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Title: View of the State of Europe during the Middle Ages, Vol. 3
Author: Hallam, Henry, 1777-1859
Language: English
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VIEW

OF

THE STATE OF EUROPE

DURING

THE MIDDLE AGES.


BY HENRY HALLAM, LL.D., F.R.A.S.,

FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE.


IN THREE VOLUMES.--VOL. III.

_NEW EDITION._


LONDON:

JOHN MURRAY, ALBEMARLE STREET.

1860.


_The right of Translation is reserved._



PRINTED BY W. CLOWES AND SONS, STAMFORD STREET AND CHARING CROSS.



CONTENTS

OF

THE THIRD VOLUME.



  CHAPTER VIII.

  PART III.

  THE ENGLISH CONSTITUTION.

  Reign of Edward I.--Confirmatio Chartarum--Constitution of Parliament
  --the Prelates--the temporal Peers--Tenure by Barony--its Changes--
  Difficulty of the Subject--Origin of Representation of the Commons--
  Knights of Shires--their Existence doubtfully traced through the Reign
  of Henry III.--Question whether Representation was confined to Tenants
  in capite discussed--State of English Towns at the Conquest and
  afterwards--their Progress--Representatives from them summoned to
  Parliament by Earl of Leicester--Improbability of an earlier Origin
  --Cases of St. Albans and Barnstaple considered--Parliaments under
  Edward I.--Separation of Knights and Burgesses from the Peers--Edward
  II.--Gradual Progress of the Authority of Parliament traced through the
  reigns of Edward III. and his Successors down to Henry IV.--Privilege
  of Parliament--the early Instances of it noticed--Nature of Borough
  Representation--Rights of Election--other Particulars relative to
  Election--House of Lords--Baronies by Tenure--by Writ--Nature of the
  latter discussed--Creation of Peers by Act of Parliament and by Patent
  --Summons of Clergy to Parliament--King's Ordinary Council--its
  Judicial and other Power--Character of the Plantagenet Government--
  Prerogative--its Excesses--erroneous Views corrected--Testimony of Sir
  John Fortescue to the Freedom of the Constitution--Causes of the
  superior Liberty of England considered--State of Society in England--
  Want of Police--Villenage--its gradual Extinction--Latter Years of Henry
  VI.--Regencies--Instances of them enumerated--Pretensions of the House
  of York, and War of the Roses--Edward IV.--Conclusion.      Page 1

  NOTES TO CHAPTER VIII., PART III.      204

  CHAPTER IX.

  ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES.

  PART I.

  Introduction--Decline of Literature in the latter Period of the Roman
  Empire--Its Causes--Corruption of the Latin Language--Means by which
  it was effected--Formation of new Languages--General Ignorance of the
  Dark Ages--Scarcity of Books--Causes that prevented the total Extinction
  of Learning--Prevalence of Superstition and Fanaticism--General
  Corruption of Religion--Monasteries--their Effects--Pilgrimages--Love
  of Field Sports--State of Agriculture--of Internal and Foreign Trade
  down to the end of the Eleventh Century--Improvement of Europe dated
  from that Age.      268

  PART II.

 Progress of Commercial Improvement in Germany, Flanders, and England--
 in the North of Europe--in the Countries upon the Mediterranean Sea--
 Maritime Laws--Usury--Banking Companies--Progress of Refinement in
 Manners--Domestic Architecture--Ecclesiastical Architecture--State of
 Agriculture in England--Value of Money--Improvement of the Moral
 Character of Society--its Causes--Police--Changes in Religious Opinion
 --Various Sects--Chivalry--its Progress, Character, and Influence--
 Causes of the Intellectual Improvement of European Society--1. The Study
 of Civil Law--2. Institution of Universities--their Celebrity--
 Scholastic Philosophy--3. Cultivation of Modern Languages--Provençal
 Poets--Norman Poets--French Prose Writers--Italian--early Poets in that
 Language--Dante--Petrarch--English Language--its Progress--Chaucer--4.
 Revival of Classical Learning--Latin Writers of the Twelfth Century--
 Literature of the Fourteenth Century--Greek Literature--its Restoration
 in Italy--Invention of Printing.      318

  NOTES TO CHAPTER IX.      474

  INDEX.      487



VIEW

OF

THE STATE OF EUROPE

DURING THE MIDDLE AGES.



CHAPTER VIII.

PART III.

THE ENGLISH CONSTITUTION

     Reign of Edward I.--Confirmatio Chartarum--Constitution of Parliament
     --the Prelates--the Temporal Peers--Tenure by Barony--its Changes--
     Difficulty of the Subject--Origin of Representation of the Commons--
     Knights of Shires--their Existence doubtfully traced through the Reign
     of Henry III.--Question whether Representation was confined to
     Tenants in capite discussed--State of English Towns at the Conquest
     and afterwards--their Progress--Representatives from them summoned to
     Parliament by Earl of Leicester--Improbability of an earlier Origin--
     Cases of St. Albans and Barnstaple considered--Parliaments under
     Edward I.--Separation of Knights and Burgesses from the Peers--Edward
     II.--gradual Progress of the Authority of Parliament traced through
     the Reigns of Edward III. and his Successors down to Henry IV.--
     Privilege of Parliament--the early Instances of it noticed--Nature of
     Borough Representation--Rights of Election--other Particulars relative
     to Election--House of Lords--Baronies by Tenure--by Writ--Nature of
     the latter discussed--Creation of Peers by Act of Parliament and by
     Patent--Summons of Clergy to Parliament--King's Ordinary Council--its
     Judicial and other Power--Character of the Plantagenet Government--
     Prerogative--its Excesses--erroneous Views corrected--Testimony of Sir
     John Fortescue to the Freedom of the Constitution--Causes of the
     superior Liberty of England considered--State of Society in England--
     Want of Police--Villenage--its gradual Extinction--latter Years of
     Henry VI.--Regencies--Instances of them enumerated--Pretensions of the
     House of York, and War of the Roses--Edward IV.--Conclusion.


[Sidenote: Accession of Edward I.]

Though the undisputed accession of a prince like Edward I. to the throne
of his father does not seem so convenient a resting-place in history as
one of those revolutions which interrupt the natural chain of events,
yet the changes wrought during his reign make it properly an epoch in
the progress of these inquiries. And, indeed, as ours is emphatically
styled a government by king, lords, and commons, we cannot, perhaps, in
strictness carry it further back than the admission of the latter into
parliament; so that if the constant representation of the commons is to
be referred to the age of Edward I., it will be nearer the truth to date
the English constitution from that than from any earlier era.

[Sidenote: Confirmation of the Charters.]

The various statutes affecting the law of property and administration of
justice which have caused Edward I. to be named, rather hyperbolically,
the English Justinian, bear no immediate relation to our present
inquiries. In a constitutional point of view the principal object is
that statute entitled the Confirmation of the Charters, which was very
reluctantly conceded by the king in the 25th year of his reign. I do not
know that England has ever produced any patriots to whose memory she
owes more gratitude than Humphrey Bohun, earl of Hereford and Essex, and
Roger Bigod, earl of Norfolk. In the Great Charter the base spirit and
deserted condition of John take off something from the glory of the
triumph, though they enhance the moderation of those who pressed no
further upon an abject tyrant. But to withstand the measures of Edward,
a prince unequalled by any who had reigned in England since the
Conqueror, for prudence, valour, and success, required a far more
intrepid patriotism. Their provocations, if less outrageous than those
received from John, were such as evidently manifested a disposition in
Edward to reign without any control; a constant refusal to confirm the
charters, which in that age were hardly deemed to bind the king without
his actual consent; heavy impositions, especially one on the export of
wool, and other unwarrantable demands. He had acted with such unmeasured
violence towards the clergy, on account of their refusal of further
subsidies, that, although the ill-judged policy of that class kept their
interests too distinct from those of the people, it was natural for all
to be alarmed at the precedent of despotism.[1] These encroachments
made resistance justifiable, and the circumstances of Edward made it
prudent. His ambition, luckily for the people, had involved him in
foreign warfare, from which he could not recede without disappointment
and dishonour. Thus was wrested from him that famous statute,
inadequately denominated the Confirmation of the Charters, because it
added another pillar to our constitution, not less important than the
Great Charter itself.[2]

It was enacted by the 25 Edw. I. that the charter of liberties, and that
of the forest, besides being explicitly confirmed,[3] should be sent to
all sheriffs, justices in eyre, and other magistrates throughout the
realm, in order to their publication before the people; that copies of
them should be kept in cathedral churches, and publicly read twice in
the year, accompanied by a solemn sentence of excommunication against
all who should infringe them; that any judgment given contrary to these
charters should be invalid, and holden for nought. This authentic
promulgation, those awful sanctions of the Great Charter, would alone
render the statute of which we are speaking illustrious. But it went a
great deal further. Hitherto the king's prerogative of levying money by
name of tallage or prise from his towns and tenants in demesne had
passed unquestioned. Some impositions, that especially on the export of
wool, affected all his subjects. It was now the moment to enfranchise
the people, and give that security to private property which Magna
Charta had given to personal liberty. By the 5th and 6th sections of
this statute "the aids, tasks, and prises," before taken are renounced
as precedents; and the king "grants for him and his heirs, as well to
archbishops, bishops, abbots, priors, and other folk of holy church, as
also to earls, barons, and to all commonalty of the land, that for no
business from henceforth we shall take such manner of aids, tasks, nor
prises, but by the common assent of the realm, and for the common
profit thereof, saving the ancient aids and prises due and accustomed."
The toll upon wool, so far as levied by the king's mere prerogative, is
expressly released by the seventh section.[4]

[Sidenote: Constitution of parliament.]

We come now to a part of our subject exceedingly important, but more
intricate and controverted than any other, the constitution of
parliament. I have taken no notice of this in the last section, in order
to present uninterruptedly to the reader the gradual progress of our
legislature down to its complete establishment under the Edwards. No
excuse need be made for the dry and critical disquisition of the
following pages; but among such obscure inquiries I cannot feel myself
as secure from error as I certainly do from partiality.

[Sidenote: The spiritual peers.]

One constituent branch of the great councils held by William the
Conqueror and all his successors was composed of the bishops and the
heads of religious houses holding their temporalities immediately of the
crown. It has been frequently maintained that these spiritual lords sat
in parliament only by virtue of their baronial tenure. And certainly
they did all hold baronies, which, according to the analogy of lay
peerages, were sufficient to give them such a share in the legislature.
Nevertheless, I think that this is rather too contracted a view of the
rights of the English hierarchy, and, indeed, by implication, of the
peerage. For a great council of advice and assent in matters of
legislation or national importance was essential to all the northern
governments. And all of them, except, perhaps, the Lombards, invited the
superior ecclesiastics to their councils; not upon any feudal notions,
which at that time had hardly begun to prevail, but chiefly as
representatives of the church and of religion itself; next, as more
learned and enlightened counsellors than the lay nobility; and in some
degree, no doubt, as rich proprietors of land. It will be remembered
also that ecclesiastical and temporal affairs were originally decided in
the same assemblies, both upon the continent and in England. The Norman
Conquest, which destroyed the Anglo-Saxon nobility, and substituted a
new race in their stead, could not affect the immortality of church
possessions. The bishops of William's age were entitled to sit in his
councils by the general custom of Europe, and by the common law of
England, which the Conquest did not overturn.[5] Some smaller arguments
might be urged against the supposition that their legislative rights are
merely baronial; such as that the guardian of the spiritualities was
commonly summoned to parliament during the vacancy of a bishopric, and
that the five sees created by Henry VIII. have no baronies annexed to
them;[6] but the former reasoning appears less technical and
confined.[7]

Next to these spiritual lords are the earls and barons, or lay peerage
of England. The former dignity was, perhaps, not so merely official as
in the Saxon times, although the earl was entitled to the third penny of
all emoluments arising from the administration of justice in the
county-courts, and might, perhaps, command the militia of his county,
when it was called forth.[8] Every earl was also a baron, and held an
honour or barony of the crown, for which he paid a higher relief than an
ordinary baron, probably on account of the profits of his earldom. I
will not pretend to say whether titular earldoms, absolutely distinct
from the lieutenancy of a county, were as ancient as the Conquest, which
Madox seems to think, or were considered as irregular so late as Henry
II., according to Lord Lyttelton. In Dugdale's Baronage I find none of
this description in the first Norman reigns; for even that of Clare was
connected with the local earldom of Hertford.

[Sidenote: Question as to the nature of baronies.]

It is universally agreed that the only baronies known for two centuries
after the Conquest were incident to the tenure of land held immediately
from the crown. There are, however, material difficulties in the way of
rightly understanding their nature which ought not to be passed over,
because the consideration of baronial tenures will best develop the
formation of our parliamentary system. Two of our most eminent legal
antiquaries, Selden and Madox, have entertained different opinions as to
the characteristics and attributes of this tenure.

[Sidenote: Theory of Selden;]

According to the first, every tenant in chief by knight-service was an
honorary or parliamentary baron by reason of his tenure. All these were
summoned to the king's councils, and were peers of his court. Their
baronies, or honours, as they were frequently called, consisted of a
number of knight's fees; that is, of estates, from each of which the
feudal service of a knight was due; not fixed to thirteen fees and a
third, as has been erroneously conceived, but varying according to the
extent of the barony and the reservation of service at the time of its
creation. Were they more or fewer, however, their owner was equally a
baron, and summoned to serve the king in parliament with his advice and
judgment, as appears by many records and passages in history.

But about the latter end of John's reign, some only of the most eminent
tenants in chief were summoned by particular writs; the rest by one
general summons through the sheriffs of their several counties. This is
declared in the Great Charter of that prince, wherein he promises that,
whenever an aid or scutage shall be required, faciemus summoneri
archiepiscopos, episcopos, abbates, comites et majores barones regni
sigillatim per literas nostras. Et præterea faciemus summoneri in
generali per vicecomites et ballivos nostros omnes alios qui in capite
tenent de nobis. Thus the barons are distinguished from other tenants in
chief, as if the former name were only applicable to a particular number
of the king's immediate vassals. But it is reasonable to think that,
before this charter was made, it had been settled by the law of some
other parliament, how these greater barons should be distinguished from
the lesser tenants in chief; else what certainty could there be in an
expression so general and indefinite? And this is likely to have
proceeded from the pride with which the ancient and wealthy barons of
the realm would regard those newly created by grants of escheated
honours, or those decayed in estate, who yet were by their tenures on an
equality with themselves. They procured therefore two innovations in
their condition; first that these inferior barons should be summoned
generally by the sheriff, instead of receiving their particular writs,
which made an honorary distinction; and next, that they should pay
relief, not, as for an entire barony, one hundred marks; but at the rate
of five pounds for each knight's fee which they held of the crown. This
changed their tenure to one by mere knight-service, and their
denomination to tenants in chief. It was not difficult, afterwards, for
the greater barons to exclude any from coming to parliament as such
without particular writs directed to them, for which purpose some law
was probably enacted in the reign of Henry III. If indeed we could place
reliance on a nameless author whom Camden has quoted, this limitation of
the peerage to such as were expressly summoned depended upon a statute
made soon after the battle of Evesham. But no one has ever been able to
discover Camden's authority, and the change was, probably, of a much
earlier date.[9]

[Sidenote: of Madox,]

[Sidenote: and observations on both.]

Such is the theory of Selden, which, if it rested less upon conjectural
alterations in the law, would undoubtedly solve some material
difficulties that occur in the opposite view of the subject. According
to Madox, tenure by knight-service in chief was always distinct from
that by barony. It is not easy, however, to point out the characteristic
differences of the two; nor has that eminent antiquary, in his large
work, the Baronia Anglica, laid down any definition, or attempted to
explain the real nature of a barony. The distinction could not consist
in the number of knight's fees; for the barony of Hwayton consisted of
only three; while John de Baliol held thirty fees by mere
knight-service.[10] Nor does it seem to have consisted in the privilege
or service of attending parliament, since all tenants in chief were
usually summoned. But whatever may have been the line between these
modes of tenure, there seems complete proof of their separation long
before the reign of John. Tenants in chief are enumerated distinctly
from earls and barons in the charter of Henry I. Knights, as well as
barons, are named as present in the parliament of Northampton in 1165,
in that held at the same town in 1176, and upon other occasions.[11]
Several persons appear in the Liber Niger Scaccarii, a roll of military
tenants made in the age of Henry II., who held single knight's fees of
the crown. It is, however, highly probable, that, in a lax sense of the
word, these knights may sometimes have been termed barons. The author of
the Dialogus de Scaccario speaks of those holding greater or lesser
baronies, including, as appears by the context, all tenants in
chief.[12] The former of these seem to be the majores barones of King
John's Charter. And the secundæ dignitatis barones, said by a
contemporary historian to have been present in the parliament of
Northampton, were in all probability no other than the knightly tenants
of the crown.[13] For the word baro, originally meaning only a man, was
of very large significance, and is not unfrequently applied to common
freeholders, as in the phrase of court-baron. It was used too for the
magistrates or chief men of cities, as it is still for the judges of the
exchequer, and the representatives of the Cinque Ports.[14]

The passage however before cited from the Great Charter of John affords
one spot of firm footing in the course of our progress. Then, at least,
it is evident that all tenants in chief were entitled to their summons;
the greater barons by particular writs, the rest through one directed to
their sheriff. The epoch when all, who, though tenants in chief, had not
been actually summoned, were deprived of their right of attendance in
parliament, is again involved in uncertainty and conjecture. The unknown
writer quoted by Camden seems not sufficient authority to establish his
assertion, that they were excluded by a statute made after the battle of
Evesham. The principle was most likely acknowledged at an earlier time.
Simon de Montfort summoned only twenty-three temporal peers to his
famous parliament. In the year 1255 the barons complained that many of
their number had not received their writs according to the tenor of the
charter, and refused to grant an aid to the king till they were
issued.[15] But it would have been easy to disappoint this mode of
packing a parliament, if an unsummoned baron could have sat by mere
right of his tenure. The opinion of Selden, that a law of exclusion was
enacted towards the beginning of Henry's reign is not liable to so much
objection. But perhaps it is unnecessary to frame an hypothesis of this
nature. Writs of summons seem to have been older than the time of
John;[16] and when this had become the customary and regular preliminary
of a baron's coming to parliament, it was a natural transition to look
upon it as an indispensable condition; in times when the prerogative was
high, the law unsettled, and the service in parliament deemed by many
still more burthensome than honourable. Some omissions in summoning the
king's tenants to former parliaments may perhaps have produced the
above-mentioned provision of the Great Charter, which had a relation to
the imposition of taxes wherein it was deemed essential to obtain a more
universal consent than was required in councils held for state, or even
for advice.[17]

[Sidenote: Whether mere tenants in chief attended parliament under Henry
III.]

It is not easy to determine how long the inferior tenants in chief
continued to sit personally in parliament. In the charters of Henry
III., the clause which we have been considering is omitted: and I think
there is no express proof remaining that the sheriff was ever directed
to summon the king's military tenants within his county, in the manner
which the charter of John required. It appears however that they were in
fact members of parliament on many occasions during Henry's reign, which
shows that they were summoned either by particular writs or through the
sheriff; and the latter is the more plausible conjecture. There is
indeed great obscurity as to the constitution of parliament in this
reign; and the passages which I am about to produce may lead some to
conceive that the freeholders were _represented_ even from its
beginning. I rather incline to a different opinion.

In the Magna Charta of 1 Henry III. it is said: Pro hâc donatione et
concessione ... archiepiscopi, episcopi, comites, barones, milites, et
liberè tenentes, et omnes de regno nostro, dederunt nobis quintam
decimam partem omnium bonorum suorum mobilium.[18] So in a record of 19
Henry III.: Comites, et barones, et omnes alii de toto regno nostro
Angliæ, spontaneâ voluntate suâ, concesserunt nobis efficax
auxilium.[19] The largeness of these words is, however, controlled by a
subsequent passage, which declares the tax to be imposed ad mandatum
omnium comitum et baronum et omnium aliorum _qui de nobis tenent in
capite_. And it seems to have been a general practice to assume the
common consent of all ranks to that which had actually been agreed by
the higher. In a similar writ, 21 Henry III., the rants of men are
enumerated specifically; archiepiscopi, episcopi, abbates, priores, et
clerici terras habentes quæ ad ecclesias suas non pertinent, comites,
barones, milites, et liberi homines, pro se et suis villanis, nobis
concesserunt in auxilium tricesimam partem omnium mobilium.[20] In the
close roll of the same year, we have a writ directed to the archbishops,
bishops, abbots, priors, earls, barons, knights, and freeholders (liberi
homines) of Ireland, in which an aid is desired of them, and it is urged
that one had been granted by his fideles Angliæ.[21]

But this attendance in parliament of inferior tenants in chief, some of
them too poor to have received knighthood, grew insupportably vexatious
to themselves, and was not well liked by the king. He knew them to be
dependent upon the barons, and dreaded the confluence of a multitude,
who assumed the privilege of coming in arms to the appointed place. So
inconvenient and mischievous a scheme could not long subsist among an
advancing people, and fortunately the true remedy was discovered with
little difficulty.

[Sidenote: Origin and progress of parliamentary representation.]

The principle of representation, in its widest sense, can hardly be
unknown to any government not purely democratical. In almost every
country the sense of the whole is understood to be spoken by a part, and
the decisions of a part are binding upon the whole. Among our ancestors
the lord stood in the place of his vassals, and, still more
unquestionably, the abbot in that of his monks. The system indeed of
ecclesiastical councils, considered as organs of the church, rested upon
the principle of a virtual or an express representation, and had a
tendency to render its application to national assemblies more familiar.

The first instance of actual representation which occurs in our history
is only four years after the Conquest; when William, if we may rely on
Hoveden, caused twelve persons skilled in the customs of England to be
chosen from each county, who were sworn to inform him rightly of their
laws; and these, so ascertained, were ratified by the consent of the
great council. This, Sir Matthew Hale asserts to be "as sufficient and
effectual a parliament as ever was held in England."[22] But there is no
appearance that these twelve deputies of each county were invested with
any higher authority than that of declaring their ancient usages. No
stress can be laid at least on this insulated and anomalous assembly,
the existence of which is only learned from an historian of a century
later.[23]

We find nothing that can arrest our attention, in searching out the
origin of county representation, till we come to a writ in the fifteenth
year of John, directed to all the sheriffs in the following terms: Rex
Vicecomiti N., salutem. Præcipimus tibi quod omnes milites ballivæ tuæ
qui summoniti fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in
quindecim dies venire facias cum armis suis: corpora vero baronum sine
armis singulariter, et _quatuor discretos milites_ de comitatu tuo,
illuc venire facias ad eundem terminum, ad loquendum nobiscum de
negotiis regni nostri. For the explanation of this obscure writ I must
refer to what Prynne has said;[24] but it remains problematical whether
these four knights (the only clause which concerns our purpose) were to
be elected by the county or returned in the nature of a jury, at the
discretion of the sheriff. Since there is no sufficient proof whereon to
decide, we can only say with hesitation, that there _may_ have been an
instance of county representation in the fifteenth year of John.

We may next advert to a practice, of which there is very clear proof in
the reign of Henry III. Subsidies granted in parliament were assessed,
not as in former times by the justices upon their circuits, but by
knights freely chosen in the county court. This appears by two writs,
one of the fourth and one of the ninth year of Henry III.[25] At a
subsequent period, by a provision of the Oxford parliament in 1258,
every county elected four knights to inquire into grievances, and
deliver their inquisition into parliament.[26]

The next writ now extant, that wears the appearance of parliamentary
representation, is in the thirty-eighth of Henry III. This, after
reciting that the earls, barons, and other great men (cæteri magnates)
were to meet at London three weeks after Easter, with horses and arms,
for the purpose of sailing into Gascony, requires the sheriff to compel
all within his jurisdiction, who hold twenty pounds a year of the king
in chief, or of those in ward of the king, to appear at the same time
and place. And that besides those mentioned he shall cause to come
before the king's council at Westminster, on the fifteenth day after
Easter, two good and discreet knights of his county, whom the men of the
county shall have chosen for this purpose, in the stead of all and each
of them, to consider, along with the knights of other counties, what aid
they will grant the king in such an emergency.[27] In the principle of
election, and in the object of the assembly, which was to grant money,
this certainly resembles a summons to parliament. There are indeed
anomalies sufficiently remarkable upon the face of the writ which
distinguish this meeting from a regular parliament. But when the scheme
of obtaining money from the commons of shires through the consent of
their representatives had once been entertained, it was easily
applicable to more formal councils of the nation.[28]

A few years later there appears another writ analogous to a summons.
During the contest between Henry III. and the confederate barons in
1261, they presumed to call a sort of parliament, summoning three
knights out of every county, secum tractaturos super communibus negotiis
regni. This we learn only by an opposite writ issued by the king,
directing the sheriff to enjoin these knights who had been convened by
the earls of Leicester and Gloucester to their meeting at St. Alban's,
that they should repair instead to the king at Windsor, and to no other
place, nobiscum super præmissis colloquium habituros.[29] It is not
absolutely certain that these knights were elected by their respective
counties. But even if they were so, this assembly has much less the
appearance of a parliament, than that in the thirty-eighth of Henry III.

