much
appearance. But those who reflect upon the dependence in
which free and even noble tenants held their estates of other
subjects, and upon the privileges of territorial jurisdiction,
will, I think, perceive much of the intrinsic character of the
feudal relation, though in a less mature and systematic shape
than it assumed after the Norman conquest.6
d Feoduin twice occurs in the testa- these were not always feudal, or even
ment of Alfred; but it does not appear hereditary; they were, what was called
to be used in its proper sense, nor do I on the Continent, prsestarise, granted for
apprehend that instrument to have been life or for a certain term ; and this, as
originally written in Latin. It was much it appears to me, may have been the
more consonant to Alfred's practice to proper meaning of the term lam-lands,
employ his own language. But the general tenure of lands was
e It will probably be never disputed still alodial. Taiui lex est, says a cu-
again that lands were granted by a mili- rious document on the rights, that is,
tary tenure before the Conquest. Thus, obligations, of different ranks, published
besides the proofs in the text, in the by Mr. Thorpe,— ut sit dignus rectitu-
laws of Canute (c. 78): — "And the dine testamenti sui (his boc rightes wyrthe,
man who shall flee from his lord or from that is, perhaps, bound to the duties im-
his comrade by reason of his cowardice, plied by the deed which creates his es-
be it in the shipfyrd, be it in the land- tates), — et ut ita faciat pro terra su£,
fyrd, let him forfeit all he owns, and his scilicet expeditionem burhbotam et brig-
own, life; and let the lord seize his pos- botam. Et de multis terris majus landi-
sessions, and his land which he previously rectum exsurgit ad bannum regis, &c.
gave him; and if he have bocland, let p. 185. Here we find the well-known
that go into the king's hands." Ancient trinoda necessitas of alodial land, with
Laws, p. 180. And we read of lands other contingent liabilities imposed by
called hlafordsgifu, lord's gift. Leges grant or usage.*
Ethelred I., Ancient Laws, p. 125. But We may probably not err very muclt
* Mr. Kemble has printed a charter of Cenulf, king of Mercia, to the abbey of
Abingdon, in 820, without the asterisk of spuriousness (Codex Diplom. i. 269);
and it is quoted by Sir F. Palgrave (vol. i. p. 159) in proof of military tenures.
The expression, however, expeditionem cum duodecim vassallis, et totidem scutis
exerceant, seems not a little against its authenticity. The former has observed, that
the testamentary documents before the Conquest, made by men who were under a
superior lord, contain a clause of great interest ; namely, an earnest prayer to the
298
STATE OF EUROPE
CHAP. VIII. PART I.
in supposing that the state of tenures in
England under Canute or the Confessor,
was* a good deal like those in France
under Charlemagne or Charles the Bald,
— an alodial trunk with numerous
branches of feudal benefice grafted into
it. But the conversion of the one mode
of tenure into the other, so frequent
in France, does not appear by evidence
to have prevailed on this side of the
channel.
I will only add here, that Mr. Spence,
an authority of great weight, maintains
a more complete establishment of the
feudal polity before the Conquest than I
have done. p. 48. This is a subject on
which it is hard to lay down a definite
line. But I must protest against my
learned friend's derivation of the feudal
system from " the aristocratic principle
that prevailed in the Roman dominions
while the republic endured, and which
was incorporated with the principles of
despotism introduced during the empire."
It is because the aristocratic principle
could not be incorporated with that of
despotism, that I conceive the feudal
• system to have been incapable of develop-
ment, whatever inchoate rudiments of it
may be traced, until a powerful territo-
rial aristocracy had rendered despotism
no longer possible. [1847.]
lord that he will permit the will to stand according to the disposition of the testator,
coupled not unfrequently with a legacy to him on condition of his so doing, or to
some person of influence about him for intercession on the testator's behalf. And
hence he infers that, "as no man supplicates for that which he is of his own right
entitled to enjoy, it appears as if these great vassals of the crown had not the power
of disposing of their lands and chattels but as the king might permit ; and, in the
strict construction of the bond between the king and them, all that they gained in
his service must be taken to fall into his hands after their death." Introduction to
Cod. Dip. p. 111. This inference seems hardly borne out by the premises : a man
might sometimes be reduced to supplicate a superior for that which he had a right
to enjoy.
ENGLISH CONST. DURING THE MIDDLE AGES. 299
PART II.
THE ANGLO-NOKMAN CONSTITUTION.
The Anglo-Norman Constitution — Causes of the Conquest — Policy and
Character of William — 7m Tyranny — Introduction of Feudal Services —
Difference between the Feudal Governments of France and England —
Causes of the great Power of the' first Norman Kings — Arbitrary Character
of their Government — Great Council — Resistance of the Barons to John —
Magna Charta — its principal Articles — Reign of Henry III. — The Con-
stitution acquires a more liberal Character • — Judicial System of the Anglo-
Normans — Curia Regis, Exchequer, &c. — Establishment of the Common
Law — its Effect infixing the Constitution — Remarks on the Limitation of
Aristocrat ical Privileges in England.
IT is deemed by William of Malmsbury an extraordinary
work of Providence, that the English should have conquest of
given up all for lost after the battle of Hastings, wiiiiam. y
where only a small though brave army had perished.a It
was indeed the conquest of a great kingdom by the prince
of a single province, an event not easily paralleled, where the
vanquished were little, if at all, less courageous than their
enemies, and where no domestic factions exposed the country
to an invader. Yet William was so advantageously situated,
that his success seems neither unaccountable nor any matter
of discredit to the English nation. The heir of the house of
Cerdic had been already set aside at the election of Harold ;
and his youth, joined to a mediocrity of understanding which
excited neither esteem nor fear,b gave no encouragement to
the scheme of placing him upon the throne in those moments
of imminent peril which followed the battle of Hastings.
England was peculiarly destitute of great men. The weak
reigns of Ethelred and Edward had rendered the government
a mere oligarchy, and reduced the nobility into the state of
retainers to a few leading houses, the representatives of
a Malmsbury, p. 53. And Henry of attempts to recover the kingdom, was
Huntingdon says emphatically : Mille- treated by William with a kindness which
simo et sexagesimo sexto anno gratise, could only have proceeded from con-
perfecit dominator Deus de gente An- tempt of his understanding; for he was
glorum quod diu cogitaverat. Genti not wanting in courage. He became the
namque Normannorum asperse et callidse intimate friend of Robert duke of Nor-
tradidit eos ad exterminandum. p. 210. mandy, whose fortunes, as well as charac-
b Edgar, after one or two ineffectual ter, much resembled his own.
300 STATE OF EUROPE CHAP. VIII. PART II.
which were every way unequal to meet such an enemy as
the Duke of Normandy. If indeed the concurrent testimony
of historians does not exaggerate his forces, it may be doubted
whether England possessed military resources sufficient to
have resisted so numerous and well-appointed an army.0
This forlorn state of the country induced, if it did not
justify, the measure of tendering the crown to William,
which he had a pretext or title to claim, arising from the
intentions, perhaps the promise, perhaps even the testament
of Edward, which had more weight in those times than it
deserved, and was at least better than the naked title of con-
quest. And this, supported by an oath exactly similar to
that taken by the Anglo-Saxon kings, and by the assent of
the multitude, English as well as Normans, on the day of
his coronation, gave as much appearance of a regular suc-
cession, as the circumstances of the times would permit.
Those who yielded to such circumstances could not foresee,
and were unwilling to anticipate, the bitterness of that ser-
c It has been suggested, in the second were bound. Nor is it quite accurate
Report of a Committee of the Lords' to speak of a military force then esta-
House on the Dignity of a Peer, to blished in Normandy, or anywhere else,
which I shall have much recourse in the We apply these words to a permanent
following pages,* that ' ' the facility with body always under arms. This was no
which the Conquest had been achieved attribute of feudal tenure, however the
seems to have been, in part, the conse- frequency of war, general or private,
quence of defects in the Saxon Institu- may have enured the tenants by military
tions, and of the want of a military force service to a more habitual discipline than
similar to that which had then been the thanes of England ever knew. The
established in Normandy, and in some adventurers in William's army wei-e from
other parts of the continent of Europe, various countries, and most of them,
The adventurers in the army of William doubtless, had served before, but whether
were of those countries in which such a as hired mercenaries or no, we have pro-
military establishment had prevailed." bably not sufficient means of determining,
p. 24. It cannot be said, I think, that The practice of hiring troops does not at-
there were any manifest defects in the tract the notice of historians,- 1 believe,
Saxon institutions, so far as related to in so early an age. We need not, how-
the defence of the country against inva- ever, resort to this conjecture, since
sion. It was part of the trinoda neces- history sufficiently explains the success
sitas, to which all alodial landholders of William.
* ^This report I generally quote from that printed in 1819; but in 1829 it was
reprinted with corrections. It has been said that these were occasioned by the
strictures of Mr. Allen, in the 35th volume of the Edinburgh Review, not more
remarkable for their learning and acuteness, than their severity on the Report. The
corrections, I apprehend, are chiefly confined to errors of names, dates, and others
of a similar kind, which no doubt had been copiously pointed out. But it has not
appeared to me that the Lords' Committee have altered, in any considerable degree,
the positions upon which the reviewer animadverts. It was hardly, indeed, to be
expected, that the supposed compiler of the Report, the late Lord Redesdale, having
taken up his own line of opinion, would abandon it on the suggestions of one whose
comments, though extremely able, and often, in the eyes of many, well-founded,
are certainly not couched in the most conciliatory or respectful language.
ENGLISH CONST. DURING THE MIDDLE AGES. 301
vitude which William and his Norman followers were to
bring upon their country.
The commencement of his administration was tolerably
equitable. Though many confiscations took place, ms conduct
• i A • n A i TVT ,1 at firs* m°-
in order to gratify the .Norman army, yet the mass derate.
of property was left in the hands of its former possessors.
Offices of high trust were bestowed upon Englishmen, even
upon those whose family renown might have raised the most
aspiring though ts.d But partly though the inso- it becomes
1 J • • j.' J? ^r-ir > TVT 1 more ty-
lence and injustice of Williams .Norman vassals, raunicai.
partly through the suspiciousness natural to a man conscious
of having overturned the national government, his yoke soon
became more heavy. The English were oppressed ; they
rebelled, were subdued, and oppressed again. All their
risings were without concert, and desperate ; they wanted
men fit to head them, and fortresses to sustain their revolt.6
After a very few years, they sank in despair, and yielded for
a century to the indignities of a comparatively small body
of strangers without a single tumult. So possible is it for a
nation to be kept in permanent servitude, even without losing
its reputation for individual courage, or its desire of freedom !f
d Ordericus Vitalis, p. 520 (in Du les Normands, vol. ii. p. 168. Turner
Chesne, Hist. Norm. Script.). had given it in some detail from the
e Ordericus notices the want of castles former. Hereward ultimately made his
in England, as one reason why rebellions peace with William, and recovered his
were easily quelled, p. 511. Failing in estate. According to Ingulfus he died
their attempts at a generous resistance, peaceably, and was buried at Croyland;
the English endeavoured to get rid of according to Gaimar, he was assassinated
their enemies by assassination, to which in his house by some Normans. The
many Normans became victims. William latter account is confirmed by an early
therefore enacted, that in every case of chronicler, from whom an extract is given
murder, which strictly meant the killing by Mr. Wright. A more detailed me-
of any one by an unknown hand, the moir of Hereward (De Gestis Herewardi
hundred should be liable in a fine, unless Saxonis) is found in the chartulary of
they could prove the person murdered Swaffham Abbey, now preserved in Pe-
to be an Englishman. This was tried by terborough cathedral, and said to be as
an inquest, upon what was called a pre- old as the twelfth century. Mr. Wright
sentment of Englishry. But from the published it in 1838, from a copy in the
reign of Henry II., the two nations library of Trinity College, Cambridge,
having been very much intermingled, If the author is to be believed, he had
this inquiry, as we learn from the Dia- conversed with some companions of
logue de Scaccario, p. 26, ceased; and Hereward. But such testimony is often
in every case of a freeman murdered by feigned by the mediaeval semiromancers.
persons unknown, the hundred was fined. Though the writer appears to affect a
See however Bracton, 1. iii. c. 15. different origin, he is too full of Anglo-
f The brave resistance of Hereward in Saxon sympathies to be disguised; and,
the fens of Lincoln and Cambridge is in fact, he has evidently borrowed greatly
well told by M. Thierry, from Ingulfus from exaggerated legends, perhaps me-
and Gaimar. Conquete d'Anglet. par trical, current among the English, as to
302 STATE OF EUROPE CHAP. VIII. PART IT.
The tyranny of William displayed less of passion or
insolence than of that indifference about human suffering,
which distinguishes a cold and far-sighted statesman. Im-
pressed by the frequent risings of the English at the com-
mencement of his reign, and by the recollection, as one
historian observes, that the mild government of Canute had
only ended in the expulsion of the Danish line,8 he formed
the scheme of riveting such fetters upon the conquered
nation, that all resistance should become impracticable.
Those who had obtained honourable offices were successively
deprived of them ; even the bishops and abbots of English
birth were deposed ;h a stretch of power very singular
in that age. Morcar, one of the most illustrious English,
suffered perpetual imprisonment. Waltheoff, a man of
equally conspicuous birth, lost his head upon a scaffold by
a very harsh if not iniquitous sentence. It was so rare in
those times to inflict judicially any capital punishment upon
persons of such rank, that his death seems to have produced
more indignation and despair in England than any single
circumstance. The name of Englishman was turned into a
the early life of Hereward, to which In- St. Alphage : names, it must be owned —
gulfus, or whoever personated him, cur- "That would have made Quintilian
sorily alludes. stare and gasp."
g Malmsbury, p. 104. We may judge what the eminent native
h Hoveden, p. 453. This was done of Pavia thought of such a hagiology.
with the concurrence and sanction of the The English Church found herself, as
pope, Alexander II., so that the stretch it were, with an attainted peerage. But
of power was by Rome rather than by the calendar withstood these innovations.
William. It must pass for a gross viola- Mr. Turner, in his usual spirit of pa-
tion of ecclesiastical as well as of national negyric, says: — "He (William) made
rights, and Lanfranc cannot be reckoned, important changes among the English
notwithstanding his distinguished name, clergy ; he caused Stigand and others to
as any better than an intrusive bishop, be deposed, and he filled their places with
He showed his arrogant scorn of the men from Normandy and France, who
English nation in another and rather a were distinguished by the characters of
singular manner. They were excessively piety, decorous morals, and a love of lite-
proud of their national saints, some of rature. This measure was an important
whom were little known, .and whose bar- addition to the civilization of the island,"
barous names disgusted Italian ears. &c. Hist, of England, vol. i. p. 104.
" Angli inter quos vivimus," said the fo- Admitting this to be partly true, though
reign priests, " quosdam sibi institueruut he would have found by no means so fa-
sanctos, quorum incerta sunt merita." vourable an account of the Norman pre-
This might be true enough ; but the lates in Ordericus Vitalis, if he had read
same measure should have been meted to a few pages beyond the passages to which
others. Thierry, vol. ii. p. 158, edit, he refers, is it consonant to historical jus-
1830. The Norman bishops, and the tice that a violent act, like the deposition
primate especially, set themselves to dis- of almost all the Anglo-Saxon hierarchy,
parage, and in fact to dispossess, St. Aid- should be spoken of in a tone of praise,
helm, St. Elfig, and, for aught we know, which the whole tenor of the paragraph
St. Swithin, St. Werburg, St. Ebb, and conveys?
ENGLISH CONST. DUEING THE MIDDLE AGES.
303
reproach. None of that race for a hundred years were
raised to any dignity in the state or church.1 Their lan-
guage and the characters in which it was written were re-
jected as barbarous ; in all schools, if we trust an authority
often quoted, children were taught French, and the laws
were administered in no other tongue.k It is well known,
that this use of French in all legal proceedings lasted till the
reign of Edward III. Several English nobles, desperate of
the fortunes of their country, sought refuge in the court
of Constantinople, and approved their valour in the wars of
Alexius against another Norman conqueror scarcely less
celebrated than their own, Robert Guiscard. Under the
name of Varangians, those true and faithful supporters of
the Byzantine empire preserved to its dissolution their
ancient Saxon idiom.m
' Becket is said to have been the first
Englishman who reached any consider-
able dignity. Lord Lyttelton's Hist, of
Henry II. vol. ii. p. 22. And Eadmer
declares that Henry I. would not place
a single Englishman at the head of a
monastery. Si A.nglus erat, nulla virtus,
ut honore aliquo dignus j udicaretur, eum
poterat adjuvare. p. 110.
k Ingulfus, p. 61. Tantum tune An-
glicos abominati sunt, ut quantocunque
merito pollerent, de dignitatibus repelle-
bantur ; et multo minus habiles alieni-
gense de quacunque alia nations, quse
sub coelo est, extitissent, gratanter assu-
merentur. Ipsum etiam idioma tantum
abhorrebant, quod leges terrae, statutaque
Anglicorum regum lingua Gallica trac-
tarentur; et pueris etiam in scholis prin-
cipia literarum grammatica Gallice, ac
non Anglice traderentur; modus etiam
scribendi Anglicus omitteretur, et modus
Gallicus in chartis et in libris omnibus
admitteretur.
But the passage in Ingulfus, quoted
in support of this position, has been
placed by Sir F. Palgrave among the
proofs that we have a forgery of the four-
teenth century in that historian, the facts
being in absolute contradiction to him.
" Before the reign of Henry III., we
cannot discover a deed or law drawn or
composed in French. Instead of prohi-
biting the English language, it was em-
ployed by the Conqueror and his succes-
sors in their charters until the reign of
Henry II., when it was superseded not
by the French, but by the Latin lan-
guage, which had been gradually gaining
or rather regaining ground." Edinb.
Rev. xxxiv. 262. "The Latin language
had given way in a great measure, from
the time of Canute, to the vernacular
Anglo-Saxon. Several charters in the
latter language occur before; but for
fifty years ending with the Conquest, out
of 254 (published in the fourth volume
of the Codex Diplomaticus), 137 are in
Anglo-Saxon, and only 117 in Latin."
Kemble's Preface, p, 6.
If I have rightly translated, in the
text of Ingulfus, leges tractarcntur by
administered, the falsehood is manifest;
since the laws were administered in the
county and hundred courts, and certainly
not there in French. I really do not
perceive how this passage could have
been written by Ingulfus, who must
have known the truth; at all events,
his testimony must be worth little on
any subject, if he could so palpably mis-
represent a matter of public notoriety.
The supposition of entire forgery is one
which we should not admit without full
proof; but, in this instance, there are
perhaps fewer difficulties on this side
than on that of authenticity.
m Gibbon, vol. x. p. 223. No writer,
except perhaps the Saxon Chronicler, is
so full of William's tyranny as Ordericus
Vitalis. See particularly pp. 507, 512,
514, 521, 523, in Du Chesne, Hist.
Norm. Script. Ordericus was an En-
glishman, but' passed at ten years old,
304
STATE OF EUROPE CHAP. VIII. PART II.
An extensive spoliation of property accompanied these
revolutions. It appears by the great national survey of
Domesday Book, completed near the close of the Conqueror's
reign,11 that the tenajits in capite of the crown were generally
foreigners. Undoubtedly there were a few left in almost every
county, who still enjoyed the estates which they held under
Edward the Confessor, free from any superiority but that of
the crown, and were denominated, as in former times, the
king's thanes.0 Cospatric, son perhaps of one of that name
who had possessed the earldom of Northumberland, held
forty-one manors in Yorkshire, though many of them are
stated in Domesday to be waste. But inferior freeholders
were much less disturbed in their estates than the higher
class. Brady maintains that the English had suffered univer-
sally a deprivation of their lands. But the valuable labours
of Sir Henry Ellis, in presenting us with a complete analysis
of Domesday Book, afford an opportunity, by his list of mesne
tenants at the time of the survey, to form some approximation
to the relative numbers of English and foreigners holding
manors under the immediate vassals of the crown. The
baptismal names (there are rarely any others) are not always
conclusive ; but, on the whole, we learn by a little practice
A.D. 1084, into Normandy, where he
became professed in the monastery of Eu.
Ibid. p. 924.
n The regularity of the course adopted
when this record was compiled, is very
remarkable; and affords a satisfactory
proof that the business of the government
was well conducted, and with much less
rudeness than is usually supposed. The
commissioners were furnished with inter-
rogatories, upon which they examined
the jurors of the shire and hundred, and
also such other witnesses as they thought
expedient.
Hie subscribitur inquisicio terrarum
quomodo Barones Reges inquirunt, vide-
licet, per sacramentum vicecomitis Scirse
et omnium Baronum et eorum Franci-
genarum et tocius centuriatus — presbi-
teri praepositi VI villani uniuscuj usque
villae [sic]. — Deinde quomodo vocatur
mansio, quis tenuit earn tempore Regis
Edwardi, quis modo tenet, quot hidse,
quot carrucatae in domino, quot homines,
quot villani, quot cotarii, quot servi,
quot liberi homines, quot sochemanni,
quantum silvae, quantum prati, quot
pascuorum, quot molidenee, quot piscinae,
quantum est additum vel ablatum, quan-
tum valebat tot urn simul; et quantum
modo; quantum ibi quisque liber homo
vel sochemanus habuit vel habet. Hoc
totum tripliciter, scilicet tempore Regis
JEdwardi; et quando Rex Willielmus
dedit ; et quomodo sit modo, et si plus
potest haberi quam habeatur. Isti ho-
mines jura verunt (then follow the names).
Inquisitio Eliensis, p. 497. Palgrave,
ii. 444.
0 Brady, whose unfairness always
keeps pace with his ability, pretends that
all these were menial officers of the king's
household. But notwithstanding the
difficulty of disproving these gratuitous
suppositions, it is pretty certain, that
many of the English proprietors in
Domesday could not have been of this
description. See p. 99, 153, 218, 219,
and other places. The question, how-
ever, was not worth a battle, though it
makes a figure in the controversy of
Normans and Anti-Normans, between
Dugdale and Brady on the one side, and
Tyrrell, Petyt, and Attwood on the
other.
ENGLISH CONST. DURING THE MIDDLE AGES. 305
to distinguish the Norman from the Anglo-Saxon. It would
be manifest, by running the eye over some pages of this list,
how considerably mistaken is the supposition, that few of
English birth held entire manors. Though I will not now
affirm or deny that they were a majority, they form a large
proportion of nearly 8000 mesne tenants,p who are summed
up by the diligence of Sir Henry Ellis. And we may pre-
sume that they were in a very much greater proportion
among the "liberi homines," who held lands, subject only
to free services, seldom or never very burthensome. It may
be added that many Normans, as we learn from history, mar-
ried English heiresses, rendered so frequently, no doubt, by
the violent deaths of their fathers and brothers, but still
transmitting ancient rights, as well as native blood, to their
posterity.
This might induce us to suspect, that great as the spolia-
tion must appear in modern times, and almost completely as
the nation was excluded from civil power in the common-
wealth, there is some exaggeration in the language of those
writers, who represent them as universally reduced to a state
of penury and servitude. And this suspicion may be in some
degree just. Yet these writers, and especially the most
English in feeling of them all, M. Thierry, are warranted by
the language of contemporary authorities. An important
passage in the Dialogus de Scaccario, written towards the
end of Henry III.'s reign, tends greatly to diminish the
favourable impression which the Saxon names of so many
mesne tenants in Domesday Book would create. If we may
trust Gervase of Tilbury, author of this little treatise, the
estates of those who had borne arms against William were
alone confiscated ; though the others were subjected to the
feudal superiority of a Norman lord. But when these lords
abused their power to dispossess the native tenants, a clamour
was raised by the English, and complaint made to the king ;
by whom it was ordered (if we rightly understand a pas-
sage not devoid of obscurity) that the tenant might make a
bargain with his lord, so as to secure himself in possession ;
p Ellis's Introduction to Domesday, amounted scarcely to 1400; the under-
yol. ii. p. 811. "The tenants in capite, tenants were 7871."
including ecclesiastical corporations, ; %, >-
VOL. II. X
306 STATE OF EUKOPE CHAP. VIII. PART II.
but that none of the English should have any right of suc-
cession, a fresh agreement with the lord being required on
every change of tenancy. The Latin words will be found
below.q This, as here expressed, suggests something like
an uncertain relief at the lord's will, and paints the condition
of the English tenant as wretchedly dependent. But an in-
strument published by Spelman, and which will be found in
Wilkins, Leg. Aug. Sax. p. 287, gives a more favourable
view, and asserts that William permitted those who had
taken no part against him to retain their lands ; though it
appears by the very same record that the Normans did not
much regard the royal precept.
But whatever may have been the legal condition of the
English mesne tenant, by knight-service or socage, for the
case of villeins is of course not here considered during the
first two Norman reigns, it seems evident that he was pro-
tected by the charter of Henry I. in the hereditary possession
of his lands, subject only to a " lawful and just relief
towards his lord." For this charter is addressed to all the
liege men of the crown, " French and English ;" and pur-
ports to abolish all the evil customs by which the kingdom
had been oppressed, extending to the tenants of the barons
as well as those of the crown. We cannot reasonably con-
strue the language in the Dialogue of the Exchequer, as if
in that late age the English tenant had no estate of fee-
simple. If this had been the case, there could not have been
q Post regni conquisitionem, post jus- dominis suis odiosi passim a possessioni-
tam rebellium subversionem, cum rex bus pellerentur, nee esset qui ablatis re-
ipse regisque proceres loca nova perlus- stituerit, communis indigenarum ad re-
trarent, facta est inquisitio diligens, qui gem pervenit querimonia, quasi sic om-
fuerunt qui contra regem in bello dimi- nibus exosi et rebus spoliatis ad alienige-
cantes per fugani se salvaverant. His nas transire cogerentur. Communicate
omnibus et item hseredibus eorum qui tantum super his consilio, decretum est,
in bello occubuerant, spes omnis terra- ut quod a dominis suis exigentibus meritis
rum et fundorum atque redituum quos interveniente pactione legitima poterant
ante possederant, praeclusa est ; magnum obtinere, illis inviolabilis jure concede-
nanique reputabant frui vitae beneficio rentur; caeterum autem nomine succes-
sub inimicis. Verum qui vocati ad bel- sionis a temporibus subactae gentis nihil
lum necdurn convenerant, vel familiari- sibi vindicarent Sic igitur quis-
bus vel quibuslibet necessariis occupati quis de gente subacta fundos vel aliquid
negotiis non interfuerant, cum tractu hujusmodi possidet, non quod ratione
temporis devotis obsequiis gratiam do- successions deberi sibi videbatur, adeptus
minorum possedissent sine spe succes- est; sed quod solummodo meritis suis
sionis, filii tantum pro voluptate [sic. vo- exigentibus, vel aliqua pactione interve-
luntate?] tamen dominorum possidere niente, obtinuit. Dial, de Scaccario,
cceperunt succedente vero tempore cum c. 10.
ENGLISH CONST. DURING THE MIDDLE AGES. 307
the difficulty, which he mentions in another place, of distin-
guishing among freemen or freeholders (liberi homines) the
Norman blood from the Englishman, which frequent inter-
marriage had produced. He must, we are led to think,
either have copied some other writer, or made a careless and
faulty statement of his own. But, at the present, we are
only considering the state of the English in the reign of the
Conqueror. And here we have, on the one hand, a manifest
proof from the Domesday record, that they retained the usu-
fruct, in a very great measure, of the land ; and on the
other, the strong testimony of contemporary historians to the
spoliation and oppression which they endured. It seems on
the whole most probable that, notwithstanding innumerable
acts of tyranny, and a general exposure to contumely and
insolence, they did in fact possess what they are recorded to
have possessed by the Norman Commissioners of 1085.
The vast extent of the Norman estates in capite is apt to
deceive us. In reading of a baron who held forty or fifty
or one hundred manors, we are prone to fancy his wealth
something like what a similar estate would produce at this
day. But if we look at the next words, we shall continually
find that some one else held of him ; and this was a holding
by knight's service, subject to feudal incidents no doubt, but
not leaving the seigniory very lucrative, or giving any right
of possessory ownership over the land. The real possessions
of the tenant of a manor, whether holding in chief or not,
consisted in the demesne lands, the produce of which he ob-
tained without cost by the labour of the villeins, and in what-
ever other payments they might be bound to make in money
or kind. It will be remembered, what has been more than
once inculcated, that at this time the villani and bordarii, that
is, ceorls, were not like the villeins of Bracton and Littleton,
destitute of rights in their property ; their condition was
tending to the lower stage, and with a Norman lord they
were in much danger of oppression ; but they were " law
worthy," they had a civil status (to pass from one technical
style to another) for a century after the Conquest.
Yet I would not extenuate the calamities of this great re-
volution, true though it be that much good was brought out
of them, and that we owe no trifling part of what inspires
x 2
308 STATE OF EUKOPE CHAP. VIII. PART II.
self-esteem to the Norman element of our population and our
polity. England passed under the yoke; she endured the
arrogance of foreign conquerors ; her children, even though
their loss in revenue may have been exaggerated, and still it
was enormous, became a lower race, not called to the coun-
cils of their sovereign, not sharing his trust or his bounty.
They were in a far different condition from the provincial
Romans after the conquest of Gaul, even if, which is hardly
possible to determine, their actual deprivation of lands should
have been less extensive. For not only they did not for
several reigns occupy the honourable stations which some-
times fell to the lot of the Roman subject of Clovis or Alaric,
but they had a great deal more freedom and importance to
lose. Nor had they a protecting church to mitigate bar-
barous superiority ; their bishops were degraded and in
exile ; the footstep of the invader was at their altars ; their
monasteries were plundered, and the native monks insulted.
Rome herself looked with little favour on a church which
had preserved some measure of independence. Strange
contrast to the triumphant episcopate of the Merovingian
kings ! r
Besides the severities exercised upon the English after
Devastation every insurrection, two instances of William's un-
anlNewhire sparing cruelty are well known, the devastation of
Yorkshire and of the New Forest. In the former,
which had the tyrant's plea, necessity, for its pretext, an in-
vasion being threatened from Denmark, the whole country
between the Tyne and the Humber was laid so desolate that
for nine years afterwards there was not an inhabited village,
and hardly an inhabitant left ; the wasting of this district
having been followed by a famine, which swept away the
whole population.8 That of the New Forest, though un-
doubtedly less calamitous in its effects, seems even more
monstrous from the frivolousness of the cause.1 He afforested
r The oppression of the English du- s Malmsbury, p. 103. Hoveden, p. 451.
ring the first reigns after the Conquest is Orderic. Vitalis, p. 514. The desolation
fully described by the Norman historians of Yorkshire continued in Malmsbury's
themselves, as well as by the Saxon time, sixty or seventy years afterwards;
chronicle. Their testimonies are well nudum omnium solum usque ad hoc
collected by M. Thierry, in the second etiam tempus.
volume of his valuable history. * Malmsbury, p. 111.
ENGLISH CONST. DURING THE MIDDLE AGES.
309
several other tracts. And these favourite demesnes of the
Norman kings were protected by a system of iniquitous and
cruel regulations, called the Forest Laws, which it became
afterwards a great object with the assertors of liberty to
correct. The penalty for killing a stag or a boar was loss
of eyes : for William loved the great game, says the Saxon
Chronicle, as if he had been their father.11
A more general proof of the ruinous oppression of William
the Conqueror may be deduced from the compara- Pro0fSofde-
tive condition of the English towns in the reign of S Domnes-
Edward the Confessor, and at the compilation of dayBook-
Domesday. At the former epoch there were in York 1607
inhabited houses, at the latter 967 ; at the former there were
in Oxford 721, at the latter 243 ; of 172 houses in Dor-
chester, 100 were destroyed; of 243 in Derby, 103; of
487 in Chester, 205. Some other towns had suffered less,
but scarcely any one fails to exhibit marks of a decayed
population. As to the relative numbers of the peasantry and
value of lands at these two periods, it would not be easy to
assert anything without a laborious examination of Domes-
day Book.*
u Chron. Saxon, p. 191. M. Thierry
conjectures that these severe regulations
had a deeper motive than the mere pre-
servation of game, and were intended to
prevent the English from assembling in
arms on pretence of the chase. Vol. ii.
p. 257. But perhaps this is not neces-
sary. We know that a disproportionate
severity has often guarded the beasts and
birds of chase from depredation.
Allen admits (Edinbui'gh Eev. xxvi.
355) that the forest laws seem to have
been enacted by the king's sole autho-
rity^ or, as we may rather say, that they
were considered as a part of his preroga-
tive. The royal forests were protected
by extraordinary penalties even before
the Conquest. " The royal forests were
part of the demesne of the crown. They
were not included in the territorial divi-
sions of the kingdom, civil or ecclesias-
tical, nor governed by the ordinary courts
of law, but were set apart for the recrea-
tion and diversion of the king, as waste
lands, which he might use and dispose of
at pleasure." ' ' Forestae," says Sir Henry
Spelman, "neo villas proprie accepere,
uec parochias, uec de corpore alicujus
comitatus vel episcopates habitse sunt,
sed extraneum quiddam et feris datum,
ferino jure, non civili, non municipal!
fruebantur; regem in omnibus agnos-
centes dominum unicum et ex arbitrio
disponentem." Mr. Allen quotes after-
wards a passage from the "Dialogus
de Scaccario," which indicates the pecu-
liarity of the forest laws. " Forestarum
ratio, pcena quoque vel absolutio delin-
quentium in eas, sive pecuniaria fuerit
sive corporalis, seorsim ab aliis regni ju-
diciis secernitur, et solius regis arbitrio,
vel cujuslibet familiaris ad hoc specialiter
deputati subjicitur. Legibus quidem
propriis subsistit; quas non communi
regni jure, sed voluntaria principum in-
stitutione subnixas dicunt." The forests
were, to use a word in rather an op-
posite sense to the usual, an oasis of
despotism in the midst of the old com-
mon law.
x The population recorded in Domes-
day is about 283,000; which, in round
numbers, allowing for women and chil-
dren, may be called about a million.
Ellis's Introduction to Domesday, vol. ii.
p. 511.
310 STATE OF EUROPE CHAP. VIII. PART II.
The demesne lands of the crown, extensive and scattered
Domains of over every county, were abundantly sufficient to
the crown. SUppOrt its dignity and magnificence;7 and William,
far from wasting this' revenue by prodigal grants, took care
to let them at the highest rate to farm, little caring how
much the cultivators were racked by his tenants.2 Yet his
exactions, both feudal and in the way of tallage from his
burgesses and the tenants of his vassals, were almost as
violent as his confiscations. No source of income was neg-
lected by him, or indeed by his successors, however trifling,
Riches of the unjust, or unreasonable. His revenues, if we could
conqueror. tmst Qr(]ericus Vitalis, amounted to 1060/. a day.
This, in mere weight of silver, would be equal to nearly
1,200,000/. a year at present. But the arithmetical state-
ments of these writers are hot implicitly to be relied upon.