At length, in the year 1265, the forty-ninth of Henry III., while he was
a captive in the hands of Simon de Montfort, writs were issued in his
name to all the sheriffs, directing them to return two knights for the
body of their county, with two citizens or burgesses for every city and
borough contained within it. This therefore is the epoch at which the
representation of the commons becomes indisputably manifest; even should
we reject altogether the more equivocal instances of it which have just
been enumerated.

[Sidenote: Whether the knights were elected by freeholders in general.]

If indeed the knights were still elected by none but the king's military
tenants, if the mode of representation was merely adopted to spare them
the inconvenience of personal attendance, the immediate innovation in
our polity was not very extensive. This is an interesting, but very
obscure, topic of inquiry. Spelman and Brady, with other writers, have
restrained the original right of election to tenants in chief, among
whom, in process of time, those holding under mesne lords, not being
readily distinguishable in the hurry of an election, contrived to slide
in, till at length their encroachments were rendered legitimate by the
statute 7 Hen. IV. c. 15, which put all suitors to the county court on
an equal footing as to the elective franchise. The argument on this side
might be plausibly urged with the following reasoning.

The spirit of a feudal monarchy, which compelled every lord to act by
the advice and assent of his immediate vassals, established no relation
between him and those who held nothing at his hands. They were included,
so far as he was concerned, in their superiors; and the feudal incidents
were due to him from the whole of his vassal's fief, whatever tenants
might possess it by subinfeudation. In England the tenants in chief
alone were called to the great councils before representation was
thought of, as is evident both by the charter of John, and by the
language of many records; nor were any others concerned in levying aids
or escuages, which were only due by virtue of their tenure. These
military tenants were become, in the reign of Henry III., far more
numerous than they had been under the Conqueror. If we include those who
held of the king ut de honore, that is, the tenants of baronies
escheated or in ward, who may probably have enjoyed the same
privileges, being subject in general to the same burdens, their number
will be greatly augmented, and form no inconsiderable portion of the
freeholders of the kingdom. After the statute commonly called Quia
emptores in the eighteenth of Edward I. they were likely to increase
much more, as every licensed alienation of any portion of a fief by a
tenant in chief would create a new freehold immediately depending upon
the crown. Many of these tenants in capite held very small fractions of
knight's fees, and were consequently not called upon to receive
knighthood. They were plain freeholders holding in chief, and the liberi
homines or libere tenentes of those writs which have been already
quoted. The common form indeed of writs to the sheriff directs the
knights to be chosen de communitate comitatûs. But the word communitas,
as in boroughs, denotes only the superior part: it is not unusual to
find mention in records of communitas populi or omnes de regno, where
none are intended but the barons, or at most the tenants in chief. If we
look attentively at the earliest instance of summoning knights of shires
to parliament, that in 38 Henry III., which has been noticed above, it
will appear that they could only have been chosen by military tenants in
chief. The object of calling this parliament, if parliament it were, was
to obtain an aid from the military tenants, who, holding less than a
knight's fee, were not required to do personal service. None then,
surely, but the tenants in chief could be electors upon this occasion,
which merely respected their feudal duties. Again, to come much lower
down, we find a series of petitions in the reigns of Edward III. and
Richard II., which seem to lead us to a conclusion that only tenants in
chief were represented by the knights of shires. The writ for wages
directed the sheriff to levy them on the commons of the county, both
within franchises and without (tam intra libertates quam extra). But the
tenants of lords holding by barony endeavoured to exempt themselves from
this burthen, in which they seem to have been countenanced by the king.
This led to frequent remonstrances from the commons, who finally
procured a statute, that all lands which had been accustomed to
contribute towards the wages of members should continue to do so, even
though they should be purchased by a lord.[30] But, if these mesne
tenants had possessed equal rights of voting with tenants in chief, it
is impossible to conceive that they would have thought of claiming so
unreasonable an exemption. Yet, as it would appear harsh to make any
distinction between the rights of those who sustained an equal burthen,
we may perceive how the freeholders holding of mesne lords might on that
account obtain after the statute a participation in the privilege of
tenants in chief. And without supposing any partiality or connivance, it
is easy to comprehend that, while the nature of tenures and services was
so obscure as to give rise to continual disputes, of which the ancient
records of the King's Bench are full, no sheriff could be very accurate
in rejecting the votes of common freeholders repairing to the county
court, and undistinguishable, as must be allowed, from tenants in capite
upon other occasions, such as serving on juries, or voting on the
election of coroners. To all this it yields some corroboration, that a
neighbouring though long hostile kingdom, who borrowed much of her law
from our own, has never admitted any freeholders, except tenants in
chief of the crown, to a suffrage in county elections. These attended
the parliament of Scotland in person till 1428, when a law of James I.
permitted them to send representatives.[31]

Such is, I think, a fair statement of the arguments that might be
alleged by those who would restrain the right of election to tenants of
the crown. It may be urged on the other side that the genius of the
feudal system was never completely displayed in England; much less can
we make use of that policy to explain institutions that prevailed under
Edward I. Instead of aids and scutages levied upon the king's military
tenants, the crown found ample resources in subsidies upon moveables,
from which no class of men was exempted. But the statute that abolished
all unparliamentary taxation led, at least in theoretical principle, to
extend the elective franchise to as large a mass of the people as could
conveniently exercise it. It was even in the mouth of our kings that
what concerned all should be approved by all. Nor is the language of
all extant writs less adverse to the supposition that the right of
suffrage in county elections was limited to tenants in chief. It seems
extraordinary that such a restriction, if it existed, should never be
deducible from these instruments; that their terms should invariably be
large enough to comprise all freeholders. Yet no more is ever required
of the sheriff than to return two knights chosen by the body of the
county. For they are not only said to be returned pro communitate, but
"per communitatem," and "de assensu totius communitatis." Nor is it
satisfactory to allege, without any proof, that this word should be
restricted to the tenants in chief, contrary to what must appear to be
its obvious meaning.[32] Certainly, if these tenants of the crown had
found inferior freeholds usurping a right of suffrage, we might expect
to find it the subject of some legislative provision, or at least of
some petition and complaint. And, on the other hand, it would have been
considered as unreasonable to levy the wages due to knights of the shire
for their service in parliament on those who had no share in their
election. But it appears by writs at the very beginning of Edward II.'s
reign, that wages were levied "de communitate comitatus."[33] It will
scarcely be contended that no one was to contribute under this writ but
tenants in chief; and yet the word communitas can hardly be applied to
different persons, when it occurs in the same instrument and upon the
same matter. The series of petitions above mentioned relative to the
payment of wages rather tends to support a conclusion that all mesne
tenants had the right of suffrage, if they thought fit to exercise it,
since it was earnestly contended that they were liable to contribute
towards that expense. Nor does there appear any reason to doubt that
all freeholders, except those within particular franchises, were suitors
to the county court--an institution of no feudal nature, and in which
elections were to be made by those present. As to the meeting to which
knights of shires were summoned in 38 Henry III., it ought not to be
reckoned a parliament, but rather one of those anomalous conventions
which sometimes occurred in the unfixed state of government. It is at
least the earliest known instance of representation, and leads us to no
conclusion in respect of later times, when the commons had become an
essential part of the legislature, and their consent was required to all
public burthens.

This question, upon the whole, is certainly not free from considerable
difficulty. The legal antiquaries are divided. Prynne does not seem to
have doubted but that the knights were "elected in the full county, by
and for the whole county," without respect to the tenure of the
freeholders.[34] But Brady and Carte are of a different opinion.[35] Yet
their disposition to narrow the basis of the constitution is so strong,
that it creates a sort of prejudice against their authority. And if I
might offer an opinion on so obscure a subject, I should be much
inclined to believe that, even from the reign of Henry III., the
election of knights by all freeholders in the county-court, without
regard to tenure, was little, if at all, different from what it is at
present.[36]

[Sidenote: Progress of towns.]

The progress of towns in several continental countries, from a condition
bordering upon servitude to wealth and liberty, has more than once
attracted our attention in other parts of the present work. Their growth
in England, both from general causes and imitative policy, was very
similar and nearly coincident. Under the Anglo-Saxon line of sovereigns
we scarcely can discover in our scanty records the condition of their
inhabitants, except retrospectively from the great survey of Domesday
Book, which displays the state of England under Edward the Confessor.
Some attention to commerce had been shown by Alfred and Athelstan; and a
merchant who had made three voyages beyond sea was raised by law of the
latter monarch to the dignity of a Thane.[37] This privilege was not
perhaps often claimed; but the burgesses of towns were already a
distinct class from the ceorls or rustics, and, though hardly free
according to our estimation, seem to have laid the foundation of more
extensive immunities. It is probable, at least, that the English towns
had made full as great advances towards emancipation as those of France.
At the Conquest we find the burgesses or inhabitants of towns living
under the superiority or protection of the king, or of some other lord,
to whom they paid annual rents, and determinate dues or customs.
Sometimes they belonged to different lords, and sometimes the same
burgess paid customs to one master, while he was under the jurisdiction
of another. They frequently enjoyed special privileges as to
inheritance; and in two or three instances they seem to have possessed
common property, belonging to a sort of guild or corporation, and in
some instances, perhaps, had a municipal administration by magistrates
of their own choice.[38] Besides the regular payments, which were in
general not heavy, they were liable to tallages at the discretion of
their lords. This burthen continued for two centuries, with no
limitation, except that the barons were latterly forced to ask
permission of the king before they set a tallage on their tenants, which
was commonly done when he imposed one upon his own.[39] Still the towns
became considerably richer; for the profits of their traffic were
undiminished by competition, and the consciousness that they could not
be individually despoiled of their possessions, like the villeins of the
country around, inspired an industry and perseverance which all the
rapacity of Norman kings and barons was unable to daunt or overcome.

[Sidenote: Towns let in fee-farm.]

One of the earliest and most important changes in the condition of the
burgesses was the conversion of their individual tributes into a
perpetual rent from the whole borough. The town was then said to be
affirmed, or let in fee-farm, to the burgesses and their successors for
ever.[40] Previously to such a grant the lord held the town in his
demesne, and was the legal proprietor of the soil and tenements; though
I by no means apprehend that the burgesses were destitute of a certain
estate in their possessions. But of a town in fee-farm he only kept the
superiority and the inheritance of the annual rent, which he might
recover by distress.[41] The burgesses held their lands by
burgage-tenure, nearly analogous to, or rather a species of, free
socage.[42] Perhaps before the grant they might correspond to modern
copyholders. It is of some importance to observe that the lord, by such
a grant of the town in fee-farm, whatever we may think of its previous
condition, divested himself of his property, or lucrative dominion over
the soil, in return for the perpetual rent; so that tallages
subsequently set at his own discretion upon the inhabitants, however
common, can hardly be considered as a just exercise of the rights of
proprietorship.

[Sidenote: Charters of incorporation.]

Under such a system of arbitrary taxation, however, it was evident to
the most selfish tyrant that the wealth of his burgesses was his wealth,
and their prosperity his interest; much more were liberal and sagacious
monarchs, like Henry II., inclined to encourage them by privileges. From
the time of William Rufus there was no reign in which charters were not
granted to different towns of exemption from tolls on rivers and at
markets, those lighter manacles of feudal tyranny; or of commercial
franchises; or of immunity from the ordinary jurisdictions; or, lastly,
of internal self-regulation. Thus the original charter of Henry I. to
the city of London[43] concedes to the citizens, in addition to valuable
commercial and fiscal immunities, the right of choosing their own
sheriff and justice, to the exclusion of every foreign jurisdiction.[44]
These grants, however, were not in general so extensive till the reign
of John.[45] Before that time the interior arrangement of towns had
received a new organization. In the Saxon period we find voluntary
associations, sometimes religious, sometimes secular; in some cases for
mutual defence against injury, in others for mutual relief in poverty.
These were called guilds, from the Saxon verb _gildan_, to pay or
contribute, and exhibited the natural, if not the legal, character of
corporations.[46] At the time of the Conquest, as has been mentioned
above, such voluntary incorporations of the burgesses possessed in some
towns either landed property of their own, or rights of superiority over
that of others. An internal elective government seems to have been
required for the administration of a common revenue, and of other
business incident to their association.[47] They became more numerous
and more peculiarly commercial after that era, as well from the increase
of trade as through imitation of similar fraternities existing in many
towns of France. The spirit of monopoly gave strength to those
institutions, each class of traders forming itself into a body, in order
to exclude competition. Thus were established the companies in corporate
towns, that of the Weavers in London being perhaps the earliest;[48] and
these were successively consolidated and sanctioned by charters from
the crown. In towns not large enough to admit of distinct companies, one
merchant guild comprehended the traders in general, or the chief of
them; and this, from the reign of Henry II. downwards, became the
subject of incorporating charters. The management of their internal
concerns, previously to any incorporation, fell naturally enough into a
sort of oligarchy, which the tenor of the charter generally preserved.
Though the immunities might be very extensive, the powers were more or
less restrained to a small number. Except in a few places, the right of
choosing magistrates was first given by king John; and certainly must
rather be ascribed to his poverty than to any enlarged policy, of which
he was utterly incapable.[49]

[Sidenote: Prosperity of English towns.]

[Sidenote: London.]

From the middle of the twelfth century to that of the thirteenth the
traders of England became more and more prosperous. The towns on the
southern coast exported tin and other metals in exchange for the wines
of France; those on the eastern sent corn to Norway--the Cinque Ports
bartered wool against the stuffs of Flanders.[50] Though bearing no
comparison with the cities of Italy or the Empire, they increased
sufficiently to acquire importance at home. That vigorous prerogative of
the Norman monarchs, which kept down the feudal aristocracy, compensated
for whatever inferiority there might be in the population and defensible
strength of the English towns, compared with those on the continent.
They had to fear no petty oppressors, no local hostility; and if they
could satisfy the rapacity of the crown, were secure from all other
grievances. London, far above the rest, our ancient and noble capital,
might, even in those early times, be justly termed a member of the
political system. This great city, so admirably situated, was rich and
populous long before the Conquest. Bede, at the beginning of the eighth
century, speaks of London as a great market, which traders frequented by
land and sea.[51] It paid 15,000_l._ out of 82,000_l._, raised by Canute
upon the kingdom.[52] If we believe Roger Hoveden, the citizens of
London, on the death of Ethelred II., joined with part of the nobility
in raising Edmund Ironside to the throne.[53] Harold I., according to
better authority, the Saxon Chronicle and William of Malmsbury, was
elected by their concurrence.[54] Descending to later history, we find
them active in the civil war of Stephen and Matilda. The famous bishop
of Winchester tells the Londoners that they are almost accounted as
noblemen on account of the greatness of their city; into the community
of which it appears that some barons had been received.[55] Indeed, the
citizens themselves, or at least the principal of them, were called
barons. It was certainly by far the greatest city in England. There have
been different estimates of its population, some of which are
extravagant; but I think it could hardly have contained less than thirty
or forty thousand souls within its walls; and the suburbs were very
populous.[56] These numbers, the enjoyment of privileges, and the
consciousness of strength, infused a free and even a mutinous spirit
into their conduct.[57] The Londoners were always on the barons' side in
their contests with the crown. They bore a part in deposing William
Longchamp, the chancellor and justiciary of Richard I.[58] They were
distinguished in the great struggle for Magna Charta; the privileges of
their city are expressly confirmed in it; and the mayor of London was
one of the twenty-five barons to whom the maintenance of its provisions
was delegated. In the subsequent reign the citizens of London were
regarded with much dislike and jealousy by the court, and sometimes
suffered pretty severely at its hands, especially after the battle of
Evesham.[59]

Notwithstanding the influence of London in these seasons of disturbance,
we do not perceive that it was distinguished from the most insignificant
town by greater participation in national councils. Rich, powerful,
honourable, and high-spirited as its citizens had become, it was very
long before they found a regular place in parliament. The prerogative of
imposing tallages at pleasure, unsparingly exercised by Henry III. even
over London,[60] left the crown no inducement to summon the inhabitants
of cities and boroughs. As these indeed were daily growing more
considerable, they were certain, in a monarchy so limited as that of
England became in the thirteenth century, of attaining, sooner or later,
this eminent privilege. Although therefore the object of Simon de
Montfort in calling them to his parliament after the battle of Lewes was
merely to strengthen his own faction, which prevailed among the
commonalty, yet, their permanent admission into the legislature may be
ascribed to a more general cause. For otherwise it is not easy to see
why the innovation of an usurper should have been drawn into precedent,
though it might perhaps accelerate what the course of affairs was
gradually preparing.

[Sidenote: First summoning of towns to parliament, in 49 H. III.]

It is well known that the earliest writs of summons to cities and
boroughs, of which we can prove the existence, are those of Simon de
Montfort, earl of Leicester, bearing date 12th of December, 1264, in the
forty-ninth year of Henry III.[61] After a long controversy almost all
judicious inquirers seem to have acquiesced in admitting this origin of
popular representation.[62] The argument may be very concisely stated.
We find from innumerable records that the king imposed tallages upon his
demesne towns at discretion.[63] No public instrument previous to the
forty-ninth of Henry III. names the citizens and burgesses as
constituent parts of parliament; though prelates, barons, knights, and
sometimes freeholders, are enumerated;[64] while, since the undoubted
admission of the commons, they are almost invariably mentioned. No
historian speaks of representatives appearing for the people, or uses
the word citizen or burgess in describing those present in parliament.
Such convincing, though negative, evidence is not to be invalidated by
some general and ambiguous phrases, whether in writs and records or in
historians.[65] Those monkish annalists are poor authorities upon any
point where their language is to be delicately measured. But it is
hardly possible that, writing circumstantially, as Roger de Hoveden and
Matthew Paris sometimes did, concerning proceedings in parliament, they
could have failed to mention the commons in unequivocal expressions, if
any representatives from that order had actually formed a part of the
assembly.

[Sidenote: Authorities in favour of an earlier date. St. Albans.]

Two authorities, however, which had been supposed to prove a greater
antiquity than we have assigned to the representation of the commons,
are deserving of particular consideration; the cases of St. Albans and
Barnstaple. The burgesses of St. Albans complained to the council in the
eighth year of Edward II., that, although they held of the king in
capite, and ought to attend his parliaments whenever they are summoned,
by two of their number, instead of all other services, as had been their
custom in all past times, which services the said burgesses and their
predecessors had performed as well in the time of the late king Edward
and his ancestors as in that of the present king until the parliament
now sitting, the names of their deputies having been constantly enrolled
in chancery, yet the sheriff of Hertfordshire, at the instigation of the
abbot of St. Albans, had neglected to cause an election and return to be
made; and prayed remedy. To this petition it was answered, "Let the
rolls of chancery be examined, that it may appear whether the said
burgesses were accustomed to come to parliament, or not, in the time of
the king's ancestors; and let right be done to them, vocatis evocandis,
si necesse fuerit." I do not translate these words, concerning the sense
of which there has been some dispute, though not, apparently, very
material to the principal subject.[66]

This is, in my opinion, by far the most plausible testimony for the
early representation of boroughs. The burgesses of St. Albans claim a
prescriptive right from the usage of all past times, and more especially
those of the late Edward and his ancestors. Could this be alleged, it
has been said, of a privilege at the utmost of fifty years' standing,
once granted by an usurper, in the days of the late king's father, and
afterwards discontinued till about twenty years before the date of their
petition, according to those who refer the regular appearance of the
commons in parliament to the twenty-third of Edward I.? Brady, who
obviously felt the strength of this authority, has shown little of his
usual ardour and acuteness in repelling it. It was observed, however, by
Madox, that the petition of St. Albans contains two very singular
allegations: it asserts that the town was part of the king's demesne,
whereas it had invariably belonged to the adjoining abbey; and that its
burgesses held by the tenure of attending parliament, instead of all
other services, contrary to all analogy, and without parallel in the
condition of any tenant in capite throughout the kingdom. "It is no
wonder, therefore," says Hume, "that a petition which advances two
falsehoods should contain one historical mistake, which indeed amounts
only to an inaccurate expression." But it must be confessed that we
cannot so easily set aside the whole authority of this record. For
whatever assurance the people of St. Albans might show in asserting what
was untrue, the king's council must have been aware how recently the
deputies of any towns had been admitted into parliament. If the lawful
birth of the House of Commons were in 1295, as is maintained by Brady
and his disciples, is it conceivable that, in 1315, the council would
have received a petition, claiming the elective franchise by
prescription, and have referred to the rolls of chancery to inquire
whether this had been used in the days of the king's progenitors? I
confess that I see no answer which can easily be given to this objection
by such as adopt the _latest_ epoch of borough representation, namely,
the parliament of 23 E. I. But they are by no means equally conclusive
against the supposition that the communities of cities and towns, having
been first introduced into the legislature during Leicester's
usurpation, in the forty-ninth year of Henry III., were summoned, not
perhaps uniformly, but without any long intermission, to succeeding
parliaments. There is a strong presumption, from the language of a
contemporary historian, that they sat in the parliament of 1269, four
years after that convened by Leicester.[67] It is more unequivocally
stated by another annalist that they were present in the first
parliament of Edward I. held in 1271.[68] Nor does a similar inference
want some degree of support from the preambles of the statute of
Marlebridge in 51 H. III., of Westminster I. in the third, and of
Gloucester in the sixth, year of Edward I.[69] And the writs are extant
which summon every city, borough, and market town to send two deputies
to a council in the eleventh year of his reign. I call this a council,
for it undoubtedly was not a parliament. The sheriffs were directed to
summon personally all who held more than twenty pounds a year of the
crown, as well as four knights for each county invested with full powers
to act for the commons thereof. The knights and burgesses thus chosen,
as well as the clergy within the province of Canterbury, met at
Northampton; those within the province of York, at that city. And
neither assembly was opened by the king.[70] This anomalous convention
was nevertheless one means of establishing the representative system,
and, to an inquirer free from technical prejudice, is little less
important than a regular parliament. Nor have we long to look even for
this. In the same year, about eight months after the councils at
Northampton and York, writs were issued summoning to a parliament at
Shrewsbury two citizens from London, and as many from each of twenty
other considerable towns.[71] It is a slight cavil to object that these
were not directed as usual to the sheriff of each county, but to the
magistrates of each place. Though a very imperfect, this was a regular
and unequivocal representation of the commons in parliament. But their
attendance seems to have intermitted from this time to the twenty-third
year of Edward's reign.[72]

[Sidenote: Barnstaple.]