He left at his death a treasure of 60,000/., which, in con-
formity to his dying request, his successor distributed among
the church and poor of the kingdom, as a feeble expiation of
the crimes by which it had been accumulated ;a an act of
disinterestedness, which seems to prove that Rufus, amidst
all his vices, was not destitute of better feelings than histo-
rians have ascribed to him. It might appear that William
had little use for his extorted wealth. By the feudal con-
stitution, as established during his reign, he commanded the
service of a vast army at his own expense, either for domestic
Hismerce- or continental warfare. But this was not sufficient
nary troops. for kis pUrpOse . \{^Q other tyrants, he put greater
trust in mercenary obedience. Some of his predecessors had
kept bodies of Danish troops in pay ; partly to be secure
against their hostility, partly from the convenience of a re-
gular army, and the love which princes bear to it. But
William carried this to a. much greater length. He had
always stipendiary soldiers at his command. Indeed his
army at the Conquest could not have been swollen to such
numbers by any other means. They were drawn, by the
allurement of high pay, not from France and Brittany alone,
7 They consisted of 1422 manors, into William's mouth on his deathbed.
Lyttelton's Henry II. vol. ii. p. 288. p. 66. Though this may be his inven-
z Chron. Saxon, p. 188. tion, yet facts seem to show the com-
a Huntingdon, p. 371. Ordericus punction of the tyrant's conscience.
Vitalis puts a long penitential speech
ENGLISH CONST. DUKING- THE MIDDLE AGES. ^ 311
but Flanders, Germany, and even Spain. When Canute of
Denmark threatened an invasion in 1085, William, too con-
scious of his own tyranny to use the arms of his English
subjects, collected a mercenary force so vast, that men won-
dered, says the Saxon Chronicler, how the country could
maintain it. This he quartered upon the people, according
to the proportion of their estaest.b
Whatever may be thought of the Anglo-Saxon tenures,
it is certain that those of the feudal system were Feudal sys.
thoroughly established in England under the Con- beiMied.a~
queror. It has been observed, in another part of this work,
that the rights, or feudal incidents, of wardship and marriage
were more common in England and Normandy than in the
rest of France. They certainly did not exist in the former
before the conquest ; but whether they were ancient customs
of the latter cannot be ascertained, unless we had more in-
contestable records of its early jurisprudence. For the
Great Customary of Normandy is a compilation as late as
the reign of Eichard Coeur de Lion, when the laws of Eng-
land might have passed into a country so long and intimately
connected with it. But there appears reason to think, that
the seizure of the lands in wardship, the selling of the heiress
in marriage, were originally deemed rather acts of violence
than conformable to law. For Henry I.'s charter expressly
promises that the mother, or next of kin, shall have the cus-
tody of the lands as well as person of the heir.0 And as
the charter of Henry II. refers to and confirms that of his
grandfather, it seems to follow, that what is called guardian-
ship in chivalry had not yet been established. At least it is
not till the assize of Clarendon, confirmed at Northampton in
1 176,d that the custody of the heir is clearly reserved to the
lord. With respect to the right of consenting to the mar-
riage of a female vassal, it seems to have been, as I have
elsewhere observed, pretty general in feudal tenures. But
b Chron. Saxon, p. 185. Ingulfus, similiter se contineant ergk filios vel
p. 79. filiasveluxoreshominummeorum. Leges
c Terrse et liberorum custos erit sive Anglo-Saxonicse, p. 234.
uxor, si ve all us propinquorum, qui Justus d Leges Anglo -Saxonicse, p. 330.
esae debebit; et prsecipio ut baronesmei
312 STATE OF EUROPE CHAP. VIII. PAKT II.
the sale of her person in marriage, or the exaction of a sum
of money in lieu of this scandalous tyranny, was only the
law of England, and was not perhaps fully authorized as such
till the statute of Merton in 1236.
One innovation made by William upon the feudal law is
very deserving of attention. By the leading principle of
feuds, an oath of fealty was due from the vassal to the lord
of whom he immediately held his land, and to no other.
The king of France, long after this period, had no feudal
and scarcely any royal authority over the tenants of his own
vassals. But William received at Salisbury, in 1085, the
fealty of all landholders in England, both those who held in
chief, and their tenants ;e thus breaking in upon the feudal
compact in its most essential attribute, the exclusive de-
pendence of a vassal upon his lord. And this may be
reckoned among the several causes which prevented the con-
tinental notions of independence upon the crown from ever
taking root among the English aristocracy.
The best measure of William was the establishment of
preservation public peace. He permitted no rapine but his own.
peE. 1C The feuds of private revenge, the lawlessness of
robbery, were repressed. A girl laden with gold, if we be-
lieve some ancient writers, might have passed safely through
the kingdom/ But this was the tranquillity of an im-
perious and vigilant despotism, the degree of which maybe
measured by these effects, in which no improvement of civil-
ization had any share. There is assuredly nothing to wonder
at in the detestation with which the English long regarded
the memory of this tyrant.8 Some advantages undoubtedly,
in the course of human affairs, eventually sprang from the
Norman conquest. The invaders, though without perhaps
e Chron. Saxon, p. 187. The oath of p. 10. I will not omit one other circum-
allegiance or fealty, for they were in spirit stance, apparently praiseworthy, which
the same, had been due to the king before Ordericus mentions of William, that he
the Conquest; we find it among the laws tried to learn English, in order to render
of Edmund. Allen's Inquiry, p. 68. It justice by understanding every man's
was not, therefore, likely that William complaint, but failed on account of his
would surrender such a tie upon his sub- advanced age. p. 520. This was in the
jects. But it had also been usual in early part of his reign, before the reluc-
France under Charlemagne, and perhaps tance of the English to submit had exas-
later. perated his disposition.
' Chron. Saxon, p. 190. M. Paris, 8 W. Malmsb. Prgef. ad 1. iii.
ENGLISH CONST. DURING THE MIDDLE AGES. 313
any intrinsic superiority in social virtues over the native
English, degraded and barbarous as these are represented to
us, had at least that exterior polish of courteous and chivalric
manners, and that taste for refinement and magnificence,
which serve to elevate a people from mere savage rudeness.
Their buildings, sacred as well as domestic, became more
substantial and elegant. The learning of the clergy, the
only class to whom that word could at all be applicable,
became infinitely more respectable in a short time after the
Conquest. And though this may by some be ascribed to the
general improvements of Europe in that point during the
twelfth century, yet I think it was partly owing to the more
free intercourse with France and the closer dependence upon
Rome, which that Revolution produced. This circumstance
was, however, of no great moment to the English of those
times, whose happiness could hardly be effected by the
theological reputation of Lanfranc and Anselm. Perhaps the
chief benefit which the natives of that generation derived
from the government of William and his successors, next
to that of a more vigilant police, was the security they found
from invasion on the side of Denmark and Norway. The
high reputation of the Conqueror and his sons, with the re-
gular organization of a feudal militia, deterred those pre-
datory armies, which had brought such repeated calamity
on England in former times.
The system of feudal policy, though derived to England
from a French source, bore a very different appear- Difference
• ,T ' • TI ^ /» i , between the
ance in the two countries. France, for about two feudal poncy
centuries after the house of Capet had usurped the SuiSSSl
throne of Charlemagne's posterity, could hardly be deemed
a regular confederacy, much less" an entire monarchy. But
in England, a government, feudal indeed in its form, but
arbitrary in its exercise, not only maintained subordination,
but almost extinguished liberty. Several causes seem to
have conspired towards this radical difference. In the first
place, a kingdom, comparatively small, is much more easily
kept under control than one of vast extent. And the fiefs
of Anglo-Norman barons after the Conquest were far less
considerable, even relatively to the size of the two countries,
than those of France. The earl of Chester held, indeed,
314 STATE OF EUROPE CHAP. VIII. PART II.
almost all that county ;h the earl of Shrewsbury nearly the
whole of Salop. But these domains bore no comparison
with the dukedom of Guienne, or the county of Toulouse.
In general the lordships of William's barons, whether this
were owing to policy or accident, were exceedingly dispersed.
Robert earl of Mpreton, for example, the most richly en-
dowed of his followers, enjoyed 248 manors in Cornwall,
54 in Sussex, 196 in Yorkshire, 99 in Northamptonshire,
besides many in other counties.1 Estates so disjoined, how-
ever immense in their aggregate, were ill calculated for sup-
porting a rebellion. It is observed by Madox, that the
knight's fees of almost every barony were scattered over
various counties.
In the next place, these baronial fiefs were held under an
actual derivation from the crown. The great vassals of
France had usurped their dominions before the accession of
Hugh Capet, and barely submitted to his nominal sovereignty.
They never intended to yield the feudal tributes of relief and
aid, nor did some of them even acknowledge the supremacy
of his royal jurisdiction. But the Conqueror and his suc-
cessors imposed what conditions they would upon a set of
barons who owed all to their grants ; and as mankind's
notions of right are generally founded upon prescription,
these peers grew accustomed to endure many burthens, re-
luctantly indeed, but without that feeling of injury which
would have resisted an attempt to impose them upon the
vassals of the French crown. For the same reasons, the
barons of England were regularly summoned to the great
council, and by their attendance in it, and concurrence in
the measures which were there resolved upon, a compact-
ness and unity of interest was given to the monarchy which
was entirely wanting in that of France.
h This was, upon the whole, more the country between the Mersey and
like a great French fief than any English Kibble. Several eminent men inherited
earldom. Hugh de Abrincis, nephew the earldom ; but upon the death of the
of William I., had barons of his own, most distinguished, Eanulf, in 1232, it
one of whom held forty-six and another fell into a female line, and soon escheated
thirty manors. Chester was first called to the crown. Dugdale's Baronage,
a county-palatine under Henry II. ; but p. 45. Lyttelton's Henry II., vol. ii.
it previously possessed all regalian rights p. 218.
of jurisdiction. After the forfeitures of J Dugdale's Baronage, p. 25.
the house of Montgomery, it acquired all
ENGLISH CONST. DURING THE MIDDLE AGES. 315
We may add to the circumstances that rendered the crown
powerful during the first centuryafter the Conquest, Hatred of
an extreme antipathy of the native English towards No^Ls.0
their invaders. Both William Rufus and Henry I. made
use of the former to strengthen themselves against the
attempts of their brother Robert ; though they forgot their
promises to the English after attaining their object .k A fact,
mentioned by Ordericus Vitalis, illustrates the advantage
which the government found in this national animosity.
During the siege of Bridgenorth, a town belonging to Robert
de Belesme, one of the most turbulent and powerful of the
Norman barons, by Henry I. in 1102, the rest of the
nobility deliberated together, and came to the conclusion,
that if the king could expel so distinguished a subject, he
would be able to treat them all as his servants. They en-
deavoured therefore to bring about a treaty ; but the Eng-
lish part of Henry's army, hating Robert de Belesme as a
Norman, urged the king to proceed with the siege ; which
he did, and took the castle."1
Unrestrained, therefore, comparatively speaking, by the
aristocratic principles which influenced other feudal Tyranny of
countries, the administration acquired a tone of government.
rigour and arbitrariness under William the Conqueror,
which, though sometimes perhaps a little mitigated, did not
cease during a century and a half. For the first three reigns
we must have recourse to historians; whose language, though
vague, and perhaps exaggerated, is too uniform and im-
pressive to leave a doubt of the tyrannical character of the
government. The intolerable exactions of tribute, the rapine
of purveyance, the iniquity of royal courts, are continually in
their mouths. " God sees the wretched people," says the
Saxon Chronicler, "most unjustly oppressed ; first they are
despoiled of their possessions, then butchered. This was a
grievous year (1124). Whoever had any property, lost it
by heavy taxes and unjust decrees."11 The same ancient
k W. Malmsbury, p. 120 et 156. E. n Chron. Saxon, p. 228. Non facile
Hoveden, p. 461. Chron. Saxon, p. potest narrari miseria, says Roger de
194. Hoveden, quam sustinuit illo tempore
m Du Chesne, Script. Norman, p. [circ. ann. 1103] terra Anglorum propter
807. regias exactioues. p. 470.
316 STATE OF EUROPE CHAP. VIII. PART II.
chronicle, which appears to have been continued from time to
time in the abbey of Peterborough, frequently utters similar
notes of lamentation.
From the reign of -Stephen, the miseries of which are not
to my immediate purpose, so far as they proceeded
Its exactions. n J * f . L. , . i i
from anarchy and intestine war,0 we are able to
trace the character of government by existing records.p
These, digested by the industrious Madox into his History of
the Exchequer, give us far more insight into the spirit of the
constitution, if we may use such a word, than all our monkish
chronicles. It was not a sanguinary despotism. Henry II.
was a prince of remarkable clemency ; and none of the
Conqueror's successors were as grossly tyrannical as himself.
But the system of rapacious extortion from their subjects
prevailed to a degree which we should rather expect to find
among eastern slaves, than that high-spirited race of Nor-
mandy, whose renown then filled Europe and Asia. The
right of wardship was abused by selling the heir and his
land to the highest bidder. That of marriage was carried to
a still grosser excess. The kings of France indeed claimed
the prerogative of forbidding the marriage of their vassals'
daughters to such persons as they thought unfriendly or
dangerous to themselves ; but I am not aware that they ever
compelled them to marry, much less that they turned this
attribute of sovereignty into a means of revenue. But in
England, women and even men, simply as tenants in chiefj
and not as wards, fined to the crown for leave to marry
whom they would, or not to be compelled to marry any
other .q Towns not only fined for original grants of franchises,
but for repeated confirmations. The Jews paid exorbitant
0 The following simple picture of all its inhabitants left it, taking them for
that reign from the Saxon Chronicle plunderers. And this lasted, growing
maybe worth inserting. "The nobles worse and worse, throughout Stephen's
and bishops built castles, and filled them reign. Men said openly, that Christ and
with devilish and wicked men, and his saints were asleep.'" p. 239.
oppressed the people, cruelly torturing p The earliest record in the Pipe-office
men for their money. They imposed is that which Madox, in conformity to
taxes upon towns, and when they had the usage of others, cites by the name
exhausted them of everything, set them of Magnum Rotulum quiuto Stephuni.
on fire. You might travel a day, and But in a particular dissertation subjoined
not find one man living in a town, nor to his History of the Exchequer, he in-
any land in cultivation. Never did the clines, though not decisively, to refer
country suffer greater evils. If two or this record to the reign of Henry I.
three men were seen riding up to a town, q Madox, c. 10.
ENGLISH CONST. DURING THE MIDDLE AGES. 317
sums for every common right of mankind, for protection,
for justice. In return, they were sustained against their
Christian debtors in demands of usury, which superstition
and tyranny rendered enormous/ Men fined for the king's
good- will ; or that he would remit his anger ; or to have
his mediation with their adversaries. Many fines seem as it
were imposed in sport, if we look to the cause ; though their
extent, and the solemnity with which they were recorded,
prove the humour to have been differently relished by the two
parties. Thus the bishop of Winchester paid a tun of good
wine for not reminding the king (John) to give a girdle to
the countess of Albemarle ; and Robert de Yaux five best
palfreys, that the same king might hold his peace about
Henry Pinel's wife. Another paid four marks for leave to
eat (pro licentia comedendi). But of all the abuses which
deformed the Anglo-Norman government, none was so
flagitious as the sale of judicial redress. The king, we are
often told, is the fountain of justice ; but in those ages, it was
one which gold alone could unseal. Men fined to have right
done them ; to sue in a certain court ; to implead a certain
person ; to have restitution of land which they had re-
covered at law.8 From the sale of that justice which every
citizen has a right to demand, it was an easy transition to
withhold or deny it. Fines were received for the king's help
against the adverse suitor ; that is, for perversion of justice,
or for delay. Sometimes they were paid by opposite parties,
and, of course, for opposite ends. These were called counter-
fines ; but the money was sometimes, or as Lord Lyttelton
thinks, invariably, returned to the unsuccessful suitor.*
Among a people imperfectly civilized, the most outrageous
injustice towards individuals may pass without the General
slightest notice, while in matters affecting the com- Taxes-
munity, the powers of government are exceedingly controlled.
It becomes therefore an important question, what prerogative
these Norman kings were used to exercise in raising money,
and in general legislation. By the prevailing feudal customs,
r Madox, c. 7. by Hume, Appendix II.; upon which
a Id. c. 12 and 13. account I have gone less into detail than
1 The most opposite instances of these would otherwise have been necessary,
exactions are well selected from Madox
318 STATE OF EUROPE CHAP. VIII. PART II.
the lord was entitled to demand a pecuniary aid of his vassals
in certain cases. These were, in England, to make his
eldest son a knight, to marry his eldest daughter, and to
ransom himself from. captivity. Accordingly, when such
circumstances occurred, aids were levied by the crown upon
its tenants, at the rate of a mark or a pound for every
knight's fee." These aids, being strictly due in the pre-
scribed cases, were taken without requiring the consent of
parliament. Escuage, which was a commutation for the
personal service of military tenants in war, having rather
the appearance of an indulgence than an imposition, might
reasonably be levied by the king.x It was not till the
charter of John that escuage became a parliamentary assess-
ment ; the custom of commuting service having then grown
general, and the rate of commutation being variable.
None but military tenants could be liable for escuage ;y
but the inferior subjects of the crown were oppressed by
tallages. The demesne lands of the king and all royal towns
were liable to tallage ; an imposition far more rigorous and
irregular than those which fell upon the gentry. Tallages
were continually raised upon different towns during all the
Norman reigns, without the consent of parliament, which
neither represented them nor cared for their interests. The
itinerant justices in their circuit usually set this tax. Some-
times the tallage was assessed in gross upon a town, and
collected by the burgesses ; sometimes individually at the
judgment of the justices. There was an appeal from an
excessive assessment to the barons of the exchequer. In-
ferior lords might tallage their own tenants and demesne
towns, though not, it seems, without the king's permission.2
u The reasonable aid was fixed by the stipendia vel donativa succedant. Mavult
statute of Westminster I., 3 Edw. I. eniin princeps stipendiaries quam domes-
c. 36, at twenty shillings for every ticos bellicis exponere casibus. Heec ita-
knight's fee, and as much for every 20?. que summa, quia nomine scutorum sol-
value of land held by socage. The aid vitur, scutagium nominatur. Dialogus
pour faire fitz chevalier might be raised, de Scaccario, ad finem. Madox, Hist,
when he entered into his fifteenth year ; Exchequer, p. 25. (edit, in folio),
pour fille marier, when she reached the y The tenant in capite was entitled to
age of seven. be re-imbursed what would have been
Fit interdum, ut imminente vel in- his escuage by his vassals even if he per-
surgente in regnurn hostium machina- formed personal service. Madox, c. 16.
tione, decernat rex de singulis feodis z For the important subject of tallages,
militum summam aliquam solvi, marcam see Madox, c. 17.
scilicet, vel libram unamj unde militibus
ENGLISH CONST. DURING THE MIDDLE AGES. 319
Customs upon the import and export of merchandise, of
which the prisage of wine, that is, a right of taking two
casks out of each vessel, seems the most material, were
immemorially exacted by the crown. There is no appear-
ance that these originated with parliament.* Another tax,
extending to all the lands of the kingdom, was Danegeld,
the ship-money of those times. This name had been originally
given to the tax imposed under Ethelred II., in order to raise
a tribute exacted by the Danes. It was afterwards applied
to a permanent contribution for the public defence against
the same enemies. But after the Conquest this tax is said
to have been only occasionally required ; and the latest in-
stance on record of its payment is in the 20th of Henry II.
Its imposition appears to have been at the king's discretion.11
The right of general legislation was undoubtedly placed in
the king, conjointly with his great council,0 or, if Rightof
the expression be thought more proper, with their ^s181^1011-
advice. So little opposition was found in these assemblies
by the early Norman kings, that they gratified their own
love of pomp, as well as the pride of their barons, by con-
sulting them in every important business. But the limits of
legislative power were extremely indefinite. New laws, like
new taxes, affecting the community, required the sanction of
that assembly which was supposed to represent it ; but there
was no security for individuals against acts of prerogative,
which we should justly consider as most tyrannical. Henry
II., the best of these monarchs, banished from England the
relations and friends of Becket, to the number of four hundred.
At another time, he sent over from Normandy an injunction,
that all the kindred of those who obeyed a papal interdict
should be banished, and their estates confiscated. d
a Madox, c. 18. Hale's Treatise on the advice and assent of his council. But
the Customs in Hargrave's Tracts, vol. i. if he means his great council, I cannot
p. 116. suppose that all the barons and tenants
b Henr. Huntingdon, 1. v. p. 205. in capite could have been duly summoned
Dialogus de Scaccario, c. 11. Madox, to a council held beyond seas. Some
c. 17. Lyttelton's Henry II., vol. ii. English barons might doubtless have
p. 170. been -with the king, as at Verneuil in
c Glanvil, Prologus ad Tractatum de 1176, where a mixed assembly of English
Consuetud. and French enacted laws for both coun-
d Hoveden, p. 496. Lyttelton, vol. ii. tries. Benedict. Abbas apud Hume. So
p. 530. The latter says that this edict at Northampton, in 1165, several Norman
must have been framed by the king with barons voted ; nor is any notice taken of
320 STATE OF EUEOPE CHAP. VIII. PART II.
The statutes of those reigns do not exhibit to us many
Laws and provisions calculated to maintain public liberty on a
Noarmarn°f broad and general foundation. And although the
tings. jaws then enacted have not all been preserved, yet
it is unlikely that any of an extensively remedial nature
should have left no trace of their existence. We find, how-
ever, what has sometimes been called the Magna Charta of
William the Conqueror, published by Wilkins from a docu-
ment of considerable authority.6 We will, enjoin, and
grant, says the king, that all freemen of our kingdom shall
enjoy their lands in peace, free from all tallage, and from
every unjust exaction, so that nothing but their service
lawfully due to us shall be demanded at their hands/ The
laws of the Conqueror, found in Hoveden, are wholly dif-
ferent from those in Ingulfus, and are suspected not to have
escaped considerable interpolation^ It is remarkable, that
no reference is made to this concession of William the Con-
queror in any subsequent charter. A charter of Henry I.,
the authenticity of which is undisputed, though it contains
nothing specially expressed but a remission of unreasonable
reliefs, wardships, and other feudal burthen,h proceeds to
this, as irregular. Fitz Stephen, ibid, rent pleasure by the Saxon Chronicler
So unfixed, or rather unformed, were all under the year 1100. And in a fragment
constitutional principles. [NOTE X.] of a Latin treatise on the English laws,
e [NOTE XL] praising them with a genuine feeling, and
f Volumus etiam, ac firmiter prsecipi- probably written in the earlier part of
mus et concedimus, ut omnes liberi ho- Henry's reign, the author extols his be-
mines totius monarchise prsedicti regni haviour towards the people, in contrast
nostri habeant efc teneant terras suas et with that of preceding times, and bears
possessiones suas bene, et in pace, libere explicit testimony to the confirmation
ab omni exactione injusta, et ab omni and amendment of Edward's laws by the
tallagio, ita quod nihil ab iis exigatur vel Conqueror and by the reigning king —
capiatur, nisi servitium suum liberum, Qui non solum legem regis Eadwardi
quoddejurenobisfaceredebent, etfacere nobis reddidit, quam omni gaudiorum
tenentur; et prout statutum est iis, et delectatione suscepimus, sed beati patris
illis a nobis datum et concessum jure ejus emendationibus roboratam propriis
hsereditario in perpetuum per commune iustitutionibus honestavit. See Cooper
concilium totius regni nostri praedicti. on Public Eecords (vol. ii. p. 423);
8 Selden, ad Eadmerum. Hody (Trea- in which very useful collection the whole
tise on Convocations, p. 249) infers from fragment (for the first time in England)
the great alterations visible on the face is published from a Cottonian manu-
of these laws, that they were altered script. Henry ceased not, according to
from the French original by Glanvil. the Saxon Chronicle, to lay on many tri-
h Wilkins, p. 234. The accession of butes. But it is reasonable to suppose
Henry inspired hopes into the English that tallages on to wns and on his demesne
nation, which were nob well realized. His tenants, at that time legal, were reckoned
marriage with Matilda, " of the rightful among them.
Englibh kin," is mentioned with appa-
ENGLISH CONST.
DURING THE MIDDLE AGES.
321
declare that he gives his subjects the laws of Edward the
Confessor, with the emendations made by his father with
consent of his barons.1 The charter of Stephen not only
confirms that of his predecessor, but adds, in fuller terms
than Henry had used, an express concession of the laws and
customs of Edward.k Henry II. is silent about these,
although he repeats the confirmation of his grandfather's
charter.01 The people however had begun to look back to a
more ancient standard of law. The Norman conquest, and
all that ensued upon it, had endeared the memory of their
Saxon government. Its disorders were forgotten, or, rather,
were less odious to a rude nation, than the coercive justice
by which they were afterwards restrained." Hence it be-
came the favourite cry to demand the laws of Edward the
Confessor ; and the Normans themselves, as they grew dis-
satisfied with the royal administration, fell into these English
sentiments.0 But what these laws were, or more properly
perhaps, these customs subsisting in the Confessor's age, was
not very distinctly understood.1" So far, however, was clear,
that the rigorous feudal servitude, the weighty tributes upon
' A great impression is said to have
been made on the barons confederated
against John, by the production of
Henry I.'s charter, whereof they had
been ignorant. Matt. Paris, p. 212.
But this could hardly have been the
existing charter, for reasons alleged by
Blackstone. Introduction to Magna
Charta, p. 6.
k Wilkins, Leges Anglo-Saxon, p. 310.
m Id. p. 318.
n The Saxon Chronicler complains of
a witenagemot, as he calls it, or assises,
held at Leicester in 1124, where forty-
four thieves were hanged, a greater num-
ber than was ever before known; it was
said that many suffered unjustly, p. 228.
Mr. Turner translates this differently;
but, as I conceive, without attending to
the spirit of the context. Hist, of Engl.
vol. i. p. 174.
0 The distinction between the two
nations was pretty well obliterated at the
end of Henry II.'s reign, as we learn
from the Dialogue on the Exchequer,
then written ; jam cohabitautibus An-
glicis et Normannis, et alterutrum ux-
ores ducentibus vel nubentibus, sic per-
mixtse sunt nationes, ut vix discerni
VOL. II.
possit hodie, de liberis loquor, quis An-
glicus, quis Normannus sit genere; ex-
ceptis duntaxat ascriptitiis qui villani
dicuntur, quibus non est liberum obstan-
tibus domiuis suis a sui status conditione
discedere. Eapropter pene quicunque
sic hodie occisus reperitur, ut murdrum
punitur, exceptis his quibus certa sunt
ut diximus servilis conditionis indicia,
p. 26. [NOTE XII.]
p Non quas tulit, sed quas observa-
verit, says William of Malmsbury, con-
cerning the Confessor's laws. Those
bearing his name in Lambard and Wil-
kins are evidently spurious, though it
may not be easy to fix upon the time
when they were forged. Those found in
Ingulphus, in the French language, are
genuine, though translated from Latin,
and were confirmed by William the Con-
queror. Neither of these collections,
however, can be thought to have any re-
lation to the civil liberty of the subject.
It has been deemed more rational to sup-
pose, that these longings for Edward's
laws were rather meant for a mild ad-
ministration of government, free from
unjust Norman innovations, than any
written and definitive system.
Y
the barons,
322 STATE OF EUROPE CHAP. VIII. PART II.
poorer freemen, had never prevailed before the Conquest. In
claiming the laws of Edward the Confessor, our ancestors
meant but the redress of grievances, which tradition told
them had not always existed.
It is highly probable, independently of the evidence sup-
Richard i.'s plied by the charters of Henry I. and his two suc-
cessors, that a sense of oppression had long been
stimulating the subjects of so arbitrary a govern-
ment, before they gave any demonstrations of it sufficiently
palpable to find a place in history. But there are certainly
no instances of rebellion, or even, as far as we know, of a
constitutional resistance in parliament, down to the reign of
Eichard I. The revolt of the earls of Leicester and Norfolk
against Henry II., which endangered his throne and com-
prehended his children with a large part of his barons,
appears not to have been founded even upon the pretext of
public grievances. Under Richard I., something more of
a national spirit began to show itself. For the king having
left his chancellor William Longchamp joint regent and
justiciary with the bishop of Durham during his crusade, the
foolish insolence of the former, who excluded his coadjutor
from any share in the administration, provoked every one
of the nobility. A convention of these, the king's brother
placing himself at their head, passed a sentence of removal
and banishment upon the chancellor. Though there might
be reason to conceive that this would not be unpleasing to
the king, who was already apprized how much Longchamp
had abused his trust, it was a remarkable assumption of
power by that assembly, and the earliest authority for a
leading principle of our constitution, the responsibility of
ministers to parliament.
In the succeeding reign of John, all the rapacious exactions
Magna usual to these Norman kings were not only re-
iarta- doubled, but mingled with other outrages of tyranny
still more intolerable."1 These too were to be endured at the
hands of a prince utterly contemptible for his folly and
q In 1207, John took a seventh of the ed. 1684. But his insults upon the no-
moveables of lay and spiritual persons, bility in debauching their wives and
cunctis murmurantibus, sed contradicere daughters were, as usually happens, the
non audentibus. Matt. Paris, p. 186, most exasperating provocation.
ENGLISH CONST. DUKING THE MIDDLE AGES. 323
cowardice. One is surprised at the forbearance displayed
by the barons, till they took up arms at length in that con-
federacy, which ended in establishing the Great Charter of
Liberties. As this was the first effort towards a legal
government, so is it beyond comparison the most important
event in our history, except that Revolution without which
its benefits would have been rapidly annihilated. The con-
stitution of England has indeed no single date from which its
duration is to be reckoned. The institutions of positive law,
the far more important changes which time has wrought in
the order of society, during six hundred years subsequent to
the Great Charter, have undoubtedly lessened its direct ap-
plication to our present circumstances. But it is still the
key-stone of English liberty. All that has since been ob-
tained is little more than as confirmation or commentary ;
and if every subsequent law were to be swept away, there
would still remain the bold features that distinguish a free
from a despotic monarchy. It has been lately the fashion to
depreciate the value of Magna Charta, as if it had sprung
from the private ambition of a few selfish barons, and re-
dressed only some feudal abuses. It is indeed of little im-
portance by what motives those who obtained it were guided.
The real characters of men most distinguished in the trans-
actions of that time are not easily determined at present.
Yet if we bring these ungrateful suspicions to the test, they
prove destitute of all reasonable foundation. An equal dis-
tribution of civil rights to all classes of freemen forms the
peculiar beauty of the charter. In this just solicitude for the
people, and in the moderation which infringed upon no
essential prerogative of the monarchy, we may perceive a
liberality and patriotism very unlike the selfishness which is
sometimes rashly imputed to those ancient barons. And, as
far as we are guided by historical testimony, two great men,
the pillars of our church and state, may be considered as en-
titled beyond the rest to the glory of this monument; Stephen
Langton, archbishop of Canterbury, and William, earl of
Pembroke. To their temperate zeal for a legal government,
England was indebted during that critical period for the two
greatest blessings that patriotic statesmen could confer ; the
establishment of civil liberty upon an immoveable basis, and
Y 2
324 STATE OF EUROPE CHAP. VIII. PART II.
the preservation of national independence under the ancient
line of sovereigns, which rasher men were about to exchange
for the dominion of France.
By the Magna Charta of John, reliefs were limited to a
certain sum, according to the rank of the tenant, the waste
committed by guardians in chivalry restrained, the disparage-
ment in matrimony of female wards forbidden, and widows
secured from compulsory marriage. These regulations, ex-
tending to the sub-vassals of the crown, redressed the worst
grievances of every military tenant in England. The fran-
chises of the city of London and of all towns and boroughs
were declared inviolable. The freedom of commerce was
guaranteed to alien merchants. The court of Common
Pleas, instead of following the king's person, was fixed at
Westminster. The tyranny exercised in the neighbourhood
of royal forests met with some check, which was further en-
forced by the Charter of Forests under Henry III.
But the essential clauses of Magna Charta are those which
protect the personal liberty and property of all freemen,
by giving security from arbitrary imprisonment and arbi-
trary spoliation. uNo freeman (says the 29th chapter of
Henry III.'s charter, which, as the existing law, I quote in
preference to that of John, the variations not being very
material) shall be taken or imprisoned, or be disseised of his
freehold, or liberties, or free customs, or be outlawed, or
exiled, or any otherwise destroyed; nor will we pass upon
him, nor send upon him, but by lawful judgment of his
peers, or by the law of the land.r We will sell to no man,
r Nisi per legale judicium parium terrse, occurs. Blackstone's Charters,
suorum, vel per legem terrse. Several p. 42. And the word vel is so frequently
explanations have been offered of the used for et, that I am not wholly free
alternative clause ; which some have from a suspicion, that it was so intended
referred to judgment by default or de- in this place. The meaning will be, that
murrer; others to the process of attach- no person shall be disseised, &c. except
ment for contempt. Certainly there are upon a lawful cause of action or indict-
many legal procedures besides trial by ment, found by the verdict of a jury,
jury, through which a party's goods or This really seems as good as any of the
person may be taken. But one may disjunctive interpretations ; but I do not
doubt whether these were in contem- offer it with much confidence,
plation of the framers of Magna Charta. But perhaps the best sense of the dis-
In an entry of the charter of 1217 by a junctive will be perceived by remember-
contemporary hand, preserved in a book ing that judicium parium was generally
in the town-clerk's office in London, opposed to the combat or the ordeal,
called Liber Custumarum et Regum an- which were equally lex terras.
tiquorum, a various reading, et per legem
ENGLISH CONST. DURING THE MIDDLE AGES. 325
we will not deny or delay to any man, justice or right." It
is obvious, that these words, interpreted by any honest court
of law, convey an ample security for the two main rights
of civil society. From the era, therefore, of King John's
charter, it must have been a clear principle of our consti-
tution, that no man can be detained in prison without trial.
Whether courts of justice framed the writ of Habeas Corpus
in conformity to the spirit of this clause, or found it already
in their register, it became from that era the right of every
subject to demand it. That writ, rendered more actively
remedial by the statute of Charles II., but founded upon the
broad basis of Magna Charta, is the principal bulwark of
English liberty ; and if ever temporary circumstances, or the
doubtful plea of political necessity, shall lead men to look on
its denial with apathy, the most distinguishing characteristic
of our constitution will be effaced.
As the clause recited above protects the subject from any
absolute spoliation of his freehold rights, so others restrain
the excessive amercements which had an almost equally
ruinous operation. The magnitude of his offence, by the
14th clause of Henry III.'s charter, must be the measure
of his fine ; and in every case the contenement (a word ex-
pressive of chattels necessary to each man's station, as the
arms of a gentleman, the merchandise of a trader, the plough
and waggons of a peasant) was exempted from seizure. A
provision was made in the charter of John, that no aid or
escuage should be imposed, except in the three feudal cases
of aid, without consent of parliament. And this was ex-
tended to aids paid by the city of London. But the clause
was omitted in the three charters granted by Henry III.,
though parliament seem to have acted upon it in most part
of his reign. It had however no reference to tallages im-
posed upon towns without their consent. Fourscore years
were yet to elapse before the great principle of parliamentary
taxation was explicitly and absolutely recognised.