Those to whom the petition of St. Albans is not satisfactory will hardly
yield their conviction to that of Barnstaple. This town set forth in the
eighteenth of Edward III. that, among other franchises granted to them
by a charter of Athelstan, they had ever since exercised the right of
sending two burgesses to parliament. The said charter, indeed, was
unfortunately mislaid; and the prayer of their petition was to obtain
one of the like import in its stead. Barnstaple, it must be observed,
was a town belonging to Lord Audley, and had actually returned members
ever since the twenty-third of Edward I. Upon an inquisition directed by
the king to be made into the truth of these allegations, it was found
that "the burgesses of the said town were wont to send two burgesses to
parliament for the commonalty of the borough;" but nothing appeared as
to the pretended charter of Athelstan, or the liberties which it was
alleged to contain. The burgesses, dissatisfied with this inquest,
prevailed that another should be taken, which certainly answered better
their wishes. The second jury found that Barnstaple was a free borough
from time immemorial; that the burgesses had enjoyed under a charter of
Athelstan, which had been casually lost, certain franchises by them
enumerated, and particularly that they should send two burgesses to
parliament; and that it would not be to the king's prejudice if he
should grant them a fresh charter in terms equally ample with that of
his predecessor Athelstan. But the following year we have another writ
and another inquest; the former reciting that the second return had been
unduly and fraudulently made; and the latter expressly contradicting the
previous inquest in many points, and especially finding no proof of
Athelstan's supposed charter. Comparing the various parts of this
business, we shall probably be induced to agree with Willis, that it was
but an attempt of the inhabitants of Barnstaple to withdraw themselves
from the jurisdiction of their lord. For the right of returning
burgesses, though it is the main point of our inquiries, was by no means
the most prominent part of their petition, which rather went to
establish some civil privileges of devising their tenements and electing
their own mayor. The first and fairest return finds only that they were
accustomed to send members to parliament, which an usage of fifty years
(from 23 E. I. to 18 E. III.) was fully sufficient to establish, without
searching into more remote antiquity.[73]

It has, however, probably occurred to the reader of these two cases, St.
Albans and Barnstaple, that the representation of the commons in
parliament was not treated as a novelty, even in times little posterior
to those in which we have been supposing it to have originated. In this
consists, I think, the sole strength of the opposite argument. An act in
the fifth year of Richard II. declares that, if any sheriff shall leave
out of his returns any cities or boroughs which be bound and of old
times were wont to come to the parliament, he shall be punished as was
accustomed to be done in the like case in time past.[74] In the
memorable assertion of legislative right by the commons in the second of
Henry V. (which will be quoted hereafter) they affirm that "the commune
of the land is, _and ever has been_, a member of parliament."[75] And
the consenting suffrage of our older law-books must be placed in the
same scale. The first gainsayers, I think, were Camden and Sir Henry
Spelman, who, upon probing the antiquities of our constitution somewhat
more exactly than their predecessors, declared that they could find no
signs of the commons in parliament till the forty-ninth of Henry III.
Prynne, some years afterwards, with much vigour and learning, maintained
the same argument, and Brady completed the victory. But the current
doctrine of Westminster Hall, and still more of the two chambers of
parliament, was certainly much against these antiquaries; and it passed
at one time for a surrender of popular principles, and almost a breach
of privilege, to dispute the lineal descent of the House of Commons from
the witenagemot.[76]

The true ground of these pretensions to antiquity was a very
well-founded persuasion that no other argument would be so conclusive to
ordinary minds, or cut short so effectually all encroachments of the
prerogative. The populace of every country, but none so much as the
English, easily grasp the notion of right, meaning thereby something
positive and definite; while the maxims of expediency or theoretical
reasoning pass slightly over their minds. Happy indeed for England that
it is so! But we have here to do with the fact alone. And it may be
observed that several pious frauds were practised to exalt the antiquity
of our constitutional liberties. These began, perhaps, very early, when
the imaginary laws of Edward the Confessor were so earnestly demanded.
They were carried further under Edward I. and his successor, when the
fable of privileges granted by the Conqueror to the men of Kent was
devised; when Andrew Horn filled his Mirrour of Justices with fictitious
tales of Alfred; and, above all, when the "Method of holding parliaments
in the time of Ethelred" was fabricated, about the end of Richard II.'s
reign; an imposture which was not too gross to deceive Sir Edward
Coke.[77]

[Sidenote: Causes of summoning deputies from boroughs.]

There is no great difficulty in answering the question why the deputies
of boroughs were finally and permanently ingrafted upon parliament by
Edward I.[78] The government was becoming constantly more attentive to
the wealth that commerce brought into the kingdom, and the towns were
becoming more flourishing and more independent. But chiefly there was a
much stronger spirit of general liberty and a greater discontent at
violent acts of prerogative from the era of Magna Charta; after which
authentic recognition of free principles many acts which had seemed
before but the regular exercise of authority were looked upon as
infringements of the subject's right. Among these the custom of setting
tallages at discretion would naturally appear the most intolerable; and
men were unwilling to remember that the burgesses who paid them were
indebted for the rest of their possessions to the bounty of the crown.
In Edward I.'s reign, even before the great act of Confirmation of the
Charters had rendered arbitrary impositions absolutely unconstitutional,
they might perhaps excite louder murmurs than a discreet administration
would risk. Though the necessities of the king, therefore, and his
imperious temper often led him to this course,[79] it was a more
prudent counsel to try the willingness of his people before he forced
their reluctance. And the success of his innovation rendered it worth
repetition. Whether it were from the complacency of the commons at being
thus admitted among the peers of the realm, or from a persuasion that
the king would take their money if they refused it, or from inability to
withstand the plausible reasons of his ministers, or from the private
influence to which the leaders of every popular assembly have been
accessible, much more was granted in subsidies after the representation
of the towns commenced than had ever been extorted in tallages.

To grant money was, therefore, the main object of their meeting; and if
the exigencies of the administration could have been relieved without
subsidies, the citizens and burgesses might still have sat at home and
obeyed the laws which a council of prelates and barons enacted for their
government. But it is a difficult question whether the king and the
peers designed to make room for them, as it were, in legislation; and
whether the power of the purse drew after it immediately, of only by
degrees, those indispensable rights of consenting to laws which they now
possess. There are no sufficient means of solving this doubt during the
reign of Edward I. The writ in 22 E. I. directs two knights to be chosen
cum plenâ potestate pro se et totâ communitate comitatûs prædicti ad
consulendum et consentiendum pro se et communitate illâ, his quæ
comites, barones, et proceres prædicti concorditer ordinaverint in
præmissis. That of the next year runs, ad faciendum tunc quod de communi
consilio ordinabitur in præmissis. The same words are inserted in the
writ of 26 E. I. In that of 28 E. I. the knights are directed to be sent
cum plenâ potestate audiendi et faciendi quæ ibidem ordinari contigerint
pro communi commodo. Several others of the same reign have the words ad
faciendum. The difficulty is to pronounce whether this term is to be
interpreted in the sense of _performing_ or of _enacting_; whether the
representatives of the commons were merely to learn from the lords what
was to be done, or to bear their part in advising upon it. The earliest
writ, that of 22 E. I., certainly implies the latter; and I do not know
that any of the rest are conclusive to the contrary. In the reign of
Edward II. the words ad consentiendum alone, or ad faciendum et
consentiendum, begin; and from that of Edward III. this form has been
constantly used.[80] It must still, however, be highly questionable
whether the commons, who had so recently taken their place in
parliament, gave anything more than a constructive assent to the laws
enacted during this reign. They are not even named in the preamble of
any statute till the last year of Edward I. Upon more than one occasion
the sheriffs were directed to return the same members who had sat in the
last parliament, unless prevented by death or infirmity.[81]

[Sidenote: At what time parliament was divided into two houses.]

It has been a very prevailing opinion that parliament was not divided
into two houses at the first admission of the commons. If by this is
only meant that the commons did not occupy a separate chamber till some
time in the reign of Edward III., the proposition, true or false, will
be of little importance. They may have sat at the bottom of Westminster
Hall, while the lords occupied the upper end. But that they were ever
intermingled in voting appears inconsistent with likelihood and
authority. The usual object of calling a parliament was to impose taxes;
and these for many years after the introduction of the commons were laid
in different proportions upon the three estates of the realm. Thus in
the 23 E. I. the earls, barons, and knights gave the king an eleventh,
the clergy a tenth; while he obtained a seventh from the citizens and
burgesses; in the twenty-fourth of the same king the two former of these
orders gave a twelfth, the last an eighth; in the thirty-third year a
thirtieth was the grant of the barons and knights and of the clergy, a
twentieth of the cities and towns; in the first of Edward II. the
counties paid a twentieth, the towns a fifteenth; in the sixth of Edward
III. the rates were a fifteenth and a tenth.[82] These distinct grants
imply distinct grantors; for it is not to be imagined that the commons
intermeddled in those affecting the lords, or the lords in those of the
commons. In fact, however, there is abundant proof of their separate
existence long before the seventeenth of Edward III., which is the epoch
assigned by Carte,[83] or even the sixth of that king, which has been
chosen by some other writers. Thus the commons sat at Acton Burnell in
the eleventh of Edward I., while the upper house was at Shrewsbury. In
the eighth of Edward II. "the commons of England complain to the king
and his council, &c."[84] These must surely have been the commons
assembled in parliament, for who else could thus have entitled
themselves? In the nineteenth of the same king we find several
petitions, evidently proceeding from the body of the commons in
parliament, and complaining of public grievances.[85] The roll of 1 E.
III., though mutilated, is conclusive to show that separate petitions
were then presented by the commons, according to the regular usage of
subsequent times.[86] And indeed the preamble of 1 E. III., stat. 2, is
apparently capable of no other inference.

As the knights of shires correspond to the lower nobility of other
feudal countries, we have less cause to be surprised that they belonged
originally to the same branch of parliament as the barons, than at their
subsequent intermixture with men so inferior in station as the citizens
and burgesses. It is by no means easy to define the point of time when
this distribution was settled; but I think it may be inferred from the
rolls of parliament that the houses were divided as they are at present
in the eighth, ninth, and nineteenth years of Edward II.[87] This
appears, however, beyond doubt in the first of Edward III.[88] Yet in
the sixth of the same prince, though the knights and burgesses are
expressly mentioned to have consulted together, the former taxed
themselves in a smaller rate of subsidy than the latter.[89]

The proper business of the House of Commons was to petition for redress
of grievances, as much as to provide for the necessities of the crown.
In the prudent fiction of English law no wrong is supposed to proceed
from the source of right. The throne is fixed upon a pinnacle, which
perpetual beams of truth and justice irradiate, though corruption and
partiality may occupy the middle region and cast their chill shade upon
all below. In his high court of parliament a king of England was to
learn where injustice had been unpunished and where right had been
delayed. The common courts of law, if they were sufficiently honest,
were not sufficiently strong, to redress the subject's injuries where
the officers of the crown or the nobles interfered. To parliament he
looked as the great remedial court for relief of private as well as
public grievances. For this cause it was ordained in the fifth of Edward
II. that the king should hold a parliament once, or if necessary, twice
every year; "that the pleas which have been thus delayed, and those
where the justices have differed, may be brought to a close."[90] And a
short act of 4 Edward III., which was not very strictly regarded,
provides that a parliament shall be held "every year, or oftener, if
need be."[91] By what persons, and under what limitations, this
jurisdiction in parliament was exercised will come under our future
consideration.

[Sidenote: Edward II. Petitions of parliament during his reign.]

The efficacy of a king's personal character in so imperfect a state of
government was never more strongly exemplified than in the two first
Edwards. The father, a little before his death, had humbled his boldest
opponents among the nobility; and as for the commons, so far from
claiming a right of remonstrating, we have seen cause to doubt whether
they were accounted effectual members of the legislature for any
purposes but taxation. But in the very second year of the son's reign
they granted the twenty-fifth penny of their goods, "upon this
condition, that the king should take advice and grant redress upon
certain articles wherein they are aggrieved." These were answered at the
ensuing parliament, and are entered with the king's respective promises
of redress upon the roll. It will be worth while to extract part of this
record, that we may see what were the complaints of the commons of
England, and their notions of right, in 1309. I have chosen on this as
on other occasions to translate very literally, at the expense of some
stiffness, and perhaps obscurity, in language.

"The good people of the kingdom who are come hither to parliament pray
our lord the king that he will, if it please him, have regard to his
poor subjects, who are much aggrieved by reason that they are not
governed as they should be, especially as to the articles of the Great
Charter; and for this, if it please him, they pray remedy. Besides
which, they pray their lord the king to hear what has long aggrieved his
people, and still does so from day to day, on the part of those who call
themselves his officers, and to amend it, if he pleases." The articles,
eleven in number, are to the following purport:--1. That the king's
purveyors seize great quantities of victuals without payment; 2. That
new customs are set on wine, cloth, and other imports; 3. That the
current coin is not so good as formerly;[92] 4, 5. That the steward and
marshal enlarge their jurisdiction beyond measure, to the oppression of
the people; 6. That the commons find none to receive petitions addressed
to the council; 7. That the collectors of the king's dues (pernours des
prises) in towns and at fairs take more than is lawful; 8. That men are
delayed in their civil suits by writs of protection; 9. That felons
escape punishment by procuring charters of pardon; 10. That the
constables of the king's castles take cognizance of common pleas; 11.
That the king's escheators oust men of lands held by good title, under
pretence of an inquest of office.[93]

These articles display in a short compass the nature of those grievances
which existed under almost all the princes of the Plantagenet dynasty,
and are spread over the rolls of parliament for more than a century
after this time. Edward gave the amplest assurances of putting an end to
them all, except in one instance, the augmented customs on imports, to
which he answered, rather evasively, that he would take them off till he
should perceive whether himself and his people derived advantage from so
doing, and act thereupon as he should be advised. Accordingly, the next
year, he issued writs to collect these new customs again. But the Lords
Ordainers superseded the writs, having entirely abrogated all illegal
impositions.[94] It does not appear, however, that, regard had to the
times, there was anything very tyrannical in Edward's government. He set
tallages sometimes, like his father, on his demesne towns, without
assent of parliament.[95] In the nineteenth year of his reign the
commons show that, "whereas we and our ancestors have given many
tallages to the king's ancestors to obtain the charter of the forest,
which charter we have had confirmed by the present king, paying him
largely on our part; yet the king's officers of the forest seize on
lands, and destroy ditches, and oppress the people, for which they pray
remedy, for the sake of God and his father's soul." They complain at the
same time of arbitrary imprisonment, against the law of the land.[96] To
both these petitions the king returned a promise of redress; and they
complete the catalogue of customary grievances in this period of our
constitution.

During the reign of Edward II. the rolls of parliament are imperfect,
and we have not much assistance from other sources. The assent of the
commons, which frequently is not specified in the statutes of this
age,[97] appears in a remarkable and revolutionary proceeding, the
appointment of the Lords Ordainers in 1312.[98] In this case it
indicates that the aristocratic party then combined against the crown
were desirous of conciliating popularity. An historian relates that some
of the commons were consulted upon the ordinances to be made for the
reformation of government.[99]

[Sidenote: Edward III. The commons establish several rights.]

During the long and prosperous reign of Edward III. the efforts of
parliament in behalf of their country were rewarded with success in
establishing upon a firm footing three essential principles of our
government--the illegality of raising money without consent; the
necessity that the two houses should concur for any alterations in the
law; and, lastly, the right of the commons to inquire into public
abuses, and to impeach public counsellors. By exhibiting proofs of each
of these from parliamentary records I shall be able to substantiate the
progressive improvement of our free constitution, which was principally
consolidated during the reigns of Edward III. and his two next
successors. Brady, indeed, Carte, and the authors of the Parliamentary
History, have trod already over this ground; but none of the three can
be considered as familiar to the generality of readers, and I may at
least take credit for a sincerer love of liberty than any of their
writings display.

[Sidenote: Remonstrances against levying money without consent.]

In the sixth year of Edward III. a parliament was called to provide for
the emergency of an Irish rebellion, wherein, "because the king could
not send troops and money to Ireland without the aid of his people, the
prelates, earls, barons, and other great men, and the knights of
shires, and all the commons, of their free will, for the said purpose,
and also in order that the king might live of his own, and not vex his
people by excessive prises, nor in other manner, grant to him the
fifteenth penny, to levy of the commons,[100] and the tenth from the
cities, towns, and royal demesnes. And the king, at the request of the
same, in ease of his people, grants that the commissions lately made to
certain persons assigned to set tallages on cities, towns, and demesnes
throughout England shall be immediately repealed; and that in time to
come he will not set such tallage, except as it has been done in the
time of his ancestors, and as he may reasonably do."[101]

These concluding words are of dangerous implication; and certainly it
was not the intention of Edward, inferior to none of his predecessors in
the love of power, to divest himself of that eminent prerogative, which,
however illegally since the Confirmatio Chartarum, had been exercised by
them all. But the parliament took no notice of this reservation, and
continued with unshaken perseverance to insist on this incontestable and
fundamental right, which he was prone enough to violate.

In the thirteenth year of this reign the lords gave their answer to
commissioners sent to open the parliament, and to treat with them on the
king's part, in a sealed roll. This contained a grant of the tenth
sheaf, fleece, and lamb. But before they gave it they took care to have
letters patent showed them, by which the commissioners had power "to
grant some graces to the great and small of the kingdom." "And the said
lords," the roll proceeds to say, "will that the imposition (maletoste)
which now again has been levied upon wool be entirely abolished, that
the old customary duty be kept, and that they may have it by charter,
and by enrolment in parliament, that such custom be never more levied,
and that this grant now made to the king, or any other made in time
past, shall not turn hereafter to their charge, nor be drawn into
precedent." The commons, who gave their answer in a separate roll,
declared that they could grant no subsidy without consulting their
constituents; and therefore begged that another parliament might be
summoned, and in the mean time they would endeavour, by using persuasion
with the people of their respective counties, to procure the grant of a
reasonable aid in the next parliament.[102] They demanded also that the
imposition on wool and lead should be taken as it used to be in former
times, "inasmuch as it is enhanced without assent of the commons, or of
the lords, as we understand; and if it be otherwise demanded, that any
one of the commons may refuse it (le puisse arester), without being
troubled on that account (saunz estre chalangé.)"[103]

Wool, however, the staple export of that age, was too easy and tempting
a prey to be relinquished by a prince engaged in an impoverishing war.
Seven years afterwards, in 20 E. III., we find the commons praying that
the great subsidy of forty shillings upon the sack of wool be taken off;
and the old custom paid as heretofore was assented to and granted. The
government spoke this time in a more authoritative tone. "As to this
point," the answer runs, "the prelates and others, seeing in what need
the king stood of an aid before his passage beyond sea, to recover his
rights and defend his kingdom of England, consented, with the
concurrence of the merchants, that he should have in aid of his said
war, and in defence of his said kingdom, forty shillings of subsidy for
each sack of wool that should be exported beyond sea for two years to
come. And upon this grant divers merchants have made many advances to
our lord the king in aid of his war; for which cause this subsidy cannot
be repealed without assent of the king and his lords."[104]

It is probable that Edward's counsellors wished to establish a
distinction, long afterwards revived by those of James I., between
customs levied on merchandise at the ports and internal taxes. The
statute entitled Confirmatio Chartarum had manifestly taken away the
prerogative of imposing the latter, which, indeed, had never extended
beyond the tenants of the royal demesne. But its language was not quite
so explicit as to the former, although no reasonable doubt could be
entertained that the intention of the legislature was to abrogate every
species of imposition unauthorized by parliament. The thirtieth section
of Magna Charta had provided that foreign merchants should be free from
all tributes, except the ancient customs; and it was strange to suppose
that natives were excluded from the benefit of that enactment. Yet,
owing to the ambiguous and elliptical style so frequent in our older
laws, this was open to dispute, and could, perhaps, only be explained by
usage. Edward I., in despite of both these statutes, had set a duty of
threepence in the pound upon goods imported by merchant strangers. This
imposition was noticed as a grievance in the third year of his
successor, and repealed by the Lords Ordainers. It was revived, however,
by Edward III., and continued to be levied ever afterwards.[105]

Edward was led by the necessities of his unjust and expensive war into
another arbitrary encroachment, of which we find as many complaints as
of his pecuniary extortions. The commons pray, in the same parliament of
20 E. III., that commissions should not issue for the future out of
chancery to charge the people with providing men-at-arms, hobelers (or
light cavalry), archers, victuals, or in any other manner, without
consent of parliament. It is replied to this petition, that "it is
notorious how in many parliaments the lords and commons had promised to
aid the king in his quarrel with their bodies and goods as far as was in
their power; wherefore the said lords, seeing the necessity in which the
king stood of having aid of men-at-arms, hobelers, and archers, before
his passage to recover his rights beyond sea, and to defend his realm of
England, ordained that such as had five pounds a year, or more, in land
on this side of Trent should furnish men-at-arms, hobelers, and archers,
according to the proportion of the land they held, to attend the king at
his cost; and some who would neither go themselves nor find others in
their stead were willing to give the king wherewithal he might provide
himself with some in their place. And thus the thing has been done, and
no otherwise. And the king wills that henceforth what has been thus done
in this necessity be not drawn into consequence or example."[106]

The commons were not abashed by these arbitrary pretensions; they knew
that by incessant remonstrances they should gain at least one essential
point, that of preventing the crown from claiming these usurpations as
uncontested prerogatives. The roll of parliament in the next two years,
the 21st and 22nd of Edw. III., is full of the same complaints on one
side, and the same allegations of necessity on the other.[107] In the
latter year the commons grant a subsidy, on condition that no illegal
levying of money should take place, with several other remedial
provisions; "and that these conditions should be entered on the roll of
parliament, as a matter of record, by which they may have remedy, if
anything should be attempted to the contrary in time to come." From this
year the complaints of extortion become rather less frequent; and soon
afterwards a statute was passed, "That no man shall be constrained to
find men-at-arms, hobelers, nor archers, other than those which hold by
such services, if it be not by common assent and grant made in
parliament."[108] Yet, even in the last year of Edward's reign, when the
boundaries of prerogative and the rights of parliament were better
ascertained, the king lays a sort of claim to impose charges upon his
subjects in cases of great necessity, and for the defence of his
kingdom.[109] But this more humble language indicates a change in the
spirit of government, which, after long fretting impatiently at the
curb, began at length to acknowledge the controlling hand of law.

These are the chief instances of a struggle between the crown and
commons as to arbitrary taxation; but there are two remarkable
proceedings in the 45th and 46th of Edward, which, though they would not
have been endured in later times, are rather anomalies arising out of
the unsettled state of the constitution and the recency of parliamentary
rights than mere encroachments of the prerogative. In the former year
parliament had granted a subsidy of fifty thousand pounds, to be
collected by an assessment of twenty-two shillings and threepence upon
every parish, on a presumption that the parishes in England amounted to
forty-five thousand, whereas they were hardly a fifth of that number.
This amazing mistake was not discovered till the parliament had been
dissolved. Upon its detection the king summoned a great council,
consisting of one knight, citizen, and burgess, named by himself out of
two that had been returned to the last parliament.[110] To this assembly
the chancellor set forth the deficiency of the last subsidy, and proved
by the certificates of all the bishops in England how strangely the
parliament had miscalculated the number of parishes; whereupon they
increased the parochial assessment, by their own authority, to one
hundred and sixteen shillings.[111] It is obvious that the main
intention of parliament was carried into effect by this irregularity,
which seems to have been the subject of no complaint. In the next
parliament a still more objectionable measure was resorted to; after the
petitions of the commons had been answered, and the knights dismissed,
the citizens and burgesses were convened before the prince of Wales and
the lords in a room near the white chamber, and solicited to renew their
subsidy of forty shillings upon the tun of wine, and sixpence in the
pound upon other imports, for safe convoy of shipping, during one year
more, to which they assented, "and so departed."[112]

[Sidenote: The concurrence of both houses in legislation necessary.]

The second constitutional principle established in the reign of Edward
III. was that the king and two houses of parliament, in conjunction,
possessed exclusively the right of legislation. Laws were now declared
to be made by the king at the request of the commons, and by the assent
of the lords and prelates. Such at least was the general form, though
for many subsequent ages there was no invariable regularity in this
respect. The commons, who till this reign were rarely mentioned, were
now as rarely omitted in the enacting clause. In fact, it is evident
from the rolls of parliament that statutes were almost always founded
upon their petition.[113] These petitions, with the respective answers
made to them in the king's name, were drawn up after the end of the
session in the form of laws, and entered upon the statute-roll. But here
it must be remarked that the petitions were often extremely qualified
and altered by the answer, insomuch that many statutes of this and some
later reigns by no means express the true sense of the commons.
Sometimes they contented themselves with showing their grievance, and
praying remedy from the king and his council. Of this one eminent
instance is the great statute of treasons. In the petition whereon this
act is founded it is merely prayed that, "whereas the king's justices in
different counties adjudge persons indicted before them to be traitors
for sundry matters not known by the commons to be treason, it would
please the king by his council, and by the great and wise men of the
land, to declare what are treasons in this present parliament." The
answer to this petition contains the existing statute, as a declaration
on the king's part.[114] But there is no appearance that it received
the direct assent of the lower house. In the next reigns we shall find
more remarkable instances of assuming a consent which was never
positively given.

[Sidenote: Statutes distinguished from ordinances.]

The statute of treasons, however, was supposed to be declaratory of the
ancient law: in permanent and material innovations a more direct
concurrence of all the estates was probably required. A new statute, to
be perpetually incorporated with the law of England, was regarded as no
light matter. It was a very common answer to a petition of the commons,
in the early part of this reign, that it could not be granted without
making a new law. After the parliament of 14 E. III. a certain number of
prelates, barons, and counsellors, with twelve knights and six
burgesses, were appointed to sit from day to day in order to turn such
petitions and answers as were fit to be perpetual into a statute; but
for such as were of a temporary nature the king issued his letters
patent.[115] This reluctance to innovate without necessity, and to swell
the number of laws which all were bound to know and obey with an
accumulation of transitory enactments, led apparently to the distinction
between statutes and ordinances. The latter are indeed defined by some
lawyers to be regulations proceeding from the king and lords without
concurrence of the commons. But if this be applicable to some
ordinances, it is certain that the word, even when opposed to statute,
with which it is often synonymous, sometimes denotes an act of the whole
legislature. In the 37th of Edward III., when divers sumptuary
regulations against excess of apparel were made in full parliament, "it
was demanded of the lords and commons, inasmuch as the matter of their
petitions was novel and unheard of before, whether they would have them
granted by way of ordinance or of statute. They answered that it would
be best to have them by way of ordinance and not of statute, in order
that anything which should need amendment might be amended at the next
parliament."[116] So much scruple did they entertain about tampering
with the statute law of the land.

Ordinances which, if it were not for their partial or temporary
operation, could not well be distinguished from laws,[117] were often
established in great councils. These assemblies, which frequently
occurred in Edward's reign, were hardly distinguishable, except in name,
from parliaments; being constituted not only of those who were regularly
summoned to the house of lords, but of deputies from counties, cities,
and boroughs. Several places that never returned burgesses to parliament
have sent deputies to some of these councils.[118] The most remarkable
of these was that held in the 27th of Edward III., consisting of one
knight for each county, and of two citizens or burgesses from every city
or borough wherein the ordinances of the staple were established.[119]
These were previously agreed upon by the king and lords, and copies
given, one to the knights, another to the burgesses. The roll tells us
that they gave their opinion in writing to the council, after much
deliberation, and that this was read and discussed by the great men.
These ordinances fix the staple of wool in particular places within
England, prohibit English merchants from exporting that article under
pain of death, inflict sundry other penalties, create jurisdictions, and
in short have the effect of a new and important law. After they were
passed the deputies of the commons granted a subsidy for three years,
complained of grievances, and received answers, as if in a regular
parliament. But they were aware that these proceedings partook of some
irregularity, and endeavoured, as was their constant method, to keep up
the legal forms of the constitution. In the last petition of this
council the commons pray, "because many articles touching the state of
the king and common profit of his kingdom have been agreed by him, the
prelates, lords, and commons of his land, at this council, that the said
articles may be recited at the next parliament, and entered upon the
roll; for this cause, that ordinances and agreements made in council
are not of record, as if they had been made in a general parliament."
This accordingly was done at the ensuing parliament, when these
ordinances were expressly confirmed, and directed to be "holden for a
statute to endure always."[120]

It must be confessed that the distinction between ordinances and
statutes is very obscure, and perhaps no precise and uniform principle
can be laid down about it. But it sufficiently appears that whatever
provisions altered the common law or any former statute, and were
entered upon the statute-roll, transmitted to the sheriffs, and
promulgated to the people as general obligatory enactments, were holden
to require the positive assent of both houses of parliament, duly and
formally summoned.

Before we leave this subject it will be proper to take notice of a
remarkable stretch of prerogative, which, if drawn into precedent, would
have effectually subverted this principle of parliamentary consent in
legislation. In the 15th of Edward III. petitions were presented of a
bolder and more innovating cast than was acceptable to the court:--That
no peer should be put to answer for any trespass except before his
peers; that commissioners should be assigned to examine the accounts of
such as had received public moneys; that the judges and ministers should
be sworn to observe the Great Charter and other laws; and that they
should be appointed in parliament. The last of these was probably the
most obnoxious; but the king, unwilling to defer a supply which was
granted merely upon condition that these petitions should prevail,
suffered them to pass into a statute with an alteration which did not
take off much from their efficacy--namely, that these officers should
indeed be appointed by the king with the advice of his council, but
should surrender their charges at the next parliament, and be there
responsible to any who should have cause of complaint against them. The
chancellor, treasurer, and judges entered their protestation that they
had not assented to the said statutes, nor could they observe them, in
case they should prove contrary to the laws and customs of the kingdom,
which they were sworn to maintain.[121] This is the first instance of a
protest on the roll of parliament against the passing of an act.
Nevertheless they were compelled to swear on the cross of Canterbury to
its observance.[122]

This excellent statute was attempted too early for complete success.
Edward's ministers plainly saw that it left them at the mercy of future
parliaments, who would readily learn the wholesome and constitutional
principle of sparing the sovereign while they punished his advisers.
They had recourse therefore to a violent measure, but which was likely
in those times to be endured. By a proclamation addressed to all the
sheriffs the king revokes and annuls the statute, as contrary to the
laws and customs of England and to his own just rights and prerogatives,
which he had sworn to preserve; declaring that he had never consented to
its passing, but, having previously protested that he would revoke it,
lest the parliament should have been separated in wrath, had dissembled,
as was his duty, and permitted the great seal to be affixed; and that it
appeared to the earls, barons, and other learned persons of his kingdom
with whom he had consulted, that, as the said statute had not proceeded
from his own good will, it was null, and could not have the name or
force of law.[123] This revocation of a statute, as the price of which a
subsidy had been granted, was a gross infringement of law, and
undoubtedly passed for such at that time; for the right was already
clear, though the remedy was not always attainable. Two years afterwards
Edward met his parliament, when that obnoxious statute was formally
repealed.[124]

[Sidenote: Advice of parliament required on matters of war and peace.]

Notwithstanding the king's unwillingness to permit this control of
parliament over his administration, he suffered, or rather solicited,
their interference in matters which have since been reckoned the
exclusive province of the crown. This was an unfair trick of his policy.
He was desirous, in order to prevent any murmuring about subsidies, to
throw the war upon parliament as their own act, though none could have
been commenced more selfishly for his own benefit, or less for the
advantage of the people of England. It is called "the war which our lord
the king has undertaken against his adversary of France by common assent
of all the lords and commons of his realm in divers parliaments."[125]
And he several times referred it to them to advise upon the subject of
peace. But the commons showed their humility or discretion by treating
this as an invitation which it would show good manners to decline,
though in the eighteenth of the king's reign they had joined with the
lords in imploring the king to make an end of the war by a battle or by
a suitable peace.[126] "Most dreaded lord," they say upon one occasion,
"as to your war, and the equipment necessary for it, we are so ignorant
and simple that we know not how, nor have the power, to devise;
wherefore we pray your grace to excuse us in this matter, and that it
please you, with advice of the great and wise persons of your council,
to ordain what seems best to you for the honour and profit of yourself
and your kingdom; and whatever shall be thus ordained by assent and
agreement for you and your lords we readily assent to, and will hold it
firmly established."[127] At another time, after their petitions had
been answered, "it was shewed to the lords and commons by Bartholomew de
Burghersh, the king's chamberlain, how a treaty had been set on foot
between the king and his adversary of France; and how he had good hope
of a final and agreeable issue with God's help; to which he would not
come without assent of the lords and commons. Wherefore the said
chamberlain inquired on the king's part of the said lords and commons
whether they would assent and agree to the peace, in case it might be
had by treaty between the parties. To which the said commons with one
voice replied, that whatever end it should please the king and lords to
make of the treaty would be agreeable to them. On which answer the
chamberlain said to the commons, Then you will assent to a perpetual
treaty of peace if it can be had. And the said commons answered at once
and unanimously, Yes, yes."[128] The lords were not so diffident. Their
great station as hereditary councillors gave them weight in all
deliberations of government; and they seem to have pretended to a
negative voice in the question of peace. At least they answer, upon the
proposals made by David king of Scots in 1368, which were submitted to
them in parliament, that, "saving to the said David and his heirs the
articles contained therein, they saw no way of making a treaty which
would not openly turn to the disherison of the king and his heirs, to
which they would on no account assent; and so departed for that
day."[129] A few years before they had made a similar answer to some
other propositions from Scotland.[130] It is not improbable that, in
both these cases, they acted with the concurrence and at the instigation
of the king; but the precedents, might have been remembered in other
circumstances.

[Sidenote: Right of the commons to inquire into public abuses.]

A third important acquisition of the house of commons during this reign
was the establishment of their right to investigate and chastise the
abuses of administration. In the fourteenth of Edward III. a committee
of the lords' house had been appointed to examine the accounts of
persons responsible for the receipt of the last subsidy; but it does not
appear that the commons were concerned in this.[131] The unfortunate
statute of the next year contained a similar provision, which was
annulled with the rest. Many years elapsed before the commons tried the
force of their vindictive arm. We must pass onward an entire generation
of man, and look at the parliament assembled in the fiftieth of Edward
III. Nothing memorable as to the interference of the commons in
government occurs before, unless it be their request, in the forty-fifth
of the king, that no clergyman should be made chancellor, treasurer, or
other great officer; to which the king answered that he would do what
best pleased his council.[132]

[Sidenote: Parliament of 50 E. III.]

It will be remembered by every one who has read our history that in the
latter years of Edward's life his fame was tarnished by the ascendancy
of the duke of Lancaster and Alice Perrers. The former, a man of more
ambition than his capacity seems to have warranted, even incurred the
suspicion of meditating to set aside the heir of the crown when the
Black Prince should have sunk into the grave. Whether he were wronged or
not by these conjectures, they certainly appear to have operated on
those most concerned to take alarm at them. A parliament met in April,
1376, wherein the general unpopularity of the king's administration, or
the influence of the prince of Wales, led to very remarkable
consequences.[133] After granting a subsidy, the commons, "considering
the evils of the country, through so many wars and other causes, and
that the officers now in the king's service are insufficient without
further assistance for so great a charge, pray that the council be
strengthened by the addition of ten or twelve bishops, lords, and
others, to be constantly at hand, so that no business of weight should
be despatched without the consent of all; nor smaller matters without
that of four or six."[134] The king pretended to come with alacrity into
this measure, which was followed by a strict restraint on them and all
other officers from taking presents in the course of their duty. After
this, "the said commons appeared in parliament, protesting that they had
the same good will as ever to assist the king with their lives and
fortunes; but that it seemed to them, if their said liege lord had
always possessed about him faithful counsellors and good officers, he
would have been so rich that he would have had no need of charging his
commons with subsidy or tallage, considering the great ransoms of the
French and Scotch kings, and of so many other prisoners; and that it
appeared to be for the private advantage of some near the king, and of
others by their collusion, that the king and kingdom are so
impoverished, and the commons so ruined. And they promised the king
that, if he would do speedy justice on such as should be found guilty,
and take from them what law and reason permit, with what had been
already granted in parliament, they will engage that he should be rich
enough to maintain his wars for a long time, without much charging his
people in any manner." They next proceeded to allege three particular
grievances; the removal of the staple from Calais, where it had been
fixed by parliament, through the procurement and advice of the said
private counsellors about the king; the participation of the same
persons in lending money to the king at exorbitant usury; and their
purchasing at a low rate, for their own benefit, old debts from the
crown, the whole of which they had afterwards induced the king to repay
to themselves. For these and for many more misdemeanours the commons
accused and impeached the lords Latimer and Nevil, with four merchants,
Lyons, Ellis, Peachey, and Bury.[135] Latimer had been chamberlain, and
Nevil held another office. The former was the friend and creature of the
duke of Lancaster. Nor was this parliament at all nice in touching a
point where kings least endure their interference. An ordinance was
made, that, "whereas many women prosecute the suits of others in courts
of justice by way of maintenance, and to get profit thereby, which is
displeasing to the king, he forbids any woman henceforward, and
especially Alice Perrers, to do so, on pain of the said Alice forfeiting
all her goods, and suffering banishment from the kingdom."[136]

The part which the prince of Wales, who had ever been distinguished for
his respectful demeanour towards Edward, bore in this unprecedented
opposition, is strong evidence of the jealousy with which he regarded
the duke of Lancaster; and it was led in the house of commons by Peter
de la Mare, a servant of the earl of March, who, by his marriage with
Philippa, heiress of Lionel duke of Clarence, stood next after the young
prince Richard in lineal succession to the crown. The proceedings of
this session were indeed highly popular. But no house of commons would
have gone such lengths on the mere support of popular opinion, unless
instigated and encouraged by higher authority. Without this their
petitions might perhaps have obtained, for the sake of subsidy, an
immediate consent; but those who took the lead in preparing them must
have remained unsheltered after a dissolution, to abide the vengeance of
the crown, with no assurance that another parliament would espouse their
cause as its own. Such, indeed, was their fate in the present instance.
Soon after the dissolution of parliament, the prince of Wales, who, long
sinking by fatal decay, had rallied his expiring energies for this
domestic combat, left his inheritance to a child ten years old, Richard
of Bordeaux. Immediately after this event Lancaster recovered his
influence; and the former favourites returned to court. Peter de la Mare
was confined at Nottingham, where he remained two years. The citizens
indeed attempted an insurrection, and threatened to burn the Savoy,
Lancaster's residence, if de la Mare was not released; but the bishop of
London succeeded in appeasing them.[137] A parliament met next year
which overthrew the work of its predecessor, restored those who had been
impeached, and repealed the ordinance against Alice Perrers.[138] So
little security will popular assemblies ever afford against arbitrary
power, when deprived of regular leaders and the consciousness of mutual
fidelity.

The policy adopted by the prince of Wales and earl of March, in
employing the house of commons as an engine of attack against an
obnoxious ministry, was perfectly novel, and indicates a sensible change
in the character of our constitution. In the reign of Edward II.
parliament had little share in resisting the government; much more was
effected by the barons through risings of their feudal tenantry. Fifty
years of authority better respected, of law better enforced, had
rendered these more perilous, and of a more violent appearance than
formerly. A surer resource presented itself in the increased weight of
the lower house in parliament. And this indirect aristocratical
influence gave a surprising impulse to that assembly, and particularly
tended to establish beyond question its control over public abuses. It
is no less just to remark that it also tended to preserve the relation
and harmony between each part and the other, and to prevent that jarring
of emulation and jealousy which, though generally found in the division
of power between a noble and a popular estate, has scarcely ever caused
a dissension, except in cases of little moment, between our two houses
of parliament.

[Sidenote: Richard II. Great increase of the power of the commons.]

The commons had sustained with equal firmness and discretion a defensive
war against arbitrary power under Edward III.: they advanced with very
different steps towards his successor. Upon the king's death, though
Richard's coronation took place without delay, and no proper regency was
constituted, yet a council of twelve, whom the great officers of state
were to obey, supplied its place to every effectual intent. Among these
the duke of Lancaster was not numbered; and he retired from court in
some disgust. In the first parliament of the young king a large
proportion of the knights who had sat in that which impeached the
Lancastrian party were returned.[139] Peter de la Mare, now released
from prison, was elected speaker; a dignity which, according to some, he
had filled in the Good Parliament, as that of the fiftieth of Edward
III. was popularly styled; though the rolls do not mention either him or
any other as bearing that honourable name before Sir Thomas Hungerford
in the parliament of the following year.[140] The prosecution against
Alice Perrers was now revived; not, as far as appears, by direct
impeachment of the commons; but articles were exhibited against her in
the house of lords on the king's part, for breaking the ordinance made
against her intermeddling at court: upon which she received judgment of
banishment and forfeiture.[141] At the request of the lower house, the
lords, in the king's name, appointed nine persons of different
ranks--three bishops, two earls, two bannerets, and two bachelors--to
be a permanent council about the king, so that no business of importance
should be transacted without their unanimous consent. The king was even
compelled to consent that, during his minority, the chancellor,
treasurer, judges, and other chief officers, should be made in
parliament; by which provision, combined with that of the parliamentary
council, the whole executive government was transferred to the two
houses. A petition that none might be employed in the king's service,
nor belong to his council, who had been formerly accused upon good
grounds, struck at lord Latimer, who had retained some degree of power
in the new establishment. Another, suggesting that Gascony, Ireland,
Artois, and the Scottish marches were in danger of being lost for want
of good officers, though it was so generally worded as to leave the
means of remedy to the king's pleasure, yet shows a growing energy and
self-confidence in that assembly which not many years before had thought
the question of peace or war too high for their deliberation. Their
subsidy was sufficiently liberal; but they took care to pray the king
that fit persons might be assigned for its receipt and disbursement,
lest it should any way be diverted from the purposes of the war.
Accordingly Walworth and Philpot, two eminent citizens of London, were
appointed to this office, and sworn in parliament to its execution.[142]

But whether through the wastefulness of government, or rather because
Edward's legacy, the French war, like a ruinous and interminable
lawsuit, exhausted all public contributions, there was an equally
craving demand for subsidy at the next meeting of parliament. The
commons now made a more serious stand. The speaker, Sir James Pickering,
after the protestation against giving offence which has since become
more matter of form than, perhaps, it was then considered, reminded the
lords of the council of a promise made to the last parliament, that, if
they would help the king for once with a large subsidy, so as to enable
him to undertake an expedition against the enemy, he trusted not to call
on them again, but to support the war from his own revenues; in faith
of which promise there had been granted the largest sum that any king of
England had ever been suffered to levy within so short a time, to the
utmost loss and inconvenience of the commons, part of which ought still
to remain in the treasury, and render it unnecessary to burthen anew the
exhausted people. To this Scrope, lord steward of the household,
protesting that he knew not of any such promise, made answer by order of
the king, that, "saving the honour and reverence of our lord the king,
and the lords there present, the commons did not speak truth in
asserting that part of the last subsidy should be still in the treasury;
it being notorious that every penny had gone into the hands of Walworth
and Philpot, appointed and sworn treasurers in the last parliament, to
receive and expend it upon the purposes of the war, for which they had
in effect disbursed the whole." Not satisfied with this general
justification, the commons pressed for an account of the expenditure.
Scrope was again commissioned to answer, that, "though it had never been
seen that of a subsidy or other grant made to the king in parliament or
out of parliament by the commons any account had afterwards been
rendered to the commons, or to any other except the king and his
officers, yet the king, to gratify them, of his own accord, without
doing it by way of right, would have Walworth along with certain persons
of the council exhibit to them in writing a clear account of the receipt
and expenditure, upon condition that this should never be used as a
precedent, nor inferred to be done otherwise than by the king's
spontaneous command." The commons were again urged to provide for the
public defence, being their own concern as much as that of the king. But
they merely shifted their ground and had recourse to other pretences.
They requested that five or six peers might come to them, in order to
discuss this question of subsidy. The lords entirely rejected this
proposal, and affirmed that such a proceeding had never been known
except in the three last parliaments; but allowed that it had been the
course to elect a committee of eight or ten from each house, to confer
easily and without noise together. The commons acceded to this, and a
committee of conference was appointed, though no result of their
discussion appears upon the roll.

Upon examining the accounts submitted to them, these sturdy commoners
raised a new objection. It appeared that large sums had been expended
upon garrisons in France and Ireland and other places beyond the
kingdom, of which they protested themselves not liable to bear the
charge. It was answered that Gascony and the king's other dominions
beyond sea were the outworks of England, nor could the people ever be
secure from war at their thresholds, unless these were maintained. They
lastly insisted that the king ought to be rich through the wealth that
had devolved on him from his grandfather. But this was affirmed, in
reply, to be merely sufficient for the payment of Edward's creditors.
Thus driven from all their arguments, the commons finally consented to a
moderate additional imposition upon the export of wool and leather,
which were already subject to considerable duties, apologizing on
account of their poverty for the slenderness of their grant.[143]

The necessities of government, however, let their cause be what it
might, were by no means feigned; and a new parliament was assembled
about seven months after the last, wherein the king, without waiting for
a petition, informed the commons that the treasurers were ready to
exhibit their accounts before them. This was a signal victory after the
reluctant and ungracious concession made to the last parliament. Nine
persons of different ranks were appointed at the request of the commons
to investigate the state of the revenue and the disposition which had
been made of the late king's personal estate. They ended by granting a
poll-tax, which they pretended to think adequate to the supply
required.[144] But in those times no one possessed any statistical
knowledge, and every calculation which required it was subject to
enormous error, of which we have already seen an eminent example.[145]
In the next parliament (3 Ric. II.) it was set forth that only
22,000_l._ had been collected by the poll-tax, while the pay of the
king's troops hired for the expedition to Britany, the pretext of the
grant, had amounted for but half a year to 50,000_l._ The king, in
short, was more straitened than ever. His distresses gave no small
advantage to the commons. Their speaker was instructed to declare that,
as it appeared to them, if the affairs of their liege lord had been
properly conducted at home and abroad, he could not have wanted aid of
his commons, who now are poorer than before. They pray that, as the king
was so much advanced in age and discretion, his perpetual council
(appointed in his first parliament) might be discharged of their
labours, and that, instead of them, the five chief officers of state, to
wit, the chancellor, treasurer, keeper of the privy seal, chamberlain,
and steward of the household, might be named in parliament, and declared
to the commons, as the king's sole counsellors, not removable before the
next parliament. They required also a general commission to be made out,
similar to that in the last session, giving powers to a certain number
of peers and other distinguished persons to inquire into the state of
the household, as well as into all receipts and expenses since the
king's accession. The former petition seems to have been passed
over;[146] but a commission as requested was made out to three prelates,
three earls, three bannerets, three knights, and three citizens.[147]
After guarding thus, as they conceived, against malversation, but in
effect rather protecting their posterity than themselves, the commons
prolonged the last imposition on wool and leather for another year.

It would be but repetition to make extracts from the rolls of the two
next years; we have still the same tale--demand of subsidy on one side,
remonstrance and endeavours at reformation on the other. After the
tremendous insurrection of the villeins in 1382 a parliament was
convened to advise about repealing the charters of general manumission,
extorted from the king by the pressure of circumstances. In this measure
all concurred; but the commons were not afraid to say that the late
risings had been provoked by the burthens which a prodigal court had
called for in the preceding session. Their language is unusually bold.
"It seemed to them, after full deliberation," they said, "that, unless
the administration of the kingdom were speedily reformed, the kingdom
itself would be utterly lost and ruined for ever, and therein their lord
the king, with all the peers and commons, which God forbid. For true it
is that there are such defects in the said administration, as well about
the king's person and his household as in his courts of justice; and by
grievous oppressions in the country through maintainers of suits, who
are, as it were, kings in the country, that right and law are come to
nothing, and the poor commons are from time to time so pillaged and
ruined; partly by the king's purveyors of the household, and others who
pay nothing for what they take, partly by the subsidies and tallages
raised upon them, and besides by the oppressive behaviour of the
servants of the king and other lords, and especially of the aforesaid
maintainers of suits, that they are reduced to greater poverty and
discomfort than ever they were before. And moreover, though great sums
have been continually granted by and levied upon them, for the defence
of the kingdom, yet they are not the better defended against their
enemies, but every year are plundered and wasted by sea and land,
without any relief. Which calamities the said poor commons, who lately
used to live in honour and prosperity, can no longer endure. And to
speak the real truth, these injuries lately done to the poorer commons,
more than they ever suffered before, caused them to rise and to commit
the mischief done in their late riot; and there is still cause to fear
greater evils, if sufficient remedy be not timely provided against the
outrages and oppressions aforesaid. Wherefore may it please our lord the
king, and the noble peers of the realm now assembled in this parliament,
to provide such remedy and amendment as to the said administration, that
the state and dignity of the king in the first place, and of the lords,
may be preserved, as the commons have always desired, and the commons
may be put in peace; removing, as soon as they can be detected, evil
ministers and counsellors, and putting in their stead the best and most
sufficient, and taking away all the bad practices which have led to the
last rising, or else none can imagine that this kingdom can longer
subsist without greater misfortunes than it ever endured. And for God's
sake let it not be forgotten that there be put about the king, and of
his council, the best lords and knights that can be found in the
kingdom.

"And be it known (the entry proceeds) that, after the king our lord with
the peers of the realm and his council had taken advice upon these
requests made to him for his good and his kingdom's as it really
appeared to him, willed and granted that certain bishops, lords, and
others should be appointed to survey and examine in privy council both
the government of the king's person and of his household, and to suggest
proper remedies wherever necessary, and report them to the king. And it
was said by the peers in parliament, that, as it seemed to them, if
reform of government were to take place throughout the kingdom, it
should begin by the chief member, which is the king himself, and so from
person to person, as well churchmen as others, and place to place, from
higher to lower, without sparing any degree."[148] A considerable number
of commissioners were accordingly appointed, whether by the king alone,
or in parliament, does not appear; the latter, however, is more
probable. They seem to have made some progress in the work of
reformation, for we find that the officers of the household were sworn
to observe their regulations. But in all likelihood these were soon
neglected.