A law which enacts that justice shall neither be sold, de-
nied, nor delayed, stamps with infamy that government under
which it had become necessary. But from the time of the
charter, according to Madox, the disgraceful perversions of
326 STATE OF EUROPE CHAP. VIII. PART II.
right, which are upon record in -the rolls of the exchequer,
became less frequent.8
From this era a new soul was infused into the people of
state of the England. .Her liberties, at the best long in abey-
SidSertution ance, became a tangible possession, and those in-
Henry in. definite aspirations for the laws of Edward the Con-
fessor were changed into a steady regard for the Great
Charter. Pass but from the history of Roger de Hoveden
to that of Matthew Paris, from the second Henry to the
third, and judge whether the victorious struggle had not
excited an energy of public spirit to which the nation was
before a stranger. The strong man, in the sublime language
of Milton, was aroused from sleep, and shook his invincible
locks. Tyranny indeed and injustice will, by all historians
not absolutely servile, be noted with moral reprobation ; but
never shall we find in the English writers of the twelfth
century that assertion of positive and national rights which
distinguishes those of the next age, and particularly the
monk of St. Alban's. From his prolix history we may collect
three material propositions as to the state of the English
constitution during the long reign of Henry III. ; a prince
to whom the epithet of worthless seems best applicable; and
who, without committing any flagrant crimes, was at once
insincere, ill-judging, and pusillanimous. The intervention
of such a reign was a very fortunate circumstance for public
liberty ; which might possibly have been crushed in its
infancy, if an Edward had immediately succeeded to the
throne of John.
1 . The Great Charter was always considered as a funda-
mental law. But yet it was supposed to acquire additional
security by frequent confirmation. This it received, with
some not inconsiderable variation, in the first, second, and
ninth years of Henry's reign. The last of these is in our
present statute-book, and has never received ary alterations;
but Sir E. Coke reckons thirty-two instances wherein it has
been solemnly ratified. Several of these were during the
reign of Henry III., and were invariably purchased by the
grant of a subsidy.* This prudent accommodation of par-
8 Hist, of Exchequer, c. 12. l Matt. Paris, p. 272.
ENGLISH CONST. DURING THE MIDDLE AGES. 327
liament to the circumstances of their age not only made the
law itself appear more inviolable, but established that corre-
spondence between supply and redress, which for some cen-
turies was the balance-spring of our constitution. The charter
indeed was often grossly violated by their administration.
Even Hubert de Burgh, of whom history speaks more favour-
ably than of Henry's later favourites, though a faithful servant
of the crowny seems, as is too often the case with such men,
to have thought the king's honour and interest concerned
in maintaining an unlimited prerogative.11 The government
was however much worse administered after his fall. From
the great difficulty of compelling the king to observe the
boundaries of law, the English clergy, to whom we are much
indebted for their zeal in behalf of liberty during this reign,
devised means of binding his conscience, and terrifying his
imagination, by religious sanctions. The solemn excom-
munication, accompanied with the most awful threats, pro-
nounced against the violators of Magna Charta, is well known
from our common histories. The king was a party to this
ceremony, and swore to observe the charter. But Henry
III., though a very devout person, had his own notions as
to the validity of an oath that affected his power, and indeed
passed his life in a series of perjuries. According to the
creed of that age, a papal dispensation might annul any
prior engagement ; and he was generally on sufficiently good
terms with Rome to obtain such an indulgence.
2. Though the prohibition of levying aids or escuages
without consent of parliament had been omitted in all Henry's
charters, yet neither one nor the other seem in fact to have
been exacted at discretion throughout his reign. On the
contrary, the barons frequently refused the aids, or rather
subsidies, which his prodigality was always demanding. In-
deed it would probably have been impossible for the king,
however frugal, stripped as he was of so many lucrative
though oppressive prerogatives by the Great Charter, to
support the expenditure of government from his own re-
sources. Tallages on his demesnes, and especially on the
rich and ill-affected city of London, he imposed without
u M. Paris, p. 284.
328 STATE OF EUKOPE CHAP. VIII. PART II.
scruple ; but it does not appear that he ever pretended to
a right of general taxation. We may therefore take it for
granted, that the clause in John's charter, though not ex-
pressly renewed, was still considered as of binding force.
The king was often put to great inconvenience by the refusal
of supply ; and at one time was reduced to sell his plate ancl
jewels, which the citizens of London buying, he was pro-
voked to exclaim with envious spite against their riches,
which he had not been able to exhaust*
3. The power of granting money must of course imply
the power of withholding it ; yet this has sometimes been
little more than a nominal privilege. But in this reign the
English parliament exercised their right of refusal, or, what
was much better, of conditional assent. Great discontent
was expressed at the demand of a subsidy in 1 237 ; and
the king alleging that he had expended a great deal of
money on his sister's marriage with the emperor, and also
upon his own, the barons answered, that he had not taken
their advice in those affairs, nor ought they to share the
punishment of acts of imprudence they had not committed/
In 1241, a subsidy having been demanded for the war in
Poitou, the barons drew up a remonstrance, enumerating all
the grants they had made on former occasions, but always
on condition that the imposition should not be turned into
precedent. Their last subsidy, it appears, had been paid
into the hands of four barons, who were to expend it at their
discretion for the benefit of the king and kingdom,2 an
early instance of parliamentary control over public expen-
diture. On a similar demand in 1244, the king was an-
swered by complaints against the violation of the charter,
the waste of former subsidies, and the mal-administration of
his servants.a Finally, the barons positively refused any
money; and he extorted 1500 marks from the city of Lon-
don. Some years afterwards they declared their readiness
x M. Paris, p. G50. language is particularly uncourtly: rex
y Quod hsec omnia sine consilio fide- cum instantissime, ne dicam impuden-
lium suorum facerat, nee debuerant esse tissime, auxilium pecuniare ab iis iterum
pcenae participes, qui fuerant a culpa postularet, toties laesi et illusi, contra-
immunes. p. 367. dixerunt ei unanimiter et uno ore in
* Id. p. 515. facie.
a Id. p. 563, 572, Matthew Paris's
ENGLISH CONST. DURING THE MIDDLE AGES. 329
to burthen themselves more than ever, if they could secure
the observance of the charter ; and requested that the Jus-
ticiary, Chancellor, and Treasurer might be appointed with
consent of parliament, according, as they asserted, to ancient
custom, and might hold their offices during good behaviour.5
Forty years of mutual dissatisfaction had elapsed, when a
signal act of Henry's improvidence brought on a crisis which
endangered his throne. Innocent IV., out of mere animosity
against the family of Frederic II., left no means untried to
raise up a competitor for the crown of Naples, which Man-
fred had occupied. Richard earl of Cornwall having been
prudent enough to decline this speculation, the pope offered
to support Henry's second son, Prince Edmund. Tempted
by such a prospect, the silly king involved himself in irre-
trievable embarrassments by prosecuting an enterprise which
could not possibly be advantageous to England, and upon
which he entered without the advice of his parliament.
Destitute himself of money, he was compelled to throw the
expense of this new crusade upon the pope ; but the assist-
ance of Rome was never gratuitous, and Henry actually
pledged his kingdom for the money which she might expend
in a war for her advantage and his own.0 He did not even
want the effrontery to tell parliament in 1257, introducing
his son Edmund as king of Sicily, that they were bound for
the repayment of 14,000 marks with interest. The pope
had also, in furtherance of the Neapolitan project, conferred
upon Henry the tithes of all benefices in England, as well as
the first fruits of such as should be vacant.d Such a con-
cession drew upon the king the implacable resentment of his
b De communi consilio regni, sicut ab complained that the king had not fol-
antiquo consuetum et justum. p. 778. lowed the steps of his predecessors in
This was not so great an encroachment appointing these three great officers by
as it may appear. Ralph de Neville, their consent, p. 646. What had been
bishop of Chichester, had been made in fact the practice of former kings, I do
Chancellor in 1223, assensu totius regni; not know ; but it is not likely to have
itaque scilicet ut non deponeretur ab ej us been such as they represent. Henry,
sigilli custodia nisi totius i^gni ordinante however, had named the archbishop of
consensu et consilio. p. 266. Accordingly, York to the regency of the kingdom
the king demanding the great seal from during his absence beyond seas in 1242,
him in 1236, he refused to give it up, de consilio omnium comitum et baronum
alleging, that having received it in the nostrorum et omnium fidelium nostro-
general council of the kingdom, he could rum. — Rymer, t. i. p. 400.
not resign it without the same authority. ° p. 771.
p. 363. And the parliament of 1248 d p. 813,
330 STATE OF EUROPE CHAP. VIII. PART II.
clergy, already complaining of the cowardice or connivance
that had during all his reign exposed them to the shameless
exactions of Koine. Henry had now indeed cause to re-
gret his precipitancy. Alexander IV., the reigning pontiff,
threatened him not only with a revocation of the grant to his
son, but with an excommunication and general interdict, if
the money advanced on his account should not be imme-
diately repaid,6 and a Roman agent explained the demand to
a parliament assembled in London. The sum required was
so enormous, we are told, that it struck all the hearers
with astonishment and horror. The nobility of the realm
were indignant to think that one man's supine folly should
thus bring them to ruin.f Who can deny that measures
beyond the ordinary course of the constitution were ne-
cessary to control so prodigal and injudicious a sovereign ?
Accordingly, the barons insisted, that twenty-four persons
should be nominated, half by the king, and half by them-
selves, to reform the state of the kingdom. These were ap-
pointed on the meeting of the parliament at Oxford, after a
prorogation.
The seven years that followed are a revolutionary period,
the events of which we do not find satisfactorily explained by
the historians of the time.g A king divested of prerogatives
by his people soon appears even to themselves an injured
party. And, as the baronial oligarchy acted with that arbitrary
temper which is never pardoned in a government that has an
air of usurpation about it, the royalists began to gain ground,
chiefly through the defection of some who had joined in the
original limitations imposed on the crown, usually called the
provisions of Oxford. An ambitious man, confident in his
talents and popularity, ventured to display too marked a
e Rymer, t. i. p. 632. This inaus- Doluit igitur nobilitas regni, se unius
picious negotiation for Sicily, which is hominis ita confundi SMpina simplicitate.
not altogether unlike that of James I. M. Paris, p. 827.
about the Spanish match, in its folly, bad 8 The best account of the provisions
success, and the dissatisfaction it occa- of Oxford in 1260 and the circumstances
sioned at home, receives a good deal of connected with them is found in the
illustration from documents in Rymer's Burton Annals. 2 Gale, XV. Scriptores,
collection. p. 407. Many of these provisions were
f Quantitas pecunise ad tantam ascen- afterwards enacted in the statute of
dit summam, ut stuporem simul et hor- Marlebridge.
rorem in auribus generaret audieutium.
ENGLISH CONST. DURING THE MIDDLE AGES. 331
superiority above his fellows in the same cause. But neither
his character, nor the battles of Lewes and Evesham fall
strictly within the limits of a constitutional history. It is
however important to observe, that, even in the moment of
success, Henry III. did not presume to revoke any part of
the Great Charter. His victory had been achieved by the
arms of the English nobility, who had, generally speaking,
concurred in the former measures against his government,
and whose opposition to the earl of Leicester's usurpation
was compatible with a steady attachment to constitutional
liberty.11
The opinions of eminent lawyers are undoubtedly, where
legislative or judicial authorities fail, the best evi- Limitations
dence that can be adduced in constitutional history. ?ogateivpere
It will therefore be satisfactory to select a few Bracton.ror
passages from Bracton, himself a judge at the end of
Henry III.'s reign, by which the limitations of prerogative
by law will clearly appear to have been fully established.
" The king," says he, li must not be subject to any man, but
to God and the law ; for the law makes him king. Let the
king therefore give to the law what the law gives to him,
dominion and power ; for there is no king where will, and
not law, bears rule."1 " The king (in another place) can
do nothing on earth, being the minister of God, but what he
can do by law ; rior is what is said (in the Pandects) any
objection, that whatever the prince pleases shall be law ;
because by the words that follow in that text it appears to
design not any mere will of the prince, but that which is
established by the advice of his councillors, the king giving
his authority, and deliberation being had upon it." k This
passage is undoubtedly a misrepresentation of the famous
lex regia, which has ever been interpreted to convey the
unlimited power of the people to their emperors.™ But the
very circumstance of so perverted a gloss put upon this text
11 The earl of Gloucester, whose per- compleret. Matt. Paris, p. 850.
sonal quarrel with Montfort had over- ' 1. i. c. 8.
thrown the baronial oligarchy, wrote to k 1. iii. c. 9. These words are nearly
the king in 1267, ut provisiones Oxdnise copied from Glanvil's introduction to his
teneri faciat per regnum suum, et ut treatise,
promissa sibi apud Evesham de facto m See Selden ad Fletam, p. 1046.
332 STATE OF EUEOPE CHAP. VIII. PART II.
is a proof that no other doctrine could be admitted in the law
of England. In another passage, Bracton reckons as supe-
rior to the king, "not only God and the law, by which he
is made king, but his court of earls and barons ; for the
former (comites) are so styled as associates of the king, and
whoever has an associate has a master ;" so that if the king
were without a bridle, that is, the law, they ought to put a
bridle upon him." ° Several other passages in Bracton might
be produced to the same import ; but these are sufficient to
demonstrate the important fact, that however extensive or
even indefinite might be the royal prerogative in the days of
Henry III., the law was already its superior, itself but made
part of the law, and was incompetent to overthrow it.p It is
true, that in this very reign the practice of dispensing with
statutes by a non-obstante was introduced, in imitation of the
papal dispensations/1 But this prerogative could only be
exerted within certain limits, and however pernicious it may
be justly thought, was, when thus understood and defined,
not, strictly speaking, incompatible with the legislative sove-
reignty of parliament.
In conformity with the system of France and other feudal
The King's countries, there was one standing council, which
assisted the kings of England in the collection and
management of their revenue, the administration of justice
to suitors, and the despatch of all public business. This was
styled the King's Court, and held in his palace, or wher-
ever he was personally present. It was composed of the
great officers ; the chief justiciary/ the chancellor, the
n This means, I suppose, that he who have omitted to quote : after he has
acts with the consent of others must be broadly asserted that the king has no
in some degree restrained by them; but superior but God, and that no remedy
it is ill expressed. can be had by law against him, he pro-
0 1. ii. c. 16. ceeds: — Nisi sit qui dicat, quod uni-
v Allen has pointed out that the king versitas regni et baronagium suum hoc
might have been sued in his own courts, facere debeant et possint in curia ipsius
like one of his subjects, until the reign regis. By curia we must here under-
of Edward I., who introduced the me- stand parliament, and not the law courts,
thod of suing by petition of right; and q M. Paris, p. 701.
in the Year Book of Edward III., one r The Chief Justiciary was the great-
of the judges says that he has seen a writ est subject in England. Besides pre-
beginning — Prcecipe Henry regi Anglicc. siding in the king's court, and in the
Bracton, however, expressly asserts the Exchequer, he was originally, by virtue
contrary, as Mr. Allen owns ; so that we of his office, the regent of the kingdom
may reckon this rather doubtful. Brae- during the absence of the sovereign ;
ton has some remarkable words which I which, till the loss of Normandy, oc-
ENGLISH CONST. DURING THE MIDDLE AGES. 333
constable, marshal, chamberlain, steward, and treasurer, with
any others whom the king might appoint. Of this great
court there was, as it seems, from the beginning, a particular
branch, in which all matters relating to the revenue were
exclusively transacted. This, though composed of The Court of
the same persons, yet being held in a different part Exche(iuer-
of the palace, and for different business, was distinguished
from the king's court by the name of the Exchequer ; a
separation which became complete, when civil pleas were
decided and judgments recorded in this second court.8
It is probable, that in the age next after the Conquest,
few causes in which the crown had no interest were carried
before the royal tribunals; every man finding a readier course
of justice in the manor or county to which he belonged.1
But, by degrees, this supreme jurisdiction became more
familiar ; and as it seemed less liable to partiality or in-
timidation than the provincial courts, suitors grew willing to
submit to its expensiveness and inconvenience. It was ob-
viously the interest of the king's court to give such equity
and steadiness to its decisions as might encourage this dis-
position. Nothing could be more advantageous to the king's
authority, nor, what perhaps was more immediately regarded,
curred very frequently. Writs, at such Burgh justiciary. In 1241, the arch-
times, ran in his name, and were tested bishop of York was appointed to the re-
by him. Madox, Hist, of Excheq. p. 16. gency during Henry's absence in Poitou,
His appointment upon these temporary without the title of justiciary. Eymer,
occasions was expressed, ad custodiendum t. i. p. 410. Still the office was so con-
loco nostro terram nostram Angliee et *siderable, that the barons who met in the
pacem regni nostri; and all persons were Oxford parliament of 1258 insisted that
enjoined to obey him tanquam justitiario the justiciary should be annually chosen
nostro. Kymer, t. i. p. 181. Some- with their approbation. But the subse-
times, however, the king issued his own quent successes of Henry prevented this
writ de ultra mare. The first time when being established; and Edward I. clis-
the dignity of this office was impaired continued the office altogether,
was at the death of John, when the jus- s For much information about the
ticiary, Hubert de Burgh, being besieged Curia Regis, and especially this branch
in Dover Castle, those who proclaimed of it, the student of our constitutional
Henry III. at Gloucester constituted the history should have recourse to Madox's
earl of Pembroke governor of the king History of the Exchequer, and to the
and kingdom, Hubert still retaining his Dialogus de Scaccario, written in the
office. This is erroneously stated by time of Henry II. by Richard bishop of
Matthew Paris, who has misled Spelman Ely, though commonly ascribed to Ger-
in his Glossary; but the truth appears vase of Tilbury. This treatise he will
from Hubert's answer to the articles of find subjoined to Madox's work. [NOTE
charge ^against him, and from a record in XIII.]
Madox's Hist, of Exch. c. 21,* note A, * Omnis causa terminetur comitatu,
wherein the earl of Pembroke is named vel hundredo, vel halimoto socam haben-
rector regis et regui, and Hubert de tium. Leges Henr. I. c. 9.
334 STATE OF EUKOPE CHAP. VIII. PAKT II.
to his revenue ; since a fine was always paid for leave to
plead in his court, or to remove thither a cause commenced
below. But because few, comparatively speaking, could have
recourse to so distant a tribunal as that of the king's court,
and perhaps also on account of the attachment which the
English felt to their ancient right of trial by the neigh-
institution bouring freeholders, Henry II. established itinerant
ofSse?8 justices, to decide civil and criminal pleas within
each county .u This excellent institution is referred by some
to the twenty-second year of that prince ; but Madox traces
it several years higher.x We have owed to it the uniformity
of our common law, which would otherwise have been split,
like that of France, into a multitude of local customs ; and
we still owe to it the assurance, which is felt by the poorest
and most remote inhabitant of England, that his right is
weighed by the same incorrupt and acute understanding,
upon which the decision of the highest questions is reposed.
The justices of assise seem originally to have gone their
circuits annually; and as part of their duty was to set
tallages upon royal towns, and superintend the collection of
the revenue, we may be certain that there could be no long
interval. This annual visitation was expressly confirmed by
the twelfth section of Magna Charta, which provides also,
that no assise of novel disseisin, or mort d'ancestor, should
be taken except in the shire where the lands in controversy
lay. Hence this clause stood opposed on the one hand to
the encroachments of the king's court, which might other-
wise, by drawing pleas of land to itself, have defeated the
suitor's right to a jury from the vicinage; and on the other,
to those of the feudal aristocracy, who hated any interference
of the crown to chastise their violations of law, or control
their own jurisdiction. Accordingly, while the confederacy of
barons against Henry III. was in its full power, an attempt
was made to prevent the regular circuits of the judges/
u Dialogus de Scaccario, p. 38. call them, of assise, were sometimes com-
x Hist, of Exchequer, c. iii. Lord missioned in the reign of Henry I.
Lyttelton thinks that this institution may Hardy's Introduction to Close Rolls,
have been adopted in imitation of Louis They do not appear to have gone their
VI., who half a century before had in- circuits regularly before 22 Hen. II.
troduced a similar regulation in his (1176).
domains. Hist, of Henry II. vol. ii. y Justiciarii regis Angliae, qui dicun-
p. 206. Justices in eyre, or, as we now tur itineris, rnissi Herfordiam pro suo
ENGLISH CONST. DURING THE MIDDLE AGES. 335
Long after the separation of the exchequer from the king's
court, another branch was detached for the decision The court
of private suits. This had its beginning, in Madox's pieas.
opinion, as early as the reign of Richard I.z But it was
completely established by Magna Charta. " Common
Pleas," it is said in the fourteenth clause, " shall not fol-
low our court, but be held in some certain place." Thus
was formed the Court of Common Bench at Westminster,
with full and, strictly speaking, exclusive jurisdiction over
all civil disputes, where neither the king's interest, nor any
matter savouring of a criminal nature, was concerned. For
of such disputes neither the court of king's bench, nor that
of exchequer, can take cognizance, except by means of a
legal fiction, which, in the one case, supposes an act of
force, and, in the other, a debt to the crown.
The principal officers of state, who had originally been
effective members of the king's court, began to origin of
tllf PoTTl-
withdraw from it, after this separation into three monLaw.
courts of justice, and left their places to regular lawyers ;
though the treasurer and chancellor of the exchequer have
still seats on the equity side of that court, a vestige of its
ancient constitution. It would indeed have been difficult
for men bred in camps or palaces to fulfil the ordinary
functions of judicature, under such a system of law as had
grown up in England. The rules of legal decision, among
a rude people, are always very simple ; not serving much
to guide, far less to control, the feelings of natural equity.
Such were those which prevailed among the Anglo-Saxons ;
requiring no subtler intellect, or deeper learning, than the
earl or sheriff at the head of his county-court might be
• expected to possess. But a 'great change was wrought in
about a century after the Conquest. Our English lawyers,
exequendo officio repelluntur, alleganti- might preside in the two courts, as well
bus his qui regi adversabantur, ipsos as in the exchequer. After the erection
contra formam provisionuin Oxoniae nu- of the Common Bench, the style of the
per factarum venisse. Chron. Nic. Tri- superior court began to alter. It ceased
vet. A.D. 1260. I forget where I found by degrees to be called the king's court,
this quotation. Pleas were said to be held coram rege,
z Hist, of Exchequer, c. 19. Jus- or coram rege ubicunque fuerit. And
tices of the bench are mentioned several thus the court of king's bench was formed
years before Magna Charta. But Madox out of the remains of the ancient curia
thinks the chief justiciary of England regis.
336 STATE OF EUROPE CHAP. VIII. PART IT.
prone to magnify the antiquity, like the other merits of their
system, are apt to carry up the date of the common law,
till, like the pedigree of an illustrious family, it loses itself
in the obscurity of ancient time. Even Sir Matthew Hale
does not hesitate to say, that its origin is as undiscoverable as
that of the Nile. But though some features of the common
law may be distinguishable in Saxon times, while our limited
knowledge prevents us from assigning many of its pecu-
liarities to any determinable period, yet the general character
and most essential parts of the system were of much later
growth. The laws of the Anglo-Saxon kings, Madox truly
observes, are as different from those collected by Glanvil as
the laws of two different nations. The pecuniary compo-
sitions for crimes, especially for homicide, which run through
the Anglo-Saxon code, down to the laws ascribed to Henry I.,a
are not mentioned by Glanvil. Death seems to have been
the regular punishment of murder, as well as robbery.
Though the investigation by means of ordeal was not disused
in his time,b yet trial by combat, of which we find no in-
stance before the Conquest, was evidently preferred. Under
the Saxon government, suits appear to have commenced,
even before the king, by verbal or written complaint ; at
least, no trace remains of the original writ, the foundation
of our civil procedure.0 The descent of lands before the
Conquest was according to the custom of gavelkind, or equal
partition among the children ; d in the age of Henry I. the
eldest son took the principal fief to his own share ;e in that
of Glanvil he inherited all the lands held by knight service ;
but the descent of socage lands depended on the particular
custom of the estate. By the Saxon laws, upon the death
of the son without issue, the father inherited ;f by our
common law, he is absolutely, and in every case, excluded.
Lands were, in general, devisable by testament before the
a C. 70. this purgation, yet, in cases of murder,
b A citizen of London, suspected of they were banished the realm. Wilkins,
murder, having failed in the ordeal of Leges Anglo-Saxon, p. 330. Ordeals
cold water, was hanged by order of were abolished about the beginning of
Henry II., though he offered 500 marks Henry III.'s reign.
to save his life. Hoveden, p. 566. It c Hickes, Dissert. Epistol. p. 8.
appears as if the ordeal \i ere permitted d Leges Gulielmi, p. 225.
to persons already convicted by the e Leges Henr. I. c. 70.
verdict of a jury. If they escaped in f Ibid.
ENGLISH CONST. DURING THE MIDDLE AGES. 337
Conquest ; but not in the time of Henry II., except by par-
ticular custom. These are sufficient samples of the dif-
ferences between our Saxon and Norman jurisprudence ; but
the distinct character of the two will strike more forcibly
every one who peruses successively the laws published by
Wilkins, and the treatise ascribed toGlanvil. The former
resemble the barbaric codes of the continent, and the capitu-
laries of Charlemagne and his family, minute to -an excess
in apportioning punishments, but sparing and indefinite in
treating of civil rights; while the other, copious, discri-
minating, and technical, displays the characteristics, as well
as unfolds the principles, of English law. It is difficult
to assert anything decisively as to the period between the
Conquest and the reign of Henry II., which presents fewer
materials for legal history than the preceding age ; but the
treatise denominated the Laws of Henry I., compiled at the
soonest about the end of Stephen's reign,g bears so much of
a Saxon character, that I should be inclined to ascribe our
present common law to a date, so far as it is capable of any
date, not much antecedent to the publication of GlanviLh
At the same time, since no kind of evidence attests any
sudden and radical change in the jurisprudence of England,
the question must be considered as left in great obscurity.
Perhaps it might be reasonable to conjecture, that the treatise
called Leges Henrici Primi contains the ancient usages still
prevailing in the inferior jurisdictions, and that of Glanvil
the rules established by the Norman lawyers of the king's
court, which would of course acquire a general recognition
and efficacy, in consequence of the institution of justices
holding their assises periodically throughout the country.
The capacity of deciding legal controversies was now only
to be found in men who had devoted themselves to character
that peculiar study ; and a race of such men arose, «f thtlng8-
whose eagerness and even enthusiasm in the pro- lishlaw-
fession of the law were stimulated by the self-complacency of
intellectual dexterity in threading its intricate and thorny
g The Decretum of Gratian is quoted has given reasons for supposing that
in this treatise, which was not published Glanvil was not the author of this
in Italy till 1151. treatise, but some clerk under his di-
h Madox, Hist, of Exch. p. 122, edit, rection.
1711. Lord Lyttelton, vol. ii. p. 267,
VOL. II. Z
338 STATE OF EUKOPE CHAP. VIII. PART II.
mazes. The Normans are noted in their own country for
a shrewd and litigious temper, which may have given a cha-
racter to our courts of justice in early times. Something
too of that excessive subtlety, and that preference of technical
to rational principles, which runs through our system, may
be imputed to the scholastic philosophy, which was in vogue
during the same period, and is marked by the same features.
But we have just reason to boast of the leading causes of
these defects ; an adherence to fixed rules, and a jealousy of
judicial discretion, which have in no country, I believe, been
carried to such a length. Hence precedents of adjudged
cases, becoming authorities for the future, have been con-
stantly noted, and form indeed almost the sole ground of
argument in questions of mere law. But these authorities
being frequently unreasonable and inconsistent, partly from
the infirmity of all human reason, partly from the imperfect
manner in which a number of unwarranted and incorrect
reporters have handed them down, later judges grew anxious
to elude by impalpable distinctions what they did not venture
to overturn. In some instances, this evasive skill has been
applied to acts of the legislature. Those who are moderately
conversant with the history of our law will easily trace other
circumstances that have co-operated in producing that tech-
nical and subtle system, which regulates the course of real
property. For as that formed almost the whole of our
ancient jurisprudence, it is there that we must seek its ori-
ginal character. But much of the same spirit pervades every
part of the law. No tribunals of a civilized people ever bor-
rowed so little, even of illustration, from the writings of
philosophers, or from the institutions of other countries.
Hence law has been studied, in general, rather as an art
than a science, with more solicitude to know its rules and
distinctions, than to perceive their application to that for
which all rules of law ought to have been established, the
maintenance of public and private rights. Nor is there any
reading more jejune and unprofitable to a philosophical mind
than that of our ancient law-books. Later times have intro-
duced other inconveniences, till the vast extent and multi-
plicity of our laws have become a practical evil of serious
importance, and an evil which, between the timidity of the
ENGLISH CONST. DUKING THE MIDDLE AGES. 339
legislature on the one hand, and the selfish views of prac-
titioners on the other, is likely to reach, in no long period,
an intolerable excess. Deterred by an interested clamour
against innovation from abrogating what is useless, simplify-
ing what is complex, or determining what is doubtful, and
always more inclined to stave off an immediate difficulty by
some patchwork scheme of modifications and suspensions,
than to consult for posterity in the comprehensive spirit of
legal philosophy, we accumulate statute upon statute, and
precedent upon precedent, till no industry can acquire, nor
any intellect digest, the mass of learning that grows upon the
panting student ; and our jurisprudence seems not unlikely
to be simplified in the worst and least honourable manner, a
tacit agreement of ignorance among its professors. Much
indeed has already gone into desuetude within the last cen-
tury, and is known only as an occult science by a small
number of adepts. We are thus gradually approaching the
crisis of a necessary reformation, when our laws, like those
of Home, must be cast into the crucible. It would be a dis-
grace to the nineteenth century, if England could not find
her Tribonian.1
This establishment of a legal system, which must be con-
sidered as complete at the end of Henry III.'s reign, when
the unwritten usages of the common law as well as the forms
and precedents of the courts were digested into the great
1 Whitelocke, just after the Eestora- bounds betwixt the prerogative royal and
tion, complains that " Row the volume the rights of the people, and gives remedy
of our statutes is grown or swelled to a in private causes, there needs no more
great bigness." The volume ! What laws to be increased ; for thereby liti-
would he have said to the monstrous gation will be increased likewise. It
birth of a volume triennially, filled with were a work worthy of a parliament, and
laws professing to be the deliberate work cannot be done otherwise, to cause a re-
of the legislature, which every subject is view of all our statutes, to repeal such as
supposed to read, remember, and under- they shall judge inconvenient to remain
stand ! The excellent sense of the follow- iu force ; to confirm those which they
ing sentences from the same passage may shall think fit to stand, and those several
well excuse me from quoting them, and, statutes which are confused, some repug-
perhaps, in this age of bigoted averseness naut to others, many touching the same
to innovation, I have need of some apology matters, to be reduced into certainty, all
for what I have ventured to say in the of one subject into one statute, that per-
text. "I remember the opinion of a spicuity and clearness may appear in our
wise and learned statesman and lawyer written laws, which at this day few
(the Chancellor Oxenstiern), that multi- students or sages can find in them."
plicity of written laws do but distract the Whitelocke's Commentary on Parlia-
judges, and render the law less certain ; mentary Writ, vol. i. p. 409.
that where the law sets due and clear
340 STATE OF EUKOPE CHAP. VIII. PAET II.
work of Bracton, might, in some respects, conduce to the
security of public freedom. For, however highly the pre-
rogative might be strained, it was incorporated with the law,
and treated with the .same distinguished and argumentative
subtlety as every other part of it. Whatever things, there-
fore, it was asserted, that the king might do, it was a
necessary implication, that there were other things which he
could not do ; else it were vain to specify the former. It is
not meant to press this too far ; since undoubtedly the bias
of lawyers towards the prerogative was sometimes too dis-
cernible. But the sweeping maxims of absolute power,
which servile judges and churchmen taught the Tudor and
Stuart princes, seem to have made no progress under the
Plantagenet line.
Whatever may be thought of the effect which the study of
Hereditary the law had upon the rights of the subject, it con-
crown0^ duced materially to the security of good order by
ascertaining the hereditary succession of the crown.
Five kings, out of seven that followed William the Con-
queror, were usurpers, according at least to modern notions.
Of these, Stephen alone encountered any serious opposition
upon that ground ; and with respect to him, it must be re-
membered that all the barons, himself included, had solemnly
sworn to maintain the succession of Matilda. Henry II.
procured a parliamentary settlement of the crown upon his
eldest and second sons ; a strong presumption that their
hereditary right was not absolutely secure.k A mixed
notion of right and choice in fact prevailed as to the suc-
cession of every European monarchy. The coronation oath
and the form of popular consent then required, were consi-
dered as more material, at least to perfect a title, than we
deem them at present. They gave seisin, as it were, of the
crown, and, in cases of disputed pretensions, had a sort of
judicial efficacy. The Chronicle of Dunstable says, con-
cerning Richard I., that he was " elevated to the throne by
hereditary right, after a solemn election by the clergy and
people :"m words that indicate the current principles of that
age. It is to be observed, however, that Richard took upon
k Lyttelton, vol. ii. p. 14. tario jure promovendus in regnum, post
TO Lyttelton, vol. ii. p. 42. Hseredi- cleri et populi solennem electionem.
ENGLISH CONST. DURING THE MIDDLE AGES. 341
him the exercise of royal prerogatives, without waiting for
his coronation.11 The succession of John has certainly passed
in modern times for an usurpation. I do not find that it
was considered as such by his own contemporaries on this
side of the Channel. The question of inheritance between
an uncle and the son of his deceased elder brother, was yet
unsettled, as we learn from Glanvil, even in private succes-
sion.0 In the case of sovereignties, which were sometimes
contended to require different rules from ordinary patri-
monies, it was, and continued long to be, the most uncertain
point in public law. John's pretensions to the crown might
therefore be such as the English were justified in ad-
mitting, especially as his reversionary title seems to have
been acknowledged in the reign of his brother Eichard.p If
indeed we may place reliance on Matthew Paris, Archbishop
Hubert, on this occasion, declared in the most explicit terms
that the crown was elective, giving even to the blood royal
no other preference than their merit might challenged
Carte rejects this as a fiction of the historian ; and it is cer-
tainly a strain far beyond the constitution, which, both before
and after the Conquest, had invariably limited the throne to
one royal stock, though not strictly to its nearest branch.
In a charter of the first year of his reign, John calls him-
self king, "by hereditary right, and through the consent and
favour of the church and people."1"
It is deserving of remark, that during the rebellions
against this prince and his son Henry III., not a syllable
was breathed in favour of Eleanor, Arthur's sister, who, if
the present rules of succession had been established, was the
undoubted heiress of his right. The barons chose rather to
call in the aid of Louis, with scarcely a shade of title, though
with much better means of maintaining himself. One should
think that men whose fathers had been in the field for
Matilda could make no difficulty about female succession.
But I doubt whether, notwithstanding that precedent, the
crown of England was universally acknowledged to be
n Gul. Neubrigensis, 1. iv« c. 1. r Jure haereditario, et mediante tarn
0 Glanvil, 1. vii. c. 3. cleri et populi consensu et favore. Gur-
p Hoveden, p. 702. don on Parliaments, p. 139.
1 P. 165.
342 STATE OF EUROPE CHAP. VIII. PABT II.
capable of descending to a female heir. Great averseness
had been shown by the nobility of Henry I. to his proposal
of settling the kingdom on his daughter.8 And from a
remarkable passage . which I shall produce in a note, it
appears that even in the reign of Edward III. the succes-
sion was supposed to be confined to the male line.*
At length, about the middle of the thirteenth century,
the lawyers applied to the crown the same strict principles
of descent which regulate a private inheritance. Edward I.
was proclaimed immediately upon his father's death, though
absent in Sicily. Something however of the old principle
may be traced in this proclamation, issued in his name by the
guardians of the realm, where he asserts the crown of Eng-
land " to have devolved upon him by hereditary succession
and the will of his nobles." u These last words were omitted
in the proclamation of Edward II. ;x since whose time the
crown has been absolutely hereditary. The coronation oath,
and the recognition of the people at that solemnity, are
formalities which convey no right either to the sovereign or
the people, though they may testify the duties of each.y
I cannot conclude the present chapter without observing
English one most prominent and characteristic distinction
tftuteV8" between the constitution of England and that of
exclusive , • ~r\ -r •
privileges, every other country in Europe; I mean its re-
8 Lyttelton, vol. i. p. 162. a certain modification which gave a pre-
1 This is intimated by the treaty made text of title to himself,
in 1339 for a marriage between the eldest u Ad nos regni gubernaculum suc-
son of Edw. III. and the duke of Bra- cessione haereditaria, ac procerum regni
baut's daughter. Edward therein pro- voluntate, et fidelitate nobis praestita sit
mises that if his son should die before devolutum. Brady (History of Eng-
him, leaving male issue, he will procure land, vol. ii. Appendix, p. 1 ) expounds
the consent of his barons, nobles, and procerum voluntate to mean willingness,
cities (that is, of parliament ; nobles not will ; as much as to say, they acted
here meaning knights, if the word has any readily and without command. — But in
distinct sense), for such issue to inherit all probability it was intended to save the
the kingdom ; and if he die leaving a usual form of consent,
daughter only, Edward or his heir shall x Rymer, t. iii. p. 1. Walsingham how-
make such provision for her as belongs ever asserts, that Edward II. ascended
to the daughter of a king. Eymer, t. v. the throne non tarn jurehaereditarioquam
p. 114. It may be inferred from this unanimi assensu procerum et magnatum.
instrument, that in Edward's intention, if p. 95. Perhaps we should omit the word
not by the constitution, the Salic law was non, and he might intend to say, that the
to regulate the succession of the English king had not only his hereditary title,
crown. This law, it must be remembered, but the free consent of his barons,
he was compelled to admit in his claim y [NOTE XIV.]
on the kingdom of France, though with
ENGLISH CONST. DURING THE MIDDLE AGES. 343
fusal of civil privileges to the lower nobility, or those whom /
we denominate the gentry. In France, in Spain, in Ger- j
many, wherever in short we look, the appellations of noble- \
man and gentleman have been strictly synonymous. Those
entitled to bear them by descent, by tenure of land, by office
or royal creation, have formed a class distinguished by pri-
vileges inherent in their blood from ordinary freemen.
Marriage with noble families, or the purchase of military fiefs,
or the participation of many civil offices, were, more or less,
interdicted to the commons of France and the empire. Of
these restrictions, nothing, or next to nothing, was ever known
in England. The law has never taken notice of gentlemen.2
From the reign of Henry III. at least, the legal equality of
all ranks below the peerage was, to every essential purpose,
as complete as at present. Compare two writers nearly
contemporary, Bracton with Beaumanoir, and mark how the
customs of England are distinguishable in this respect. The
Frenchman ranges the peopleunder three divisions, the noble,
the free, and the servile ; our countryman has no generic
class, but freedom and villenage.a No restraint seems ever
to have lain upon marriage; nor have the children even of
a peer been ever deemed to lose any privilege by his union
with a commoner. The purchase of lands held by knight-
service was always open to all freemen. A few privileges
indeed were confined to those who had received knighthood.b
But, upon the whole, there was a virtual equality of rights
among all the commoners of England. What is most parti-
cular is, that the peerage itself imparts no privilege except to
z It is hardly worth while, even for the wards to accept a mean alliance, or to
sake of obviating cavils, to notice as an forfeit its price, that this provision of the
exception the statute of 23 H. VI. c. 14, statute was made. But this does not
prohibiting the election of any who were affect the proposition I had maintained as
not born gentlemen for knights of the to the legal equality of commoners, any
shire. Much less should I have thought more than a report of a Master in Chan-
of noticing, if it had not been suggested eery at the present day, that a proposed
as an objection, the provision of the marriage for a ward of the court was
statute of Merton, that guardians in unequal to what her station in society
chivalry shall not marry their wards to appeared to claim, would invalidate the
villeins or burgesses, to their disparage- same proposition.
ment. Wherever the distinctions of rank H Beaumanoir, c. 45. Bracton, 1. i.
and property are felt in the customs of c. 6.
society, such marriages will be deemed b See for these, Selden's Titles of
unequal; and it was to obviate the tyranny Honour, vol. iii. p. 806.
of feudal superiors who compelled their
344 STATE OF EUROPE CHAP. VIII. PART II.
its actual possessor. In every other country, the descendants
of nobles cannot but themselves be noble, because their nobi-
lity is the immediate consequence of their birth. But though
we commonly say that the blood of a peer is ennobled, yet
this expression seems hardly accurate, and fitter for heralds
than lawyers ; since in truth nothing confers nobility but
the actual descent of a peerage. The sons of peers, as we
well know, are commoners, and totally destitute of any legal
right beyond a barren precedence.
There is no part, perhaps, of our constitution so admirable
as this equality of civil rights ; this isonomia, which the phi-
losophers of ancient Greece only hoped to find in demo-
cratical government.0 From the beginning our law has been
no respecter of persons. It screens not the gentleman of
ancient lineage from the judgment of an ordinary jury, nor
from ignominious punishment. It confers not, it never did
confer, those unjust immunities from public burthens, which
the superior orders arrogated to themselves upon the conti-
nent. Thus while the privileges of our peers, as hereditary
legislators of a free people, are incomparably more valuable
and dignified in their nature, they are far less invidious in
their exercise than those of any other nobility in Europe. It
is, I am firmly persuaded, to this peculiarly democratical
character of the English monarchy, that we are indebted for
its long permanence, its regular improvement, and its present
vigour. It is a singular, a providential circumstance, that,
in an age when the gradual march of civilization and com-
merce was so little foreseen, our ancestors, deviating from
the usages of neighbouring countries, should, as if delibe-
rately, have guarded against that expansive force, which, in
bursting through obstacles improvidently opposed, has scat-
tered havoc over Europe.
This tendency to civil equality in the English law may,
causes^ I think, be ascribed to several concurrent causes.
amende1/ In the first place the feudal institutions were far
Engii. less military in England than upon the continent.
Tildas ei%%ov, -ff^uTov ftiv ouvopa. xeix- c. 80) has put into the mouths of three
ov «££/, tffovo/u.ieiv, says the advocate Persian satraps, after the "murder of
of democracy, in the discussion of forms Smerdis; a scene conceived in the spirit
of government which Herodotus (Thalia, of Corneille.
ENGLISH CONST. DUBING THE MIDDLE AGES. 345
From the time of Henry II., the escuage, or pecuniary com-
mutation for personal service, became almost universal, The
armies of our kings were composed of hired troops, great
part of whom certainly were knights and gentlemen, but
who, serving for pay, and not by virtue of their birth or
tenure, preserved nothing of the feudal character. It was
not, however, so much for the ends of national as of private
warfare, that the relation of lord and vassal was contrived.
The right which every baron in France possessed of redress-
ing his own wrongs and those of his tenants by arms ren-
dered their connexion strictly military. But we read very
little of private wars in England. Notwithstanding some
passages in Glanvil, which certainly appear to admit their
legality, it is not easy to reconcile this with the general
tenour of our laws.d They must always have been a breach
of the king's peace, which our Saxon lawgivers were per-
petually striving to preserve, and which the Conqueror and
his sons more effectually maintained.6 Nor can we trace
many instances (some we perhaps may) of actual hostilities
among the nobility of England after the Conquest, except
during such an anarchy as the reign of Stephen or the
minority of Henry III. Acts of outrage and spoliation
were indeed very frequent. The statute of Marlebridge,
soon after the baronial wars of Henry III., speaks of the
disseisins that had taken place during the late disturbances ;f
and thirty -five verdicts are said to have been given at one
court of assise against Foulkes de Breaute', a notorious par-
tisan, who commanded some foreign mercenaries at the
beginning of the same reign :s but these are faint resem-
d I have modified this passage, in con- men, to afford an inference that it was an
sequence of the just animadversion of a anomaly. In the royal manor of Ar-
periodical critic. In the first edition, chenfeld in Herefordshire, if one Welsh-
I had stated too strongly the difference, man kills another, it was a custom for
which I still believe to have existed, the relations of the slain to assemble and
between the customs of England and plunder the murderer and his kindred,
other feudal countries, in respect of pri- and burn their houses, until the corpse
vate warfare. [NOTE XV.J should be interred, which was to take
e The penalties imposed on breaches of place by noon on the morrow of his
the peace, in Wilkins' Anglo-Saxon laws death. Of this plunder the king had a
are too numerous to-be particularly in- third part, and the rest they kept for
serted. One remarkable passage in themselves, p. 179.
Domesday appears, by mentioning a legal *' Stat. 52 H. III.
custom of private feuds in an individual g Matt. Paris, p. 271.
manor, and there only among Welsh-
346 STATE OF EUROPE CHAP. VIII. PART II.
blances of that wide-spreading devastation which the nobles
of France and Germany were entitled to carry among their
neighbours. The most prominent instance perhaps of what
may be deemed a private war arose out of a contention
between the earls of Gloucester and Hereford in the reign of
Edward I., during which acts of extraordinary violence were
perpetrated ; but, far from its having passed for lawful, these
powerful nobles were both committed to prison, and paid
heavy fines.h Thus the tenure of knight-service was not in
effect much more peculiarly connected with the profession of
arms than that of socage. There was nothing in the former
condition to generate that high self-estimation, which military
habits inspire. On the contrary, the burthensome incidents
of tenure in chivalry rendered socage the more advantageous,
though less honourable of the two.
In the next place, we must ascribe a good deal of efficacy
to the old Saxon principles, that survived the conquest of
William, and infused themselves into our common law. A
respectable class of free socagers, having, in general, full
rights of alienating their lands, and holding them probably
at a small certain rent from the lord of the manor, frequently
occur in Domesday Book. Though, as I have already ob-
served, these were derived from the superior and more for-
tunate Anglo-Saxon ceorls, they were perfectly exempt from
all marks of villenage both as to their persons and estates.
Most have derived their name from the Saxon soc, which
signifies a franchise, especially one of jurisdiction,1 and they
undoubtedly were suitors to the court-baron of the lord, to
whose soc, or right of justice, they belonged. They were
consequently judges in civil causes, determined before the
b Rot. Parl. vol. i. p. 70. a French root in the language. Soc is
1 It now appears strange to me that I plainly derived from seco, and therefore
could ever have given the preference to cannot pass for a Teutonic word.
Bracton's derivation of socage from soc I once thought the etymology of Brac-
de charue. The word sokeman, which ton and Lyttelton curiously illustrated
occurs so often in Domesday, is con- by a passage in Blomefield's Hist, of
tinually coupled with soca, a franchise Norfolk, vol. iii. p. 538 (folio). In the
or right of jurisdiction belonging to the manor of Cawston, a man with a brazen
lord, whose tenant, or rather suitor, the hand holding a ploughshare was carried
sokeman is described to be. Soc is an before the steward as a sign that it was
idle and improbable etymology; espe- held by socage of the duchy of Lan-
cially as at the time when sokeman was caster.
most in use, there was hardly a word of
ENGLISH CONST. DURING THE MIDDLE AGES.
347
manerial tribunal .k Such privileges set them greatly above
the roturiers or censiers of France. They were all English-
men, and their tenure strictly English ; which seems to have
given it credit in the eyes of our lawyers, when the name of
Englishman was affected even by those of Norman descent,
k The feudal courts, if under that name
we include those of landholders having
grants of soc, sac, infangthef, &c., from
the crown, had originally a jurisdiction
exclusive of the county and hundred.
The Laws of Henry I., a treatise of great
authority as a contemporary exposition
of the law of England in the middle of
the twelfth century, just before the great
though silent revolution which brought
in the Norman jurisprudence, bear abun-
dant witness to the territorial courts,
collateral to, and independent of those of
the sheriff. Other proofs are easily fur-
nished for a later period. Vide Chron.
Jocelyn de Brakelonde, et alia.
It is nevertheless true that territorial
jurisdiction was never so extensive as in
governments of a more aristocratical cha-
racter, either in criminal or civil cases.
1. In the laws ascribed to Henry I. it is
said that all great offences could only be
tried in the king's court, or by his com-
mission, c. 10. Glanvil distinguishes the
criminal pleas, which could only be deter-
mined before the king's judges, from
those which belong to the sheriff. Trea-
son, murder, robbery, and rape were of
the former class ; theft of the latter. 1. xiv.
The criminal jurisdiction of the sheriff
is entirely taken away by Magna Charta.
c. 17. Sir E. Coke says, the territorial
franchises of infangthief and outfangthief
"had some continuance afterwards, but
either by this act, or per desuetudiuem,
for inconvenience, these franchises within
manors are antiquated and gone." 2 Inst.
p. 31. The statute hardly seems to reach
them; and they were certainly both
claimed and exercised, as late as the
reign of Edward I. Blomefield men-
tions two instances, both in 1285, where
executions for felony took place by the
sentence of a court-baron. In these
cases the lord's privilege was called in
question at the assises, by which means
we learn the transaction ; it is very pro-
bable, that similar executions occurred in
manors, where the jurisdiction was not
disputed. Hist, of Norfolk, vol. i. p. 3 13 ;
vol. iii. p. 50. Felonies are now, cog-
nizable in the greater parf of boroiighs;
though it is usual, except in the most
considerable places, to remit such as are
not within benefit of clergy, to the jus-
tices of gaol delivery on their circuit.
This jurisdiction, however, is given, or
presumed to be given, by special charter,
and perfectly distinct from that which
was feudal and territorial. Of the latter
some vestiges appear to remain in parti-
cular liberties, as for example the Soke
of Peterborough ; but most, if not all, of
these local franchises have fallen, by right
or custom, into the hands of justices of
the peace. A territorial privilege some-
what analogous to criminal jurisdiction,
but considerably more oppressive, was
that of private gaols. At the parliament
of Merton, 1237, the lords requested to
have their own prison for trespasses upon
their parks and ponds, which the king re-
fused. Stat. Merton, c. 11. But several
lords enjoyed this as a particular fran-
chise ; which is saved by the statute
5 H. IV. c. 10, directing justices of the
peace to imprison no man, except in the
common gaol. 2. The civil j urisdiction
of the court-baron was rendered insigni-
ficant not only by its limitation, in per-
sonal suits, to debts or damages not ex-
ceeding forty shillings, but by the writs
of tolt and pone, which at once removed
a suit for lands, in any state of its pro-
gress before judgment, into the county
court or that of the king. The statute
of Marlebridge took away all appellant
jurisdiction of the superior lord, for false
judgment in the manerial court of his
tenant, and thus aimed another blow at
the feudal connexion. 52 H. III. c. 19.
3. The lords of the counties palatine of
Chester and Durham, and the Royal
franchise of Ely, had not only a capital
jurisdiction in criminal cases, but an ex-
clusive cognizance of civil suits ; the for-
mer still is retained by the bishops of
Durham and Ely, though much shorn of
its ancient extent by an act of Henry
VIII. (27 H. VIII. c. 24), and adminis-
tered by the king's justices of assize; the
bishops or their deputies being put only
on the footing of ordinary justices of the
peace. Id. s. 20.
348 STATE OF EUROPE CHAP. VIII. PART II.
and the laws of Edward the Confessor became the universal
demand. Certainly Glanvil, and still more Bracton, treat
the tenure in free socage with great respect. And we have
reason to think that this class of freeholders was very nu-
merous even before the reign of Edward I.
But, lastly, the change which took place in the constitu-
tion of parliament consummated the degradation, if we must
use the word, of the lower nobility : I mean, not so much
their attendance by representation instead of personal sum-
mons, as their election by the whole body of freeholders, and
their separation, along with citizens and burgesses, from the
house of peers. These changes will fall under consideration
in the following chapter.
ENGLISH CONST. DURING THE MIDDLE AGES. 349
NOTES TO CHAPTER VIII. (PARTS I. & II.)
NOTE I. Page 267.
THESE seven princes enumerated by Bede have been called
Bretwaldas, and they have, by late historians, been advanced
to higher importance, and to a different kind of power than,
as it appears to me, there is any sufficient ground to bestow
on them. But as I have gone more fully into this subject,
in a paper published in the 32nd volume of the " Archa3ologia, "
I shall content myself with giving the most material parts of
what will there be found.
Bede is the original witness for the seven monarchs, who
before his time had enjoyed a preponderance over the Anglo-
Saxons south of the Humber : — " Qtii cunctis australibus
gentis Anglorum provinces, quse Humbrse fluvio et contiguis
ei ter minis sequestrantur a Borealibus, imperarunt." (Hist.
Eccl. lib. ii. c. 5.) The four first-named had no authority
over Northumbria ; but the last three being sovereigns of
that kingdom, their sway would include the whole of Eng-
land.
The Saxon Chronicle, under the reign of Egbert, says
that he was the eighth who had a dominion over Britain ;
using the remarkable word, Bretwalda, which is found
nowhere else. This, by its root waldan, a Saxon verb, to
rule (whence our word wield), implies a ruler of Britain or
the Britons. The Chronicle then copies the enumeration
of the other seven in Bede, with a little abridgment. The
kings mentioned by Bede are ^Elli or Ella, founder of the
kingdom of the South-Saxons, about 477 ; Ceaulin, of
Wessex, after the interval of nearly a century ; Ethelbert,
350 STATE OF EUROPE NOTES TO
of Kent, the first Christian King ; Kedwald, of East Anglia ;
after him three Northumbrian kings in succession, Edwin,
Oswald, Oswin. We have, therefore, sufficient testimony
that, before the middle of the seventh century, four kings,
from four Anglo-Saxon kingdoms, had, at intervals of time,
become superior to the rest ; excepting, however, the
Northumbrians, whom Bede distinguishes, and whose sub-
jection to a southern prince does not appear at all probable.
None, therefore, of these could well have been called
Bretwalda, or ruler of the Britons, while not even his own
countrymen were wholly under his sway.
We now come to three Northumbrian kings, Edwin,
' Oswald, and Oswin, who ruled, in Bede's language, with
greater power than the preceding, over all the inhabitants
of Britain, both English and British, with the sole exception
of the men of Kent. This he reports in another place
with respect to Edwin, the first Northumbrian convert to
Christianity ; whose worldly power, he says, increased so
much that, what no English sovereign had done before,
he extended his dominion to the furthest bounds of Britain,
whether inhabited by English or by Britons. (Hist. Eccl.
lib. ii. c. 9.) Dr. Lingard has pointed out a remarkable con-
firmation of this testimony of Bede, in a life of St. Columba,
published by the Bollandists. He names Cuminius, a con-
temporary writer, as the author of this life ; but I find that
these writers give several reasons for doubting whether it
be his. The words are as follow : — u Oswaldurn regem,
in procinctu belli castra metatum, et in papilione supra
pulvillum dorraientem allocutus est, et ad bellum procedere
jussit. Processit et secuta est victoria ; reversusque postea
totius Britannise imperator ordinatus a Deo, ettota incredula
gens baptizata est." (Acta Sanctorum, Jun. 23.) This
passage, on account of the uncertainty of the author's age,
might not appear sufficient. But this anonymous life of
Columba is chiefly taken from that by Adamnan, written
about 700 ; and in that life we find the important expression
about Oswald — " totius Britanniae imperator ordinatus a
Deo." We have, therefore, here probably a distinct recog-
nition of the Saxon word Bretwalda ; for what else could
answer to emperor of Britain ? And, as far as I know, it
CHAP. VIII. DUEING THE MIDDLE AGES. 351
is the only one that exists. It seems more likely that
Adamnan refers to a distinct title bestowed on Oswald by
his subjects, than that he means to assert as a fact, that he
truly ruled over all Britain. This is not very credible, not-
withstanding the language of Bede, who loves to amplify the
power of favourite monarchs. For though it may be ad-
mitted that these Northumbrian kings enjoyed, at times, a
preponderance over the other Anglo-Saxon principalities,
we know that both Edwin and Oswald lost their lives in
great defeats by Penda of Mercia. Nor were the Strath-
cluyd Britons in any permanent subjection. The name of
Bretwalda, as applied to these three kings, though not so
absurd as to make it incredible that they assumed it, asserts
an untruth.
It is, however, at all events plain from history, that they
obtained their superiority by force ; and we may probably
believe the same of the four earlier kings enumerated by
Bede. An elective dignity, such as is now sometimes sup-
posed, cannot be presumed in the absence of every semblance
of evidence, and against manifest probability. What appear-
ance do we find of a federal union among the kites and
crows, as Milton calls them, of the Heptarchy ? What but
the law of the strongest could have kept these rapacious and
restless warriors from tearing the vitals of their common
country ? The influence of Christianity in effecting a com-
parative civilization, and producing a sense of political as
well as religious unity, had not yet been felt.
Mercia took the place of Northumberland as the leading
kingdom of the Heptarchy, in the eighth century. Even
before Bede brought his Ecclesiastical History to a close, in
731, Ethelbald of Mercia had become paramount over the
southern kingdoms ; certainly more so than any of the first
four, who are called by the Saxon Chronicler Bretwaldas.
" Et hse omnes provincial cseterseque australes ad confinium
usque Hymbrae fluminis cum suis quaBque regibus, Mercio-
rum regi Ethelbaldo subjectse sunt." (Hist. Ecc. v. 23.) In
a charter of 'Ethelbald he styles himself, " non solum Mer-
censium sed et universarum provinciarum quae com muni
vocabulo dicuntur Suthangli divina largiente gratia rex."
(Codex Ang.-Sax. Diplom. i. 96; vide etiam 100, 107.)
352 STATE OF EUROPE NOTES TO
Offa, his successor, retained great part of this ascendency,
and in his charters sometimes styles himself " rex Anglo-
rum," sometimes "rex Merciorum simulque aliarum cir-
cumquaque nationum." (Ib. 162, 166, 167, et alibi.) It
is impossible to define the subordination of the southern
kingdoms, but we cannot reasonably imagine it to have
been less than they paid in the sixth century to Ceaulin
and Ethelbert. Yet to these potent sovereigns the Saxon
Chronicle does not give the name Bretwalda, nor a place in
the list of British rulers. It copies Bede in this passage
servilely, without regard to events which had occurred
since the termination of his history.
I am, however, inclined to believe, combining the passage
in Adamnan with this less explicitly worded of the Saxon
Chronicle, that the three Northumbrian kings, having been
victorious in war and paramount over the minor kingdoms,
were really designated, at least among their own subjects,
by the name Bretwalda, or ruler of Britain, and totius
Britannise imperator. The assumption of so pompous a
title is characteristic of the vaunting tone which continued
to increase down to the Conquest. We may therefore ad-
mit as probable, that Oswald of Northumbria in the seventh
century, as well as his father Edwin and his son Oswin, took
the appellation of Bretwalda to indicate the supremacy they
had obtained, not only over Mercia and the other kingdoms
of their countrymen, but, by dint of successful invasions,
over the Strathcluyd Britons and the Scots beyond the Forth.
I still entertain the greatest doubts, to say no more, whether
this title was ever applied to any but these Northumbrian
kings. It would have been manifestly ridiculous, too ridi-
culous, one would think, even for Anglo-Saxon grandilo-
quence, to confer it on the first four in Bede's list ; and if
it expressed an acknowledged supremacy over the whole
nation, why was it never assumed in the eighth century ?
We do not derive much additional information from later
historians. Florence of Worcester, who usually copies the
Saxon Chronicle, merely in this instance transcribes the text
of Bede with more exactness than that had done : he neither
repeats nor translates the word Bretwalda. Henry of
Huntingdon, after repeating the passage in Bede, adds
CHAP. VIII. DUKING THE MIDDLE AGES. 353
Egbert to the seven kings therein mentioned, calling him
" rex et monarcha totius Britanniee," doubtless as a transla-
tion of the word Bretwalda in the Saxon Chronicle ; sub-
joining the names of Alfred and Edgar as ninth and tenth
in the list. Egbert, he says, was eighth of ten kings
remarkable for their bravery and power (fortissimorum),
who have reigned in England. It is strange that Edward
the Elder, Athelstan, and Edred are passed over.
Rapin was the first who broached the theory of an elect-
ive Bretwalda, possessing a sort of monarchical supremacy
in the constitution of the Heptarchy ; something like, as he
says, the dignity of stadtholder of the Netherlands. It was
taken up in later times by Turner, Lingard, Palgrave, and
Lappenberg. But for this there is certainly no evidence
whatever; nor do I perceive in it anything but the very
reverse of probability, especially in the earlier instances.
With what we read in Bede we may be content, confirmed
as with respect to a Northumbrian sovereign it appears
to be by the Life of Columba ; and the plain history will
be no more than this ; that four princes from among the
southern Anglo-Saxon kingdoms, at different times obtained,
probably by force, a superiority over the rest ; that after-
wards three Northumbrian kings united a similar supremacy
with the government of their own dominions ; and that
having been successful in reducing the Britons of the north
and also the Scots into subjection, they assumed the title of
Bretwalda, or ruler of Britain. This title was not taken by
any later kings, though some in the eighth century were very
powerful in England; nor did it attract much attention,
since we find the word only once employed by an historian,
and never in a charter. The consequence I should draw is,
that too great prominence has been given to the appellation,
and undue inferences sometimes derived from it, by the
eminent writers above mentioned.
VOL. n. 2 A
354 STATE OF EUKOPE NOTES TO
NOTE II. Page 269.
THE reduction of all England under a single sovereign was
accomplished by Edward the Elder, who may, therefore, be
reckoned the founder of our monarchy more justly than
Egbert. The five Danish towns, as they were called,
Leicester, Lincoln, Stamford, Derby, and Nottingham, had
been brought under the obedience of his gallant sister
^Ethelfleda, to whom Alfred had intrusted the vice-royalty
of Mercia. Edward himself subdued the Danes of East
Anglia and Northumberland. In 922 " the kings of the
North Welsh sought him to be their lord." And in 924,
" chose him for father and lord, the king of the Scots and
the whole nation of the Scots, and Regnald, and the son of
Eadulf, and all those who dwell in Northumberland, as well
English as Danes and Northmen and others, and also the
king of the Strathcluyd Britons, and all the Strathcluyd
Britons." (Sax. Chronicle.)
Edward died next year ; of his son ^Ethelstan it is said
that " he ruled all the kings who were in this island ; first,
Howel, king of West Welsh, and Constantine king of the
Scots, and Uwen king of the Gwentian (Silurian) people,
and Ealdred son of Ealdalf of Bamborough, and they con-
firmed the peace by pledge and by oaths at the place which
is called Earnot, on the fourth of the Ides of July ; and
they renounced all idolatry, and after that submitted to
him in peace." (Id. A.D. 926.)
From this time a striking change is remarkable in the
style of our kings. Edward, of whom we have no extant
charters after these great submissions of the native princes,
calls himself only Angul-Saxonum rex. But in those of
Athelstan, such as are reputed genuine (for the tone is still
more pompous in some marked by Mr. Kemble with an
asterisk), we meet, as early as 927, with "totius Britannise
monarchus, rex, rector, or basileus ;" " totius Britannia
solio sublimatus ;" and other phrases of insular sovereignty.
(Codex Diplom. vol. ii. passim; vol. v. 198.) What has
CHAP. VIII. DURING THE MIDDLE AGES. 355
been attributed to tbe imaginary Bretwaldas, belonged truly
to the kings of the tenth century. And the grandiloquence
of their titles is sometimes almost ridiculous. They affected
particularly that of Basileus, as something more imperial
than king, and less easily understood. Edwy and Edgar
are remarkable for this pomp, which shows itself also in the
spurious charters of older kings. But Edmund and Edred
with more truth and simplicity had generally denominated
themselves "rex Anglorum, cseterorumque in circuitu per-
sistentium gubernator et rector." (Codex Diplom. vol. ii.
passim?) An expression which was retained sometimes by
Edgar. And though these exceedingly pompous phrases
seem to have become less frequent in the next century, we
find "totius Albionis rex," and equivalent terms, in all the
charters of Edward the Confessor.*
But looking from these charters, where our kings asserted
what they pleased, to the actual truth, it may be inquired
whether Wales and Scotland were really subject, and in
what degree, to the self-styled Basileus at Winchester. This
is a debatable land, which, as merely historical antiquities
are far from being the object of this work, I shall leave to
national prejudice or philosophical impartiality. Edgar, it
may be mentioned, in a celebrated charter, dated in 964,
asserts his conquest of Dublin and great part of Ireland : —
" Mihi autem concessit propitia divinitas cum Anglorum
imperio omnia regna insularum oceani cum suis ferocissimis
regibus usque Norwegian!, maximamque partem Hibernise
cum sua nobilissima civitate Dublinia Anglorum regno sub-
jugare ; quos etiam omnes meis imperils colla subdere, Dei
favente gratia, coegi." (Codex Diplom. ii. 404.) No histo-
rian mentions any conquest or even expedition of th s kind.
Sir Francis Palgrave (ii. 258) thinks the charter " does not
contain any expression which can give rise to suspicion ; and
its tenor is entirely consistent with history :" meaning, I
presume, that the silence of history is no contradiction. Mr.
Kemble, however, marks it with an asterisk. I will mention
a "As a general rule it may be ob- from the latter half of that century, pe-
served, that before the tenth century the dantry and absurdity ^struggle for the
proem is comparatively simple; that mastery." Kemble's Introduction to
about that time the influence of the By- vol. ii. p. x.
zantine court began to be felt; and that
2 A 2
356 STATE OF EUEOPE NOTES TO /
here, that an excellent summary of Anglo-Saxon history,
from the earliest times to the Conquest, has been drawn up
by Sir F. Palgrave, in the second volume of the Rise and
Progress of the English Commonwealth.
NOTE III. Page 274.
THE proper division of freemen was into eorls and ceorls;
ge eorle — ge ceorle ; ge eorlische — ge ceorlische ; occur in
several Anglo-Saxon texts. The division corresponds to
the phrase "gentle and simple," of later times. Palgrave
(p. 11) agrees with this. Yet in another place (vol. ii.
p. 352) he says et It certainly designated a person of noble
race. This is the form in which it is employed in the laws
of Ethelbert. The earl and the churl are put in opposition
to each other, as the two extremes of society." I cannot
assent to this ; the second thoughts of my learned friend I
like less than the first. It seems like saying, men and
women are the extremes of humanity, or odd and even of
number. What was in the middle ? b Mr. Kemble, in his
Glossary to Beowulf, explains eorl by vir fortis, pugil vir ;
and proceeds thus : — " Eorl is not a title, as with us, any
more than beorn .... We may safely look upon
the origin of earl as a title of rank, to be the same as that
of the comites, who, according to Tacitus, especially attached
themselves to any distinguished chief. That these fideles
became under a warlike prince something more important
than the early constitution of our tribes contemplated, is
natural, and is, moreover, proved by history, and they laid
the foundations of that system which recognises the king as
the fountain of honour. In the later Anglo-Saxon constitu-
tion, ealdorman was a prince, a governor of a country or
small kingdom, sub-regulus ; he was a constitutional officer ;
b An earlier writer has fallen into the the lowest description of freemen, to
same mistake, which should be corrected, eorls, as the highest of the nobility."
as the equivocal meaning of the word Hey wood " On Ranks among the Anglo-
eorl might easily deceive the reader. Saxons," p. 278.
" Ceorls, or cyrlisc men are opposed, as
CHAP. VIII. DURING THE MIDDLE AGES. 357
the earl was not an officer at all, though afterwards the
government of counties came to be intrusted to him ; at first,
if he had a beneficium or feud at all, it was a horse, or
rings, or arms ; afterwards, lands. This appears constantly
in Beowulf, and requires no further remark." A speech,
indeed, ascribed to Withred, king of Kent, in 696, by the
Saxon Chronicle, would prove earls to have been superior
to aldermen in that early age. But the forgery seems too
gross to impose on any one. Ceorl, in Beowulf, is a man,
vir ; it is sometimes a husband ; a woman is said ceorlian,
i. e. viro se adjungere.
Dr. Lingard has clearly apprehended, and that long before
Mr. Kemble's publication, the distributive character of the
words eorl and ceorl. " Among the Anglo-Saxons, the free
population was divided into the eorl and ceorl, the man of
noble and ignoble descent ;" and he well observes that " by
not attending to this meaning of the word eorl and rendering
it earl, or rather comes, the translators of the Saxon laws
have made several passages unintelligible." (Hist, of Eng-
land, i. 468.) Mr. Thorpe has not, as I conceive, explained
the word as accurately or perspicuously as Mr. Kemble. He
says, in his Glossary to Ancient English Laws : — " Eorl,
comes, satelles principis. This is the prose definition of the
word ; in Anglo-Saxon and Old Saxon poetry, it signifies
man, though generally applied to one of consideration on
account of his rank or valour. Its etymon is unknown, one
deriving it from Old Norse, ar, minister, satelles ; another
from jara, proeliurn. (See B. Hald voc. Jarl, and the Gloss.
to Scemund, by Edda, t. i. p. 597.) This title, which seems
introduced by the Jutes of Kent, occurs frequently in the
laws of the kings of that district, the first mention of it being
in Ethelbert, 13. Its more general use among us dates from
the later Scandinavian invasions ; and though originally only
a title of honour, it became in later times one of office, nearly
supplanting the older and more Saxon one of ealdorman."