It is not wonderful that, with such feelings of resentment towards the
crown, the commons were backward in granting subsidies. Perhaps the king
would not have obtained one at all if he had not withheld his charter of
pardon for all offences committed during the insurrection. This was
absolutely necessary to restore quiet among the people; and though the
members of the commons had certainly not been insurgents, yet inevitable
irregularities had occurred in quelling the tumults, which would have
put them too much in the power of those unworthy men who filled the
benches of justice under Richard. The king declared that it was unusual
to grant a pardon without a subsidy; the commons still answered that
they would consider about that matter; and the king instantly rejoined
that he would consider about his pardon (s'aviseroit de sa dite grace)
till they had done what they ought. They renewed, at length the usual
tax on wool and leather.[149]

This extraordinary assumption of power by the commons was not merely
owing to the king's poverty. It was encouraged by the natural feebleness
of a disunited government. The high rank and ambitious spirit of
Lancaster gave him no little influence, though contending with many
enemies at court as well as the ill-will of the people. Thomas of
Woodstock, the king's youngest uncle, more able and turbulent than
Lancaster, became, as he grew older, an eager competitor for power,
which he sought through the channel of popularity. The earls of March,
Arundel, and Warwick bore a considerable part, and were the favourites
of parliament. Even Lancaster, after a few years, seems to have fallen
into popular courses, and recovered some share of public esteem. He was
at the head of the reforming commission in the fifth of Richard II.,
though he had been studiously excluded from those preceding. We cannot
hope to disentangle the intrigues of this remote age, as to which our
records are of no service, and the chroniclers are very slightly
informed. So far as we may conjecture, Lancaster, finding his station
insecure at court, began to solicit the favour of the commons, whose
hatred of the administration abated their former hostility towards
him.[150]

[Sidenote: Character of Richard.]

The character of Richard II. was now developing itself, and the hopes
excited by his remarkable presence of mind in confronting the rioters on
Blackheath were rapidly destroyed. Not that he was wanting in capacity,
as has been sometimes imagined. For if we measure intellectual power by
the greatest exertion it ever displays, rather than by its average
results, Richard II. was a man of considerable talents. He possessed,
along with much dissimulation, a decisive promptitude in seizing the
critical moment for action. Of this quality, besides his celebrated
behaviour towards the insurgents, he gave striking evidence in several
circumstances which we shall have shortly to notice. But his ordinary
conduct belied the abilities which on these rare occasions shone forth,
and rendered them ineffectual for his security. Extreme pride and
violence, with an inordinate partiality for the most worthless
favourites, were his predominant characteristics. In the latter quality,
and in the events of his reign, he forms a pretty exact parallel to
Edward II. Scrope, lord chancellor, who had been appointed in
parliament, and was understood to be irremovable without its
concurrence, lost the great seal for refusing to set it to some prodigal
grants. Upon a slight quarrel with archbishop Courtney the king ordered
his temporalities to be seized, the execution of which, Michael de la
Pole, his new chancellor, and a favourite of his own, could hardly
prevent. This was accompanied with indecent and outrageous expressions
of anger, unworthy of his station and of those whom he insulted.[151]

[Sidenote: He acquires more power on his majority.]

Though no king could be less respectable than Richard, yet the
constitution invested a sovereign with such ample prerogative, that it
was far less easy to resist his personal exercise of power than the
unsettled councils of a minority. In the parliament 6 R. II., sess. 2,
the commons pray certain lords, whom they name, to be assigned as their
advisers. This had been permitted in the two last sessions without
exception.[152] But the king, in granting their request, reserved his
right of naming any others.[153] Though the commons did not relax in
their importunities for the redress of general grievances, they did not
venture to intermeddle as before with the conduct of administration.
They did not even object to the grant of the marquisate of Dublin, with
almost a princely dominion over Ireland; which enormous donation was
confirmed by act of parliament to Vere, a favourite of the king.[154] A
petition that the officers of state should annually visit and inquire
into his household was answered that the king would do what he
pleased.[155] Yet this was little in comparison of their former
proceedings.

[Sidenote: Proceedings of parliament in the tenth of Richard.]

There is nothing, however, more deceitful to a monarch, unsupported by
an armed force, and destitute of wary advisers, than this submission of
his people. A single effort was enough to overturn his government.
Parliament met in the tenth year of his reign, steadily determined to
reform the administration, and especially to punish its chief leader,
Michael de la Pole, earl of Suffolk and lord chancellor. According to
the remarkable narration of a contemporary historian,[156] too
circumstantial to be rejected, but rendered somewhat doubtful by the
silence of all other writers and of the parliamentary roll, the king was
loitering at his palace at Eltham when he received a message from the
two houses, requesting the dismissal of Suffolk, since they had matter
to allege against him that they could not move while he kept the office
of chancellor. Richard, with his usual intemperance, answered that he
would not for their request remove the meanest scullion from his
kitchen. They returned a positive refusal to proceed on any public
business until the king should appear personally in parliament and
displace the chancellor. The king required forty knights to be deputed
from the rest to inform him clearly of their wishes. But the commons
declined a proposal in which they feared, or affected to fear, some
treachery. At length the duke of Gloucester and Arundel bishop of Ely
were commissioned to speak the sense of parliament; and they delivered
it, if we may still believe what we read, in very extraordinary
language, asserting that there was an ancient statute, according to
which, if the king absented himself from parliament without just cause
during forty days, which he had now exceeded, every man might return
without permission to his own country; and, moreover, there was another
statute, and (as they might more truly say) a precedent of no remote
date, that if a king, by bad counsel, or his own folly and obstinacy,
alienated himself from his people, and would not govern according to
the laws of the land and the advice of the peers, but madly and wantonly
followed his own single will, it should be lawful for them, with the
common assent of the people, to expel him from his throne, and elevate
to it some near kinsman of the royal blood. By this discourse the king
was induced to meet his parliament, where Suffolk was removed from his
office, and the impeachment against him commenced.[157]

[Sidenote: Impeachment of Suffolk.]

The charges against this minister, without being wholly frivolous, were
not so weighty as the clamour of the commons might have led us to
expect. Besides forfeiting all his grants from the crown, he was
committed to prison, there to remain till he should have paid such fine
as the king might impose; a sentence that would have been outrageously
severe in many cases, though little more than nugatory in the
present.[158]

[Sidenote: Commission of reform.]

This was the second precedent of that grand constitutional resource,
parliamentary impeachment: and more remarkable from the eminence of the
person attacked than that of lord Latimer in the fiftieth year of Edward
III.[159] The commons were content to waive the prosecution of any other
ministers; but they rather chose a scheme of reforming the
administration, which should avert both the necessity of punishment and
the malversations that provoked it. They petitioned the king to ordain
in parliament certain chief officers of his household and other lords of
his council, with power to reform those abuses, by which his crown was
so much blemished that the laws were not kept and his revenues were
dilapidated, confirming by a statute a commission for a year, and
forbidding, under heavy penalties, any one from opposing, in private or
openly, what they should advise.[160] With this the king complied, and a
commission founded upon the prayer of parliament was established by
statute. It comprehended fourteen persons of the highest eminence for
rank and general estimation; princes of the blood and ancient servants
of the crown, by whom its prerogatives were not likely to be
unnecessarily impaired. In fact the principle of this commission,
without looking back at the precedents in the reign of John, Henry III.,
and Edward II., which yet were not without their weight as
constitutional analogies, was merely that which the commons had
repeatedly maintained during the minority of the present king, and which
had produced the former commissions of reform in the third and fifth
years of his reign. These were upon the whole nearly the same in their
operation. It must be owned there was a more extensive sway virtually
given to the lords now appointed, by the penalties imposed on any who
should endeavour to obstruct what they might advise; the design as well
as tendency of which was no doubt to throw the whole administration into
their hands during the period of this commission.

Those who have written our history with more or less of a Tory bias
exclaim against this parliamentary commission as an unwarrantable
violation of the king's sovereignty, and even impartial men are struck
at first sight by a measure that seems to overset the natural balance of
our constitution. But it would be unfair to blame either those concerned
in this commission, some of whose names at least have been handed down
with unquestioned respect, or those high-spirited representatives of the
people whose patriot firmness has been hitherto commanding all our
sympathy and gratitude, unless we could distinctly pronounce by what
gentler means they could restrain the excesses of government. Thirteen
parliaments had already met since the accession of Richard; in all the
same remonstrances had been repeated, and the same promises renewed.
Subsidies, more frequent than in any former reign, had been granted for
the supposed exigencies of the war; but this was no longer illuminated
by those dazzling victories which give to fortune the mien of wisdom;
the coasts of England were perpetually ravaged, and her trade destroyed;
while the administration incurred the suspicion of diverting to private
uses that treasure which they so feebly and unsuccessfully applied to
the public service. No voice of his people, until it spoke in thunder,
would stop an intoxicated boy in the wasteful career of dissipation. He
loved festivals and pageants, the prevailing folly of his time, with
unusual frivolity; and his ordinary living is represented as beyond
comparison more showy and sumptuous than even that of his magnificent
and chivalrous predecessor. Acts of parliament were no adequate barriers
to his misgovernment. "Of what avail are statutes," says Walsingham,
"since the king with his privy council is wont to abolish what
parliament has just enacted?"[161] The constant prayer of the commons in
every session, that former statutes might be kept in force, is no slight
presumption that they were not secure of being regarded. It may be true
that Edward III.'s government had been full as arbitrary, though not so
unwise, as his grandson's; but this is the strongest argument that
nothing less than an extraordinary remedy could preserve the still
unstable liberties of England.

The best plea that could be made for Richard was his inexperience, and
the misguided suggestions of favourites. This, however, made it more
necessary to remove those false advisers, and to supply that
inexperience. Unquestionably the choice of ministers is reposed in the
sovereign; a trust, like every other attribute of legitimate power, for
the public good; not, what no legitimate power can ever be, the
instrument of selfishness or caprice. There is something more sacred
than the prerogative, or even than the constitution; the public weal,
for which all powers are granted, and to which they must all be
referred. For this public weal it is confessed to be sometimes necessary
to shake the possessor of the throne out of his seat; could it never be
permitted to suspend, though but indirectly and for a time, the positive
exercise of misapplied prerogatives? He has learned in a very different
school from myself, who denies to parliament at the present day a
preventive as well as vindictive control over the administration of
affairs; a right of resisting, by those means which lie within its
sphere, the appointment of unfit ministers. These means are now
indirect; they need not to be the less effectual, and they are certainly
more salutary on that account. But we must not make our notions of the
constitution in its perfect symmetry of manhood the measure of its
infantine proportions, nor expect from a parliament just struggling into
life, and "pawing to get free its hinder parts," the regularity of
definite and habitual power.

It is assumed rather too lightly by some of those historians to whom I
have alluded that these commissioners, though but appointed for a
twelvemonth, designed to retain longer, or would not in fact have
surrendered, their authority. There is certainly a danger in these
delegations of pre-eminent trust; but I think it more formidable in a
republican form than under such a government as our own. The spirit of
the people, the letter of the law, were both so decidedly monarchical,
that no glaring attempt of the commissioners to keep the helm
continually in their hands, though it had been in the king's name, would
have had a fair probability of success. And an oligarchy of fourteen
persons, different in rank and profession, even if we should impute
criminal designs to all of them, was ill calculated for permanent union.
Indeed the facility with which Richard re-assumed his full powers two
years afterwards, when misconduct had rendered his circumstances far
more unfavourable, gives the corroboration of experience to this
reasoning. By yielding to the will of his parliament and to a temporary
suspension of prerogative, this unfortunate prince might probably have
reigned long and peacefully; the contrary course of acting led
eventually to his deposition and miserable death.

[Sidenote: Answers of the judges to Richard's questions.]

Before the dissolution of parliament Richard made a verbal protestation
that nothing done therein should be in prejudice of his rights; a
reservation not unusual when any remarkable concession was made, but
which could not decently be interpreted, whatever he might mean, as a
dissent from the statute, just passed. Some months had intervened when
the king, who had already released Suffolk from prison and restored him
to his favour, procured from the judges, whom he had summoned to
Nottingham, a most convenient set of answers to questions concerning the
late proceedings in parliament. Tresilian and Belknap, chief justices of
the King's Bench and Common Pleas, with several other judges, gave it
under their seals that the late statute and commission were derogatory
to the prerogative; that all who procured it to be passed, or persuaded
or compelled the king to consent to it, were guilty of treason; that the
king's business must be proceeded upon before any other in parliament;
that he may put an end to the session at his pleasure; that his
ministers cannot be impeached without his consent; that any members of
parliament contravening the three last articles incur the penalties of
treason, and especially he who moved for the sentence of deposition
against Edward II. to be read; and that the judgment against the earl of
Suffolk might be revoked as altogether erroneous.

[Sidenote: Subsequent revolution.]

These answers, perhaps extorted by menaces, as all the judges, except
Tresilian, protested before the next parliament, were for the most part
servile and unconstitutional. The indignation which they excited, and
the measures successfully taken to withstand the king's designs, belong
to general history; but I shall pass slightly over that season of
turbulence, which afforded no legitimate precedent, to our
constitutional annals. Of the five lords appellants, as they were
called, Gloucester, Derby, Nottingham, Warwick, and Arundel, the three
former, at least, have little claim to our esteem; but in every age it
is the sophism of malignant and peevish men to traduce the cause of
freedom itself, on account of the interested motives by which its
ostensible advocates have frequently been actuated. The parliament, who
had the country thoroughly with them, acted no doubt honestly, but with
an inattention to the rules of law, culpable indeed, yet from which the
most civilized of their successors, in the heat of passion and triumph,
have scarcely been exempt. Whether all with whom they dealt severely,
some of them apparently of good previous reputation, merited such
punishment, is more than, upon uncertain evidence, a modern writer can
profess to decide.[162]

Notwithstanding the death or exile of all Richard's favourites, and the
oath taken not only by parliament, but by every class of the people, to
stand by the lords appellants, we find him, after about a year, suddenly
annihilating their pretensions, and snatching the reins again without
obstruction. The secret cause of this event is among the many
obscurities that attend the history of his reign. It was conducted with
a spirit and activity which broke out two or three times in the course
of his imprudent life; but we may conjecture that he had the advantage
of disunion among his enemies. For some years after this the king's
administration was prudent. The great seal, which he took away from
archbishop Arundel, he gave to Wykeham bishop of Winchester, another
member of the reforming commission, but a man of great moderation and
political experience. Some time after he restored the seal to Arundel,
and reinstated the duke of Gloucester in the council. The duke of
Lancaster, who had been absent during the transactions of the tenth and
eleventh years of the king, in prosecution of his Castilian war, formed
a link between the parties, and seems to have maintained some share of
public favour.

[Sidenote: Greater harmony between the king and parliament.]

There was now a more apparent harmony between the court and the
parliament. It seems to have been tacitly agreed that they should not
interfere with the king's household expenses; and they gratified him in
a point where his honour had been most wounded, declaring his
prerogative to be as high and unimpaired as that of his predecessors,
and repealing the pretended statute by virtue of which Edward II. was
said to have been deposed.[163]. They were provident enough, however, to
grant conditional subsidies, to be levied only in case of a royal
expedition against the enemy; and several were accordingly remitted by
proclamation, this condition not being fulfilled. Richard never ventured
to recall his favourites, though he testified his unabated affection for
Vere by a pompous funeral. Few complaints, unequivocally affecting the
ministry, were presented by the commons. In one parliament the
chancellor, treasurer, and counsel resigned their offices, submitting
themselves to its judgment in case any matter of accusation should be
alleged against them. The commons, after a day's deliberation, probably
to make their approbation appear more solemn, declared in full
parliament that nothing amiss had been found in the conduct of these
ministers, and that they held them to have faithfully discharged their
duties. The king reinstated them accordingly, with a protestation that
this should not be made a precedent, and that it was his right to change
his servants at pleasure.[164]

[Sidenote: Disunion among some leading peers.]

But this summer season was not to last for ever. Richard had but
dissembled with those concerned in the transactions of 1388, none of
whom he could ever forgive. These lords in lapse of time were divided
among each other. The earls of Derby and Nottingham were brought into
the king's interest. The earl of Arundel came to an open breach with the
duke of Lancaster, whose pardon he was compelled to ask for an unfounded
accusation in parliament.[165] Gloucester's ungoverned ambition, elated
by popularity, could not brook the ascendency of his brother Lancaster,
who was much less odious to the king. He had constantly urged and
defended the concession of Guienne to this prince to be held for life,
reserving only his liege homage to Richard as king of France;[166] a
grant as unpopular among the natives of that country as it was
derogatory to the crown; but Lancaster was not much indebted to his
brother for assistance which was only given in order to diminish his
influence in England. The truce with France, and the king's French
marriage, which Lancaster supported, were passionately opposed by
Gloucester. And the latter had given keener provocation by speaking
contemptuously of that misalliance with Katherine Swineford which
contaminated the blood of Plantagenet. To the parliament summoned in the
20th of Richard, one object of which was to legitimate the duke of
Lancaster's antenuptial children by this lady, neither Gloucester nor
Arundel would repair. There passed in this assembly something
remarkable, as it exhibits not only the arbitrary temper of the king, a
point by no means doubtful, but the inefficiency of the commons to
resist it without support from political confederacies of the nobility.
The circumstances are thus related in the record.

[Sidenote: Richard's prosecution of Haxey.]

During the session the king sent for the lords into parliament one
afternoon, and told them how he had heard of certain articles of
complaint made by the commons in conference with them a few days before,
some of which appeared to the king against his royalty, estate, and
liberty, and commanded the chancellor to inform him fully as to this.
The chancellor accordingly related the whole matter, which consisted of
four alleged grievances; namely, that sheriffs and escheators,
notwithstanding a statute, are continued in their offices beyond a
year;[167] that the Scottish marches were not well kept; that the
statute against wearing great men's liveries was disregarded; and,
lastly, that the excessive charges of the king's household ought to be
diminished, arising from the multitude of bishops and of ladies who are
there maintained at his cost.

Upon this information the king declared to the lords that through God's
gift he is by lineal right of inheritance king of England, and will have
the royalty and freedom of his crown, from which some of these articles
derogate. The first petition, that sheriffs should never remain in
office beyond a year, he rejected; but, passing lightly over the rest,
took most offence that the commons, who are his lieges, should take on
themselves to make any ordinance respecting his royal person or
household, or those whom he might please to have about him. He enjoined
therefore the lords to declare plainly to the commons his pleasure in
this matter; and especially directed the duke of Lancaster to make the
speaker give up the name of the person who presented a bill for this
last article in the lower house.

The commons were in no state to resist this unexpected promptitude of
action in the king. They surrendered the obnoxious bill, with its
proposer, one Thomas Haxey, and with great humility made excuse that
they never designed to give offence to his majesty, nor to interfere
with his household or attendants, knowing well that such things do not
belong to them, but to the king alone; but merely to draw his attention,
that he might act therein as should please him best. The king forgave
these pitiful suppliants; but Haxey was adjudged in parliament to suffer
death as a traitor. As, however, he was a clerk,[168] the archbishop of
Canterbury, at the head of the prelates, obtained of the king that his
life might be spared, and that they might have the custody of his
person; protesting that this was not claimed by way of right, but merely
of the king's grace.[169]

[Sidenote: Arbitrary measures of the king.]

This was an open defiance of parliament, and a declaration of arbitrary
power. For it would be impossible to contend that, after the repeated
instances of control over public expenditure by the commons since the
50th of Edward III., this principle was novel and unauthorized by the
constitution, or that the right of free speech demanded by them in every
parliament was not a real and indisputable privilege. The king, however,
was completely successful, and, having proved the feebleness of the
commons, fell next upon those he more dreaded. By a skilful piece of
treachery he seized the duke of Gloucester, and spread consternation
among all his party. A parliament was summoned, in which the only
struggle was to outdo the king's wishes, and thus to efface their former
transgressions.[170] Gloucester, who had been murdered at Calais, was
attainted after his death; Arundel was beheaded, his brother the
archbishop of Canterbury deposed and banished, Warwick and Cobham sent
beyond sea. The commission of the tenth, the proceedings in parliament
of the eleventh year of the king, were annulled. The answers of the
judges to the questions put at Nottingham, which had been punished with
death and exile, were pronounced by parliament to be just and legal. It
was declared high treason to procure the repeal of any judgment against
persons therein impeached. Their issue male were disabled from ever
sitting in parliament or holding place in council. These violent
ordinances, as if the precedent they were then overturning had not
shielded itself with the same sanction, were sworn to by parliament upon
the cross of Canterbury, and confirmed by a national oath, with the
penalty of excommunication denounced against its infringers. Of those
recorded to have bound themselves by this adjuration to Richard, far the
greater part had touched the same relics for Gloucester and Arundel ten
years before, and two years afterwards swore allegiance to Henry of
Lancaster.[171]

In the fervour of prosecution this parliament could hardly go beyond
that whose acts they were annulling; and each is alike unworthy to be
remembered in the way of precedent. But the leaders of the former,
though vindictive and turbulent, had a concern for the public interest;
and, after punishing their enemies, left the government upon its right
foundation. In this all regard for liberty was extinct; and the commons
set the dangerous precedent of granting the king a subsidy upon wool
during his life. Their remarkable act of severity was accompanied by
another, less unexampled, but, as it proved, of more ruinous tendency.
The petitions of the commons not having been answered during the
session, which they were always anxious to conclude, a commission was
granted for twelve peers and six commoners to sit after the dissolution,
and "examine, answer, and fully determine, as well all the said
petitions, and the matters therein comprised, as all other matters and
things moved in the king's presence, and all things incident thereto not
yet determined, as shall seem best to them."[172] The "other matters"
mentioned above were, I suppose, private petitions to the king's council
in parliament, which had been frequently despatched after a dissolution.
For in the statute which establishes this commission, 21 R. II. c. 16,
no powers are committed but those of examining petitions: which, if it
does not confirm the charge afterwards alleged against Richard, of
falsifying the parliament roll, must at least be considered as limiting
and explaining the terms of the latter. Such a trust had been committed
to some lords of the council eight years before, in very peaceful times;
and it was even requested that the same might be done in future
parliaments.[173] But it is obvious what a latitude this gave to a
prevailing faction. These eighteen commissioners, or some of them (for
there were who disliked the turn of affairs), usurped the full rights of
the legislature, which undoubtedly were only delegated in respect of
business already commenced.[174] They imposed a perpetual oath on
prelates and lords for all time to come, to be taken before obtaining
livery of their lands, that they would maintain the statutes and
ordinances made by this parliament, or "afterwards by the lords and
knights having power committed to them by the same." They declared it
high treason to disobey their ordinances. They annulled the patents of
the dukes of Hereford and Norfolk, and adjudged Henry Bowet, the
former's chaplain, who had advised him to petition for his inheritance,
to the penalties of treason.[175] And thus, having obtained a revenue
for life, and the power of parliament being notoriously usurped by a
knot of his creatures, the king was little likely to meet his people
again, and became as truly absolute as his ambition could require.

[Sidenote: Quarrel of the dukes of Hereford and Norfolk.]

[Sidenote: Necessity for deposing Richard II.]