The editor does not here particularly advert to the use of
the word in opposition to ceorl. That a word merely ex-
pressing man may become appropriate to men of dignity
appears from bar and baro ; and something analogous is
seen in the Latin vir. Lappenberg (vol. ii. p. 13) says: —
358 STATE OF EUKOPE NOTES TO
" The title of eorl occurs in early times among the laws of
the Kentish kings, but became more general only in the
Danish times, and is probably of old Jutish origin." This
is a confusion of words ; in the laws of the Kentish kings,
eorl means only ingenuus, or, if we please, nobilis ; in the
Danish times it was comes, as has just been pointed out.
Such was the eorl, and such the ceorl, of our forefathers ;
one a gentleman, the other a yeoman, but both freemen.
We are liable to be misled by the new meaning which from
the tenth century was attached to the former word, as well
as by the inveterate prejudice that nobility of birth must
carry with it something of privilege above the most perfect
freedom. But we do not appreciate highly enough the value
of the latter in a semi-barbarous society. The eorlcundman
was generally, though not necessarily, a freeholder; he
might, unless restrained by special tenure, depart from, or
alienate his land ; he was, if a freeholder, a judge in the
county court ; he might marry, or become a priest, at his
discretion ; his oath weighed heavily in compurgation ; above
all, his life was valued at a high composition ; we add, of
course, the general respect which attaches itself to the birth
and position of a gentleman. Two classes indeed there
were, both " eorlcund," or of gentle birth, and so called in
opposition to ceorls, but in a relative subordination. Sir F.
Palgrave has pointed out the distinction in a passage which
I shall extract : —
" The whole scheme of the Anglo-Saxon law is founded
upon the presumption that every freeman, not being a
' hlaford/ was attached to a superior, to whom he was bound
by fealty, and from whom he could claim a legal protection
or warranty, when accused of any transgression or crime.
If, therefore, the ' eorlcund ' individual did not possess the
real property which, either from its tenure or its extent, was
such as to constitute a lordship, he was then ranked in the
very numerous class whose members, in Wessex and its
dependent states, were originally known by the name of
* sithcundmen,' an appellation which we may paraphrase by
the heraldic expression, 'gentle by birth and blood.' c This
c Is not the word sithcundman pro- lord, from the Saxon verb sithian, to
perly descriptive of his dependence on a follow ?
CHAP. VIII. DURINO THE MIDDLE AGES. 359
term of sithcundman, however, was only in use in the earlier
periods. After the reign of Alfred it is lost ; and the most
comprehensive and significant denomination given to this
class is that of ' sixhoendmen,' indicating their position be-
tween the highest and lowest law-worthy classes of society.
Other designations were derived from their services and
tenures. Radechnights, and lesser thanes, seem to be in-
cluded in this rank, and to which, in many instances, the
general name of sokemen was applied. But, however de-
signated, the sithcundman, or sixhoendman, appears, in every
instance, in the same relative position in the community :
classed amongst the nobility, whenever the eorl and the
ceorl are placed in direct opposition to each other ; always
considered below the territorial aristocracy, and yet distin-
guished from the villainage by the important right of selecting
his hlaford at his will and pleasure. By common right the
' sixhcendman ' was not to be annexed to the glebe. To use
the expressions employed by the compilers of Domesday, he
could ' go with his land wheresoever he chose/ or leaving
his land, he might ' commend ' himself to any hlaford who
would accept of his fealty." (Yol. i. p. 14.)d
It may be pointed out, however, which Sir F. P. has here
forgotten to observe, that the distinction of weregild between
the twelfhynd and syxhynd was abolished by a treaty be-
tween Alfred and Gu thrum. (Thorpe's Ancient Laws,
p. 66.) This indeed affects only the reciprocity of law
between English and Danes. Yet it is certain, that from
that time we rarely find mention of the intermediate rank
between the twelfhynd, or superior thane, and the twyhynd
or ceorl. The sithcundman, it would seem, was from hence-
forth rated at the same composition as his lord ; yet there is
one apparent exception (I have not observed any other) in
the laws of Henry I. It is said here (C. 76) — " Liberi
alii twyhyndi, alii syxhyndi, alii twelfhyndi. Twyhyndus
homo dicitur, cujus wera est 22 solidorum, qui faciunt 4
libras. Twelf hyndus est homo plene nobilis, id est, thainus,
d This right of choosing a lord at the eleventh century, whatever they may
pleasure, so little feudal, seems notindis- once have been, had become exceedingly
putable enough to warrant so general a various,
proposition . The conditions of tenure in
360 STATE OF EUROPE NOTES TO
cujus wera est 1200 solidorum, qui faciunt libras 25." It
is remarkable that, though the synxhyndman is named at
first, nothing more is said of him ; and the twelf hyndman is
defined to be a thane. It appears from several passages that
the laws recorded in this treatise are chiefly those of the
West Saxons, which differed in some respects from those of
Mercia, Kent, and the Danish counties. With regard to
the word sithcund, it does occur once or twice in the laws
of Edward the Elder. It might be supposed that the Danes
had retained the principle of equality among all of gentle
birth, common, as we read in Grimm, to the northern
nations, which the distinction brought in by the kings of
Kent between two classes of eorls or thanes, seemed to
contravene. We shall have occasion, however, to quote a
passage from the laws of Canute, which indicates a similar
distinction of rank among the Danes themselves, whatever
might be the rule as to composition for life.
The influence of Danish connexions produced an other great
change in the nomenclature of ranks. Eorl lost its general
sense of good birth, and became an official title, for the most
part equivalent to alderman, the governor of a shire or dis-
trict. It is used in this sense, for the first time, in the laws
of Edward the Elder. Yet it had not wholly lost its primary
meaning, since we find eorlish and ceorlish opposed, as dis-
tributive appellations, in one of Athelstan. (Id. p. 96.) It is
said in a sort of compilation, entitled, " On Oaths, Weregilds,
and Ranks," subjoined to the laws of Edward the Elder, but
bearing no date, that " It was whilom in the laws of the Eng-
lish .... that if a thane thrived so that he became an eorl,
then was he henceforth of eorl-right worthy." (Ancient Laws,
p. 81.e) But this passage is wanting in one manuscript,
though not in the oldest, and we find, just before it, the old
distributive opposition of eorl and ceorl. It is certainly a
remarkable exception to the common use of the word eorl in
any age, and has led Mr. Thorpe to suppose that the rank of
earl could be obtained by landed wealth. The learned editor
e The references are to the folio edi- cause some trouble to those who possess
tion of " Ancient Laws and Institutes of the octavo edition, which is much more
England," 1840, as published by the common.
Record Commission. I fear this may
CHAP. VIII. DURING THE MIDDLE AGES. 361
thinks that " these pieces cannot have had a later origin than
the period in whiph they here stand. Some of them are
probably much earlier." (p. 76.) But the mention of the
" Danish law" in p. 79, seems much against an earlier date ;
and this is so mentioned as to make us think that the Danes
were then in subjection. In the time of Edgar, eorl had fully
acquired its secondary meaning ; in its original sense it seems
to have been replaced by thane. Certain it is that we find
thane opposed to ceorl in the later period of Anglo-Saxon
monuments, as eorl is in the earlier; as if the law knew no
other broad line of demarcation among laymen, saving always
the official dignities and the royal family/ And the distinc-
tion between the greater and the lesser thanes was not lost,
though they were put on a level as to composition. Thus,
in the Forest Laws of Canute : — " Sint jam deinceps quat-
tuor ex liberalioribus hominibus qui habent salvas suas con-
suetudines, quos Angli thegnes appellant, in qualibet regni
mei provincia constituti. Sint sub quolibet eorum quattuor ex
mediocribus hominibus, quos Angli lesthegenes nuncupant,
Danivero yoongmen vocant, locati." (Ancient Laws, p. 183.)
Meantime, the composition for an earl, whether we confine
that word to office, or suppose that it extended to the wealth-
iest landholders, was far higher in the later period than that
for a thane, as was also his heriot when that came into use.
The heriot of the king's thane was above that of what was
called a medial thane, or mesne vassal, the sithcundman, or
syxhynder, as I apprehend, of an earlier style.
In the laws of the continental Saxons, we find the rank
corresponding to the eorlcunde of our own country, denomi-
nated edelingi or noble, as opposed to the frilingi or ordinary
freemen. This appellation was not lost in England, and was,
perhaps, sometimes applied to nobles, but we find it generally
reserved for the royal family .g Ethel or noble, sometimes
f "That the thane, at least originally, being 1200 shillings. That this dignity
was a military follower, a holder by mi- ceased from being exclusively of a mili-
litary service, seems certain ; though in tary character is evident from numerous
later times, the rank seems to have been passages in the laws, where thanes are
enjoyed by all great landholders, as the mentioned in a judicial capacity, and as
natural concomitant of possession to a civil officers." Thorpe's Glossary to
certain value. By Mercian law, he ap- Ancient Laws, voc. Thegen.
pears as a 'twelfhynde' man, his 'wer' g Thorpe's Glossary.
362 STATE OF EUROPE NOTES TO
contracted, forms, as is well known, the peculiar prefix to the
names of our Anglo-Saxon royal house. And the word athe-
linq was used, not as in Germany for a noble, but a prince ;
and his composition was not only above that of a thane, but
of an alderman. He ranked as an archbishop in this respect,
the alderman as a bishop. (Leges Ethelredi, p. 141.) It is
necessary to mention this, lest in speaking of the words eorl
and ceorlas originally distributive, I should seem to have for-
gotten the distinctive superiority of the royal family. But
whether this had always been the case I am not prepared to
determine. The aim of the later kings, I mean after Alfred,
was to carry the monarchical principle as high as the temper
of the nation would permit. Hence they prefer to the name
of king, which was associated in all the Germanic nations
with a limited power, the more indefinite appellations of im-
perator and basileus. Arid the latter of these they borrowed
from the Byzantine court, liking it rather better than the
other, not merely out of the pompous affectation character-
istic of their style in that period, but because, being less
intelligible, it served to strike more awe ; and also, probably,
because the title of western emperor seemed to be already
appropriated in Germany. It was natural that they would
endeavour to enhance the superiority of all athelings above
the surrounding nobility.
A learned German writer, who distributes freemen into
but two classes, considers the ceorl of the Anglo-Saxon laws
as corresponding to the ingenuus, and the thrall or esne,
that is, slave, to the lidus of the continent. " Adelingus und
liber, nobilis und ingenuus^ edelingus undfrilingus, jarl und
karl, stehen hier immer als stand der freien dem der un-
freien, dem servus, litus, lazzus, thrall entgegen." (Grimm,
Deutsche Bechts-Alterthumer (Gottingen, 1828), p. 226, et
alibi.) Ceorl, however, he owns to have " etwas befrem-
dendes," something peculiar. " Der sinn ist bald mas, bald
liber ; allein colonus, rusticus, ignobilis ; die mitte zwischen
nobilis und servus."
It does not appear from the continental laws, that the litus,
or lidus, was strictly a slave, but rather a cultivator of the earth
fora master, something like the Roman colonus, though of
CHAP. VIII.
DURING THE MIDDLE AGES.
363
inferior estimation.11 No slave had a composition due to his
kindred by law ; the price of his life was paid to his lord.
By some of the barbaric laws, one-third of the composition
for a lidus went to the kindred ; the remainder was the lord's
share. This indicates something above the Anglo-Saxon
theow or slave, and yet considerably below the ceorl. The
word, indeed, has been puzzling to continental antiquaries ;
and if, in deference to the authorities of Gothofred and Grimm,
we find the lidi in the barbaric Iceti of the Roman empire,
we cannot think these at least to have been slaves, though
they may have become coloni. But I am not quite convinced
of the identity resting on a slight resemblance of name.
The ceorl, or villanus^ as we find him afterwards called in
Domesday, was not generally an independent freeholder ; but
his condition was not always alike. He might acquire land ;
and, if he did this to the extent of five hydes, he became a
thane.1 He required no enfranchisement for this ; his own
h Mr. Spence remarks (Equitable Ju-
risdiction, p. 51) — "In the condition
of the ceorls, we observe one of the many
striking examples of the adaptation of the
German to the Roman institutions — the
ceorls and servile cultivators or adscrip-
titii in England, as well as in the con-
tinental states, exactly corresponded with
the coloni and inquilini of the Roman
provinces." Yet he immediately sub-
joins— "The condition of the rural
slaves of the Germans nearly resembled
that of the Roman coloni and Anglo-
Saxon ceorls," quoting Tacitus, c. 21.
But did the Germans, at that time, adapt
their institutions to those of the Romans?
Do we not rather see here an illustration
of what appears to me the true theory,
that similarity of laws and customs may
often be traced to natural causes in the
state of society rather than to imitation?
My notion is, that the Germans, through
principles of common sympathy among
the same tribe, the Romans, through me-
mory of republican institutions carried on
into the empire, repudiated the personal
servitude of citizens, while they main-
tained very strict obligations of praedial
tenure; and thus the coloni of the lower
empire on the one hand, the lidi and
ceorls on the other, were neither abso-
lutely free, nor merely slaves.
"In the Lex Frisiorum," says Sir F.
Palgrave, in one of his excellent contri-
butions to the Edinburgh Review (xxxii.
16), "we find the usnal distinctions of
nobilis, liber, and litiis. The rank of the
Teutonic lit us has been much discussed ;
he appears to have been a villein, owing
many services to his lord, but above the
class of slaves." The word villein, it
should be remembered, bore several
senses : the lit us was below a Saxon
ceorl, but he was also above the villein
of Bracton and Littleton.
' This is not in the laws of Athelstan,
to which I have referred in p. 360, nor
in any regular statute, but in a kind of
brief summary of law, printed by Wil-
kins and Thorpe. But I think that Sir
Francis Palgrave treats this too slightly,
when he calls it "" a traditionary notice of
an unknown writer, who says, ' whilom
it was the law of England;' leaving it
doubtful whether it were so still, or had
been at any definite time." (Edinb. Rev.
xxxiv. 263.) Though this phrase is once
used, it is said also expressly: — "If a
ceorl be enriched to that degree that he
have five hydes of land, and any one slay
him, let him be paid for with 2000 thrym-
sas." Thorpe, p. 79. This, a few sen-
tences before, is named as the composition
for a thane in the Danelage. And, in-
deed, though no king's name appears, I
have little doubt that these are real sta-
tutes, collected probably by some one
who has inserted a little of his own,
364 STATE OF EUROPE NOTES TO
industry might make him a gentleman. This was not the case,
at least not so easily, in France. It appears by the will of
Alfred, published in 1788, that certain ceorls might choose
their own lord ; and the text of his law above quoted furnishes
some ground for supposing that he extended the privilege to
all. The editor of his will says— " All ceorls by the Saxon
constitution might choose such man for their landlord as
they would." (p. 26.) But even though we should think
that so high a privilege was conferred by Alfred on the whole
class, it is almost certain that they did not continue to enjoy it.
In the Anglo-Saxon charters, the Latin words for the cul-
tivators are " manentes" or " casati." Their number is gene-
rally mentioned ; and sometimes it is the sole description of
land, except its title. The French word manant is evidently
derived from manentes. There seems more difficulty about
casati, which is sometimes used for persons in a state of ser-
vitude, sometimes even for vassals (Ducange). In our char-
ters it does not bear the latter meaning. (See Codex Diplo-
msiticus, passim. Spence on Equitable Jurisdiction, p. 50.)
But when" we turn over the pages of Domesday Book, a
record of the state of Anglo-Saxon orders of society tinder
Edward the Confessor, we find another kind of difficulty.
New denominations spring up, evidently distinguishable, yet
such as no information communicated either in that survey
or in any other document enables us definitively and certainly
to distinguish. Nothing runs more uniformly through the
legal documents antecedent to the Conquest, than the broad
division of freemen into eorls, afterwards called thanes, and
ceorls. In Domesday, which enumerates, as I need hardly
say, the inhabitants of every manor, specifying their ranks,
not only at the epoch of the survey itself, about 1085, but as
they were in the time of king Edward, we find abundant
mention of the thanes, generally indeed, but not always, in re-
ference to the last-named period. But the word ceorl never
occurs. This is immaterial ; for by the name villani we
have upwards of 108,000. And this word is frequently used
in the first Anglo-Norman reigns, as the equivalent of ceorl.
No one ought to doubt that they expressed the same persons.
But we find also a very numerous class, above 82,000,
styled bordarii ; a word unknown, I apprehend, to any other
CHAP. VIII. DURING THE MIDDLE AGES. 365
public document ; certainly not used in the laws anterior to
the Conquest. They must, however, have been also ceorls,
distinguished by some legal difference, some peculiarity of ser-
vice or tenure, well understood at the time. A small number
are denominated coscetz or cosceti ; a word which does in
fact appear in one Anglo-Saxon document. There are also
several minor denominations in Domesday, all of which, as
they do not denote slaves, and certainly not thanes, must have
been varieties of the ceorl kind. The most frequent of these
appellations is " eotarii."
But, besides these peasants, there are two appellations
which it is less easy, though it would be more important,
to define. These are the liberi homines and the socmanni.
Of the former Sir Henry Ellis, to whose indefatigable dili-
gence we owe the only real analysis of Domesday Book that
has been given, has counted up about 12,300 5 of the latter,
about 23,000, forming together about one-eighth of the
whole population, that is, of male adults. This, it must be
understood, was at the time of the survey ; but there is no
appearance, as far I have observed, that any material
difference in the proportion of these respective classes, or of
those below them, had taken place. The confiscation fell on
the principal tenants. It is remarkable that in Norfolk alone
we have 4487 liberi homines, and 4588 socmen ; the whole
enumerated population being 27,087- But in Suffolk, out
of a population of 20,491 we find 74/0 liberi homines, with
1060 socmen. Thus these two counties contained almost
all the liberi homines of the kingdom. In Lincolnshire, on
the other hand, where 11,504 are returned as socmen, the
word liber homo does not occur. These Lincolnshire soc-
men are not, as usual in other counties, mentioned among
occupiers of the demesne lands, but mingled with the villeins
and bordars ; sometimes not standing first in the enumera-
tion, so as to show that, in one county, they were both a
more numerous and more subordinate class than in the rest
of the realm. k
k Socmen are returned in not a few to Domesday, ii. 389. But this could,
instances as sub-tenants of whole manors, it seems, have only originated in the
but only in Cambridgeshire and some phraseology of different commissioners;
neighbouring counties. Ellis's Introd. for the counties in which we find socmen
366 STATE OF EUROPE NOTES TO
The concise distinction between what we should call free-
hold and copyhold, is made by the forms of entering each
manor throughout Domesday Book. Liberi homines in-
variably, and socmen I believe, except in Lincolnshire, occu-
pied the one, villani and bordarii the other. Hence liberum
tenementum and villenagium. What then, in Anglo-
Saxon language, was the kind of the two former classes ?
They belong, it will be observed, almost wholly to the Danish
counties ; not one o either denomination appears in Wessex,
as will be seen by reference to Sir H. Ellis's abstract.
Were they thanes or ceorls, or a class distinct from both ?
What was their were? We cannot think that a poor culti-
vator of a few acres, though of his own land, was estimated
at 1200 shillings, like a royal thane. The intermed:ate
composition of the sixhyndman would be a convenient guess ;
but unfortunately this seems not to have existed in the Dane-
lage. We gain no great light from the laws of Edward the
Confessor, which fix the manbote, or fine to the lord for
a man slain, regulated according to the were due to his
chi dren. Manbote, in Danelage, "de villano et de soke-
manno 12 oras ; de liberis hominibus, tres marcas." (C. 12.)
Thus, in the Danish counties, of which Lincolnshire was
one, the socman was estimated like a villanus, and much
lower than a liber homo. The ora is said to have been one-
eighth of a mark, consequently the liber homo's manbote
was double that of the villein or socman. If this bore a
fixed ratio to the were, we have a new and unheard-of rank
who might be called fourhyndmen. But such a distinction
is never met with. It would not in itself be improbable that
the liberi homines who occupied freehold lands, and owed
no prsedial service, should be raised in the composition for
their lives above common ceorls. But in these inquiries new
difficulties are always springing forth.
We must, upon the whole, I conceive, take the socmen
for twyhyridi, for ceorls more fortunate than the rest, who
had acquired some freehold land, or to whose ancestors, pos-
sibly, it had been allotted in the original settlement. It in-
so much elevated, had not belonged to probably, as Hertfordshire, of either the
the same Anglo-Saxon kingdom; some Kent or Wessex law.
were East-Anglian, some Mercian, some
CHAP. VIII. DURING THE MIDDLE AGES. 367
dicates a remarkable variety in the condition of these East-
Anglian counties, Norfolk and Suffolk, and a more diffused
freedom in their inhabitants. The population, it must strike
us, was greatly higher, relatively to their size, than in any
other part of England ; and the multitude of small manors
and of parish churches, which still continue, bespeaks this
progress. The socmen, as well as the liberi homines, in
whose condition there may have been little difference, except
in Lincolnshire, where we have seen, that for whatever cause,
those denominated socmen were little, if at all, better than
the villani, were all commended ; they had all some lord,
though bearing to him a relation neither of fief nor of vill en-
age ; they could in general, though with some exceptions,
alienate their lands at pleasure ; it has been thought that they
might pay some small rent in acknowledgment of com-
mendation ; but the one class, undoubtedly, and probably
the other, were freeholders in every legal sense of the word,
holding by that ancient and respectable tenure, free and com-
mon socage, or in a manner at least analogous to it. Though
socmen are chiefly mentioned in the Danelage, other obscure
denominations of occupiers occur in Wessex and Mercia,
which seem to have denoted a similar class. But the style
of Domesday is so concise, and so far from uniform, that
we are very liable to be deceived in our conjectural inferences
from it.
It may be remarked here, that many of our modern writers
draw too unfavourable a picture of the condition of the
Anglo-Saxon ceorl. Few indeed fall into the capital mis-
take of Mr. Sharon Turner, by speaking of him as legally
in servitude, like the villein of Bracton's age. But we often
find a tendency to consider him as in a very uncomfortable
condition, little caring " to what lion's paw he might fall/'
as Bolingbroke said in 1745, and treated by his lord as a
miserable dependent. Half a century since, in the days of
Sir William Jones, Granville Sharp, and Major Cartwright,
the Anglo-Saxon constitution was built on universal suffrage ;
every man in his tything a partaker of sovereignty, and
sending from his rood of land an annual representative to
the witenagemot. Such a theory could not stand the first
glimmerings of historical knowledge in a mind tolerably
368 STATE OF EUROPE NOTES TO
sound. But while we absolutely deny political privileges of
this kind to the ceorl, we need not assert his life to have
been miserable. He had very definite legal rights, and
acknowledged capacities of acquiring more ; that he was
sometimes exposed to oppression is probable enough ; but,
in reality, the records of all kinds that have descended to us
do not speak in such strong language of this as we may read
in those of the continent. We have no insurrection of the
ceorls, no outrages by themselves, no atrocious punishment
by their masters, as in Normandy. Perhaps we are a little
too much struck by their obligation to reside on the lands
which they cultivated ; the term ascriptus glebce denotes, in
our apprehension, an ignoble servitude. It is, of course,
inconsistent with our modern equality of rights ; but we are
to remember, that he who deserted his land, and conse-
quently his lord, did so in order to become a thief. Hlafor-
dles men, of whom we read so much, were invariably of this
character. What else, indeed, could he become ? Children
have an idle play, to count buttons, and say : — Gentleman,
apothecary, ploughman, thief. Now this, if we consider the
second as representative of burgesses in towns, is actually a
distributive enumeration, setting aside the clergy, of the
Anglo-Saxon population ; a thane, a burgess, a ceorl, a
hlafordles man ; that is, a man without land, lord, or law,
who lived upon what he could take. For the sake of pro-
tecting the honest ceorl from such men, as well as of pro-
tecting the lord in what, if property be regarded at all, must
be protected, his rights to services legally due, it was neces-
sary to restrain the cultivator from quitting his land. Excep-
tions to this might occur, as we find among the liberi ho-
mines and others in Domesday, but it was the general rule.
We might also ask, whether a lessee for years at present, is
not, in one sense, ascriptus glebce. It is true, that he may
go wherever he will ; and if he continue to pay his rent and
perform his covenants, no more can be said. But if he does
not this, the law will follow his person ; and though it can-
not force him to return, will make it by no means his interest
to desert the premises. Such remedies as the law now fur-
nishes were not in the power of the Saxon landlord ; but
all that any lord could desire was to have the services per-
formed, or to receive a compensation for them.
CHAP. VIII. DUKING THE MIDDLE AGES. 369
NOTE IY. Page 274.
THOSE who treat this opinion as chimerical, and seem to
suppose that a very large portion of the population of Eng-
land, during the Anglo-Saxon period, must have been of
British descent, do not, I think, sufficiently consider — first,
the exterminating character of barbarous warfare, not here
confined, as in Gaul, to a single and easy conquest, but pro-
tracted for two centuries with the most obstinate resistance
of the natives ; secondly, the facilities which the possessions
of the Welsh and Cumbrian Britons gave to their country-
men for retreat ; and thirdly, the natural increase of popula-
tion among the Saxons, especially when settled in a country
already reduced into a state of culture. Nor can the suc-
cessive migrations from Germany and Norway be shown to
have been insignificant. Nothing can be scantier than our
historical materials for the fifth and sixth centuries. We
cannot also but observe, that the silence of the Anglo-Saxon
records, at a later time, as to Welsh inhabitants, except in
a few passages, affords a presumption that they were not
very considerable. Yet these passages, three or four in
number (I do not include those which obviously relate to the
independent Welsh, whether Cambrian or Cumbrian), repel
the hypothesis that they may have been wholly overlooked
and confounded with the ceorls. Their composition was less
than that of the ceorl in Wessex and Northumbria ; would
not this have been mentioned in Kent if they had been found
there ?
It is by no means unimportant in this question, that we
find no mention of bishops or churches remaining in the parts
of England occupied by the Saxons before their conversion.
If a large part of the population was British, though in sub-
jection, what religion did they profess ? If it is said that
the worshippers of Thor persecuted the Christian priesthood,
why have we no records of it in hagiology ? Is it conceivable
that all alike, priests and people, of that ancient church,
pusillanimously relinquished their faith ? Sir F. Palgrave,
VOL. n. 2 B
370 STATE OF EUEOPE NOTES TO
indeed, meets this difficulty by supposing that the doctrines
of Christianity were never cordially embraced by the British
tribes, nor had become the national religion. (Engl. Com-
monwealth, i. 154.) Perhaps this was in some measure the
case, though it must be received with much limitation ; for
the retention of heathen superstitions was not incompatible in
that age with a cordial faith ; but it will not account for the
disappearance of the original clergy in the English king-
doms. Their persecution, which I do not deny, though we
have no evidence of it, would be part of the exterminating
system ; they fled before it into the safe quarters of Wales.
And to obtain the free exercise of their religion was pro-
bably an additional motive with the nation to seek liberty
where it was to be found.
It must have struck everyone who has looked into Domes-
day Book, that we find for the most part the same manors,
the same parishes, and known by the same names, as in the
present age. England had been as completely appropriated
by Anglo-Saxon thanes as it was by the Normans who sup-
planted them. This, indeed, only carries us back to the
eleventh century. But in all charters, with which the ex-
cellent Codex Diplomaticus supplies us, we find the bound-
aries assigned ; and these, if they do not establish the iden-
tity of manors as well as Domesday Book, give us at least a
great number of local names, which subsist, of course with
the usual changes of language, to this day. If British names
of places occur, it is rarely, and in the border counties, or in
Cornwall. No one travelling through England would dis-
cover that any people had ever inhabited it before the Saxons;
save so far as the mighty Rome has left traces of her empire
in some enduring walls, and a few names that betray the
colonial city, theLondinium, theCamalodunum,the Lindum.
And these names show that the Saxons did not systematically
innovate, but often left the appellations of places where they
found them given. Their own favourite terminations were
ton and by ; both words denoting a village or township, like
ville in French.m In each of these there gradually rose a
m The word tun denotes originally any homestead, the house and inland; all, in
enclosure. ' ' But its more usual, though short, that is surrounded and bounded by
restricted sense, is that of a dwelling, a a hedge or fence. It is thus capable of
CHAP. VIII. DUKING THE MIDDLE AGES. 371
church, and the ecclesiastical division for the most part cor-
responds to the civil ; though to this, as is well known,
there are frequent exceptions. The central point of every
tqwnship or manor was its lord, the thane to whose court
the socagers and ceorls did service ; we may believe this to
have been so from the days of the Heptarchy, as it was in
those of the Confessor.
The servi enumerated in Domesday Book are above
25,000, or nearly one- eleventh part of the whole. These
seem generally to have been domestic slaves, and partly em-
ployed in tending the lord's cattle or swine, as Gurth, whom
we all remember, the ^09 v(pop/3o$ of the thane Cedric in
Ivanhoe. They are never mentioned as occupiers of land,
and have nothing to do with the villeins of later times. A
genuine Saxon, as I have said, could only become a slave
by his own, or his forefather's default, in not paying a were-
gild, or some legal offence ; and of these there might have
been many. The few slaves whose names Mr. Turner has
collected from Hickes and other authorities, appear to be all
Anglo-Saxon. (Hist, of Anglo-Saxons, vol. iii. p. 92.)
Several others are mentioned in charters quoted by Mr.
Wright, in the 30th volume of the " Archseologia," p. 220.
But the higher proportion which servi bore to villani and
bordarii, that is, free ceorls, in the western counties, those
in Gloucestershire being almost one- third, may naturally in-
duce us to suspect that many were of British origin ; and
these might be sometimes in prsedial servitude. All infer-
ence, however, from the census in Domesday as to the par-
ticular state of the enumerated inhabitants, must be conjec-
tu rally proposed.
being used to express what we mean by Codex Diplomatics, Dr. Lee computes
the word town, viz. a large collection of the proportion of local names corn-
dwellings ; or, like the Scottish town, pounded with tun at one-eighth of the
even a solitary farm-house. It is very whole number ; a ratio which unavoid-
remarkable that the largest proportion of ably leads us to the conclusion, that en-
the names of places among the Anglo- closures were as much favoured by the
Saxons should have been formed with Anglo-Saxons as they were avoided by
this word, while upon the continent of their German brethren beyond the sea."
Europe it is never used for such a pur- Preface to Kemble*s Codex Diplom. vol.
pose. In the first two volumes of the iii. p. xxxix.
9 T> 9
A -D &
372 STATE OP EUROPE NOTES TO
NOTE Y. Page 276.
THE constituent parts of the witenagemot cannot be certainly
determined, though few parts of the Anglo-Saxon polity are
more important. A modern writer espouses the more popular
theory. " There is no reason extant for doubting that every
thane had the right of appearing and voting in the witena-
gemot, not only of his shire, but of the whole kingdom,
without however being bound to personal attendance, the
absent being considered as tacitly assenting to the resolutions
of those present?" (Lappenberg, Hist, of England, vol. ii.
p. 317.) Palgrave, on the other hand, adheres to the testi-
mony of the Historia Eliensis, that forty hydes of land were
a necessary qualification ; which of course would have ex-
cluded all but very wealthy thanes. He observes, and I
believe with much justice, that "proceres terrae" is a com-
mon designation of those who composed a curia regis, syno-
nymous, as he conceives, with the witenagemot. Mr.
Thorpe ingeniously conjectures, that " inter proceres terrae
enumerari" was to have the rank of an earl; on the ground
that five hydes of land was a qualification for a common
thane, whose heriot, by the laws of Canute, was to that of
an earl as one to eight. (Ancient Laws of Anglo-Saxons,
p. 81.) Mr. Spence supposes the rank annexed to forty
hydes to have been that of king's thane. (Inquiry into
Laws of Europe, p. 31 1.) But they were too numerous for
so high a qualification.
Mr. Thorpe explains. the word witenagemot thus : — "The
supreme council of the nation, or meeting of the witan.
This assembly was summoned by the king ; and its members,
besides the archbishop or archbishops, were the bishops,
aldermen, duces, eorls, thanes, abbots, priests, and even
deacons. In this assembly, laws, both secular and ecclesias-
tical, were promulgated and repealed ; and charters of grants
made by the king confirmed and ratified. Whether this
assembly met by royal summons, or by usage at stated periods,
is a point of doubt." (Glossary to Ancient Laws.) This
CHAP. VIII. DURING THE MIDDLE AGES.^ 373
is not remarkably explicit : aldermen are distinguished from
earls, anl duces, an equivocal word, from both ;n and the
important difficulty is slurred over by a general description,
thanes. But, what thanes ? remains to be inquired.
The charters of all Anglo-Saxon sovereigns are attested,
not only by bishops and abbots, but by laymen, described,
if by any Saxon appellation, as aldermen, or as thanes.
Their number is not very considerable ; and some appear
hence to have inferred, that only the superior or royal thanes
were present in the witenagemot. But, as the signatures of
the whole body could not be required to attest a charter, this
is far too precarious an inference. Few, however, probably,
are found to believe that the lower thanes flocked to the
national council, whatever their rights may have been ; and
if we have no sufficient proof that any such privileges had
been recognised in law or exercised in fact, if we are rather
led to consider the sithcundman, or sixhynder, as dependent
merely on his lord, in something very analogous to a feudal
relation, we may reasonably doubt the strong position which
Lappenberg, though following so many of our own anti-
quaries, has laid down. Probably the traditions of the
Teutonic democracy led to the insertion of the assent of the
people in some of the Anglo-Saxon laws. But it is done in
such a manner as to produce a suspicion, that no substantial
share in legislation had been reserved to them. Thus in
the preamble of the laws of Withroed, about 696, we read,
" The great men decreed, with the suffrages of all, these
dooms." Ina's laws are enacted " with all my ealdormen,
and the most distinguished witan of my people." Alfred
has consulted "his witan." And this is the uniform word
in all later laws in Anglo-Saxon. Canute's in Latin run —
" Cum consilio primariorum meorum." We have not a
n Dux' appears to be sometimes used among the Anglo-Saxons, was, as it
in the" subscription of charters for thane, implies, given originally to the leader of
more commonly for alderman. Thane an army; but in the latter days of the
is generally, in Latin, minister. Codex monarchy it seems to have become here-
Diplomat. passim. Some have sup- ditary in the families of those on whom
posed dux to signify, at least occasion- the government of the provinces formed
ally, a peculiar dignity, called, in Anglo- out of the kingdoms of the Heptarchy
Saxon, Heretoch (herzog, Germ.). This were bestowed, and was sometimes used
word frequently occurs in the later synonymously with those of ealdorman
period. Mr. Thorpe says : — "This title, and eorl." Glossary, voc. Heretoga.
374 STATE OF EUEOPE NOTES TO
hint of any numerous or popular body in the Anglo-Saxon
code.
Sir F. Falgrave (i. 637) supposes that the laws enacted
in the witenagemot wjere not valid till accepted by the legis-
latures of the different kingdoms. This seems a paradox,
though supported with his usual learning and ingenuity.
He admits that Edgar "speaks in the tone of prerogative,
and directs his statutes to be observed and transmitted by
writ to the aldermen of the other subordinate states."
(p, 638.) But I must say that this is not very exact. The
words in Thorpe's translation are — " And let many writ-
ings be written concerning these things, and sent both to
.ZElfere, alderman, and to JEthelwine, alderman, and let them
[send] in every direction, that this ordinance be known to
the poor and rich." (p. 118.) " And yet," Sir F. P. pro-
ceeds, " in defiance of this positive injunction, the laws of
Edgar were not accepted in Mercia till the reign of Canute
the Dane." For this, however, he cites no authority, and
I do not find it in the Anglo-Saxon laws. Edgar says : —
"And I will that secular rights stand among the Danes
with as good laws as they best may choose. But with the
English, let that stand which I and my witan have added to
the dooms of my forefathers, for the behoof of all the people.
Let this ordinance, nevertheless, be common to all the people,
whether English, Danes, or Britons, on every side of ray
dominion." (Thorpe's Ancient Laws, p. 116.) But what
does this prove as to Mercia ? The inference is, that Edgar,
when he thought any particular statute necessary for the
public weal, enforced it on all his subjects, but did not
generally meddle with the Danish usages.
"The laws of the glorious Athelstan had no effect in
Kent, the dependent apanage of his crown, until sanctioned
by the witan of the shire." It is certainly true that we find
a letter addressed to the king in the name of " episcopi tui
de Kancia, et omnes Cantescyre thaini, comites et villani,"
thanking him "quod nobis de pace nostra prsecipere voluisti
et de commodo nostro quoerere et consulere, quia magnum
inde nobis est opus divitibus et pauperibus." But the whole
tenor of this letter, which relates to the laws enacted at the
witenagemot, or "grand synod " of Greatanlea (supposed
CHAP. VIII. DURING THE MIDDLE AGES. 375
near Andover), though it expresses approbation of those
laws, and repeats some of them with slight variations, does
not in my judgment amount to a distinct enactment of them;
and the final words are not very legislative. " Precamur,
Doinine, misericordiam tuam, si in hoc scripto alterutrum
est vel nimis vel minus, ut hoc emendari jubeas secundum
velle tuum. Et nos devote parati sumus ad omnia quss
nobis prsecipere velis quae unquam aliquatenus implere
valeamus." (p. 91.)
It is, moreover, an objection to considering this as a
formal enactment by the witan of the shire, that it runs in
the names of " thaini, comites et villani." Can it be main-
tained that the ceorls ever formed an integrant element of
the legislature in the kingdom of Kent ? It may be alleged
that their name was inserted, though they had not been
formally consenting parties, as we find in some parliamentary
grants of money much later. But this would be an arbitrary
conjecture, and the terms ''omnes thaini," &c. are very
large. By comites, we are to understand, not earls, who in
that age would not have been spoken of distinctly from
thanes, at least in the plural number, nor postponed to them,
but thanes of the second order, sithcundmen, sixhynder.
Alfred translates "comes" by "gesith," and the meaning
is nearly the same.
In the next year we have a very peremptory declaration of
the exclusive rights of the king and his witan. " Athelstan,
king, makes known, that I have learned that our ' frith '
(peace) is worse kept than is pleasing to me, or as at Grea-
tanlea was ordained, and my witan say that I have too long
borne with it. Now, I have decreed, with the witan who
were with me at Exeter at midwinter, that they [the frith-
breakers] shall all be ready, themselves and with wives and
property, and with all things, to go whither 1 will (unless
from thenceforth they shall desist), on this condition, that
they never come again to the country. And if they shall
ever again be found in the country, that they be as guilty as
he who may be taken with stolen goods (hand-habbende)."
Sir Francis Palgrave, a strenuous advocate for the anti-
quity of municipal privileges, contends for aldermen, elected
by the people in boroughs, sitting and assenting among the
376 STATE OF EUROPE NOTES TO
king's witan. (Edinb. Rev. xxvi. 26.) " Their seats in the
witenagemot were connected as inseparably with their office
as their duties in the folkmote. Nor is there any reason for
denying to the aldermen of the boroughs the rights and rank
possessed by the aldermen of the hundreds ; and they, in
all cases, were equally elected by the commons." The
passage is worthy of consideration, like everything which
comes from this ingenious and deeply read author. But we
must be staggered by the absence of all proof, and parti-
cularly by the fact that we do not find aldermen of towns, so
described, among the witnesses of any royal charter. Yet it
is possible that such a privilege was confined to the superior
thanes, which weakens the inference. We cannot pretend,
I think, to deny, in so obscure an inquiry, that some eminent
inhabitants (I would here avoid the ambiguous word citizens)
of London, or even other cities, might occasionally be pre-
sent in the witenagemot. But were not these, as we may
confidently assume, of the rank of thane ? The position in
my text is, that ceorls or inferior freemen had no share in
the deliberations of that assembly. Nor would these alder-
men, if actually present, have been chosen by the court-leet
for that special purpose, but as regular magistrates. "Of
this great council," Sir F. P. says, in another place (Edinb.
Rev. xxxiv. 336), "as constituted anterior to the Conquest,
we know little more than the name." The greater room,
consequently, for hypothesis. In a later work, as has been
seen above, Sir F. P. adopts the notion, that forty hydes of
land were the necessary qualification for a seat in the wite-
nagemot. This is almost inevitably inconsistent with the
presence, as by right, of aldermen elected by boroughs.
We must conclude, therefore, that he has abandoned that
hypothesis. Neither of the two is satisfactory to my judg-
ment.
•
NOTE VI. Page 279.
THE hundred-court, and indeed the hundred itself, do not
appear in our Anglo-Saxon code before the reign of Edgar,
CHAP. VIII. DURING THE MIDDLE AGES. 377
whose regulations concerning the former are rather full"
But we should be too hasty in concluding that it was then
first established. Nothing in the language of those laws
implies it. A theory has been developed in a very brilliant
and learned article of the Edinburgh Review for 1822
(xxxvi. 287), justly ascribed to Sir F. Palgrave, which
deduces the hundred from the hcerad of the Scandinavian
kingdoms, the integral unit of the Scandinavian common-
wealths. " The Gothic commonwealth is not an unit of
which the smaller bodies politic are fractions. They are
the units, and the commonwealth is the multiple. Every
Gothic monarchy is in the nature of a confederation. It
is composed of towns, townships, shires, bailiwicks, burghs,
earldoms, dukedoms, all in a certain degree strangers to
each other, and separated in jurisdiction. Their magistrates
therefore, in theory at least, ought not to emanate from the
sovereign. . . . The strength of the state ascends from
region to region. The representative form of government,
adopted by no nation but the Gothic tribes, and originally
common to them all, necessarily resulted from this federative
system, in which the sovereign was compelled to treat the
component members as possessing a several authority."
The hundred was as much, according to Palgrave, the
organic germ of the Anglo-Saxon commonwealth, as the
hserad was of the Scandinavian. Thus the leet, held every
month, and composed of the tything-men or head-boroughs,
representing the inhabitants, were both the inquest and the
jury, possessing jurisdiction, as he conceives, in all cases
civil, criminal, and ecclesiastical, though this was restrained
after the Conquest. William forbad the bishop or arch-
deacon to sit there ; and by the 17th section of Magna
Charta, no pleas of the crown could be held before the
sheriff, the constable, the coroner, or other bailiff (inferior
officer) of the crown. This was intended to secure for the
prisoner, on charges of felony, a trial before the king's
justices on their circuits ; and from this time, if not earlier,
the hundred-court was reduced to insignificance. That,
indeed, of the county retaining its civil jurisdiction, as it still
does in name, continued longer in force. In the reign of
Henry I. or when the customal (as Sir F. Palgrave deno-
378 STATE OF EUEOPE NOTES TO
mi nates what are usually called his laws) was compiled
(which in fact was a very little later), all of the highest
rank were bound to attend at it. And though the extended
jurisdiction of the curia regis soon cramped its energy, we
are justified in saying that the proceedings before the justices
of assise were nearly the same in effect as those before the
shire-mote. The same suitors were called to attend, and
the same duties were performed by them, though under dif-
ferent presidents. The grand jury, it may be remarked,
still corresponds, in a considerable degree, to the higher
class of landholders bound to attendance in the county-
court of the Saxon and Norman periods.
I must request the reader to turn, if he is not already
acquainted with it, to this original disquisition in the Edin-
burgh Review. The analogies between the Scandinavian
and Anglo-Saxon institutions are too striking to be dis-
regarded, though some conclusions may have been drawn
from them, to which we cannot thoroughly agree. If it
is alleged that we do not find, in the ancient customs of
Germany, that peculiar scale of society which ascends from
the hundred, as a monad of self-government, to the collective
unity of a royal commonwealth, it may be replied that we
trace the essential principle in the pagus, orgau, of Tacitus,
though perhaps there might be nothing numerical in that
territorial direction ; that we have, in fact, the centenary
distribution under peculiar magistrates in the old continental
laws and other documents ; and that a large proportion of
the inhabitants of England, ultimately coalescing with the
rest, so far at least as to acknowledge a common sovereign,
came from the very birthplace of Scandinavian institutions.
In the Danelage we might expect more traces of a northern
policy than in the south and west ; and perhaps they may be
found.0 Yet we are not to disregard the effect of counter-
vailing agencies, or the evidence of our own records, which
attest, as I must think, a far greater unity of power, and a
more paramount authority in the crown, throughout the
period which we denominate Anglo-Saxon, than, according
to the scheme of a Scandinavian commonwealth sketched in
0 Vide Leges Ethelredi.
CHAP. VIII. DURING THE MIDDLE AGES. 379
the Edinburgh Review, could be attributed to that very an-
cient and rude state of society. And there is a question
that might naturally be asked, how it happens that, if the
division by hundreds and the court of the hundred were parts
so essential of the Anglo-Saxon commonwealth that all its
unity is derived from them, we do not find any mention of
either in the numerous laws and other documents which re-
main before the reign of Edgar in the middle of the tenth
century. But I am far from supposing that hundreds did
not exist in a much earlier period.
NOTE VII. Page 282.
" THE judicial functions of the Anglo-Saxon monarchs were
of a twofold nature ; the ordinary authority which the king
exercised, like the inferior territorial judges, differing per-
haps in degree, though the same in kind ; and the preroga-
tive supremacy, pervading all the tribunals of the people,
and which was to be called into action when they were un-
able or unwilling to afford redress. The jurisdiction which
he exercised over his own thanes was similar to the autho-
rity of any other hlaford ; it resulted from the peculiar and
immediate relation of the vassal to the superior. Offences
committed in the fyrd or army were punished by the king,
in his capacity of military commander of the people. He
could condemn the criminal, and decree the forfeiture of his
property, without the intervention of any other judge or tri-
bunal. Furthermore, the rights which the king had over
all men, though slightly differing in 'Danelage,' from the
prerogative which he possessed in Wessex and Mercia,
allowed him to take cognizance of almost every offence ac-
companied by violence and rapine; and amongst these 'pleas
of the crown,' we find the terms, so familiar to the Scottish
lawyer and antiquary, of 'hamsoken,' and 'flemen firth,'
or the crimes of invading the peaceful dwelling, and harbour-
ing the outlawed fugitive." (Rise and Progress of Engl.
Commonwealth, vol. i. p. 282.)
Edgar was renowned for his strict execution of justice.
f
380 STATE OF EUROPE NOTES TO
" Twice in every year, in the winter and in the spring, he
made the circuit of his dominions, protecting the lowly,
rigidly examining the judgments of the powerful in each pro-
vince, and avenging ajl violations of the law." (Id. p. 286.)
He infers from some expressions in the history of Ramsey
(Gale, iii. 441) — "cum more assueto rex Cnuto regni fines
eragraret" — that these judicial eyres continued to be held.
t is not at all improbable that such a king as Canute would
revive the practice of Edgar; but it was usual in all the
Teutonic nations, for the king, once after his accession, to
make the circuit of his realm. Proofs of this are given by
Grimm, p. 237.
In this royal court the sovereign was at least assisted by
his "witan," both ecclesiastic and secular. Their consent
was probably indispensable ; but the monarchical element of
Anglo-Saxon polity had become so vigorous in the tenth and
eleventh centuries, that we can hardly apply the old Teutonic
principle expressed by Grimm. " All judicial power was
exercised by the assembly of freemen, under the presidence
of an elective or hereditary superior." (Deutsche Rechts-
Alterth., p. 749.) This was the case in the county-court, and
perhaps had once been so in the court of the king.
The analogies of the Anglo-Saxon monarchy to that of
France during the same period, though not uniformly to be
traced, are very striking. The regular jurisdiction over the
king's domanial tenants, that over the vassals of the crown,
that which was exercised on denial of justice by the lower
tribunals, meet us in the two first dynasties of France and
in the early reigns of the third. But they were checked
in that country by the feudal privileges, or assumptions of
privilege, which rendered many kings of these three races
almost impotent to maintain any authority. Edgar and
Canute, or even less active princes, had never to contend
with the feudal aristocracy. They legislated for the realm ;
they wielded its entire force ; they maintained, not always
thoroughly, but in right and endeavour they failed not to
maintain, the public peace. The scheme of the Anglo-Saxon
commonwealth was better than the feudal ; it preserved
more of the Teutonic character, it gave more to the common
freeman as well as to the king. The love of Utopian ro-
CHAP. VIII. DURING THE MIDDLE AGES. 381
mance, and the bias in favour of a democratic origin for our
constitution, have led many to overstate the freedom of the
Saxon commonwealth ; or rather, perhaps, to look less for
that freedom where it is really best to be found, in the admi-
nistration of justice, than in representative councils, which
authentic records do not confirm. But in comparison to
France or Italy, perhaps to Germany, with the exception of
a few districts which had preserved their original customs,
we may reckon the Anglo-Saxon polity, at the time when we
know most of it, from Alfred to the Conquest, rude and de-
fective as it must certainly appear when tried by the standard
of modern ages, not quite unworthy of those affectionate
recollections which long continued to attach themselves to
its name.
The most important part, perhaps, of the jurisdiction
exercised by the Anglo-Saxon kings, as by those of France,
was ob defvctum justitice, where redress could not be ob-
tained from an inferior tribunal, a case of no unusual occur-
rence in those ages. It forms, as has been shown in the
second chapter, a conspicuous feature in that feudal juris-
prudence which we trace in the establishments of St. Louis,
and in Beaumanoir. Nothing could have a more decided
tendency to create and strengthen a spirit of loyalty towards
the crown, a trust in its power and paternal goodness. " The
sources of ordinary jurisdiction," says Sir F. Palgrave,
"however extensive, were less important than the powers
assigned to the king as the lord and leader of his people ;
and by which he remedied the defects of the legislation of the
state, speaking when the law was silent, and adding new
vigour to its administration. It was to the royal authority
that the suitor had recourse when he could not obtain
'right at home/ though this appeal was not to be had, until
he had thrice ' demanded right' in the hundred. If the
letter of the law was grievous or burdensome, the alleviation
was to be sought only from the king.p All these doctrines
are to be discerned in the practice of the subsequent ages ;
in this place it is only necessary to remark, that the principle
of law which denied the king's help in civil suits, until an
» Edgar II. 2; Canute 11.16 ; Ethelred, 17.
382 STATE OF EUROPE NOTES TO
endeavour had first been made to obtain redress in the inferior
courts, became the leading allegation in the ' Writ of Right
Close ;' this prerogative process being founded upon the de-
fault of the lord's court, and issued lest the king should hear
any more complaints of want of justice. And the alleviation
of 'the heavy law' is the primary source of the authority
delegated by the king to his council, and afterwards assumed
by his chancery and chancellor, and from whence our courts
of equity are derived/' (Eise and Progress of English
Commonwealth, vol. i. p. 203.) I hesitate about this last
position; the i4 heavy law" seems to have been the legal
fine or penalty for an offence. (Leges Edgar, ubi supra.)
That there was a select council of the Anglo-Saxon kings,
distinct from the witenagemot, and in constant attendance
upon them, notwithstanding the opinion of Madox and of
Allen (Edinb. Rev. xxxv. 8), appears to be indubitable.
"From the numerous charters granted by the kings to the
church and to their vassals, which are dated from the dif-
ferent royal vills or manors wherein they resided in their pro-
gresses through their dominions, it would appear that there
were always a certain number of the optimates in attendance
on the king, or ready to obey his summons, to act as his
council when circumstances required it. This may have
been what afterwards appears as the select council."
(Spence's Equitable Jurisdict. p. 72.) The charters pub-
lished by Mr. Kemble in the Codex Ang.-Sax. Diploma-
ticus, are attested by those whom we may suppose to have
been the members of this council, with the exception of
some, which, by the number of witnesses and the importance
of the matter, were probably granted in the witenagemot.
The jurisdiction of the king is illustrated by the laws of
Edgar. "Now this is the secular ordinance which I will
that it be held. This then is just what I will ; that every
man be worthy of folk-right, as well poor as rioh ; and that
righteous dooms be judged to him ; and let there be that
remission in the ' hot' as may be becoming before God and
tolerable before the world. And let no man apply to the
king in any^suit, unless he at home may not be worthy of
law, or cannot obtain law. If the law be too heavy, let him
seek a mitigation of it from the king; and for any lot-
CHAP. VIII. DURING THE MIDDLE AGES. 383
worthy crime let no man forfeit more than his 4 wer.' v
(Thorpe's Ancient Laws, p. 112.) Bot is explained in the
glossary, " amends, atonement, compensation, indemnifica-
tion."
This law seems not to include appeals of false judgment,
in the feudal phrase. But they naturally come within the
spirit of the provision ; and " injustum judicium " is named
in Leges Henr. Primi, c. 10, among the exclusive pleas of
the crown. It does not seem clear to me, as Palgrave as-
sumes, that the disputes of royal thanes with each other
came before the king's court. Is there any ground for sup-
posing that they were exempt from the jurisdiction of the
county-court ? Doubtless, when powerful men were at
enmity, no petty court could effectively determine their
quarrel, or prevent them from having recourse to arms ;
such suits would fall naturally into the king's own hands.
But the jurisdiction might not be exclusively his ; nor
would it extend, as of course, to every royal thane ; some
of whom might be amenable, without much difficulty, to the
local courts. It is said in the seventh chapter of the laws
of Henry I., which are Anglo-Saxon in substance, concern-
ing the business to be transacted in the county-court, where
bishops, earls, and others, as well as " barons and vavassors,"
that is, king's thanes and inferior thanes in the older lan-
guage of the law, were bound to be present : — " Agantur
itaque priino debita vere Christianitatis jure ; secundo regis
placita ; postremo causse singulorum dignis satisfaction! bus
expleantur." The notion that the king's thanes resorted to
his court, as to that of their lord or common superior, is
merely grounded on feudal principles ; but the great con-
stitutional theory of jurisdiction in Anglo-Saxon times, as
Sir F. Palgrave is well aware, was not feudal, but primitive
Teutonic.
"The witenagemot," says Allen, "was not only the
king's legislative assembly, but his supreme court of judica-
ture." (Edinb. Eev. xxxv. 9 ; referring for proofs to
Turner's History of the Anglo-Saxons.) Nothing can be
less questionable than that civil as well as criminal jurisdic-
tion fell within the province of this assembly. But this does
not prove that there was not also a less numerous body, con-
384 STATE OF EUROPE NOTES TO
stantly accessible, following the king's person, and though
not, perhaps, always competent in practice to determine the
quarrels of the most powerful, ready to dispose of the com-
plaints which might- come before it from the hundred or
county courts for delay of justice or manifest wrong. Sir
F. Palgrave's arguments for the existence of such a tribunal
before the Conquest, founded on the general spirit and analogy
of the monarchy, are of the greatest weight. But Mr. Allen
had acquired too much a habit of looking at the popular side
of the constitution, and, catching at every passage which
proved our early kings to have been limited in their preroga-
tive, did not quite attend enough to the opposite scale.
NOTE VIII. Page 285.
THOUGH the following note relates to a period subsequent
to the Conquest, yet, as no better opportunity will occur for
following up the very interesting inquiry into the origin and
progress of trial by jury, I shall place here what appears
most worthy of the reader's attention. And, before we pro-
ceed, let me observe that the twelve thanes, mentioned in
the law of Ethelred, quoted in the text (p. 284), appear to
have been clearly analogous to our grand juries. Their duties
were to present offenders ; they corresponded to the scabini
or echevins of the foreign laws. Palgrave has, with his
usual clearness, distinguished both compurgators, such as
were previously mentioned in the text, and these thanes from
real jurors. " Trial by compurgators offers many resem-
blances to a jury ; for the dubious suspicion that fell upon
the culprit might often be decided by their knowledge of his
general conduct and conversation, or of some fact or circum-
stance which convinced them of his innocence. The thanes
or echevins may equally be confounded with a jury ; since
the floating, customary, unwritten law of the country was a
fact to be ascertained from their belief and knowledge, and,
unlike the suitors, they were sworn to the due discharge of
their duty. Still each class will be found to have some
peculiar distinction. Virtually elected by the community,
CHAP. VIII. DUKING THE MIDDLE AGES. 385
the echevins constituted a permanent magistracy, and their
duty extended beyond the mere decision of a contested
question ; but the jurors, when they were traversers, or
triers of the issue, were elected by the king's officers, and
impannelled for that time and turn. The juror deposed to
. facts, the compurgator pledged his faith." (English Com-
mon w. i. 248.)
In the Anglo-Saxon laws, we find no trace of the trial
of offences by the judgment, properly so called, of peers,
though civil suits were determined in the county-court. The
party accused by the twelve thanes, on their presentment,
or perhaps by a single person, was to sustain his oath of
innocence by that of compurgators, or by some mode of
ordeal. It has been generally doubted whether trial by
combat were known before the Conquest ; and distinct
proofs of it seem to be wanting. Palgrave, however, thinks
it rather probable, that, in questions affecting rights in land,
it may sometimes have been resorted to. (p. 224.) But let
us now come to trial by jury, both in civil and criminal pro-
ceedings, as it slowly grew up in the Norman and later
periods; erasing from our minds all prejudices about its
English original, except in the form already mentioned
of the grand inquest for presentment of offenders, and in
that which the passage quoted in the text from the History
of Ramsey furnishes — the reference of a suit already com-
menced, by consent of both parties, to a select number of
sworn arbitrators. It is to be observed, that the thirty-six
thanes were to be upon oath, and consequently came very
near to a jury.
The period between the Conquest and the reign of Henry II.
is one in which the two nations, not yet blended by the effects
of intermarriage, and retaining the pride of superiority on
the one hand, the jealousy of a depressed but not vanquished
spirit on the other, did not altogether fall into a common
law. Thus we find in a law of the Conqueror, that while
the Englishman accused of a crime by a Norman had the
choice of trial by combat or by ordeal, the Norman must
meet the former, if his English accuser thought fit to en-
counter him ; but if he dared not, as the insolence of the
victor seems to presume, it was sufficient for the foreigner
VOL. II. 2 0
386 STATE OF EUROPE NOTES TO
to purge himself by the oaths of his friends, according to
the custom of Normandy. (Thorpe, p. 210.)
We have next in the Leges Henrici Primi, a treatise
compiled, as I have mentioned, under Stephen, and not
intended to pass for legislative,*1 numerous statements as to
the usual course of procedure, especially on criminal charges.
These are very carelessly put together, very concise, very
obscure, and, in several places, very corrupt. It may be
suspected, and cannot be disproved, that in some instances
the compiler has copied old statutes of the Anglo-Saxon
period, or recorded old customs, which had already become
obsolete. But be this as it may, the Leges Henrici Primi
still are an important document for that obscure century
which followed the Norman invasion. In this treatise we
find no allusion to juries ; the trial was either before the
court of the hundred or that of the territorial judge, assisted
by his free vassals. But we do find the great original prin-
ciple, trial by peers, and, as it is called, per pais ; that is, in
the presence of the country, opposed to a distant and un-
known jurisdiction ; a principle truly derived from Saxon,
though consonant also to Norman law, dear to both nations,
and guaranteed to both, as it was claimed by both, in the
29th section of Magna Charta. " Unusquisque per pares
suos judicandus est, et ejusdem provincise ; peregrina autem
judiciamodis omnibus submovemus." (Leges H. I. c. 31.)
It may be mentioned by the way, that these last words are
taken from a capitulary of Ludovicus Pius, and that the
compiler has been so careless as to leave the verb in the
first person. Such an inaccuracy might mislead a reader
into the supposition, that he had before him a real law of
Henry I.
It is obvious that, as the court had no function but to see
that the formalities of the combat, the ordeal, or the corn-
purgation were duly regarded, and to observe whether the
party succeeded or succumbed, no oath from them, nor any
q It may be here observed, that, in to the city of London. A similar in-
all probability, the title, Leges Henrici advertence has caused the well-known
Primi, has been continued to the whole book, commonly ascribed to Thomas
book from the first two chapters, which aKempis, to be called "De Imitatione
do really contain laws of Henry I;, Christi," which is merely the title of
namely, his general charter, and that the first chapter.
CHAP. VIII. DURING THE MIDDLE AGES. 387
reduction of their numbers could be required. But the law
of Normandy had already established the inquest by sworn
recognitors, twelve or twenty-four in number, who were
supposed to be well acquainted with the facts ; and this in
civil as well as criminal proceedings. We have seen an
instance of it, not long before the Conquest, among our-
selves, in the history of the monk of Kamsey. It was in
the development of this amelioration in civil justice, that
we find instances during this period (Sir F. Palgrave has
mentioned several) where a small number have been chosen
from the county court, and sworn to declare the truth, when
the judge might suspect the partiality or ignorance of the
entire body. Thus in suits for the recovery of property,
the public mind was gradually accustomed to see the juris-
diction of the freeholders in their court, transferred to a
more select number of sworn and well-informed men. But
this was not yet a matter of right, nor even probably of very
common usage. It was in this state of things that Henry
II. brought in the assise of novel disseisin.
This gave an alternative to the tenant, on a suit for the
recovery of land, if he chose not to risk the combat, of
putting himself on the assise ; that is, of being tried by four
knights summoned by the sheriff, and twelve more selected
by them, forming the sixteen sworn recognitors, as they
were called, by whose verdict the cause was determined.
"Est autem magna assisa," says Glanvil (lib. ii. c. 7),
" regale quoddam beneficium, dementia principis de consilio
procerum populis indultum, quo vitas hominum et status
integritati tarn salubriter consulitur, ut in jure quod quis in
libero soli tenemento possidet retinendo duelli casum decli-
nare possint homines ambiguum. Ac per hoc contingit
insperatas et prematures mortis ultimum evadere supplicium,
vel saltern perennis infamies opprobrium, illius infesti et in-
verecundi verbi quod in ore victi turpiter sonat consecutivum.r
Ex aequitate autem maxima prodita est legalis ista institutio.
Jus enim quod post multas et longas dilationes vix evincitur
per duellum, per beneficium istius constitution is commodius
et acceleratius expeditur." The whole proceedings on an
r This was the word craven, or begging for life, which was thought the utmost
disgrace.
2 c 2
388 STATE OF EUROPE NOTES TO
assise of novel disseisin, which was always held in the king's
court, or that of the justices itinerant, and not before the
county or hundred, whose jurisdiction began in consequence
rapidly to decline, are explained at some length by this
ancient author, the chief justiciary of Henry II.
Changes not less important were effected in criminal pro-
cesses during the second part of the Norman period, which
we consider as terminating with the accession of Edward I.
Henry II. abolished the ancient privilege of compurgation
by the oaths of friends, the manifest fountain of unblushing
perjury ; though it long afterwards was preserved in London
and in boroughs, by some exemption which does not appear.
This, however, left the favourite, or at least the ancient and
English, mode of defence, by chewing consecrated bread,
handling hot iron, and other tricks called ordeals. But near
the beginning of Henry III.'s reign, the church, grown
wiser and more fond of her system of laws, abolished all
kinds of ordeal in the fourth Lateran council. The combat
remained ; but it was not applicable unless an injured pro-
secutor, or appellant, came forward to demand it. In cases
where a party was only charged on vehement suspicion of a
crime, it was necessary to find a substitute for the forbid-
den superstition. He might be compelled, by a statute of
Henry II., to abjure the realm. A writ of 3 Henry III.
directs that those against whom the suspicions were very
strong, should be kept in safe custody. But this was abso-
lutely incompatible with English liberty and with Magna
Charta. " No further enactment," says Sir F. Palgrave,
" was made ; and the usages which already prevailed led to
a general adoption of the proceeding which had hitherto
existed as a privilege or as a favour, that is to say, of proving
or disproving the testimony of the first set of inquest-
men, by the testimony of a second array ; and the indi-
vidual, accused by the appeal, or presented by the general
opinion of the hundred, was allowed to defend himself by
the particular testimony of the hundred to which he belonged.
For this purpose another inquest was impannelled, sometimes
composed of twelve persons, named from the 'visne,' and
three from each of the adjoining townships ; and sometimes
the very same jurymen who had presented the offence, might,
if the culprit thought fit, be examined a second time, as the
CHAP. VIII. DURING THE MIDDLE AGES. 389
witnesses or inquest of the points in issue. But it seems
worthy of remark, that ' trial by inquest ' in criminal cases
never seems to have been introduced, except into those
courts which acted by the king's writ or commission. The
presentment or declaration of those officers which fell within
the cognizance of the hundred jury, or the leet jury, the
representatives of the ancient echevins, was final and con-
clusive ; no traverse or trial by a second jury, in the nature
of a petty jury, being allowed." (p. 269.)
Thus trial by a petty jury upon criminal charges came in :
it is of the reign of Henry III., and not earlier. And it is
to be remarked, as a confirmation of this view, that no one
was compellable to plead ; that is, the inquest was to be of
his own choice. But if he declined to endure it, he was re-
manded to prison, and treated with a severity which the
statute of Westminster 1., in the third year of Edward I.,
calls peine forte et dure ; extended afterwards, by a cruel
interpretation, to that atrocious punishment on those who
refused to stand a trial, commonly in order to preserve their
lands from forfeiture, which was not taken away by law till
the last century.
Thus was trial by jury established, both in real actk ns,
or suits affecting property in land, and in criminal pro-
cedure, the former preceding by a little the latter. But a
new question arises as to the province of these early juries ;
and the view lately taken is very different from that which
has been commonly received.
The writer whom we have so often had occasion to quote,
has presented trial by jury in what may be called an alto-
gether new light ; for though Reeves, in his " History of
the English Law," almost translating Glanvil and Bracton,
could not help leading an attentive reader to something like
the same result, I am not aware that any thing approaching
to the generality and fulness of Sir Francis Palgrave's state-
ments can be found in any earlier work than his own.
" Trial by jury, according to the old English law, was
a proceeding essentially different from the modern tribunal,
still bearing the same name, by which it has been replaced;
and, whatever merits belonged to the original mode of
judicial investigation — and they were great and unques-
390 STATE OF EUROPE NOTES TO
tionable, though accompanied by many imperfections — such
benefits are not to be exactly identified with the advantages
now resulting from the great bulwark of English liberty.
Jurymen, in the present day, are triers of the issue : they
are individuals who found their opinion upon the evidence,
whether oral or written, adduced before them ; and the ver-
dict delivered by them is their declaration of the judgment
which they have formed. But the ancient jurymen were
not impannelled to examine into the credibility of the evi-
dence : the question was not discussed and argued before
them : they, the jurymen, were the witnesses themselves ;
and the verdict was substantially the examination of these
witnesses, who, of their own knowledge, and without the aid
of other testimony, afforded their evidence respecting the
facts in question, to the best of their belief. In its primitive
form, a trial by jury was, therefore, only a trial by witnesses;
and jurymen were distinguished from any other witnesses
only by customs which imposed upon them the obligation of
an oath, and regulated their number, and which prescribed
their rank, and defined the territorial qualifications from
whence they obtained their degree and influence in society.
"I find it necessary to introduce this description of the
ancient ' Trial by Jury ' because, unless the real functions
of the original jurymen be distinctly presented to the reader,
his familiar knowledge of the existing course of jurisprudence
will lead to the most erroneous conclusions. Many of those
who have descanted upon the excellence of our venerated
national franchise seem to have supposed that it has descended
to us unchanged from the days of Alfred ; and the patriot
who claims the jury as the * judgment by his peers, 'secured
by Magna Charta, can never have suspected how distinctly
the trial is resolved into a mere examination of witnesses."
(Palgrave, i. 243.)
This theory is sustained by a great display of erudition,
which fully establishes that the jurors had such a knowledge,
however acquired, of the facts, as enabled them to render
a verdict, without hearing any other testimony, in open
court, than that of the parties themselves, fortified, if it might
be, by written documents adduced. Hence the knights of
the grand assise are called recognitors, a name often given
CHAP. VIII. DURING THE MIDDLE AGES. 391
to others sworn on an inquest. In the Grand Coustumier
of Normandy, from which our writ of right was derived,
it is said that those are to be sworn, " who were born in the
neighbourhood, and who have long dwelt there ; and such
ought they to be, that it may be believed they know the truth
of the case, and that they will speak the truth when they
shall be asked." This was the rule in our own grand assise.
The knights who appeared in it ought to be acquainted with
the truth, and, if any were not so, they were to be rejected,
and others chosen until twelve were unanimous witnesses.
Glanvil (lib. ii.) furnishes sufficient proof, if we may depend
on the language of the writs which he there inserts. It is
to be remembered, that the transactions upon which an assise
of modern disseisin, or writ of "right, would turn, might
frequently have been notorious. In the eloquent language
of Sir F. Palgrave, "the forms, the festivities, and the
ceremonies accompanying the hours of joy and the days of
sorrow, which form the distinguishing epochs in the brief
chronicle of domestic life, impressed them upon the memory
of the people at large. The parchment might be recom-
mended by custom, but it was not required by law ; and they
had no registers to consult, no books to open. By the
declaration of the husband at the church door, the wife was
endowed in the presence of the assembled relations, and
before all the merry attendants of the bridal train. The
birth of the heir was recollected by the retainers who had
participated in the cheer of the baronial hall ; and the death
of the ancestor was proved by the friends who had heard
the wailings of the widow, or who had followed the corpse
to the grave. Hence trial by jury was an appeal to the
knowledge of the country : and the sheriff, in naming his
panel, performed his duty by summoning those individuals
from amongst the inhabitants of the country who were best
acquainted with the points at issue. If, from peculiar cir-
cumstances, the witnesses of a fact were previously marked
out and known, then they were particularly required to
testify. Thus, when a charter was pleaded, the witnesses
named in the attesting clause of the instrument, and who
had been present in the folkmoot, the shire, or the manor
court, when the seal was affixed by the donor, were included
392 STATE OF EUROPE NOTES TO
in the panel ; and when a grant had been made by parol,
the witnesses were sought out by the sheriff and returned
upon the jury." (Palgrave, p. 248.)