It had been necessary for this purpose to subjugate the ancient
nobility. For the English constitution gave them such paramount rights
that it was impossible either to make them surrender their country's
freedom, or to destroy it without their consent. But several of the
chief men had fallen or were involved with the party of Gloucester. Two
who, having once belonged to it, had lately plunged into the depths of
infamy to ruin their former friends; were still perfectly obnoxious to
the king, who never forgave their original sin. These two, Henry of
Bolingbroke, earl of Derby, and Mowbray, earl of Nottingham, now dukes
of Hereford and Norfolk, the most powerful of the remaining nobility,
were, by a singular conjuncture, thrown, as it were, at the king's feet.
Of the political mysteries which this reign affords, none is more
inexplicable than the quarrel of these peers. In the parliament at
Shrewsbury, in 1398, Hereford was called upon by the king to relate what
had passed between the duke of Norfolk and himself in slander of his
majesty. He detailed a pretty long and not improbable conversation, in
which Norfolk had asserted the king's intention of destroying them both
for their old offence in impeaching his ministers. Norfolk had only to
deny the charge and throw his gauntlet at the accuser. It was referred
to the eighteen commissioners who sat after the dissolution, and a trial
by combat was awarded. But when this, after many delays, was about to
take place at Coventry, Richard interfered and settled the dispute by
condemning Hereford to banishment for ten years and Norfolk for life.
This strange determination, which treated both as guilty where only one
could be so, seems to admit no other solution than the king's desire to
rid himself of two peers whom he feared and hated at a blow. But it is
difficult to understand by what means he drew the crafty Bolingbroke
into his snare.[176] However this might have been, he now threw away all
appearance of moderate government. The indignities he had suffered in
the eleventh year of his reign were still at his heart, a desire to
revenge which seems to have been the mainspring of his conduct. Though a
general pardon of those proceedings had been granted, not only at the
time, but in his own last parliament, he made use of them as a pretence
to extort money from seventeen counties, to whom he imputed a share in
the rebellion. He compelled men to confess under their seals that they
had been guilty of treason, and to give blank obligations, which his
officers filled up with large sums.[177] Upon the death of the duke of
Lancaster, who had passively complied throughout all these transactions,
Richard refused livery of his inheritance to Hereford, whose exile
implied no crime, and who had letters patent enabling him to make his
attorney for that purpose during its continuance. In short, his
government for nearly two years was altogether tyrannical; and, upon the
same principles that cost James II. his throne, it was unquestionably
far more necessary, unless our fathers would have abandoned all thought
of liberty, to expel Richard II. Far be it from us to extenuate the
treachery of the Percies towards this unhappy prince, or the cruel
circumstances of his death, or in any way to extol either his successor
or the chief men of that time, most of whom were ambitious and
faithless; but after such long experience of the king's arbitrary,
dissembling, and revengeful temper, I see no other safe course, in the
actual state of the constitution, than what the nation concurred in
pursuing.

The reign of Richard II. is, in a constitutional light, the most
interesting part of our earlier history; and it has been the most
imperfectly written. Some have misrepresented the truth through
prejudice, and others through carelessness. It is only to be understood,
and, indeed, there are great difficulties in the way of understanding it
at all, by a perusal of the rolls of parliament, with some assistance
from the contemporary historians, Walsingham, Knyghton, the anonymous
biographer published by Hearne, and Froissart. These, I must remark,
except occasionally the last, are extremely hostile to Richard; and
although we are far from being bound to acquiesce in their opinions, it
is at least unwarrantable in modern writers to sprinkle their margins
with references to such authority in support of positions decidedly
opposite.[178]

[Sidenote: Circumstances attending Henry IV.'s accession.]

The revolution which elevated Henry IV. to the throne was certainly so
far accomplished by force, that the king was in captivity, and those who
might still adhere to him in no condition to support his authority. But
the sincere concurrence which most of the prelates and nobility, with
the mass of the people, gave to changes that could not have been
otherwise effected by one so unprovided with foreign support as Henry,
proves this revolution to have been, if not an indispensable, yet a
national act, and should prevent our considering the Lancastrian kings
as usurpers of the throne. Nothing indeed looks so much like usurpation
in the whole transaction as Henry's remarkable challenge of the crown,
insinuating, though not avowing, as Hume has justly animadverted upon
it, a false and ridiculous title by right line of descent, and one
equally unwarrantable by conquest. The course of proceedings is worthy
of notice. As the renunciation of Richard might well pass for the effect
of compulsion, there was a strong reason for propping up its instability
by a solemn deposition from the throne, founded upon specific charges of
misgovernment. Again, as the right of dethroning a monarch was nowhere
found in the law, it was equally requisite to support this assumption of
power by an actual abdication. But as neither one nor the other filled
up the duke of Lancaster's wishes, who was not contented with owing a
crown to election, nor seemed altogether to account for the exclusion of
the house of March, he devised this claim, which was preferred in the
vacancy of the throne, Richard's cession, having been read and approved
in parliament, and the sentence of deposition, "out of abundant caution,
and to remove all scruple," solemnly passed by seven commissioners
appointed out of the several estates. "After which challenge and claim,"
says the record, "the lords spiritual and temporal, and all the estates
there present, being asked, separately and together, what they thought
of the said challenge and claim, the said estates, with the whole
people, without any difficulty or delay, consented that the said duke
should reign over them."[179] The claim of Henry, as opposed to that of
the earl of March, was indeed ridiculous; but it is by no means evident
that, in such cases of extreme urgency as leave no security for the
common weal but the deposition of a reigning prince, there rests any
positive obligation upon the estates of the realm to fill his place with
the nearest heir. A revolution of this kind seems rather to defeat and
confound all prior titles; though in the new settlement it will commonly
be prudent, as well as equitable, to treat them with some regard. Were
this otherwise it would be hard to say why William III. reigned to the
exclusion of Anne, or even of the Pretender, who had surely committed no
offence at that time; or why (if such indeed be the true construction of
the Act of Settlement) the more distant branches of the royal stock,
descendants of Henry VII. and earlier kings, have been cut off from
their hope of succession by the restriction to the heirs of the princess
Sophia.

In this revolution of 1399 there was as remarkable an attention shown to
the formalities of the constitution, allowance made for the men and the
times, as in that of 1688. The parliament was not opened by commission;
no one took the office of president; the commons did not adjourn to
their own chamber; they chose no speaker; the name of parliament was not
taken, but that only of estates of the realm. But as it would have been
a violation of constitutional principles to assume a parliamentary
character without the king's commission, though summoned by his writ, so
it was still more essential to limit their exercise of power to the
necessity of circumstances. Upon the cession of the king, as upon his
death, the parliament was no more; its existence, as the council of the
sovereign, being dependent upon his will. The actual convention summoned
by the writs of Richard could not legally become the parliament of
Henry; and the validity of a statute declaring it to be such would
probably have been questionable in that age, when the power of statutes
to alter the original principles of the common law was by no means so
thoroughly recognised as at the Restoration and Revolution. Yet Henry
was too well pleased with his friends to part with them so readily; and
he had much to effect before the fervour of their spirits should abate.
Hence an expedient was devised of issuing writs for a new parliament,
returnable in six days. These neither were nor could be complied with;
but the same members as had deposed Richard sat in the new parliament,
which was regularly opened by Henry's commissioner as if they had been
duly elected.[180] In this contrivance, more than in all the rest, we
may trace the hand of lawyers.

[Sidenote: Retrospect of the progress of the constitution under Richard
II.]

[Sidenote: Its advances under the house of Lancaster.]

If we look back from the accession of Henry IV. to that of his
predecessor, the constitutional authority of the house of commons will
be perceived to have made surprising progress during the course of
twenty-two years. Of the three capital points in contest while Edward
reigned, that money could not be levied, or laws enacted, without the
commons' consent, and that the administration of government was subject
to their inspection and control, the first was absolutely decided in
their favour, the second was at least perfectly admitted in principle,
and the last was confirmed by frequent exercise. The commons had
acquired two additional engines of immense efficiency; one, the right of
directing the application of subsidies, and calling accountants before
them; the other, that of impeaching the king's ministers for misconduct.
All these vigorous shoots of liberty throve more and more under the
three kings of the house of Lancaster, and drew such strength and
nourishment from the generous heart of England, that in after-times, and
in a less prosperous season, though checked and obstructed in their
growth, neither the blasts of arbitrary power could break them off, nor
the mildew of servile opinion cause them to wither. I shall trace the
progress of parliament till the civil wars of York and Lancaster: 1. in
maintaining the exclusive right of taxation; 2. in directing and
checking the public expenditure; 3. in making supplies depend on the
redress of grievances; 4. in securing the people against illegal
ordinances and interpolations of the statutes; 5. in controlling the
royal administration; 6. in punishing bad ministers; and lastly, in
establishing their own immunities and privileges.

1. The pretence of levying money without consent of parliament expired
with Edward III., who had asserted it, as we have seen, in the very last
year of his reign. A great council of lords and prelates, summoned in
the second year of his successor, declared that they could advise no
remedy for the king's necessities without laying taxes on the people,
which could only be granted in parliament.[181] Nor was Richard ever
accused of illegal tallages, the frequent theme of remonstrance under
Edward, unless we may conjecture that this charge is implied in an act
(11 R. II. c. 9) which annuls all impositions on wool and leather,
without consent of parliament, _if any there be_.[182] Doubtless his
innocence in this respect was the effect of weakness; and if the
revolution of 1399 had not put an end to his newly acquired despotism,
this, like every other right of his people, would have been swept away.
A less palpable means of evading the consent of the commons was by the
extortion of loans, and harassing those who refused to pay by summonses
before the council. These loans, the frequent resource of arbitrary
sovereigns in later times, are first complained of in an early
parliament of Richard II.: and a petition is granted that no man shall
be compelled to lend the king money.[183] But how little this was
regarded we may infer from a writ directed, in 1386, to some persons in
Boston, enjoining them to assess every person who had goods and chattels
to the amount of twenty pounds, in his proportion of two hundred pounds,
which the town had promised to lend the king; and giving an assurance
that this shall be deducted from the next subsidy to be granted by
parliament. Among other extraordinary parts of this letter is a menace
of forfeiting life, limbs, and property, held out against such as should
not obey these commissioners.[184] After his triumph over the popular
party towards the end of his reign, he obtained large sums in this way.

Under the Lancastrian kings there is much less appearance of raising
money in an unparliamentary course. Henry IV. obtained an aid from a
great council in the year 1400; but they did not pretend to charge any
besides themselves; though it seems that some towns afterwards gave the
king a contribution.[185] A few years afterwards he directs the sheriffs
to call on the richest men in their counties to advance the money voted
by parliament. This, if any compulsion was threatened, is an instance of
overstrained prerogative, though consonant to the practice of the late
reign.[186] There is, however, an instance of very arbitrary conduct
with respect to a grant of money in the minority of Henry VI. A subsidy
had been granted by parliament upon goods imported under certain
restrictions in favour of the merchants, with a provision that, if these
conditions be not observed on the king's part, then the grant should be
void and of no effect.[187] But an entry is made on the roll of the next
parliament, that, "whereas some disputes have arisen about the grant of
the last subsidy, it is declared by the duke of Bedford and other lords
in parliament, with advice of the judges and others learned in the law,
that the said subsidy was at all events to be collected and levied for
the king's use; notwithstanding any conditions in the grant of the said
subsidy contained."[188] The commons, however, in making the grant of a
fresh subsidy in this parliament, renewed their former conditions, with
the addition of another, that "it ne no part thereof be beset ne
dispensed to no other use, but only in and for the defense of the said
roialme."[189]

[Sidenote: Appropriation of supplies.]

2. The right of granting supplies would have been very incomplete, had
it not been accompanied with that of directing their application. The
principle of appropriating public moneys began, as we have seen, in the
minority of Richard; and was among the best fruits of that period. It
was steadily maintained under the new dynasty. The parliament of 6 H.
IV. granted two fifteenths and two tenths, with a tax on skins and wool,
on condition that it should be expended in the defence of the kingdom,
and not otherwise, as Thomas lord Furnival and Sir John Pelham, ordained
treasurers of war for this parliament, to receive the said subsidies,
shall account and answer to the commons at the next parliament. These
treasurers were sworn in parliament to execute their trusts.[190] A
similar precaution was adopted in the next session.[191]

[Sidenote: Attempt to make supply depend on redress of grievances.]

3. The commons made a bold attempt in the second year of Henry IV. to
give the strongest security to their claims of redress, by inverting the
usual course of parliamentary proceedings. It was usual to answer their
petitions on the last day of the session, which put an end to all
further discussion upon them, and prevented their making the redress of
grievances a necessary condition of supply. They now requested that an
answer might be given before they made their grant of subsidy. This was
one of the articles which Richard II.'s judges had declared it high
treason to attempt. Henry was not inclined to make a concession which
would virtually have removed the chief impediment to the ascendency of
parliament. He first said that he would consult with the lords, and
answer according to their advice. On the last day of the session the
commons were informed that "it had never been known in the time of his
ancestors that they should have their petitions answered before they had
done all their business in parliament, whether of granting money or any
other concern; wherefore the king will not alter the good customs and
usages of ancient times."[192]

Notwithstanding the just views these parliaments appear generally to
have entertained of their power over the public purse, that of the third
of Henry V. followed a precedent from the worst times of Richard II., by
granting the king a subsidy on wool and leather during his life.[193]
This, an historian tells us, Henry IV. had vainly laboured to
obtain;[194] but the taking of Harfleur intoxicated the English with new
dreams of conquest in France, which their good sense and constitutional
jealousy were not firm enough to resist. The continued expenses of the
war, however, prevented this grant from becoming so dangerous as it
might have been in a season of tranquillity. Henry V., like his father,
convoked parliament almost in every year of his reign.

[Sidenote: Legislative rights of the commons established.]

4. It had long been out of all question that the legislature consisted
of the king, lords, and commons; or, in stricter language, that the king
could not make or repeal statutes without the consent of parliament. But
this fundamental maxim was still frequently defeated by various acts of
evasion or violence; which, though protested against as illegal, it was
a difficult task to prevent. The king sometimes exerted a power of
suspending the observance of statutes, as in the ninth of Richard II.,
when a petition that all statutes might be confirmed is granted, with
an exception as to one passed in the last parliament, forbidding the
judges to take fees, or give counsel in cases where the king was a
party; which, "because it was too severe and needs declaration, the king
would have of no effect till it should be declared in parliament."[195]
The apprehension of the dispensing prerogative and sense of its
illegality are manifested by the wary terms wherein the commons, in one
of Richard's parliaments, "assent that the king make such sufferance
respecting the statute of provisors as shall seem reasonable to him, so
that the said statute be not repealed; and, moreover, that the commons
may disagree thereto at the next parliament, and resort to the statute;"
with a protestation that this assent, which is a novelty and never done
before, shall not be drawn into precedent; praying the king that this
protestation may be entered on the roll of parliament.[196] A petition,
in one of Henry IV.'s parliaments, to limit the number of attorneys, and
forbid filazers and prothonotaries from practising, having been answered
favourably as to the first point, we find a marginal entry in the roll
that the prince and council had respited the execution of this act.[197]

[Sidenote: Dispensing power of the crown.]

The dispensing power, as exercised in favour of individuals, is quite of
a different character from this general suspension of statutes, but
indirectly weakens the sovereignty of the legislature. This power was
exerted, and even recognised, throughout all the reigns of the
Plantagenets. In the first of Henry V. the commons pray that the statute
for driving aliens out of the kingdom be executed. The king assents,
saving his prerogative and his right of dispensing with it when he
pleased. To which the commons replied that their intention was never
otherwise, nor, by God's help, ever should be. At the same time one Rees
ap Thomas petitions the king to modify or dispense with the statute
prohibiting Welchmen from purchasing lands in England, or the English
towns in Wales; which the king grants. In the same parliament the
commons pray that no grant or protection be made to any one in
contravention of the statute of provisors, saving the king's
prerogative. He merely answers, "Let the statutes be observed:" evading
any allusion to his dispensing power.[198]

It has been observed, under the reign of Edward III., that the practice
of leaving statutes to be drawn up by the judges, from the petition and
answer jointly, after a dissolution of parliament, presented an
opportunity of falsifying the intention of the legislature, whereof
advantage was often taken. Some very remarkable instances of this fraud
occurred in the succeeding reigns.

An ordinance was put upon the roll of parliament, in the fifth of
Richard II., empowering sheriffs of counties to arrest preachers of
heresy and their abettors, and detain them in prison till they should
justify themselves before the church. This was introduced into the
statutes of the year; but the assent of lords and commons is not
expressed. In the next parliament the commons, reciting this ordinance,
declare that it was never assented to or granted by them, but what had
been proposed in this matter was without their concurrence (that is, as
I conceive, had been rejected by them), and pray that this statute be
annulled; for it was never their intent to bind themselves or their
descendants to the bishops more than their ancestors had been bound in
times past. The king returned an answer, agreeing to this petition.
Nevertheless the pretended statute was untouched, and remains still
among our laws;[199] unrepealed, except by desuetude, and by inference
from the acts of much later times.

This commendable reluctance of the commons to let the clergy forge
chains for them produced, as there is much appearance, a similar
violation of their legislative rights in the next reign. The statute
against heresy in the second of Henry IV. is not grounded upon any
petition of the commons, but only upon one of the clergy. It is said to
be enacted by consent of the lords, but no notice is taken of the lower
house in the parliament roll, though the statute reciting the petition
asserts the commons to have joined in it.[200] The petition and the
statute are both in Latin, which is unusual in the laws of this time. In
a subsequent petition of the commons this act is styled "the statute
made in the second year of your majesty's reign at the request of the
prelates and clergy of your kingdom;" which affords a presumption that
it had no regular assent of parliament.[201] And the spirit of the
commons during this whole reign being remarkably hostile to the church,
it would have been hardly possible to obtain their consent to so penal a
law against heresy. Several of their petitions seem designed indirectly
to weaken its efficacy.[202]

These infringements of their most essential right were resisted by the
commons in various ways, according to the measure of their power. In the
fifth of Richard II. they request the lords to let them see a certain
ordinance before it is engrossed.[203] At another time they procured
some of their own members, as well as peers, to be present at engrossing
the roll. At length they spoke out unequivocally in a memorable
petition, which, besides its intrinsic importance, is deserving of
notice as the earliest instance in which the house of commons adopted
the English language. I shall present its venerable orthography without
change.

"Oure soverain lord, youre humble and trewe lieges that ben come for the
comune of youre lond bysechyn onto youre rizt riztwesnesse, That so as
hit hath ever be thair libte and fredom, that thar sholde no statut no
lawe be made offlasse than they yaf therto their assent; consideringe
that the comune of youre lond, the whiche that is, and ever hath be, a
membre of youre parlemente, ben as well assenters as petitioners, that
fro this tyme foreward, by compleynte of the comune of any myschief
axknyge remedie by mouthe of their speker for the comune, other ellys by
petition writen, that ther never be no lawe made theruppon, and
engrossed as statut and lawe, nother by addicions, nother by
diminucions, by no manner of terme ne termes, the whiche that sholde
chaunge the sentence, and the entente axked by the speker mouthe, or the
petitions beforesaid yeven up yn writyng by the manere forsaid, withoute
assent of the forsaid comune. Consideringe, oure soverain lord, that it
is not in no wyse the entente of youre comunes, zif yet be so that they
axke you by spekyng, or by writyng, two thynges or three, or as manye as
theym lust: But that ever it stande in the fredom of youre hie regalie,
to graunte whiche of thoo that you lust, and to werune the remanent.

"The kyng of his grace especial graunteth that fro hensforth nothyng be
enacted to the peticions of his comune that be contrarie of hir askyng,
wharby they shuld be bounde withoute their assent. Savyng alwey to our
liege lord his real prerogatif, to graunte and denye what him lust of
their petitions and askynges aforesaid."[204]

Notwithstanding the fulness of this assent to so important a petition we
find no vestige of either among the statutes, and the whole transaction
is unnoticed by those historians who have not looked into our original
records. If the compilers of the statute-roll were able to keep out of
it the very provision that was intended to check their fraudulent
machinations, it was in vain to hope for redress without altering the
established practice in this respect; and indeed, where there was no
design to falsify the roll it was impossible to draw up statutes which
should be in truth the acts of the whole legislature, so long as the
king continued to grant petitions in part, and to engraft new matter
upon them. Such was still the case till the commons hit upon an
effectual expedient for screening themselves against these
encroachments, which has lasted without alteration to the present day.
This was the introduction of complete statutes under the name of bills,
instead of the old petitions; and these containing the royal assent and
the whole form of a law, it became, though not quite immediately,[205] a
constant principle that the king must admit or reject them without
qualification. This alteration, which wrought an extraordinary effect on
the character of our constitution, was gradually introduced in Henry
VI.'s reign.[206]

From the first years of Henry V., though not, I think, earlier, the
commons began to concern themselves with the petitions of individuals to
the lords or council. The nature of the jurisdiction exercised by the
latter will be treated more fully hereafter; it is only necessary to
mention in this place that many of the requests preferred to them were
such as could not be granted without transcending the boundaries of law.
A just inquietude as to the encroachments of the king's council had long
been manifested by the commons; and finding remonstrances ineffectual,
they took measures for preventing such usurpations of legislative power
by introducing their own consent to private petitions. These were now
presented by the hands of the commons, and in very many instances
passed in the form of statutes with the express assent of all parts of
the legislature. Such was the origin of private bills, which occupy the
greater part of the rolls in Henry V. and VI.'s parliament. The commons
once made an ineffectual endeavour to have their consent to all
petitions presented to the council in parliament rendered necessary by
law; if I rightly apprehend the meaning of the roll in this place, which
seems obscure or corrupt.[207]

[Sidenote: Interference of parliament with the royal expenditure.]

5. If the strength of the commons had lain merely in the weakness of the
crown, it might be inferred that such harassing interference with the
administration of affairs as the youthful and frivolous Richard was
compelled to endure would have been sternly repelled by his experienced
successor. But, on the contrary, the spirit of Richard might have
rejoiced to see that his mortal enemy suffered as hard usage at the
hands of parliament as himself. After a few years the government of
Henry became extremely unpopular. Perhaps his dissension with the great
family of Percy, which had placed him on the throne, and was regarded
with partiality by the people,[208] chiefly contributed to this
alienation of their attachment. The commons requested, in the fifth of
his reign, that certain persons might be removed from the court; the
lords concurred in displacing four of these, one being the king's
confessor. Henry came down to parliament and excused these four persons,
as knowing no special cause why they should be removed; yet, well
understanding that what the lords and commons should ordain would be for
his and his kingdom's interest, and therefore anxious to conform himself
to their wishes, consented to the said ordinance, and charged the
persons in question to leave his palace; adding, that he would do as
much by any other about his person whom he should find to have incurred
the ill affection of his people.[209] It was in the same session that
the archbishop of Canterbury was commanded to declare before the lords
the king's intention respecting his administration; allowing that some
things had been done amiss in his court and household; and therefore,
wishing to conform to the will of God and laws of the land, protested
that he would let in future no letters of signet or privy seal go in
disturbance of law, beseeched the lords to put his household in order,
so that every one might be paid, and declared that the money granted by
the commons for the war should be received by treasurers appointed in
parliament, and disbursed by them for no other purpose, unless in case
of rebellion. At the request of the commons he named the members of his
privy council; and did the same, with some variation of persons, two
years afterwards. These, though not nominated with the express consent,
seem to have had the approbation of the commons, for a subsidy is
granted in 7 H. IV., among other causes, for "the great trust that the
commons have in the lords lately chosen and ordained to be of the king's
continual council, that there shall be better management than
heretofore."[210]

In the sixth year of Henry the parliament, which Sir E. Coke derides as
unlearned because lawyers were excluded from it, proceeded to a
resumption of grants and a prohibition of alienating the ancient
inheritance of the crown without consent of parliament, in order to ease
the commons of taxes, and that the king might live on his own.[211] This
was a favourite though rather chimerical project. In a later parliament
it was requested that the king would take his council's advice how to
keep within his own revenue; he answered that he would willingly comply
as soon as it should be in his power.[212]

But no parliament came near, in the number and boldness of its demands,
to that held in the eighth year of Henry IV. The commons presented
thirty-one articles, none of which the king ventured to refuse, though
pressing very severely upon his prerogative. He was to name sixteen
counsellors, by whose advice he was solely to be guided, none of them to
be dismissed without conviction of misdemeanor. The chancellor and privy
seal to pass no grants or other matter contrary to law. Any persons
about the court stirring up the king or queen's minds against their
subjects, and duly convicted thereof, to lose their offices and be
fined. The king's ordinary revenue was wholly appropriated to his
household and the payment of his debts; no grant of wardship or other
profit to be made thereout, nor any forfeiture to be pardoned. The king,
"considering the wise government of other Christian princes, and
conforming himself thereto," was to assign two days in the week for
petitions, "it being an honourable and necessary thing that his lieges,
who desired to petition him, should be heard." No judicial officer, nor
any in the revenue or household, to enjoy his place for life or term of
years. No petition to be presented to the king, by any of his household,
at times when the council were not sitting. The council to determine
nothing cognizable at common law, unless for a reasonable cause and with
consent of the judges. The statutes regulating purveyance were
affirmed--abuses of various kinds in the council and in courts of
justice enumerated and forbidden--elections of knights for counties put
under regulation. The council and officers of state were sworn to
observe the common law and all statutes, those especially just
enacted.[213]

It must strike every reader that these provisions were of themselves a
noble fabric of constitutional liberty, and hardly perhaps inferior to
the petition of right under Charles I. We cannot account for the
submission of Henry to conditions far more derogatory than ever were
imposed on Richard, because the secret politics of his reign are very
imperfectly understood. Towards its close he manifested more vigour. The
speaker, Sir Thomas Chaucer, having made the usual petition for liberty
of speech, the king answered that he might speak as others had done in
the time of his (Henry's) ancestors, and his own, but not otherwise; for
he would by no means have any innovation, but be as much at his liberty
as any of his ancestors had ever been. Some time after he sent a message
to the commons, complaining of a law passed at the last parliament
infringing his liberty and prerogative, which he requested their consent
to repeal. To this the commons agreed, and received the king's thanks,
who declared at the same time that he would keep as much freedom and
prerogative as any of his ancestors. It does not appear what was the
particular subject of complaint; but there had been much of the same
remonstrating spirit in the last parliament that was manifested on
preceding occasions. The commons, however, for reasons we cannot
explain, were rather dismayed. Before their dissolution, they petition
the king, that, whereas he was reported to be offended at some of his
subjects in this and in the preceding parliament, he would openly
declare that he held them all for loyal subjects. Henry granted this "of
his special grace;" and thus concluded his reign more triumphantly with
respect to his domestic battles than he had gone through it.[214]

[Sidenote: Henry V. His popularity.]