Several instances of recognition, that is, of jurors finding
facts on their own knowledge, occur in the very curious chro-
nicle of Jocelyn de Brakelonde, published by the Camden
Society, long after the " Rise and Progress of the Common-
wealth." One is on a question, whether certain land was li-
berum feudumecclesisean non. "C unique indesummonita f'uit
recognitio 12 militum in curia regis facienda, facta est in curia
abbatis apud Herlavum per licentiam Ranulfi de Glanvilla,
et juraverunt recognitores se nunquam scivisse illam terram
fuisse separatam ab ecclesia." (p. 45.) Another is still more
illustrative of the personal knowledge of the jury overruling
written evidence. A recognition was taken as to the right
of the abbey over three manors. <c Carta nostra lecta in pub-
lico nullam vim habuit, quia tota curia erat contra nos. Ju-
ramento facto, dixerunt milites se nescire de cartis nostris,
nee de privatis conventionibus ; sed se credere dixerunt, quod
Adam et pater ejus et avus a centum annis retro tenuerunt
maneria in feudum firmum, unusquisquepostalium, diebus
quibus fuerunt vivi et mortui, et sic disseisiati sumus per
judicum terrse." (p. 91.)
This ' 'judgment of the land" is, upon Jocelyn's testimony,
rather suspicious ; since they seem to have set common fame
against a written deed. But we see by it, that although parol
testimony might not be generally admissible, the parties had
a right to produce documentary evidence in support of
their title.
It appears at first to be an obvious difficulty in the way of
this general resolution of jurors into witnesses, or of witnesses
into jurors, that many issues, both civil and criminal, required
the production of rather more recondite evidence than com-
mon notoriety. The known events of family history, which
a whole neighbourhood could attest, seem not very likely to
have created litigation. But even in those ages of simplicity,
facts might be alleged, the very ground-work of a claim to
succession, as to which no assise of knights could speak from
personal knowledge. This, it is said, was obviated by swear-
ing the witnesses upon the panel, so that those who had a real
CHAP. VIII. DURING THE MIDDLE AGES. 393
knowledge of the facts in question might instruct their fellow
jurors. Such, doubtless, was the usual course ; but difficul-
ties would often stand in the way. Glan vil meets the question,
What is to be done if no knights are acquainted with the mat-
ter in dispute ? by determining that persons of lower degree
may be sworn. But what if women or villeins were the wit-
nesses ? What again, if the course of inquiry should render
fresh testimony needful ? it must appear, according to all our
notions of judicial evidence, that these difficulties must not
only have led to the distinction of jurors from witnesses, but
that no great length of time could have elapsed before the
necessity of making it was perceived. Yet our notions of
judicial evidence are not very applicable to the thirteenth cen-
tury. The records preserved give us reason to believe that
common fame had great influence upon these early inquests.
In criminal inquiries especially the previous fame of the ac-
cused seems to have generally determined the verdict. He
was not allowed to sustain his innocence by witnesses ; a bar-
barous absurdity, as it seems, which was gradually removed
by indulgence alone ; but his witnesses were not sworn till
the reign of Mary. If, however, the prosecutor or appellant,
as he was formerly styled, was under an equal disability, the
inequality will vanish, though the absurdity will remain.
The prisoner had originally no defence, unless he could suc-
ceed in showing the weakness of the appellant's testimony,
but by submitting to the ordeal, or combat, or by the corn-
purgation of his neighbours. The jurors, when they ac-
quitted him, stood exactly in the light of these ; it was a
more refined and impartial compurgation, resting on their
confidence in his former behaviour. Thus let us take a
record quoted by Palgrave, vol. ii. p. 184. " Robertus filius
Roberti de Ferrariis appellat Ranulfum de Fatteswarthe
quod ipse venit in gardinum suum, in pace domini Regis, et
nequiter assultavit Rogerum hominem suum, et eum verbe-
ravit et vulneravit, ita quod de vita ejus desperabatur ; et ei
robavit unum pallium et gladium et arcum et sagittas ; et
idem Rogerus offert hoc probare per corpus suum, prout
curia consideraverit ; et Ranulphus venit et defendit to turn
de verbo in verbum, et offert domino Regi unam marcam
argenti pro habenda inquisitione per legales milites, utruin
394 STATE OF EUROPE NOTES TO
culpabilis sit inde, necne ; et preeterea dicit quod isteJRogerus
nunquam ante appellavit eum, et petit ut hoc ei allocetur,—
oblatio recipitur. — Juratores dicunt quod revera contencio
fuit inter gardinarium. praedicti Roberti, Osmund nomine, et.
quosdam garciones, sed Ranulfus non fuit ibi, nee male-
credunt eum, de aliqua roberia, vel de aliquo malo, facto
eidem."
We have here a trial by jury in its very beginning, for
the payment of one mark by the accused, in order to have
an inquest instead of the combat, shows that it was not be-
come a matter of right. We may observe that, though
Robert was the prosecutor, his servant Roger, being the
aggrieved party, and capable of becoming a witness, was
put forward as the appellant, ready to prove the case by
combat. The verdict seems to imply that the jury had no
bad opinion of Ranulph the appellee.
The fourteenth book of Glanvil contains a brief account
of the forms of criminal process in his age ; and here it
appears that a woman could only be a witness, or rather
an appellant, where her husband had been murdered, or her
person assaulted. The words are worth considering : —
" Duo sunt genera homicidiorum ; unum est, quod dicitur
murdrum,quod nullo vidente,nullo sciente,clam perpetrator,
prseter solum interfectorem et ejus complices ; itaquodmox
non assequatur clamor popularis juxta assisam super hoc
proditam. In hujusmodi autem accusatione non admittitur
aliquis, nisi fuerit de consanguinitate ipsius defuncti. Est et
aliud homicidium quod constat in generali vocabulo, et dicitur
simplex homicidium. In hoc etiam placito non admittitur
aliquis accusator ad probationem, nisi fuerit mortuo consan-
guinitate conjunctus, vel horn agio vel dominio, ita ut de
morte loquatur, ut sub visus sui testimonio. Prseterea
sciendum quod in hoc placito mulier auditur accusans ali-
quem de morte viri sui, si de visu loquatur (1. xiv. c. 3).
Tenetur autem mulier quae proponit se a viro oppressam
in pace domini regis, mox dura recens fuerit maleficium
vicinam villain adire, et ibi injuriam sibi illatam probis ho-
minibus ostendere, et sanguinem, si quis fuerit effusus, et
vestium scissiones ; dehinc autem apud prsepositum hundred i
idem facit. Postea quoque in pleno comitatu id publice
CHAP. VIII. DURING THE MIDDLE AGES. 395
proponat. Auditur itaque mulier in tali casu aliquem ac-
cusans, sicut et de alia qualibet injuria corpori suo illatam
solet audiri." (c. 6.)
Thus it appears that on charges of secret murder the
kindred of the deceased, but no others, might be heard in
court, as witnesses to common suspicion, since they could be
no more. I add the epithet secret ; but it was at that time
implied in the word murdrum. But in every case of open
homicide, the appellant, be it the wife or one of his kindred,
his lord or vassal, must have been actually present. Other
witnesses probably, if such there were, would be placed on
the panel. The woman was only a prosecutrix ; and, in
the other sex, there is no doubt that the prosecutor's testi-
mony was heard.
In claims of debt, it was in the power of the defendant
to wage his law ; that is, to deny on oath the justice of the
demand. This he was to sustain by the oaths of twelve
compurgators, who declared their belief that he swore the
truth ; and if he declined to do this, it seems that he had no
defence. But in the writ of right or other process affecting
real estate, the wager of law was never allowed ; and even
in actions of debt the defendant was not put to this issue,
until witnesses for the plaintiff had been produced, " sine
testibus fidelibus ad hoc inductis." This, however, was not
in presence of a jury, but of the bailiff or judge (Magna
Charta, c. 28), and therefore does not immediately bear on
the present subject.
In litigation before the king's justices, in the curia regis,
it must have been always necessary to produce witnesses,
though, if their testimony were disputed, it was necessary to
recur to a jury in the county, unless the cause were of a
nature to be determined by duel. A passage in Glanvil
will illustrate this. A claim of villenage, when liberty was
pleaded, could not be heard in the county court, but before
the king's justices in his court. " Utroque autem praesente
in curia hoc modo dirationabitur libertas in cu: ia, siquidem
producit is qui libertatem petit, plures de proximis et con-
sanguineis de eodem stipite unde ipse exierit exeuntes, per
quorum libertates, si fuerint in curia recognitse et probatse,
liberabitur a jugo servitutis is qui ad libertatem proclamatur.
396 STATE OF EUROPE NOTES TO
Si vero contra dicatur'status libertatis eorundem productorum
vel de eodem dubitatur, ad vicinetum erit recurrendum ; ita
quod per ejns veredictum sciatur utrum illi liberi homines an
non, et secundum dictum vicineti judicabitur." (1. ii. c. 4.)
The plea of villenage was never tried by combat.
It is the opinion of Lord Coke, that a single accuser was
not sufficient, at common law, to convict any one of high
treason ; in default of a second witness, " it shall be tried
before the constable or marshal by combat, as by many re-
cords appeareth." (3 Inst. 26.) But, however this might
be, it is evident that as soon as the trial of peers of the
realm for treason or felony in the court of the high steward
became established, the practice of swearing witnesses on
the panel must have been relinquished in such cases. " That
two witnesses be required appeareth by our books, and I
remember no authority in our books to the contrary. And
this seemeth to be the more clear in the trial by the peers
or nobles of the realm, because they come not de aliquo
vicineto, whereby they might take notice of the fact in respect
of vicinity, as other jurors may do." (Ibid.) But the court
of the high steward seems to be no older than the reign of
Henry IV., at which time the examination of witnesses
before common juries was nearly, or completely, established
in its modern form ; and the only earlier case we have, if I
remember right, of the conviction of a peer in parliament,
that of Mortimer, in the 4th of Edward III., was expressly
grounded on the notoriousness of the facts. (Rot. Parl. ii. 53.)
It does not appear, therefore, indisputable by precedent, that
any witnesses were heard, save the appellant, on trial of
peers of the realm in the twelfth or thirteenth century,
though it is by no means improbable that such would have
been the practice.
Notwithstanding such exceptions, however, sufficient proofs
remain, that the jury themselves, especially in civil cases,
long retained their character of witnesses to the fact. If the
recognitors, whose name bespeaks their office, were not all
so well acquainted with the matters in controversy as to be-
lieve themselves competent to render a verdict, it was the
practice to afforce the jury, as it was called, by rejecting
these and filling their places with more sufficient witnesses,
CHAP. VIII. DURING THE MIDDLE AGES. 397
until twelve were found who agreed in the same verdict.8
(Glanvil, 1. ii. c. 17.) Not that unanimity was demanded,
for this did not become the rule till about the reign of
Edward III. ; but twelve, as now on a grand jury, must
concur/ And though this profusion of witnesses seems
strange to us, yet, what they attested (in the age at least of
Glanvil and for some time afterwards) was not, as at present,
the report of their senses to the fact in issue, but all which
they had heard and believed to be true ; above all, their
judgment as to the respective credibility of the demandant
and tenant, heard in that age personally, or the appellant
and appellee in a prosecution.
Bracton speaks of afforcing a panel by the addition of
better-informed jurors to the rest, as fit for the court to
order ; " de consilio curiae affortietur assisa ita quod appo-
nantur alii juxta numerum majoris partis quse dissenserit,
vel saltern quatuor vel sex, et adjungantur aliis." The
method of rejection used in Glanvil's time seems to have
been altered. But in the time of Britton, soon afterwards,
this afforcement, it appears, could only be made with the
consent of the parties ; though if, as his language seems
to imply, the verdict was to go against the party refusing
to have the jury afforced, no one would be likely to do so.
Perhaps he means that this refusal would create a preju-
dice in the minds of the jury almost certain to produce such
a verdict.
" It may be doubtful," says Mr. Starkie, " whether the
doctrine of afforcement was applied to criminal cases. The
account given by Bracton, as to the trial by the country on
a criminal charge, is very obscure. It was to be by twelve
jurors, consisting of milites or liberi et legales homines of
the hundred and four villat3e."u But it is conjectured that
8 By the jury, the reader will remem- is said to have been reproved for taking
ber that, in Glanvil's time, is meant the a verdict from eleven jurors. Law Re-
recognitors, on an assise of novel dis- view, No. iv. p. 383.
seisin, or mort d'ancestor. For these real u The history of trial by jury has been
actions, now abolished, he may consult a very ably elucidated by Mr. Starkie, in
good chapter on them in Blackstone, the fourth number of the Law Review,
unless he prefer Bracton and the Year- which, though anonymous, I venture to
books, digested into Reeves's History of quote by his name. I have been assisted
the Law. in the text by this paper.
1 In 20 E. III., Chief Justice Thorpe
398 STATE OF EUROPE NOTES TO
the text is somewhat corrupt, and that four inhabitants of
the vill were to be added to the twelve jurors. In some
criminal cases, it appears from Bracton, that trial by combat
could not be dispensed with ; because the nature of the
charge did not admit of positive witnesses. " Oportet quod
defendat se per corpus suum quia patria nihil scire potest de
facto, nisi per praesumtionem et per auditum, vel per man-
datum [?] quod quidem non sufficit ad probationem pro ap-
pellando nee pro appellate ad liberationem." This indicates,
on the one hand, an advance in the appreciation of evidence
since the twelfth century ; common fame and mere hearsay
were not held sufficient to support a charge. But on the
other hand, instead of presuming the innocence of a party
against whom no positive testimony could be alleged, he
was preposterously called upon to prove it by combat, if the
appellant was convinced enough of his guilt to demand that
precarious decision. It appears clear from some passages in
Bracton that, in criminal cases, other witnesses might occa-
sionally be heard than the parties themselves. Thus, if a
man were charged with stealing a horse, he says that either
the prosecutor or the accused might show that it was his
own, bred in his stable, known by certain marks, which
could hardly be but by calling witnesses. It is not impro-
bable that witnesses were heard distinct from the jury, in
criminal cases, before the separation had been adopted in
real actions.
At a later time, witnesses are directed to be joined to the
inquest, but no longer as parts of it. " We find in the
23d of Edw. III." (I quote at present the words of
Mr. Spence, — Equitable Jurisdiction, p. 129), "the wit-
nesses, instead of being summoned as constituent members,
were adjoined to the recognitors or jury in assises, to afford
to the jury the benefit of their testimony, but without having
any voice in the verdict. This is the first indication we
have of the jury deciding on evidence formally produced,
and it is the connecting link between the ancient and modern
jury." x But it will be remembered, what Mr. Spence cer-
* The reference is to the Year-book, jurors; "car ils doivent rien temoigner
23 Ass. 11. It was adjudged that the fors ceo qu'ils verront et oiront. Et
witnesses could not be challenged like Tassise fut pris, et les temoins ajoints a
CHAP. VIII. DURING THE MIDDLE AGES. 399
tainly did not mean to doubt, that the evidence of the de-
mandant in an assise or writ of right, and of the prosecutor
or appellant in a criminal case, had always been given in
open court ; and the tenant or appellee had the same right ;
but the latter probably was not sworn. Nor is it clear that
the court would refuse other testimony if it were offered
during the course of a trial. The sentence just quoted,
however, appears to be substantially true ; except that the
words " formally produced" imply something more like the
modern practice than the facts mentioned warrant. The
evidence in the case reported in 23 Ass. 11 was produced
to none but the jury.
Mr. Starkie has justly observed, that " the transition was
now almost imperceptible to the complete separation of the
witnesses from the inquest. And this step was taken at some
time before the llth of Henry IV. ;y namely, that all the
witnesses were to give their testimony at the bar of the
court ; so that the judges might exclude those incompetent
by law, and direct the jury as to the weight due to the rest."
" This effected a change in the modes of trying civil cases ;
the importance of which can hardly be too highly estimated.
Jurors from being, as it were, mere recipients and deposita-
ries of knowledge, exercised the more intellectual faculty of
forming conclusions from testimony ; a duty not only of
high importance with a view to truth and justice, but also
collaterally in encouraging habits of reflection and reasoning
(aided by the instructions of the judges), which must have
had a great and most beneficial effect in promoting civiliza-
tion. The exercise of the control last adverted to, on the
part of the judges, was the foundation of that system of
rules in regard to evidence, which has since constituted so
eux." This has no appearance of the is reported to have said, this had often
introduction of a new custom. Above been done ; yet we might infer that the
fifty years had elapsed since Bracton practice was not so general as to pass
wrote, so that the change might have without comment. This looks as if the
easily crept in. separation of the witnesses, by their ex-
7 The Year-book of 11 H. IV., to animation in open court, were not quite
which a reference seems here to be made, of so early a date as Mr. Starkie and Mr.
has not been consulted by me. But in Spence suppose. But, perhaps, both
the next year (12 H. IV. 7) witnesses modes of procedure might be concurrent
are directed to be joined to the inquest for a certain time,
(as in 23 Ass. 11); and one of the judges
400 STATE OF EUEOPE NOTES TO
large and important a branch of the law of England."
(Spence, p. 129.)
The obscurity that hangs over the origin of our modern
course of procedure -before juries is far from being wholly
removed. We are reduced to conjectural inferences from
brief passages in early law-books, written for contemporaries,
but which leave a considerable uncertainty, as the readers of
this note will be too apt to discover. If we say that our
actual trial by jury was established not far from the beginning
of the fifteenth century, we shall perhaps approach as nearly
as the diligence of late inquirers has enabled us to proceed.
But in the time of Fortescue, whose treatise De Laudibus
Legum Anglise was written soon after 1450, we have the
clearest proof, that the mode of procedure before juries by
viva voce evidence was the same as at present. It may be
presumed that the function of the advocate and of the judge
to examine witnesses, and to comment on their testimony,
had begun at this time. The passage in Fortescue is so
full and perspicuous, that it deserves to be extracted.
" Twelve good and true men being sworn as in the
manner above related, legally qualified, that is, having over
and besides their moveable possessions in land sufficient (as
was said) wherewith to maintain their rank and station;
neither suspected by, nor at variance with, either of the
parties ; all of the neighbourhood ; there shall be read to
them, in English, by the court, the record and nature of the
plea, at length, which is depending between the parties ; and
the issue thereupon shall be plainly laid before them, con-
cerning the truth of which those who are so sworn are to
certify the court : which done, each of the parties by them-
selves or their counsel, in presence of the court, shall declare
and lay open to the jury all and singular the matters and
evidences whereby they think they may be able to inform
the court concerning the truth of the point in question ;
after which each of the parties has a liberty to produce before
the court all such witnesses as they please, or can get to
appear on their behalf; who being charged upon their oaths
shall give in evidence all that they know touching the truth
of the fact concerning which the parties are at issue. And
i necessity so require, the witnesses may be heard and
CHAP. VIII. DURING THE MIDDLE AGES. 401
examined apart, till they shall have deposed all that they
have to give in evidence, so that what the one has declared
shall not inform or induce another witness of the same
side to give his evidence in the same words, or to the very
same effect. The whole of the evidence being gone through,
the jurors shall confer together at their pleasure, as they
shall think most convenient, upon the truth of the issue
before them, with as much deliberation and leisure as they
can well desire ; being all the while in the keeping of an
officer of the court, in a place assigned them for that pur-
pose, lest any one should attempt by indirect methods to
influence them as to their opinion, which they are to give
in to the court. Lastly, they are to return into court, and
certify the justices upon the truth of the issue so joined, in
the presence of the parties (if they please to be present),
particularly the person who is plaintiff in the cause ; what
the jurors shall so certify in the laws of England, is called
the verdict." (c. 26.)
Mr. Amos indeed has observed in his edition of Fortescue
(p. 93), " The essential alteration which has since taken
place in the character of the jury, does not appear to have
been thoroughly effected till the time of Edward VI. and
Mary. Jurors are often called testes." But though this
appellation might be retained from the usage of older times,
I do not see what was left to effect in the essential character
of a jury, when it had reached the stage of hearing the wit-
nesses and counsel of the parties in open court.
The result of this investigation, suggested perhaps by
Keeves, but followed up by Sir Francis Palgrave for the
earlier, and by Mr. Starkie for the later period, is to sweep
away from the ancient constitution of England what has
always been accounted both the pledge of its freedom, and
the distinctive type of its organization, trial by jury, in the
modern sense of the word, and according to modern func-
tions. For though the passage just quoted from Fortescue
is conclusive as to his times, these were but the times of the
Lancastrian kings ; and we have been wont to talk of Alfred,
or at least of the Anglo-Saxon age, when the verdict of
twelve sworn men was the theme of our praise. We have
seen that, during this age, neither in civil nor in criminal
VOL. II. 2 D
402 STATE OF EUROPE NOTES TO
proceedings, it is possible to trace this safeguard for judicial
purity. Even when juries may be said to have existed in
name, the institution denoted but a small share of political
wisdom, or at least provided but indifferently for impartial
justice. The mode of trial by witnesses returned on the
panel, hearing no evidence beyond their own in open court,
unassisted by the sifting acuteness of lawyers, laid open a
broad inlet for credulity and prejudice, for injustice and
corruption. Perjury was the dominant crime of the middle
ages ; encouraged by the preposterous rules of compurgation,
and by the multiplicity of oaths, in the ecclesiastical law. It
was the frequency of this offence, and the impunity which
the established procedure gave to that of jurors, that produced
the remedy by writ of attaint ; but one which was liable to
the same danger ; since the jury on an attaint must, in the
early period of that process, have judged on common fame,
or on their own testimony, like those whose verdict they
were called to revise ; and where hearsay and tradition
passed for evidence, it must, according to our stricter notions
of penal law, have been very difficult to obtain an equitable
conviction of the first panel on the ground of perjury.
The Chronicle, already quoted, by Jocelyn de Brakelonde,
affords an instance, among multitudes, probably, that are
unrecorded, where a jury flagrantly violated their duty.
Five recognitors, in a writ of assise, came to Samson, abbot
of St. Edmund's Bury, the Chronicler's hero, the right of
presentation to a church being the question, in order to learn
from him what they should swear, meaning to receive money.
He promised them nothing, but bade them swear according
to their consciences. They went away in wrath, and found
a verdict against the abbey.2 (p. 44.)
z I may set down here one or two jus abbatis. p. 44. The proceeding
other passages from the same Chronicle, by jurors was sometimes applied even
illustrating the modes of trial in that when the sentence belonged to the eccle-
age. Samson offered that a right of siastical jurisdiction. A riot, with blood-
adyowson should be determined by the shed, having occurred, the abbot, acceptis
claimant's oath, a method recognised juramentis a sexdecim legalibus homiui-
in some cases by the civil and canon law, bus, et auditis eorum attestationibus,
but only, I conceive, in favour of the de- pronounced sentence of excommunication
fendant. Cunique miles ille renuisset against the offenders,
jurare, dilatum est juramentum per con- The combat was not an authorized
sensum utriusque partis sexdecim legali- mode of trial within boroughs; they
bus de hundredo, qui juraverunt hoc esse preserved the old Saxon compurgation.
CHAP. VIII. DU11ING THE MIDDLE AGES. 403
Yet in its rudest and most imperfect form, the trial by a
sworn inquest was far superior to the impious superstition of
ordeals, the hardly less preposterous and unequal duel, the
unjust deference to power in compurgation, when the oath
of one thane counterbalanced those of six ceorls, and even
to the free-spirited but tumultuary and unenlightened deci-
sions of the hundred or the county. It may, indeed, he
thought by the speculative philosopher, or the practical
lawyer, that in those early stages which we have just been
surveying, from the introduction of trial by jury under
Henry II. to the attainment of its actual perfection in the
first part of the fifteenth century, there was little to warrant
our admiration. Still let us ever remember, that we judge
of past ages by an erroneous standard, when we wonder at
their prejudices, much more when we forget our own. We
have but to place ourselves, for a few minutes, in imagination
among the English of the twelfth and thirteenth centuries,
and we may better understand why they cherished and panted
for the judicium parium, the trial by their peers, or, as it is
emphatically styled, by the country. It stood in opposition
to foreign lawyers and foreign law; to the chicane and
subtlety, the dilatory and expensive, though accurate, techni-
calities of Normandy, to tribunals where their good name
could not stand them in stead, nor the tradition of their
neighbours support their claim. For the sake of these, for
the maintenance of the laws of Edward the Confessor, as in
pious reverence they termed every Anglo-Saxon usage, they
were willing to encounter the noisy rudeness of the county-
court, and the sway of a potent adversary.
Henry II., a prince not perhaps himself wise, but served
by wise counsellors, blended the two schemes of jurispru-
dence, as far as the times would permit, by the assise of
novel disseisin, and the circuits of his justices in eyre. From
this age we justly date our form of civil procedure ; the trial
And this may be an additional proof of within the borough, it would not ha>
the antiquity of their privileges. A free come to battle, but he would have purgt
tenant of the celerarius of the abbey, cui himself by the oaths of his neighbours,
potus et escse cura (Ducange), being sicut l.ibertas est eoruni qui manent in-
charged with robbery, and vanquished in fra burgum. p. 74. It is hard to pro-
the combat, was hanged. The burgesses nounce by which procedure the greater
of Bury said, that if he had been resident number of gu ty persons escaped.
404 STATE OF EUROPE NOTES TO
by a jury (using always that word in a less strict sense than
it bears with us), replaced that by the body of hundredors;
the stream of justice purified itself in successive generations,
through the acuteness, learning, and integrity of that re-
markable series of men, whose memory lives chiefly among
lawyers, I mean the judges under the house of Plantagenet;
and thus, while the common law borrowed from Normandy
too much, perhaps, of its subtlety in distinction, and became
as scientific as that of Rome, it maintained, without en-
croachment, the grand principle of the Saxon polity, the
trial of facts by the country. From this principle (except
as to that preposterous relic of barbarism, the requirement
of unanimity) may we never swerve— may we never be
compelled, in wish, to swerve — by a contempt of their
oaths in jurors, and a disregard of the just limits of their
trust !
NOTE IX. Page 291.
THE nature of both tenures has been perspicuously illustrated
by Mr. Allen, in his Inquiry into the Rise and Growth of
the Royal Prerogative, from which I shall make a long
extract.
u The distribution of landed property in England by the
Anglo-Saxons appears to have been regulated on the same
principles that directed their brethren on the continent.
Part of the lands they acquired was converted into estates
of inheritance for individuals ; part remained the property
of the public, and was left to the disposal of the state. The
former was called bocland ; the latter I apprehend to have
been that description of landed property, which was known
by the name offoldand.
66 Folcland, as the word imports, was the land of the folk,
or people. It was the property of the community. It might
be occupied in common, or possessed in severalty ; and, in
the latter case, it was probably parcelled out to individuals
in the folcgemot, or court of the district, and the grant at-
tested by the freemen who were then present. But, while
CHAP. VIII. DURING THE MIDDLE AGES. 405
it continued to be folcland, it could not be alienated in per-
petuity ; and, therefore, on the expiration of the term for
which it had been granted, it reverted to the community,
and was again distributed by the same authority.*
" Bocland was held by book or charter. It was land that
had been severed by an act of government from the folcland,
and converted into an estate of perpetual inheritance. It
might belong to the church, to the king, or to a subject.
It might be alienable and devisable, at the will of the pro-
prietor. It might be limited in its descent, without any
power of alienation in the possessor. It was often granted
for a single life, or for more lives than one, with remainder
in perpetuity to the church. It was forfeited for various
delinquencies to the state.
" Estates in perpetuity were usually created by charter
after the introduction of writing, and, on that account, hoc-
land and land of inheritance are often used as synonymous
expressions. But at an earlier period they were conferred by
the delivery of a staff, a spear, an arrow, a drinking horn,
the branch of a tree, or a piece of turf; and when the
donation was in favour of the church, these symbolical repre-
sentations of the grant were deposited with solemnity on the
altar ; nor was this practice entirely laid aside after the in-
troduction of title-deeds. There are instances of it as late
as the time of the Conqueror. It is not, therefore, quite
correct to say, that all the lands of the Anglo-Saxons were
either folcland or bocland. When land was granted in per-
petuity it ceased to be folcland ; but it could not with pro-
priety be termed bocland, unless it was conveyed by a written
instrument.
" Folcland was subject to many burthens and exactions from
which bocland was exempt. The possessors of folcland were
bound to assist in the reparation of royal vills and in other
public works. They were liable to have travellers and others
quartered on them for subsistence. They were required to
give hospitality to kings and great men in their progresses
a Spelman describes folcland as terra duplici titulo possidebant: vel script!
popularis, quae jure communi possidetur auctoritate, quod bocland vocabant — vel
— sine scripto. Gloss. Folcland. In populi testiinonio, quod folcland dixere.
another place he distinguishes it accu- Ib. Bocland.
rately from bocland: — Prredia Saxones
406 STATE OF EUROPE NOTES TO
through the country, to furnish them with carriages and
relays of horses, and to extend the same assistance to their
messengers, followers, and servants, and even to the persons
who had charge of their hawks, horses, and hounds. Such
at least are the burthens from which lands are liberated,
when converted by charter into bocland.
" Bocland was liable to none of these exactions. It was
released from all services to the public, with the exception of
contributing to military expeditions, and to the reparation of
castles and bridges. These duties or services were com-
prised in the phrase of trinoda necessitous, which were said
to be incumbent on all persons, so that none could be excused
from them. The church indeed contrived, in some cases, to
obtain an exemption from them ; but in general its lands,
like those of others, were subject to them. Some of the
charters granting to the possessions of the church an exemp-
tion from all services whatsoever, were genuine ; but the
greater part are forgeries." (p. 142.)
Bocland, we perceive by this extract, was not necessarily
alodial, in the sense of absolute propriety. It might be
granted for lives, as was often the case ; and then it seems
to have been called Icen-land (prsestita), lent or leased.
(Palgrave, ii. 361.) Such land, however, was not feudal,
as I conceive, if we use that word in its legitimate European
sense; though lehn is the only German word for a fief.
Mr. Allen has found no traces of this use of the word among
the Anglo-Saxons. (Appendix, p. 57.) Sir F. Palgrave
agrees in general with Mr. Allen.b
We find another great living authority on Anglo-Saxon
and Teutonic law concurring in the same luminous solution
of this long-disputed problem. " The natural origin of folc-
land is the superabundance of good land above what was at
once appropriated by the tribes, families, or gentes (ma?g-
burg, gelondan), who first settled in a waste or conquered
land ; but its existence enters into and modifies the system
of law, and on it depends the definition of the march and
b The law of real property, or boc- furnishes the best ancient precedents, and
land, in the Anglo-Saxon period, is given is of course studied, to the disregard,
in a few pages, equally succinct and lu- where necessary, of more defective au-
minous, by Mr. Spence. Equit. Jurisd. thorities, by those who regard this por-
pp. 20-25. The Codex Diplomatics tion of legal history.
CHAP. VIII. DURING THE MIDDLE AGES. 407
the gau with their boundaries. Over the folcland at first
the king alone had no control ; it must have been appor-
tioned by the nation in its solemn meeting ; earlier, by the
shire or other collection of freemen. In Beowulf, the king
determines to build a palace, and distribute in it to his
comites, such gold, silver, arms, and other valuables as God
had given him, save the folcsceare and the lives of men —
' butan folcsceare and feorum gumena' — which he had no
authority to dispose of. This relative position of folcland
to bocland is not confined to the Anglo-Saxon institutions.
The Frisians, a race from whom we took more than has
generally been recognised, had the same distinction. At
the same time I differ from Grimm, who seems to consider
folcland as the pure alod, bocland as the fief. ' Folcland im
gegensatz zu beneficium. Leges Edv. II. ; das ist, reine
alod, im gegensatz zu beneficiuin, lehen. Vgl. das friesische
caplond und bocland. As. p. 15.' (D. R. A. p. 463.) I
think the reverse is the case ; and indeed we have one in-
stance where a king exchanged a certain portion of folcland
for an equal portion of bocland with one of his comites. He
then gave the exchanged folcland all the privileges of boc-
land, and proceeded to make the bocland he had received
in exchange, folcland" (Kemble's Codex Diplomaticus, i.
p. 104.)
It is of importance to mention that Mr. K., when he
wrote this passage, had not seen Mr. Allen's work ; so
that the independent concurrence of two such antiquaries in
the same theory lends it very great support. In the second
volume of the Codex Diplomaticus, the editor adduces
fresh evidence as to the nature of folcland, " the terra fis-
calis, or public land grantable by the king or his council, as
the representatives of the nation." (p. 9.) Mr. Thorpe, in
the glossary to his edition of " Ancient Laws" (v. Folcland),
quotes part of the same extract from Allen which I have
given, and making no remark, must be understood to concur
in it. Thus we may consider this interpretation in posses-
sion of the field.0
c It seems to be a necessary inference exception of the terra regis, if that were
from the evidence of Domesday Book, truly the representative of ancient folc-
that all England had been converted into land, as Allen supposes,
bocland before the Conquest, with the
408 STATE OF EUEOPE NOTES TO
The word folcland fell by degrees into disuse, and gave
place to the term terra regis, or crown land. (Allen, p. 1 60.)
This indicates the growth of a monarchical theory which
reached its climax, in this application of it, after the Con-
quest, when the entire land of England was supposed to have
been the demesne land of the king, held under him by a
feudal tenure.
NOTE X. Page 320.
" AMONGST the prerogatives of the crown, the Conqueror
and many of his successors appear to have assumed the
power of making laws to a certain extent, without the autho-
rity of their greater council, especially when operating only
in restraint of the king's prerogative, for the benefit of his
subjects, or explaining, amending, or adding to the existing
law of the land, as administered between subject and subject ;
and this prerogative was commonly exercised with the ad-
vice of the king's ordinary or select council, though fre-
quently the edict was expressed in the king's name alone.
But as far as can be judged from existing documents or from
history, it was generally conceived that beyond these limits
the consent of a larger assembly, of that which was deemed
the ' Commune concilium regni,' was in strictness necessary ;
though sometimes the monarch on the throne ventured to
stretch his prerogative further, even to the imposition of
taxes to answer his necessities, without the common consent ;
and the great struggles between the kings of England and
their people have generally been produced by such stretches
of the royal prerogative, till at length it has been established,
that no legislative act can be done without the concurrence
of that assembly, now emphatically called the king's parlia-
ment." (Report of Lords' Committee on the Dignity of a
Peer, p. 22. edit. 1819.)
" It appears," says the committee afterwards, " from all
the charters taken together, that during the reigns of Wil-
liam Rufus, his brother Henry, and Stephen, many things
had been done contrary to law ; but that there did exist
CHAP. VIII. DURING THE MIDDLE AGES. 409
some legal constitution of government, of which a legislative
council (for some purposes at least) formed a part; and
particularly that all impositions and exactions by the mere
authority of the crown, not warranted by the existing law,
were reprobated as infringements of the just rights of the
subjects of the realm, though the existing law left a large
portion of the king's subjects liable to tallage imposed at the
will of the crown ; and the tenants of the inesne lords were
in many cases exposed to similar exaction." (p. 42.)