Power deemed to be ill gotten is naturally precarious; and the instance
of Henry IV. has been well quoted to prove that public liberty
flourishes with a bad title in the sovereign. None of our kings seem to
have been less beloved; and indeed he had little claim to affection. But
what men denied to the reigning king they poured in full measure upon
the heir of his throne. The virtues of the prince of Wales are almost
invidiously eulogized by those parliaments who treat harshly his
father;[215] and these records afford a strong presumption that some
early petulance or riot has been much exaggerated by the vulgar minds of
our chroniclers. One can scarcely understand at least that a prince who
was three years engaged in quelling the dangerous insurrection of
Glendower, and who in the latter time of his father's reign presided at
the council, was so lost in a cloud of low debauchery as common fame
represents.[216] Loved he certainly was throughout his life, as so
intrepid, affable, and generous a temper well deserved; and this
sentiment was heightened to admiration by successes still more rapid and
dazzling than those of Edward III. During his reign there scarcely
appears any vestige of dissatisfaction in parliament--a circumstance
very honourable, whether we ascribe it to the justice of his
administration or to the affection of his people. Perhaps two
exceptions, though they are rather one in spirit, might be made: the
first, a petition to the duke of Gloucester, then holding parliament as
guardian of England, that he would move the king and queen to return,
as speedily as might please them, in relief and comfort of the
commons;[217] the second, a request that their petitions might not be
sent to the king beyond sea, but altogether determined "within this
kingdom of England, during this parliament," and that this ordinance
might be of force in all future parliaments to be held in England.[218]
This prayer, to which the guardian declined to accede, evidently sprang
from the apprehensions, excited in their minds by the treaty of Troyes,
that England might become a province of the French crown, which led them
to obtain a renewal of the statute of Edward III., declaring the
independence of this kingdom.[219]

[Sidenote: Parliament consulted on all public affairs.]

It has been seen already that even Edward III. consulted his parliament
upon the expediency of negociations for peace, though at that time the
commons had not acquired boldness enough to tender their advice. In
Richard II.'s reign they answered to a similar proposition with a little
more confidence, that the dangers each way were so considerable they
dared not decide, though an honourable peace would be the greatest
comfort they could have, and concluded by hoping that the king would not
engage to do homage for Calais or the conquered country.[220] The
parliament of the tenth of his reign was expressly summoned in order to
advise concerning the king's intended expedition beyond sea--a great
council, which had previously been assembled at Oxford, having declared
their incompetence to consent to this measure without the advice of
parliament.[221] Yet a few years afterwards, on a similar reference, the
commons rather declined to give any opinion.[222] They confirmed the
league of Henry V. with the emperor Sigismund;[223] and the treaty of
Troyes, which was so fundamentally to change the situation of Henry and
his successors, obtained, as it evidently required, the sanction of both
houses of parliament.[224] These precedents conspiring with the weakness
of the executive government, in the minority of Henry VI., to fling an
increase of influence into the scale of the commons, they made their
concurrence necessary to all important business both of a foreign and
domestic nature. Thus commissioners were appointed to treat of the
deliverance of the king of Scots, the duchesses of Bedford and
Gloucester were made denizens, and mediators were appointed to reconcile
the dukes of Gloucester and Burgundy, by authority of the three estates
assembled in parliament.[225] Leave was given to the dukes of Bedford
and Gloucester, and others in the king's behalf, to treat of peace with
France, by both houses of parliament, in pursuance of an article in the
treaty of Troyes, that no treaty should be set on foot with the dauphin
without consent of the three estates of both realms.[226] This article
was afterwards repealed.[227]

Some complaints are made by the commons, even during the first years of
Henry's minority, that the king's subjects underwent arbitrary
imprisonment, and were vexed by summonses before the council and by the
newly-invented writ of subpoena out of chancery.[228] But these are
not so common as formerly; and so far as the rolls lead us to any
inference, there was less injustice committed by the government under
Henry VI. and his father than at any former period. Wastefulness indeed
might justly be imputed to the regency, who had scandalously lavished
the king's revenue.[229] This ultimately led to an act for resuming all
grants since his accession, founded upon a public declaration of the
great officers of the crown that his debts amounted to 372,000_l._, and
the annual expense of the household to 24,000_l._, while the ordinary
revenue was not more than 5000_l._[230]

[Sidenote: Impeachments of ministers.]

6. But before this time the sky had begun to darken, and discontent with
the actual administration pervaded every rank. The causes of this are
familiar--the unpopularity of the king's marriage with Margaret of
Anjou, and her impolitic violence in the conduct of affairs,
particularly the imputed murder of the people's favourite, the duke of
Gloucester. This provoked an attack upon her own creature, the duke of
Suffolk. Impeachment had lain still, like a sword in the scabbard, since
the accession of Henry IV., when the commons, though not preferring
formal articles of accusation, had petitioned the king that Justice
Rickhill, who had been employed to take the former duke of Gloucester's
confession at Calais, and the lords appellants of Richard II.'s last
parliament, should be put on their defence before the lords.[231] In
Suffolk's case the commons seem to have proceeded by bill of attainder,
or at least to have designed the judgment against that minister to be
the act of the whole legislature; for they delivered a bill containing
articles against him to the lords, with a request that they would pray
the king's majesty to enact that bill in parliament, and that the said
duke might be proceeded against upon the said articles in parliament
according to the law and custom of England. These articles contained
charges of high treason, chiefly relating to his conduct in France,
which, whether treasonable or not, seems to have been grossly against
the honour and advantage of the crown. At a later day the commons
presented many other articles of misdemeanor. To the former he made a
defence, in presence of the king as well as the lords both spiritual and
temporal; and indeed the articles of impeachment were directly addressed
to the king, which gave him a reasonable pretext to interfere in the
judgment. But from apprehension, as it is said, that Suffolk could not
escape conviction upon at least some part of these charges, Henry
anticipated with no slight irregularity the course of legal trial, and,
summoning the peers into a private chamber, informed the duke of
Suffolk, by mouth of his chancellor, that, inasmuch as he had not put
himself upon his peerage, but submitted wholly to the royal pleasure,
the king, acquitting him of the first articles containing matter of
treason, by his own advice and not that of the lords, nor by way of
judgment, not being in a place where judgment could be delivered,
banished him for five years from his dominions. The lords then present
besought the king to let their protest appear on record, that neither
they nor their posterity might lose their rights of peerage by this
precedent. It was justly considered as an arbitrary stretch of
prerogative, in order to defeat the privileges of parliament and screen
a favourite minister from punishment. But the course of proceeding by
bill of attainder, instead of regular impeachment, was not judiciously
chosen by the commons.[232]

[Sidenote: Privilege of parliament.]

7. Privilege of parliament, an extensive and singular branch of our
constitutional law, begins to attract attention under the Lancastrian
princes. It is true indeed that we can trace long before by records, and
may infer with probability as to times whose records have not survived,
one considerable immunity--a freedom from arrest for persons transacting
the king's business in his national council.[233] Several authorities
may be found in Mr. Hatsell's Precedents; of which one, in the 9th of
Edward II., is conclusive.[234] But in those rude times members of
parliament were not always respected by the officers executing legal
process, and still less by the violators of law. After several
remonstrances, which the crown had evaded,[235] the commons obtained the
statute 11 Henry VI. c. 11, for the punishment of such as assault any on
their way to the parliament, giving double damages to the party.[236]
They had more difficulty in establishing, notwithstanding the old
precedents in their favour, an immunity from all criminal process except
in charges of treason, felony, and breach of the peace, which is their
present measure of privilege. The truth was, that, with a right pretty
clearly recognised, as is admitted by the judges in Thorp's case, the
house of commons had no regular compulsory process at their command. In
the cases of Lark, servant of a member, in the 8th of Henry VI.,[237]
and of Clerke, himself a burgess, in the 39th of the same king,[238] it
was thought necessary to effect their release from a civil execution by
special acts of parliament. The commons, in a former instance,
endeavoured to make the law general that no members nor their servants
might be taken except for treason, felony, and breach of peace; but the
king put a negative upon this part of their petition.

The most celebrated, however, of these early cases of privilege is that
of Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who
was moreover a baron of the exchequer, had been imprisoned on an
execution at suit of the duke of York. The commons sent some of their
members to complain of a violation of privilege to the king and lords in
parliament, and to demand Thorp's release. It was alleged by the duke of
York's counsel that the trespass done by Thorp was since the beginning
of the parliament, and the judgment thereon given in time of vacation,
and not during the sitting. The lords referred the question to the
judges, who said, after deliberation, that "they ought not to answer to
that question, for it hath not be used aforetyme that the judges should
in any wise determine the privilege of this high court of parliament;
for it is so high and so mighty in his nature that it may make law, and
that that is law it may make no law; and the determination and knowledge
of that privilege belongeth to the lords of the parliament, and not to
the justices." They went on, however, after observing that a general
writ of supersedeas of all processes upon ground of privilege had not
been known, to say that, "if any person that is a member of this high
court of parliament be arrested in such cases as be not for treason, or
felony, or surety of the peace, or for a condemnation had before the
parliament, it is used that all such persons should be released of such
arrests and make an attorney, so that they may have their freedom and
liberty freely to intend upon the parliament."

Notwithstanding this answer of the judges, it was concluded by the lords
that Thorp should remain in prison, without regarding the alleged
privilege; and the commons were directed in the king's name to proceed
"with all goodly haste and speed" to the election of a new speaker. It
is curious to observe that the commons, forgetting their grievances, or
content to drop them, made such haste and speed according to this
command, that they presented a new speaker for approbation the next
day.[239]

This case, as has been strongly said, was begotten by the iniquity of
the times. The state was verging fast towards civil war; and Thorp, who
afterwards distinguished himself for the Lancastrian cause, was an
inveterate enemy of the duke of York. That prince seems to have been
swayed a little from his usual temper in procuring so unwarrantable a
determination. In the reign of Edward IV. the commons claimed privilege
against any civil suit during the time of their session; but they had
recourse, as before, to a particular act of parliament to obtain a writ
of supersedeas in favour of one Atwell, a member, who had been sued. The
present law of privilege seems not to have been fully established, or at
least effectually maintained, before the reign of Henry VIII.[240]

No privilege of the commons can be so fundamental as liberty of speech.
This is claimed at the opening of every parliament by their speaker, and
could never be infringed without shaking the ramparts of the
constitution. Richard II.'s attack upon Haxey has been already mentioned
as a flagrant evidence of his despotic intentions. No other case occurs
until the 33rd year of Henry VI., when Thomas Young, member for Bristol,
complained to the commons, that, "for matters by him showed in the house
accustomed for the commons in the said parliaments, he was therefore
taken, arrested, and rigorously in open wise led to the Tower of London,
and there grievously in great duress long time imprisoned against the
said freedom and liberty;" with much more to the like effect. The
commons transmitted this petition to the lords, and the king "willed
that the lords of his council do and provide for the said suppliant as
in their discretions shall be thought convenient and reasonable." This
imprisonment of Young, however, had happened six years before, in
consequence of a motion made by him that, the king then having no issue,
the duke of York might be declared heir-apparent to the crown. In the
present session, when the duke was protector, he thought it well-timed
to prefer his claim to remuneration.[241]

There is a remarkable precedent in the 9th of Henry IV., and perhaps the
earliest authority for two eminent maxims of parliamentary law--that the
commons possess an exclusive right of originating money bills, and that
the king ought not to take notice of matters pending in parliament. A
quarrel broke out between the two houses upon this ground; and as we
have not before seen the commons venture to clash openly with their
superiors, the circumstance is for this additional reason worthy of
attention. As it has been little noticed, I shall translate the whole
record.

"Friday the second day of December, which was the last day of the
parliament, the commons came before the king and the lords in
parliament, and there, by command of the king, a schedule of indemnity
touching a certain altercation moved between the lords and commons was
read; and on this it was commanded by our said lord the king that the
said schedule should be entered of record in the roll of parliament; of
which schedule the tenor is as follows: Be it remembered, that on Monday
the 21st day of November, the king our sovereign lord being in the
council-chamber in the abbey of Gloucester,[242] the lords spiritual and
temporal for this present parliament assembled being then in his
presence, a debate took place among them about the state of the kingdom,
and its defence to resist the malice of the enemies who on every side
prepare to molest the said kingdom and its faithful subjects, and how no
man can resist this malice, unless, for the safeguard and defence of his
said kingdom, our sovereign lord the king has some notable aid and
subsidy granted to him in his present parliament. And therefore it was
demanded of the said lords by way of question what aid would be
sufficient and requisite in these circumstances? To which question it
was answered by the said lords severally, that, considering the
necessity of the king on one side, and the poverty of his people on the
other, no less aid could be sufficient than one tenth and a half from
cities and towns, and one fifteenth and a half from all other lay
persons; and, besides, to grant a continuance of the subsidy on wool,
woolfells, and leather, and of three shillings on the tun (of wine),
and twelve pence on the pound (of other merchandise), from Michaelmas
next ensuing for two years thenceforth. Whereupon, by command of our
said lord the king, a message was sent to the commons of this parliament
to cause a certain number of their body to come before our said lord the
king and the lords, in order to hear and report to their companions what
they should be commanded by our said lord the king. And upon this the
said commons sent into the presence of our said lord the king and the
said lords twelve of their companions; to whom, by command of our said
lord the king, the said question was declared, with the answer by the
said lords severally given to it. Which answer it was the pleasure of
our said lord the king that they should report to the rest of their
fellows, to the end that they might take the shortest course to comply
with the intention of the said lords. Which report being thus made to
the said commons, they were greatly disturbed at it, saying and
asserting it to be much to the prejudice and derogation of their
liberties. And after that our said lord the king had heard this, not
willing that anything should be done at present, or in time to come,
that might anywise turn against the liberty of the estate for which they
are come to parliament, nor against the liberties of the said lords,
wills and grants and declares, by the advice and consent of the said
lords, as follows: to wit, that it shall be lawful for the lords to
debate together in this present parliament, and in every other for time
to come, in the king's absence, concerning the condition of the kingdom,
and the remedies necessary for it. And in like manner it shall be lawful
for the commons, on their part, to debate together concerning the said
condition and remedies. Provided always that neither the lords on their
part, nor the commons on theirs, do make any report to our said lord the
king of any grant granted by the commons, and agreed to by the lords,
nor of the communications of the said grant, before that the said lords
and commons are of one accord and agreement in this matter, and then in
manner and form accustomed--that is to say, by the mouth of the speaker
of the said commons for the time being--to the end that the said lords
and commons may have what they desire (avoir puissent leur gree) of our
said lord the king. Our said lord the king willing moreover, by the
consent of the said lords, that the communication had in this present
parliament as above be not drawn into precedent in time to come, nor be
turned to the prejudice or derogation of the liberty of the estate for
which the said commons are now come, neither in this present parliament
nor in any other time to come. But wills that himself and all the other
estates should be as free as they were before. Also, the said last day
of parliament, the said speaker prayed our said lord the king, on the
part of the said commons, that he would grant the said commons that they
should depart in as great liberty as other commons had done before. To
which the king answered that this pleased him well, and that at all
times it had been his desire."[243]

Every attentive reader will discover this remarkable passage to
illustrate several points of constitutional law. For hence it may be
perceived--first, that the king was used in those times to be present at
debates of the lords, personally advising with them upon the public
business; which also appears by many other passages on record; and this
practice, I conceive, is not abolished by the king's present
declaration, save as to grants of money, which ought to be of the free
will of parliament, and without that fear or influence which the
presence of so high a person might create: secondly, that it was already
the established law of parliament that the lords should consent to the
commons' grant, and not the commons to the lords'; since it is the
inversion of this order whereof the commons complain, and it is said
expressly that grants are made by the commons, and agreed to by the
lords: thirdly, that the lower house of parliament is not, in proper
language, an estate of the realm, but rather the image and
representative of the commons of England; who, being the third estate,
with the nobility and clergy make up and constitute the people of this
kingdom and liege subjects of the crown.[244]

At the next meeting of parliament, in allusion probably to this
disagreement between the houses, the king told them that the states of
parliament were come together for the common profit of the king and
kingdom, and for unanimity's sake and general consent; and therefore he
was sure the commons would not attempt nor say anything but what should
be fitting and conducive to unanimity; commanding them to meet together
and communicate for the public service.[245]

It was not only in money bills that the originating power was supposed
to reside in the commons. The course of proceedings in parliament, as
has been seen, from the commencement at least of Edward III.'s reign,
was that the commons presented petitions, which the lords, by
themselves, or with the assistance of the council, having duly
considered, the sanction of the king was notified or withheld. This was
so much according to usage, that, on one occasion, when the commons
requested the advice of the other house on a matter before them, it was
answered that the ancient custom and form of parliament had ever been
for the commons to report their own opinion to the king and lords, and
not to the contrary; and the king would have the ancient and laudable
usages of parliament maintained.[246] It is singular that in the terror
of innovation the lords did not discover how materially this usage of
parliament took off from their own legislative influence. The rule,
however, was not observed in succeeding times; bills originated
indiscriminately in either house; and indeed some acts of Henry V.,
which do not appear to be grounded on any petition, may be suspected,
from the manner of their insertion in the rolls of parliament, to have
been proposed on the king's part to the commons.[247] But there is one
manifest instance in the 18th of Henry VI., where the king requested the
commons to give their authority to such regulations[248] as his council
might provide for redressing the abuse of purveyance; to which they
assented.

If we are to choose constitutional precedents from seasons of
tranquillity rather than disturbance, which surely is the only means of
preserving justice or consistency, but little intrinsic authority can be
given to the following declaration of parliamentary law in the 11th of
Richard II.: "In this parliament (the roll says) all the lords as well
spiritual and temporal there present claimed as their liberty and
privilege, that the great matters moved in this parliament, and to be
moved in other parliaments for time to come, touching the peers of the
land, should be treated, adjudged, and debated according to the course
of parliament, and not by the civil law nor the common law of the land,
used in the other lower courts of the kingdom; which claim, liberty, and
privileges, the king graciously allowed and granted them in full
parliament."[249] It should be remembered that this assertion of
paramount privilege was made in very irregular times, when the king was
at the mercy of the duke of Gloucester and his associates, and that it
had a view to the immediate object of justifying their violent
proceedings against the opposite party, and taking away the restraint of
the common law. It stands as a dangerous rock to be avoided, not a
lighthouse to guide us along the channel. The law of parliament, as
determined by regular custom, is incorporated into our constitution; but
not so as to warrant an indefinite, uncontrollable assumption of power
in any case, least of all in judicial procedure, where the form and the
essence of justice are inseparable from each other. And, in fact, this
claim of the lords, whatever gloss Sir E. Coke may put upon it, was
never intended to bear any relation to the privileges of the lower
house. I should not, perhaps, have noticed this passage so strongly if
it had not been made the basis of extravagant assertions as to the
privileges of parliament;[250] the spirit of which exaggerations might
not be ill adapted to the times wherein Sir E. Coke lived, though I
think they produced at several later periods no slight mischief, some
consequences of which we may still have to experience.

[Sidenote: Contested elections how determined.]

The want of all judicial authority, either to issue process or to
examine witnesses, together with the usual shortness of sessions,
deprived the house of commons of what is now considered one of its most
fundamental privileges, the cognizance of disputed elections. Upon a
false return by the sheriff, there was no remedy but through the king or
his council. Six instances only, I believe, occur, during the reigns of
the Plantagenet family, wherein the misconduct or mistake of the sheriff
is recorded to have called for a specific animadversion, though it was
frequently the ground of general complaint, and even of some statutes.
The first is in the 12th of Edward II., when a petition was presented to
the council against a false return for the county of Devon, the
petitioner having been duly elected. It was referred to the court of
exchequer to summon the sheriff before them.[251] The next occurs in the
36th of Edward III., when a writ was directed to the sheriff of
Lancashire, after the dissolution of parliament, to inquire at the
county-court into the validity of the election; and upon his neglect a
second writ issued to the justices of the peace to satisfy themselves
about this in the best manner they could, and report the truth into
chancery. This inquiry after the dissolution was on account of the wages
for attendance, to which the knights unduly returned could have no
pretence.[252] We find a third case in the 7th of Richard II., when the
king took notice that Thomas de Camoys, who was summoned by writ to the
house of peers, had been elected knight for Surrey, and directed the
sheriff to return another.[253] In the same year the town of Shaftesbury
petitioned the king, lords, and commons against a false return of the
sheriff of Dorset, and prayed them to order remedy. Nothing further
appears respecting this petition.[254] This is the first instance of
the commons being noticed in matters of election. But the next case is
more material; in the 5th of Henry IV. the commons prayed the king and
lords in parliament, that, because the writ of summons to parliament was
not sufficiently returned by the sheriff of Rutland, this matter might
be examined in parliament, and in case of default found therein an
exemplary punishment might be inflicted; whereupon the lords sent for
the sheriff and Oneby, the knight returned, as well as for Thorp, who
had been duly elected, and, having examined into the facts of the case,
directed the return to be amended, by the insertion of Thorp's name, and
committed the sheriff to the Fleet till he should pay a fine at the
king's pleasure.[255] The last passage that I can produce is from the
roll of 18 H. VI., where "it is considered by the king, with the advice
and assent of the lords spiritual and temporal," that, whereas no
knights have been returned for Cambridgeshire, the sheriff shall be
directed, by another writ, to hold a court and to proceed to an
election, proclaiming that no person shall come armed, nor any
tumultuous proceeding take place; something of which sort appears to
have obstructed the execution of the first writ. It is to be noticed
that the commons are not so much as named in this entry.[256] But
several provisions were made by statute under the Lancastrian kings,
when seats in parliament became much more an object of competition than
before, to check the partiality of the sheriffs in making undue returns.
One act (11 H. IV. c. 1) gives the justices of assise power to inquire
into this matter, and inflicts a penalty of one hundred pounds on the
sheriff. Another (6 H. VI. c. 4) mitigates the rigour of the former, so
far as to permit the sheriff or the knights returned by him to traverse
the inquests before the justices; that is, to be heard in their own
defence, which, it seems, had not been permitted to them. Another (23 H.
VI. c. 14) gives an additional penalty upon false returns to the party
aggrieved. These statutes conspire with many other testimonies to
manifest the rising importance of the house of commons, and the
eagerness with which gentlemen of landed estates (whatever might be the
case in petty boroughs) sought for a share in the national
representation.

[Sidenote: In whom the right of voting for knights resided.]

Whoever may have been the original voters for county representatives,
the first statute that regulates their election, so far from limiting
the privilege to tenants in capite, appears to place it upon a very
large and democratical foundation. For (as I rather conceive, though not
without much hesitation), not only all freeholders, but all persons
whatever present at the county-court, were declared, or rendered,
capable of voting for the knight of their shire. Such at least seems to
be the inference from the expressions of 7 H. IV. c. 15, "all who are
there present, as well suitors duly summoned for that cause as
others."[257] And this acquires some degree of confirmation from the
later statute, 8 H. VI. c. 7, which, reciting that "elections of knights
of shires have now of late been made by very great, outrageous, and
excessive number of people dwelling within the same counties, of the
which most part was people of small substance and of no value," confines
the elective franchise to freeholders of lands or tenements to the value
of forty shillings.