These passages appeared to Mr. Allen so inadequate a re-
presentation of the Anglo-Norman constitution, that he com-
mented upon the ignorance of the committee with no slight
severity in the Edinburgh Review. The principal charges
against the Report in this respect are, that the committee
have confounded the ordinary or select council of the king
with the commune concilium, and supposed that the former
alone was intended by historians, as the advisers of the crown
in its prerogative of altering the law of the land, when, in
fact, the great council of the national aristocracy is clearly
pointed out ; and that they have disregarded a great deal of
historical testimony to the political importance of the latter.
It appears to be clearly shown from the Saxon Chronicle and
other writers, that assemblies of bishops and nobles, some-
times very large, were held by custom, "de more," three
times in the year, by William the Conqueror and by both his
sons ; that they were, however, gradually intermitted by
Henry I., and ceased early in the reign of Stephen. In
these councils, which were legislative so far as new statutes
were ever required, a matter of somewhat rare occurrence,
but more frequently rendering their advice on measures to
be adopted, or their judgment in criminal charges against
men of hgh rank, and even in civil litigation, we have, at
least in theory, the acknowledged limitations of royal autho-
rity. I refer the reader to this article in the Edinburgh
Review (vol. xxxv.), to which we must generally assent ;
observing, however, that the committee, though in all pro-
bability mistaken in ascribing proceedings of the Norman
sovereigns to the advice of a select council, which really
emanated from one much larger, did not call in question, but
positively assert, the constitutional necessity of the latter for
410 STATE OF EUROPE - NOTES TO
general taxation, and perhaps for legislative enactments of
an important kind. And, when we consider the improba-
bility that "all the great men over all England, archbishops
and bishops, abbots and earls, thanes and knights," as the
Saxon chronicler pretends, could have been regularly present
thrice a year, at Winchester, Westminster, and Gloucester,
when William, as he informs us, "wore his crown," we
may well suspect that, in the ordinary exercise of his prero-
gative, and even in such provisions as might appear to him
necessary, he did not wait for a very full assembly of his
tenants in chief. The main question is, whether this council
of advice and assent was altogether of his own nomination,
and this we may confidently deny.
The custom of the Anglo-Saxon kings had been to hold
meetings of their witan very frequently, at least in the re-
gular course of their government. And this was also the
rule in the grand fiefs of France. The pomp of their court,
the maintenance of loyal respect, the power of keeping a
vigilant eye over the behaviour of the chief men, were suffi-
cient motives for the Norman kings to preserve this custom ;
and the nobility of course saw in it the security of their pri-
vileges, as well as the exhibition of their importance. Hence
we find that William and his sons held their courts de more,
as a regular usage, three times a year, and generally at the
great festivals, and in different parts of the kingdom. In-
stances are collected by the Edinburgh Reviewer (vol. xxxv.
p. 5). And here the public business was transacted;
though, if these meetings were so frequent, it is probable
that for the most part they passed off in a banquet or a
tournament.
The Lords' Committee, in notes on the Second Report,
when reprinted in 1829, do not acquiesce in the positions of
their hardy critic, to whom, without direct mention, they
manifestly allude. " From the relations of annalists and
historians," they observe, "it has been inferred that during
the reign of the Conqueror, and during a long course of
time from the Conquest, the archbishops, bishops, abbots and
priors, earls and barons of the realm were regularly con-
vened three times in every year, at three different and dis-
tinct places in the kingdom, to a general council of the
CHAP. VIII. DURING THE MIDDLE AGES. 411
realm. Considering the state of the country, and the habits
and dispositions of the people, this seems highly improbable ;
especially if the word barones, or the words proceres or
magnates, often used by writers, in describing such assem-
blies, were intended to include all the persons holding im-
mediately of the crown, who, according to the charter of
John, were required to be summoned to constitute the great
council of the realm, for the purpose of granting aids to the
crown." (p. 449.) But it is not necessary to suppose this ;
those might have attended who lived near, or who were spe-
cially summoned. The committee argue on the supposition
that all tenants in chief must have attended thrice a year,
which no one probably ever asserted. But that William
and his sons did hold public meetings, de more, at three
several places, in every year, or at least very frequently,
cannot be controverted without denying what respected his-
torical testimonies affirm ; and the language of these early
writers intimates that they were numerously attended. Aids
were not regularly granted, and laws much more rarely
enacted in them ; but they might still be a national council.
But the constituent parts of such councils will be discussed
in a subsequent note.
It is to be here remarked, that, with the exception of the
charters granted by William, Henry, and Stephen, which are
in general rather like confirmations of existing privileges
than novel enactments, though some clauses appear to be of
the latter kind, little authentic evidence can be found of any
legislative proceedings from the Conquest to the reign of
Henry II. The laws of the Conqueror, which we find in
Ingulfus, do not come within this category ; they are a con-
firmation of English usages, granted by William to his sub-
jects. " Cez sunt les leis et les custumes que li reis William
grantad el pople de Engleterre apres le conquest de la terre.
Iceles mesmes que li reis Edward sun cusin tint devant lui."
These, published by Gale (Script. Rer. Anglic, vol. i.), and
more accurately than before from the Holkham manuscript
by Sir Francis Pal grave, have sometimes passed for genuine.
The real original, however, is the Latin text, first published
by him with the French. (Eng. Commonw., vol. ii. p. 89.)
The French translation he refers to the early part of the reign
412 STATE OF EUROPE NOTES TO
of Henry III. At the time when Ingulfus is supposed to
have lived, soon after the Conquest, no laws, as Sir F. Pal-
grave justly observes, were written in French, and he might
have added, that we cannot produce any other specimen of
the language which is certainly of that age. (See Quarterly
Review, xxxiv. 260.) It is said in the charter of Henry I.,
that the laws of Edward were renewed by William with the
same emendation.
But the changes introduced by William in the tenure of
land were so momentous, that the most cautious inquirers
have been induced to presume some degree of common con-
sent by those whom they so much affected. " There seems
to be evidence to show, that the great change in the tenure
of land, and particularly the very extensive introduction of
tenure by knight-service, was made by the consent of those
principally interested in the land charged with the burthens
of that tenure ; and that the general change made in the
Saxon laws by the Conqueror, forming of the two one
people, was also effected by common consent ; namely, in
the language of the charter of William with respect to the
tenures, ' per commune concilium tocius regni,' and with
respect to both, as expressed in the charter of his son Henry,
' consilio baronum ;' though it is far from clear who were
the persons intended to be so described." (Report of Lords'
Committee, p. 50.)
The separation of the civil and ecclesiastical jurisdictions
was another great innovation in the reign of the Conqueror.
This the Lords' Committee incline to refer to his sole autho-
rity. But Allen has shown by a writ of William, addressed
to the bishop of Lincoln, that it was done " communi con-
cilio, et consilio archiepiscoporum meorum, et caeterorum
episcoporum et abbatum, et omnium principum regni mei."
(Edinb. Rev. p. 15.) And the Domesday survey was de-
termined upon, after a consultation of William with his great
council at Gloucester, in 1084. This would of course be
reckoned a legislative measure in the present day ; but it
might not pass for more than a temporary ordinance. The
only laws under Henry I., except his charter, of which any
account remains in history (there are none on record) fall
under the same description.
CHAP. VIII. DURING THE MIDDLE AGES. 413
The Constitutions of Clarendon, in 1 164, are certainly a
regular statute ; whoever might be the consenting parties,
a subject to be presently discussed, these famous provisions
were enacted in the great council of the nation. This is
equally true of the Assises of Northampton, in 1 178. But
the earliest Anglo-Norman law which is extant in a regular
form, is the assise made at Clarendon for the preservation
of the peace, probably between 1165 and 11/6. This re-
markable statute, " quam dominus rex Henricus, consilio
archiepiscoporum,et episcoporum etabbatum, cseterorumque
baronum suorum constituit," was first published by Sir F.
Palgravefrom a manuscript in the British Museum. (Eng.
Commonw. i. 257, ii. 168.) In other instances the royal
prerogative may perhaps have been held sufficient for inno-
vations which, after the constitution became settled, would
have required the sanction of the whole legislature. No act
of parliament is known to have been made under Richard I. ;
but an ordinance, setting the assise of bread, in the fifth of
John, is recited to be established "communi concilio baronum
nostrorum." Whether these words afford sufficient ground
for believing that the assise was set in a full council of the
realm, may possibly be doubtful. The committee incline to
the affirmative, and remark, that a general proclamation to
the same effect is mentioned in history, but merely as pro-
ceeding from the king, so that " the omission of the words
' communi consilio baronum ' in the proclamation mentioned
by the historian, though appearing in the ordinance, tends
also to show, that though similar words may not be found
in other similar documents, the absence of those words ought
not to lead to a certain conclusion that the act done had not
the authority of the same common council." (p. 84.)
NOTE XL Page 320.
THIS charter has been introduced into the new edition of
Rymer's Foedera, and heads that collection. The Committee
of the Lords on the Dignity of a Peer, in their Second
Report, have the following observations: — -"The printed
414 STATE OF EUROPE NOTES TO
copy is taken from the Red Book of the Exchequer, a docu-
ment which has long been admitted in the Court of Ex-
chequer as evidence of authority for certain purposes ; but
no trace has been hitherto found of the original charter of
William, though the insertion of a copy in a book in the
custody of the king's Exchequer, resorted to by the judges of
that court for other purposes, seems to afford reasonable
ground for supposing that such a charter was issued, and
that the copy so preserved is probably correct, or nearly cor-
rect. The copy in the Red Book is without date, and no
circumstance tending to show its true date has occurred to
the Committee ; but it may be collected from its contents,
that it was probably issued in the latter part of that king's
reign ; about which time it appears from history that he
confirmed to his subjects in England the ancient Saxon laws,
with alterations.'5 (p. 28.)
I once thought, and have said, that this charter seems to
comprehend merely the feudal tenants of the crown. This
may be true of one clause ; but it is impossible to construe
" omnes liberi homines totius monarchic," in so contracted
a sense. The Committee indeed observe, that many of the
king's tenants were long after subject to tallage. But I do
not suppose these to have been included in " liberi homines."
The charter involves a promise of the crown to abstain
from exactions frequent in the Conqueror's reign, and fall-
ing on mesne tenants and others not liable to arbitrary
taxation.
This charter contains a clause : — " Hoc quoque prseci-
pimus ut omnes habeant et teneant legem Edwardi Regis in
omnibus rebus adjunctis his quse constituimus ad utilitatem
Anglorum." And as there is apparent reference to these
words in the charter of Henry I. — " Legem Edwardi Regis
vobis reddo cum illis emendationibus quibus pater meus earn
emendavit consilio baronum suorum "-—the Committee are
sufficiently moderate in calling this "a clause, tending to
give in some degree authenticity to the copy of the charter of
William the Conqueror, inserted in the Red Book of the
Exchequer." (p. 39.) This charter seems to be fully es-
tablished : it deserves to be accounted the first remedial con-
cession by the crown ; for it indicates, especially taken in
CHAP. VIII. DURING THE MIDDLE AGES. 415
connexion with public history, an arbitrary exercise of royal
power, which neither the new nor the old subjects of the
English monarchy reckoned lawful. It is also the earliest
recognition of the Anglo-Saxon laws, such as they subsisted
under the Confessor, and a proof both that the English were
now endeavouring to raise their heads from servitude, and
that the Normans had discovered some immunities from tax-
ationt or some securities from absolute power, among the
conquered people, in which they desired to participate. It
is deserving of remark, that the distinction of personal law,
which, indeed, had almost expired on the continent, was
never observed in England ; at least, we have no evidence
of it, and the contrary is almost demonstrable. 'The con-
querors fell at once into the laws of the conquered, and this
continued for more than a century.
The charter of William, like many others, was more
ample than effectual. " The Committee have found no do-
cument to show, nor does it appear probable from any re-
lation in history, that William ever obtained any general aid
from his subjects by grant of a legislative assembly ; though
according to history, even after the charter before mentioned,
he extorted great sums from individuals by various means,
and under various pretences. Towards the close of his
reign, when he had exacted, as stated by the editor of the
first part of the Annals called the Annals of Waverley, the
oath of fealty from the principal landholders of every de-
scription ; the same historian adds that William passed into
Normandy, ' adquisitis magnis thesauris ab hominibus suis,
super quos aliquam causam invenire poterat, sive juste sive
inique ' (words which import exaction and not grant), and
he died the year following in Normandy." (p. 35.)
The deeply learned reviewer of this Report has shown
that the Annals of Waverley are of very little authority, and
merely in this part a translation from the Saxon Chronicle.
But the translation of the passage, quoted by the Committee,
is correct ; and it was perhaps rather hypercritical to cavil
at their phrase, that William obtained this money " by ex-
action and not by grant." They never meant that he im-
posed a general tax. That it was not by grant is all that
their purpose required ; the passage which they quote shows
416 STATE OF EUROPE NOTES TO
that it was under some pretext, and often an unjust one,
which is not very unlike exaction.
It is highly probable that in promising this immunity from
unjust exactions, William did not intend to abolish the an-
cient tax of Danegelt, or to demand the consent of his
great council when it was thought necessary to impose it.
We read in the Saxon Chronicle, that the king, in 1083,
exacted a heavy tribute all over England, that is, seventy-
two pence for each hyde. This looks like a Danegelt. The
rumour of invasion from Denmark is set down by the chro-
nicler under the year 1085 ; but probably William had
reason to be prepared. He may have had the consent of
his great council in this instance. But as the tax had for-
merly been perpetual, so that it was a relaxation in favour
of the subject to reserve it for an emergency, we may think
it more likely that this imposition was within his preroga-
tive ; that he, in other words, was sole judge of the danger
that required it. It was, however, in truth, a heavy tri-
bute, being six shillings for every hyde, in many cases, as
we see by Domesday, no small proportion of the annual
value, and would have been a grievous burthen as an annual
payment.
NOTE XII. Page 321.
THIS passage in a contemporary writer, being so unequivocal
as it is, ought to have much weight in the question which
an eminent foreigner has lately raised, as to the duration of
the distinction between the Norman and English races. It
is the favourite theory of M. Thierry, pushed to an extreme
length both as to his own country and ours, that the con-
quering nation, Franks in one case, Normans in the other,
remained down to a late period — a period indeed to which
he assigns no conclusion — unmingled, or at least undistin-
guishable, constituting a double people of sovereigns and
subjects becoming a noble order in the state, haughty, op-
pressive, powerful, or what is in one word most odious to a
French ear in the nineteenth century, aristocratic.
CHAP. VIII. DURING THE MIDDLE AGES. 417
It may be worthy of consideration, since the authority of
this writer is not to be disregarded, whether the Norman
blood were really blended with the native quite so soon as
the reign of Henry II. ; that is, whether intermarriages,
in the superior classes of society, had become so frequent as
to efface the distinction. M. Thierry produces a few -pas-
sages which seem to intimate its continuance. But these
are too loosely worded to warrant much regard ; and he
admits, that after the reign of Henry I. we have no proof
of any hostile spirit on the part of the English towards the
new dynasty ; and that some efforts were made to conciliate
them by representing Henry II. as the descendant of the
Saxon line. (Vol. ii. p. 374.) This, in fact, was true ;
and it was still more important that the name of English
was studiously assumed by our kings (ignorant though they
might be, in M. Thierry's phrase, what was the vernacular
word for that dignity), and that the Anglo-Normans are
seldom, if ever, mentioned by that separate designation.
England was their dwelling-place, English their name, the
English law their inheritance ; if this was not wholly the
case before the separation of the mother country under
John, and yet we do not perceive much limitation neces-
sary, it can admit of no question afterwards.
It is, nevertheless, manifest that the descendants of Wil-
liam's tenants in capite and of others who seized on so large
a portion of our fair country from the Channel to the
Tweed, formed the chief part of that aristocracy which se-
cured the liberties of the Anglo-Saxon race, as well as their
own, at Eunnymede ; and which, sometimes as peers of the
realm, sometimes as well-born commoners, placed successive
barriers against the exorbitances of power, and prepared the
way for that expanded scheme of government which we call
the English constitution. The names in Dugdale's Baronage,
and in his Summonitiones ad Parliamentum, speak for them-
selves ; in all the earlier periods, and perhaps almost through
the Plantagenet dynasty, we find a great preponderance of
such as indicate a French source. New families sprung up
by degrees, and are now sometimes among our chief nobility;
but in general, if we find any at this day who have tolerable
pretensions to deduce their lineage from the Conquest, they
VOL. II. 2 E
418 STATE OF EUROPE NOTES TO
are of Norman descent ; the very few Saxon families that
may remain with an authentic pedigree in the male line are
seldom found in the wealthier class of gentry. This is of
course to be taken with deference to the genealogists. And
on this account I must confess that M. Thierry's opinion of
a long continued distinction of races has more semblance of
truth as to this kingdom, than can be pretended as to France,
without a blind sacrifice of undeniable facts at the altar of
plebeian malignity. In the celebrated Lettres sur 1'Histoire
de France, published about 1820, there seems to be no other
aim than to excite a factious animosity against the ancient
nobility of France, on the preposterous hypothesis that they
are descended from the followers of Clovis ; that Frank and
Gaul have never been truly intermingled ; and that a con-
quering race was, even in this age, attempting to rivet its
yoke on a people who disdained it. This strange theory,
or something like it, had been announced, in a very different
spirit, by Boulainvilliers in the last century. But of what
family in France, unless possibly in the eastern part, can it
be determined with confidence, whether the founder were
Frank or Gallo-Romau ? Is it not a moral certainty that
many of the most ancient, especially in the south, must have
been of the latter origin ? It would be highly wrong to
revive such obsolete distinctions in order to keep up social
hatreds, were they founded in truth ; but what shall we say,
if they are purely chimerical ?
NOTE XIII. Page 333.
IT appears to have been the opinion of Madox, and probably
has been taken for granted by most other antiquaries, that
this court, denominated Aula or Curia Regis, administered
justice when called upon, as well as advised the crown in
public affairs, during the first four Norman reigns as much
as afterwards. Allen, however, maintained (Edinb. Rev.
xxvi. p. 364), that " the administration of justice in the
last resort belonged originally to the great council. It was
the king's baronial court, and his tenants in chief were the
CHAP. VIII. DUKING THE MIDDLE AGES. 419
suitors and judges." Their unwillingness and inability
to deal with intricate questions of law, which after the
simpler rules of Anglo-Saxon jurisprudence were superseded
by the subtleties of Normandy, became continually more
troublesome, led to the separation of an inferior council from
that of the legislature, to both which the name Curia Regis
is for some time indifferently applied by historians. This
was done by Henry II., as Allen conjectures, at the great
council of Clarendon in 1 1 64.
The Lords' Committee took another view, and one, it
must be confessed, more consonant to the prevailing opinion.
" The ordinary council of the king, properly denominated
by the word ' concilium' simply, seems always to have con-
sisted of persons selected by him for that purpose ; and these
persons in later times, if not always, took an oath of office,
and were assisted by the king's justiciaries or judges, who
seem to have been considered as members of this council ;
and the chief justiciar, the treasurer and chancellor, and
some other great officers of the crown, who might be styled
the king's confidential ministers, seem also to have been
always members of this select council ; the chief justiciar,
from the high rank attributed to his office, generally acting
as president. This select council was not only the king's
ordinary council of state, but formed the supreme court of
justice, denominated Curia Regis, which commonly as-
sembled three times in every year, wherever the king held
his court at the three great feasts of Easter, Whitsuntide,
and Christmas, and sometimes also at Michaelmas. Its
constant and important duty at those times was the adminis-
tration of justice." (p. 20.)
It has been seen in a former note, that the meetings de
more, three times in the year, are supposed by Mr. Allen
to have been of the great council, composed of the baronial
aristocracy. The positions, therefore, of the Lords' Com-
mittee, were of course disputed in his celebrated review of
their Report. " So far is it," he says, " from being true
that the term Curia Regis, in the time, of the Conqueror
and his immediate successors, meant the king's high court
of justice, as distinguished from the legislature, that it is
doubtful whether such a court then existed." (Ed. Rev.
2 E 2
420 STATE OF EUROPE NOTES TO
xxxv. 6.) This is expressed with more hesitation than in
the earlier article, and in a subsequent passage we read that
" the high court of justice, to which the committee would
restrict the appellation of Curia Regis, and of which such
frequent mention is made under that name, in our early
records and courts of law, was confirmed and fully established
by Henry II., if not originally instituted by that prince."
(p. 8.)
The argument of Mr. Allen rests very much on the judi-
cial functions of the witenagemot, which he would consider
as maintained in its substantial character by the great councils
or parliaments of the Norman dynasty. In this we may
justly concur ; but we have already seen how far he is from
having a right to assume that the Anglo-Saxon kings, though
they might administer justice in the full meetings called
witenagemots, were restrained from its exercise before a
smaller body more permanently attached to their residence.
It is certain that there was an appeal to the king's court for
denial of justice in that of the lord having territorial juris-
diction, and as the words and the reason imply, from that
* of the sheriff. (Leg. Hen. I. c. 58.) This was also the
law before the Conquest. But the plaintiff incurred a fine,
if he brought his cause in the first instance before the king.
(Thorpe's Ancient Laws, p. 85; and see Edinb. Eev. xxxv.
10.) It hardly appears evident, that these cases, rare pro-
bably and not generally interesting, might not be determined
ostensibly, as they would, on any hypothesis, be in reality,
by the chancellor, the high justiciar, and other great officers
of the crown, during the intervals of the national council;
and this is confirmed by the analogy of the royal courts in
France, which were certainly not constituted on a very broad
basis. The feudal court of a single barony might contain
all the vassals, but the inconvenience would have become too
great, if the principle had been extended to all the tenants
in chief of the realm. This relates to the first four reigns,
for which we are reduced to these grounds of probable and
analogical reasoning, since no proof of the distinct existence
of a judicial court seems to be producible.
In the reign of Henry II. a court of justice is manifestly
distinguishable, both from the select and from the greater
CHAP. VIII. DURING THE MIDDLE AGES. 421
council. " In the Curia Regis were discussed and tried all
pleas immediately concerning the king and the realm ; and
suitors were allowed, on payment of fines, to remove their
plaints from inferior jurisdictions of Anglo-Saxon creation
into this court, by which a variety of business was wrested
from the ignorance and partiality of lower tribunals, to be
more confidently submitted to the decision of judges of high
reputation. Some plaints were also removed into the Curia
Regis by the express order of the king, others by the jus-
tices, then itinerant, who not unfrequently felt themselves
incompetent to decide upon difficult points of law. Matters
of a fiscal nature, together with the business performed by
the Chancery, were also transacted in the Curia Regis.
Such a quantity of miscellaneous business was at length
found to be so perplexing and impracticable,, not only to the
officers of the Curia Regis, but also to the suitors themselves,
that it became absolutely necessary to devise a remedy for
the increasing evil. A division of that court into distinct
departments was the consequence ; and thenceforth pleas
touching the crown, together with common pleas of a civil
and criminal nature, were continued to the Curia Regis ;
plaints of a fiscal kind were transferred to the Exchequer ;
and for the Court of Chancery were reserved all matters
unappropriated to the other courts." (Hardy's Introduction
to Close Rolls, p. 23.)
Mr. Hardy quotes a passage from Benedict Abbas, a con-
temporary historian, which illustrates very remarkably the
development of our judicial polity. Henry II., in 1176,
reduced the justices in the Curia Regis from eighteen to
five ; and ordered that they should hear and determine all
writs of the kingdom — not leaving the king's court, but
remaining there for that purpose ; so that if any question
should arise which they could not settle, it should be referred
to the king himself, and be decided as it might please him
and the wisest men of the realm. And this reduction of
the justices from eighteen to five, is said to have been made
Cconsilium sapientium regni sui ; which may, perhaps,
understood of parliament. But we have here a distinct
mention of the Curia Regis, as a standing council of the
king, neither to be confounded with the great council or
422 STATE OF EUROPE NOTES TO-
parliament, nor with the select body of judges, which was
now created as an inferior, though most important tribunal.
From this time, and -probably from none earlier, we may
date the commencement of the Court of King's Bench, which
very soon acquired, at first indifferently with the council,
and then exclusively, the appellation of Curia Eegis.
The rolls of the Curia Eegis, or Court of King's Bench,
begin in the sixth year of Richard I. They are regularly
extant from that time ; but the usage of preserving a regular
written record of judicial proceedings was certainly practised
in England during the preceding reign. The roll of Mi-
chaelmas Term, in 9 John, contains a short transcript of
certain pleadings in 7 Hen. II., " proving that the mode of
enrolment was then entirely settled." (Palgrave's Intro-
duction to Eot. Cur. Eegis, p. 2.) This authentic precedent
(in 1161), though not itself extant, must lead us to carry
back the judicial character of the Curia Eegis, and that in
a perfectly regular form, at least to an early part of the
reign of Henry II.; and this is more probable than the
date conjectured by Allen, the assembly at Clarendon in
1 164.d But in fact the interruption of the regular assem-
blies of the great council, thrice a year, which he admits to
date from the reign of Stephen, would necessitate, even on
his hypothesis, the institution of a separate court or council,
lest justice should be denied or delayed. I do not mean
that in the seventh year of Henry II. there was a Court of
King's Bench distinct from the select council, which we
have not any grounds for affirming, and the date of which
I, on the authority of Benedict Abbas, have inclined to place
several years lower, but that suits were brought before the
king's judges by regular process, and recorded by regular
enrolment.
These rolls of the Curia Regis, or the King's Court, held
before his justices or justiciars, are the earliest consecutive
judicial records in existence. The Olim Eegisters of the
Parliament of Paris, next to our own in antiquity, begin in
1254.e (Palgrave's Introduction, p. 1.) Every reader,
d This discovery has led Sir F. Pal- any written records in his time. English
grave to correct his former opinion, that Commonw. vol. ii. p. 1.
the Rolls of Curia Eegis under Kichard I. e They are published in the Docu-
are probably the first that ever existed, mens Inedits, 1839, by M. Beuguot.
Glanvil giving us no reason to presume
CHAP. VIII. DUEING THE MIDDLE AGES. 423
he observes, will be struck by the great quantity of business
transacted before the justiciars. " And when we recollect
the heavy expenses which, even at this period, were attendant
upon legal proceedings, and the difficulties of communication
between the remote parts of the kingdom and the central
tribunal, it must appear evident that so many cases would
not have been prosecuted in the king's court, had not some
very decided advantage been derived from this source."
(p. 6.) The issues of fact, however, were remitted to be
tried by a jury of the vicinage ; so that, possibly, the ex-
pense might not be quite so considerable as is here sug-
gested. And the jurisdiction of the county and hundred
courts was so limited in real actions, or those affecting land,
by the assises of novel disseisin and mort d'ancestor, that
there was no alternative but to sue before the courts at
Westminster.
It would be travelling beyond the limits of my design, to
dwell longer on these legal antiquities. The reader will
keep in mind the three-fold meaning of Curia Regis : the
common council of the realm, already mentioned in a former
note, and to be discussed again ; the select council for ju-
dicial as well as administrative purposes ; and the Court of
King's Bench, separated from the last in the reign of
Henry II., and soon afterwards acquiring, exclusively, the
denomination Curia Eegis.
In treating the judges of the Court of Exchequer as
officers of the crown, rather than nobles, I have followed
the usual opinion. But Allen contends that they were
" barons, selected from the common council of the realm,
on account of their rank or reputed qualifications for the
office." They met in the palace ; and their court was called
Curia Regis, with the addition, aad scaccarinm." Hence
Fleta observes, that after the Court of Exchequer was filled
with mere lawyers, they were styled barons, because formerly
real barons had been the judges ; " justiciarios ibidem com-
morantes baron es esse dicimus, eo quod suis locis baron es
sedere solebant." (Edinb. Rev. xxxv. 11.) This is certainly
an important remark. But in practice it is to be presumed
that the king selected such barons (a numerous body, we
should remember) as were likely to look well after the rights
424 STATE OF EUROPE NOTES TO
of the crown. The Court of Exchequer is distinctly traced
to the reign of Henry I.
NOTE XIV. Page 342.
THE theory of succession to the crown in the Norman
period intimated in the text, has now been extensively re-
ceived. "It does not appear," says Mr. Hardy, "that
any of the early English monarchs exercised any act of
sovereign power or disposed of public affairs till after their
election and coronation These few examples appear to
be undeniable proofs that the fundamental laws and in-
stitutions of this kingdom, based on the Anglo-Saxon cus-
tom, were at that time against an hereditary succession
unless by common consent of the realm." (Introduction to
Close Rolls, p. 35.) It will be seen that this abstinence
from all exercise of power cannot be asserted without
limitation.
The early kings always date their reign from their coro-
nation, and not from the decease of their predecessor, as is
shown by Sir Harris Nicolas, in his Chronology of History.
(p. 272.) It had been with less elaborate research pointed
out by Mr. Allen, in his Inquiry into the Royal Preroga-
tive. The former has even shown that an exception which
Mr. Allen had made in respect of Richard I., of whom he
supposes public acts to exist, dated in the first year of his
reign, but before his coronation, ought not to have been
made ; having no authority but a blunder made by the
editors of Ryiner's Foedera, in ante-dating, by one month,
the decease of Henry II., and, following up that mistake by
the usual assumption that the successor's reign commenced
immediately, in placing some instruments bearing date in the
first year of Richard, just twelve months too early. This
discovery has been confirmed by Mr. W. Hardy in the 27th
volume of the ArchaBologia (p. 109), by means of a
charter in the archives of the Duchy of Lancaster, where
Richard, before his coronation, confirms the right of Gerald
de Camville and his wife Nicholas to the inheritance of the
CHAP. VIII. DURING THE MIDDLE AGES. 425
said Nichola in England and Normandy, with an additional
grant of lands. In this he only calls himself, " Ricardus
Dei gratia dominus Angliae." It has been observed, as
another slighter circumstance, that he uses the form ego and
meus, instead of nos and noster.
Whatever, therefore, may have been the case in earlier
reigns, all the kings, indeed, except Henry II., having come
in by a doubtful title, we perceive that, as has been before
said in the text on the authority of an historian, Richard I.
acted in some respects as king before the title was constitu-
tionally his by his coronation. It is now known that John's
reign began with his coronation, and that this is the date
from which his charters, like those of his predecessors, are
reckoned. But he seems to have acted as king before.
(Palgrave's Introduction to Rot. Cur. Regis, vol. i. p. 91 ;
and further proof is adduced in the Introduction to the
second volume.) Palgrave thinks the reign virtually began
with the proclamation of the king's peace, which was at some
short interval after the demise of the predecessor. He is
positive indeed that the Anglo-Saxon kings had no right
before their acceptance by the people at their coronation.
But, " after the Conquest," he proceeds, "it is probable,
for we can only speak doubtingly and hypothetically, that
the heir obtained the royal authority, at least for the pur-
poses of administering the law, from the day that his peace
was proclaimed. He was obeyed as chief magistrate, so
soon as he was admitted to the high office of protector of
the public tranquillity. But he was not honoured as the
king, until the sacred oil had been poured upon him, and
the crown set upon his head, and the sceptre grasped in his
hand." (Introduct. to Rot. Cur. Reg. p. 92.)
This hypothesis, extremely probable in all cases where no
opposition was contemplated, is not entirely that of Allen,
Hardy, and Nicolas ; and it seems to imply an admitted
right, which indeed cannot be disputed in the case of
Henry II., who succeeded by virtue of a treaty assented to
by the baronage, nor is it likely to have been in the least
doubtful when Richard I. and Henry III. came to the
throne. It is important, however, for the unlearned reader
to be informed that he has been deceived by the almanacs
VOL. II. 2 F
426 STATE OF EUROPE NOTES TO
and even the historians, who lay it down that a king's reign
has always begun from the death of his predecessor : and
yet, that, although he bore not the royal name before his
coronation, the interval of a vacant throne was virtually but
of a few days ; the successor taking on himself the adminis-
tration without the royal title, by causing public peace to be
proclaimed.
The original principle of the necessity of consent to a
king's succession was in some measure preserved, even at
the death of Henry III. in 1272, when fifty-six years of a
single reign might have extinguished almost all personal
recollections of precedent. " On the day of the king's
burial, the barons swore fealty to Edward I., then absent
from the realm, and from this his reign is dated." Four
days having elapsed between the death of Henry and the
recognition of Edward as king, the accession of the latter
was dated, not from his father's death, but from his own
recognition. Henry died on the 16th of November, and
his son was not acknowledged king till the 20th. (Allen's
Inquiry, p. 44, quoting Palgrave's Parliamentary Writs.)
Thus this recognition by the oath of fealty came in and was
in the place of the coronation, though with the important
difference, that there was no reciprocity.
NOTE XV. Page 345.
MR. ALLEN has differed from me on the lawfulness of pri-
vate war, quoting another passage from Glanvil, and one
from Bracton (Edinb. Rev. xxx. 168) ; and I modified the
passage, after the first edition, in consequence of his re-
marks. But I adhere to the substance of what I have said.
It appears, indeed, that the king's peace was originally a
personal security, granted by charter under his hand or seal,
which could not be violated without incurring a penalty.
Proofs of this are found in Domesday, and it was a Saxon
usage, derived from the old Teutonic mundeburde. Wil-
liam I., if we are to believe what is written, maintained the
peace throughout the realm. But the general proclamation
CHAP. VIII. DURING THE MIDDLE AGES. 427
of the king's peace at his accession, which became the
regular law, may have been introduced by Henry II.
Palgrave, to whom I am indebted, states this clearly enough.
" Peace is stated in Domesday to have been given by the
king's seal, that is, by a writ under seal. This practice,
which is not noticed in the Anglo-Saxon laws, continued in
the protections granted at a much later period ; though after
the general law of the king's peace was established, such a
charter had ceased to afford any special privilege. All the
immunities arising from residence within the verge or ambit
of the king's presence — from the truces, as they are termed
in the continental laws, which recurred at the stated times
and seasons — and also from the ' handselled ' protection of
the king, were then absorbed in the general declaration of
the peace upon the accession of the new monarch. This
custom was probably introduced by Henry II. It is incon-
sistent with the laws of Henry I. ; which, whether an au-
thorised collection or not, exhibit the jurisprudence of that
period, but it is wholly accordant with the subsequent tenor
of the proceedings of the Curia Regis." (English Com-
monwealth, vol. ii. p. 105.)
A few words in Glanvil (those in Bracton are more am-
biguous), which may have been written before the king's
peace was become a matter of permanent law, or may
rather refer to Normandy than England, ought not, in my
opinion, to be set against so clear a declaration. The right
of private war, in the time of Henry II., was giving way
in France; and we should always remember that the
Anglo-Norman government was one of high prerogative.
The paucity of historical evidence, or that of records,
for private war as an usual practice, is certainly not to be
overlooked.
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