[Sidenote: Elections of burgesses.]

The representation of towns in parliament was founded upon two
principles--of consent to public burthens, and of advice in public
measures, especially such as related to trade and shipping. Upon both
these accounts it was natural for the kings who first summoned them to
parliament, little foreseeing that such half-emancipated burghers would
ever clip the loftiest plumes of their prerogative, to make these
assemblies numerous, and summon members from every town of consideration
in the kingdom. Thus the writ of 23 E. I. directs the sheriffs to cause
deputies to be elected to a general council from every city, borough,
and trading town. And although the last words are omitted in subsequent
writs, yet their spirit was preserved; many towns having constantly
returned members to parliament by regular summonses, from the sheriffs,
which were no chartered boroughs, nor had apparently any other claim
than their populousness or commerce. These are now called boroughs by
prescription.[258]

Besides these respectable towns, there were some of a less eminent
figure which had writs directed to them as ancient demesnes of the
crown. During times of arbitrary taxation the crown had set tallages
alike upon its chartered boroughs and upon its tenants in demesne. When
parliamentary consent became indispensable, the free tenants in ancient
demesne, or rather such of them as inhabited some particular vills, were
called to parliament among the other representatives of the commons.
They are usually specified distinctly from the other classes of
representatives in grants of subsidies throughout the parliaments of the
first and second Edwards, till, about the beginning of the third's
reign, they were confounded with ordinary burgesses.[259] This is the
foundation of that particular species of elective franchise incident to
what we denominate burgage tenure; which, however, is not confined to
the ancient demesne of the crown.[260]

[Sidenote: Power of the sheriff to omit boroughs.]

The proper constituents therefore of the citizens and burgesses in
parliament appear to have been--1. All chartered boroughs, whether they
derived their privileges from the crown, or from a mesne lord, as
several in Cornwall did from Richard king of the Romans;[261] 2. All
towns which were the ancient or the actual demesne of the crown; 3. All
considerable places, though unincorporated, which could afford to defray
the expenses of their representatives, and had a notable interest in the
public welfare. But no parliament ever perfectly corresponded with this
theory. The writ was addressed in general terms to the sheriff,
requiring him to cause two knights to be elected out of the body of the
county, two citizens from every city, and two burgesses from every
borough. It rested altogether upon him to determine what towns should
exercise this franchise; and it is really incredible, with all the
carelessness and ignorance of those times, what frauds the sheriffs
ventured to commit in executing this trust. Though parliaments met
almost every year, and there could be no mistake in so notorious a fact,
it was the continual practice of sheriffs to omit boroughs that had been
in recent habit of electing members, and to return upon the writ that
there were no more within their county. Thus in the 12th of Edward III.
the sheriff of Wiltshire, after returning two citizens for Salisbury,
and burgesses for two boroughs, concludes with these words:--"There are
no other cities or boroughs within my bailiwick." Yet in fact eight
other towns had sent members to preceding parliaments. So in the 6th of
Edward II. the sheriff of Bucks declared that he had no borough within
his county except Wycomb; though Wendover, Agmondesham, and Marlow had
twice made returns since that king's accession.[262] And from this
cause alone it has happened that many towns called boroughs, and having
a charter and constitution as such, have never returned members to
parliament; some of which are now among the most considerable in
England, as Leeds, Birmingham, and Macclesfield.[263]

It has been suggested, indeed, by Brady,[264] that these returns may not
appear so false and collusive if we suppose the sheriff to mean only
that there were no resident burgesses within these boroughs fit to be
returned, or that the expense of their wages would be too heavy for the
place to support. And no doubt the latter plea, whether implied or not
in the return, was very frequently an inducement to the sheriffs to
spare the smaller boroughs. The wages of knights were four shillings a
day, levied on all freeholders, or at least on all holding by
knight-service, within the county.[265] Those of burgesses were half
that sum;[266] but even this pittance was raised with reluctance and
difficulty from miserable burghers, little solicitous about political
franchises. Poverty, indeed, seems to have been accepted as a legal
excuse. In the 6th of E. II. the sheriff of Northumberland returns to
the writ of summons that all his knights are not sufficient to protect
the county; and in the 1st of E. III. that they were too much ravaged by
their enemies to send any members to parliament.[267] The sheriffs of
Lancashire, after several returns that they had no boroughs within their
county, though Wigan, Liverpool, and Preston were such, alleged at
length that none ought to be called upon on account of their poverty.
This return was constantly made, from 36 E. III. to the reign of Henry
VI.[268]

[Sidenote: Reluctance of boroughs to send members.]

The elective franchise was deemed by the boroughs no privilege or
blessing, but rather, during the chief part of this period, an
intolerable grievance. Where they could not persuade the sheriff to omit
sending his writ to them, they set it at defiance by sending no return.
And this seldom failed to succeed, so that, after one or two refusals to
comply, which brought no punishment upon them, they were left in quiet
enjoyment of their insignificance. The town of Torrington, in
Devonshire, went further, and obtained a charter of exemption from
sending burgesses, grounded upon what the charter asserts to appear on
the rolls of chancery, that it had never been represented before the
21st of E. III. This is absolutely false, and is a proof how little we
can rely upon the veracity of records, Torrington having made not less
than twenty-two returns before that time. It is curious that in spite of
this charter the town sent members to the two ensuing parliaments, and
then ceased for ever.[269] Richard II. gave the inhabitants of
Colchester a dispensation from returning burgesses for five years, in
consideration of the expenses they had incurred in fortifying the
town.[270] But this immunity, from whatever reason, was not regarded,
Colchester having continued to make returns as before.

The partiality of sheriffs in leaving out boroughs, which were
accustomed in old time to come to the parliament, was repressed, as far
as law could repress it, by a statute of Richard II., which imposed a
fine on them for such neglect, and upon any member of parliament who
should absent himself from his duty.[271] But it is, I think, highly
probable that a great part of those who were elected from the boroughs
did not trouble themselves with attendance in parliament. The sheriff
even found it necessary to take sureties for their execution of so
burthensome a duty, whose names it was usual, down to the end of the
fifteenth century, to endorse upon the writ along with those of the
elected.[272] This expedient is not likely to have been very successful;
and the small number, comparatively speaking, of writs for expenses of
members for boroughs, which have been published by Prynne, while those
for the knights of shires are almost complete, leads to a strong
presumption that their attendance was very defective. This statute of
Richard II. produced no sensible effect.

[Sidenote: Who the electors in boroughs were.]

By what persons the election of burgesses was usually made is a question
of great obscurity, which is still occasionally debated before
committees of parliament. It appears to have been the common practice
for a very few of the principal members of the corporation to make the
election in the county-court, and their names, as actual electors, are
generally returned upon the writ by the sheriff.[273] But we cannot
surely be warranted by this to infer that they acted in any other
capacity than as deputies of the whole body, and indeed it is frequently
expressed that they chose such and such persons by the assent of the
community;[274] by which word, in an ancient corporate borough, it seems
natural to understand the freemen participating in its general
franchises, rather than the ruling body, which, in many instances at
present, and always perhaps in the earliest age of corporations, derived
its authority by delegation from the rest. The consent, however, of the
inferior freemen we may easily believe to have been merely nominal; and,
from being nominal, it would in many places come by degrees not to be
required at all; the corporation, specially so denominated, or municipal
government, acquiring by length of usage an exclusive privilege in
election of members of parliament, as they did in local administration.
This, at least, appears to me a more probable hypothesis than that of
Dr. Brady, who limits the original right of election in all corporate
boroughs to the aldermen or other capital burgesses.[275]

[Sidenote: Members of the house of commons.]

The members of the house of commons, from this occasional disuse of
ancient boroughs as well as from the creation of new ones, underwent
some fluctuation during the period subject to our review. Two hundred
citizens and burgesses sat in the parliament held by Edward I. in his
twenty-third year, the earliest epoch of acknowledged representation.
But in the reigns of Edward III. and his three successors about ninety
places, on an average, returned members, so that we may reckon this part
of the commons at one hundred and eighty.[276] These, if regular in
their duties, might appear an over-balance for the seventy-four knights
who sat with them. But the dignity of ancient lineage, territorial
wealth, and military character, in times when the feudal spirit was
hardly extinct and that of chivalry at its height, made these burghers
vail their heads to the landed aristocracy. It is pretty manifest that
the knights, though doubtless with some support from the representatives
of towns, sustained the chief brunt of battle against the crown. The
rule and intention of our old constitution was, that each county, city,
or borough, should elect deputies out of its own body, resident among
themselves, and consequently acquainted with their necessities and
grievances.[277] It would be very interesting to discover at what time,
and by what degrees, the practice of election swerved from this
strictness. But I have not been able to trace many steps of the
transition. The number of practising lawyers who sat in parliament, of
which there are several complaints, seems to afford an inference that it
had begun in the reign of Edward III. Besides several petitions of the
commons that none but knights or reputable squires should be returned
for shires, an ordinance was made in the forty-sixth of his reign that
no lawyer practising in the king's court, nor sheriff during his
shrievalty, be returned knight for a county; because these lawyers put
forward many petitions in the name of the commons which only concerned
their clients.[278] This probably was truly alleged, as we may guess
from the vast number of proposals for changing the course of legal
process which fill the rolls during this reign. It is not to be doubted,
however, that many practising lawyers were men of landed estate in their
respective counties.

An act in the first year of Henry V. directs that none be chosen
knights, citizens, or burgesses, who are not resident within the place
for which they are returned on the day of the date of the writ.[279]
This statute apparently indicates a point of time when the deviation
from the line of law was frequent enough to attract notice, and yet not
so established as to pass for an unavoidable irregularity. It proceeded,
however, from great and general causes, which new laws, in this instance
very fortunately, are utterly incompetent to withstand. There cannot be
a more apposite proof of the inefficacy of human institutions to
struggle against the steady course of events than this unlucky statute
of Henry V., which is almost a solitary instance in the law of England
wherein the principle of desuetude has been avowedly set up against an
unrepealed enactment. I am not aware, at least, of any other, which not
only the house of commons, but the court of king's bench, has deemed
itself at liberty to declare unfit to be observed.[280] Even at the time
when it was enacted, the law had probably, as such, very little effect.
But still the plurality of elections were made according to ancient
usage, as well as statute, out of the constituent body. The contrary
instances were exceptions to the rule; but exceptions increasing
continually, till they subverted the rule itself. Prynne has remarked
that we chiefly find Cornish surnames among the representatives of
Cornwall, and those of northern families among the returns from the
North. Nor do the members for shires and towns seem to have been much
interchanged; the names of the former belonging to the most ancient
families, while those of the latter have a more plebeian cast.[281] In
the reign of Edward IV., and not before, a very few of the burgesses
bear the addition of esquire in the returns, which became universal in
the middle of the succeeding century.[282]

[Sidenote: Irregularity of elections.]

[Sidenote: Influence of the crown upon them.]

Even county elections seem in general, at least in the fourteenth century,
to have been ill-attended and left to the influence of a few powerful and
active persons. A petitioner against an undue return in the 12th of Edward
II. complains that, whereas he had been chosen knight for Devon by Sir
William Martin, bishop of Exeter, with the consent of the county, yet the
sheriff had returned another.[283] In several indentures of a much later
date a few persons only seem to have been concerned in the election,
though the assent of the community be expressed.[284] These
irregularities, which it would be exceedingly erroneous to convert, with
Hume, into lawful customs, resulted from the abuses of the sheriff's
power, which, when parliament sat only for a few weeks with its hands full
of business, were almost sure to escape with impunity. They were sometimes
also countenanced, or rather instigated, by the crown, which, having
recovered in Edward II.'s reign the prerogative of naming the sheriffs,
surrendered by an act of his father,[285] filled that office with its
creatures, and constantly disregarded the statute forbidding their
continuance beyond a year. Without searching for every passage that might
illustrate the interference of the crown in elections, I will mention two
or three leading instances. When Richard II. was meditating to overturn
the famous commission of reform, he sent for some of the sheriffs, and
required them to permit no knight or burgess to be elected to the next
parliament without the approbation of the king and his council. The
sheriffs replied that the commons would maintain their ancient privilege
of electing their own representatives.[286] The parliament of 1397, which
attainted his enemies and left the constitution at his mercy, was chosen,
as we are told, by dint of intimidation and influence.[287] Thus also that
of Henry VI., held at Coventry in 1460, wherein the duke of York and his
party were attainted, is said to have been unduly returned by the like
means. This is rendered probable by a petition presented to it by the
sheriffs, praying indemnity for all which they had done in relation
thereto contrary to law.[288] An act passed according to their prayer, and
in confirmation of elections. A few years before, in 1455, a singular
letter under the king's signet is addressed to the sheriffs, reciting that
"we be enfourmed there is busy labour made in sondry wises by certaine
persons for the chesyng of the said knights, ... of which labour we
marvaille greatly, insomuche as it is nothing to the honour of the
laborers, but ayenst their worship; it is also ayenst the lawes of the
lande," with more to that effect; and enjoining the sheriff to let
elections be free and the peace kept.[289] There was certainly no reason
to wonder that a parliament, which was to shift the virtual sovereignty of
the kingdom into the hands of one whose claims were known to extend much
further, should be the object of tolerably warm contests. Thus in the
Paston letters we find several proofs of the importance attached to
parliamentary elections by the highest nobility.[290]

[Sidenote: Constitution of the house of lords.]

The house of lords, as we left it in the reign of Henry III., was
entirely composed of such persons holding lands by barony as were
summoned by particular writ of parliament.[291] Tenure and summons were
both essential at this time in order to render any one a lord of
parliament--the first by the ancient constitution of our feudal monarchy
from the Conquest, the second by some regulation or usage of doubtful
origin, which was thoroughly established before the conclusion of Henry
III.'s reign. This produced, of course, a very marked difference between
the greater and the lesser or unparliamentary barons. The tenure of the
latter, however, still subsisted, and, though too inconsiderable to be
members of the legislature, they paid relief as barons, they might be
challenged on juries, and, as I presume, by parity of reasoning, were
entitled to trial by their peerage. These lower barons, or more commonly
tenants by parcels of baronies,[292] may be dimly traced to the latter
years of Edward III.[293] But many of them were successively summoned to
parliament, and thus recovered the former lustre of their rank, while
the rest fell gradually into the station of commoners, as tenants by
simple knight-service.

[Sidenote: Baronial tenure required for lords spiritual.]

As tenure without summons did not entitle any one to the privileges of a
lord of parliament, so no spiritual person at least ought to have been
summoned without baronial tenure. The prior of St. James at Northampton,
having been summoned in the twelfth of Edward II., was discharged upon
his petition, because he held nothing of the king by barony, but only in
frankalmoign. The prior of Bridlington, after frequent summonses, was
finally left out, with an entry made in the roll that he held nothing of
the king. The abbot of Leicester had been called to fifty parliaments;
yet, in the 25th of Edward III., he obtained a charter of perpetual
exemption, reciting that he held no lands or tenements of the crown by
barony or any such service as bound him to attend parliaments or
councils.[294] But great irregularities prevailed in the rolls of
chancery, from which the writs to spiritual and temporal peers were
taken--arising in part, perhaps, from negligence, in part from wilful
perversion; so that many abbots and priors, who like these had no
baronial tenure, were summoned at times and subsequently omitted, of
whose actual exemption we have no record. Out of one hundred and
twenty-two abbots and forty-one priors who at some time or other sat in
parliament, but twenty-five of the former and two of the latter were
constantly summoned: the names of forty occur only once, and those of
thirty-six others not, more than five times.[295] Their want of baronial
tenure, in all probability, prevented the repetition of writs which
accident or occasion had caused to issue.[296]

[Sidenote: Barons called by writ.]

The ancient temporal peers are supposed to have been intermingled with
persons who held nothing of the crown by barony, but attended in
parliament solely by virtue of the king's prerogative exercised in the
writ of summons.[297] These have been called barons by writ; and it
seems to be denied by no one that, at least under the first three
Edwards, there were some of this description in parliament. But after
all the labours of Dugdale and others in tracing the genealogies of our
ancient aristocracy, it is a problem of much difficulty to distinguish
these from the territorial barons. As the latter honours descended to
female heirs, they passed into new families and new names, so that we
can hardly decide of one summoned for the first time to parliament that
he did not inherit the possession of a feudal barony. Husbands of
baronial heiresses were frequently summoned in their wives' right, but
by their own names. They even sat after the death of their wives, as
tenants by the courtesy.[298] Again, as lands, though not the subject of
frequent transfer, were, especially before the statute de donis, not
inalienable, we cannot positively assume that all the right heirs of
original barons had preserved those estates upon which their barony had
depended.[299] If we judge, however, by the lists of those summoned,
according to the best means in our power, it will appear, according at
least to one of our most learned investigators of this subject, that the
regular barons by tenure were all along very far more numerous than
those called by writ; and that from the end of Edward III.'s reign no
spiritual persons, and few if any laymen, except peers created by
patent, were summoned to parliament who did not hold territorial
baronies.[300]

With respect to those who were indebted for their seats among the lords
to the king's writ, there are two material questions: whether they
acquired an hereditary nobility by virtue of the writ; and, if this be
determined against them, whether they had a decisive or merely a
deliberative voice in the house. Now, for the first question, it seems
that, if the writ of summons conferred an estate of inheritance, it must
have done so either by virtue of its terms or by established
construction and precedent. But the writ contains no words by which such
an estate can in law be limited; it summons the person addressed to
attend in parliament in order to give his advice on the public business,
but by no means implies that his advice will be required of his heirs,
or even of himself on any other occasion. The strongest expression is
"vobiscum et _cæteris_ prælatis, magnatibus et proceribus," which
appears to place the party on a sort of level with the peers. But the
words magnates and proceres are used very largely in ancient language,
and, down to the time of Edward III., comprehend the king's ordinary
council, as well as his barons. Nor can these, at any rate, be
construed to pass an inheritance, which in the grant of a private
person, much more of a king, would require express words of limitation.
In a single instance, the writ of summons to Sir Henry de Bromflete (27
H. VI.), we find these remarkable words: Volumus enim vos et hæredes
vestros masculos de corpore vestro legitimè exeuntes barones de Vescy
existere. But this Sir Henry de Bromflete was the lineal heir of the
ancient barony de Vesci.[301] And if it were true that the writ of
summons conveyed a barony of itself, there seems no occasion to have
introduced these extraordinary words of creation or revival. Indeed
there is less necessity to urge these arguments from the nature of the
writ, because the modern doctrine, which is entirely opposite to what
has here been suggested, asserts that no one is ennobled by the mere
summons unless he has rendered it operative by taking his seat in
parliament; distinguishing it in this from a patent of peerage, which
requires no act of the party for its completion.[302] But this
distinction could be supported by nothing except long usage. If,
however, we recur to the practice of former times, we shall find that no
less than ninety-eight laymen were summoned once only to parliament,
none of their names occurring afterwards; and fifty others two, three,
or four times. Some were constantly summoned during their lives, none of
whose posterity ever attained that honour.[303] The course of
proceeding, therefore, previous to the accession of Henry VII., by no
means warrants the doctrine which was held in the latter end of
Elizabeth's reign,[304] and has since been too fully established by
repeated precedents to be shaken by any reasoning. The foregoing
observations relate to the more ancient history of our constitution,
and to the plain matter of fact as to those times, without considering
what political cause there might be to prevent the crown from
introducing occasional counsellors into the house of lords.[305]

[Sidenote: Bannerets summoned to house of lords.]

It is manifest by many passages in these records that bannerets were
frequently summoned to the upper house of parliament, constituting a
distinct class inferior to barons, though generally named together, and
ultimately confounded, with them.[306] Barons are distinguished by the
appellation of Sire, bannerets have only that of Monsieur, as le Sire de
Berkeley, le Sire de Fitzwalter, Monsieur Richard Scrop, Monsieur
Richard Stafford. In the 7th of Richard II. Thomas Camoys having been
elected knight of the shire for Surrey, the king addresses a writ to the
sheriff, directing him to proceed to a new election, cum hujusmodi
banneretti ante hæc tempora in milites comitatus ratione alicujus
parliamenti eligi minime consueverunt. Camoys was summoned by writ to
the same parliament. It has been inferred from hence by Selden that he
was a baron, and that the word banneret is merely synonymous.[307] But
this is contradicted by too many passages. Bannerets had so far been
considered as commoners some years before that they could not be
challenged on juries.[308] But they seem to have been more highly
estimated at the date of this writ.

The distinction, however, between barons and bannerets died away by
degrees. In the 2nd of Henry VI.[309] Scrop of Bolton is called le Sire
de Scrop; a proof that he was then reckoned among the barons. The
bannerets do not often appear afterwards by that appellation as members
of the upper house. Bannerets, or, as they are called, banrents, are
enumerated among the orders of Scottish nobility in the year 1428, when
the statute directing the common lairds or tenants in capite to send
representatives was enacted; and a modern historian justly calls them an
intermediate order between the peers and lairds.[310] Perhaps a
consideration of these facts, which have frequently been overlooked, may
tend in some measure to explain the occasional discontinuance, or
sometimes the entire cessation, of writs of summons to an individual or
his descendants; since we may conceive that bannerets, being of a
dignity much inferior to that of barons, had no such inheritable
nobility in their blood as rendered their parliamentary privileges a
matter of right. But whether all those who without any baronial tenure
received their writs of summons to parliament belonged to the order of
bannerets I cannot pretend to affirm; though some passages in the rolls
might rather lead to such a supposition.[311]

The second question relates to the right of suffrage possessed by these
temporary members of the upper house. It might seem plausible certainly
to conceive that the real and ancient aristocracy would not permit their
powers to be impaired by numbering the votes of such as the king might
please to send among them, however they might allow them to assist in
their debates. But I am much more inclined to suppose that they were in
all respects on an equality with other peers during their actual
attendance in parliament. For,--1. They are summoned by the same writ as
the rest, and their names are confused among them in the lists; whereas
the judges and ordinary counsellors are called by a separate writ,
vobiscum et cæteris de consilio nostro, and their names are entered
after those of the peers.[312] 2. Some, who do not appear to have held
land-baronies, were constantly summoned from father to son, and thus
became hereditary lords of parliament through a sort of prescriptive
right, which probably was the foundation of extending the same privilege
afterwards to the descendants of all who had once been summoned. There
is no evidence that the family of Scrope, for example, which was eminent
under Edward III. and subsequent kings, and gave rise to two branches,
the lords of Bolton and Masham, inherited any territorial honour.[313]
3. It is very difficult to obtain any direct proof as to the right of
voting, because the rolls of parliament do not take notice of any
debates; but there happens to exist one remarkable passage in which the
suffrages of the lords are individually specified. In the first
parliament of Henry IV. they were requested by the earl of
Northumberland to declare what should be done with the late king
Richard. The lords then present agreed that he should be detained in
safe custody; and on account of the importance of this matter it seems
to have been thought necessary to enter their names upon the roll in
these words:--The names of the lords concurring in their answer to the
said question here follow; to wit, the archbishop of Canterbury and
fourteen other bishops; seven abbots; the prince of Wales, the duke of
York, and six earls; nineteen barons, styled thus--le Sire de Roos, or
le Sire de Grey de Ruthyn. Thus far the entry has nothing singular; but
then follow these nine names: Monsieur Henry Percy, Monsieur Richard
Scrop, le Sire Fitz-hugh, le Sire de Bergeveny, le Sire de Lomley, le
Baron de Greystock, le Baron de Hilton, Monsieur Thomas Erpyngham,
chamberlayn, Monsieur Mayhewe Gournay. Of these nine five were
undoubtedly barons, from whatever cause misplaced in order. Scrop was
summoned by writ; but his title of Monsieur, by which he is invariably
denominated, would of itself create a strong suspicion that he was no
baron, and in another place we find him reckoned among the bannerets.
The other three do not appear to have been summoned, their writs
probably being lost. One of them, Sir Thomas Erpyngham, a statesman well
known in the history of those times, is said to have been a
banneret;[314] certainly he was not a baron. It is not unlikely that the
two others, Henry Percy (Hotspur) and Gournay, an officer of the
household, were also bannerets; they cannot at least be supposed to be
barons, neither were they ever summoned to any subsequent parliament.
Yet in the only record we possess of votes actually given in the house
of lords they appear to have been reckoned among the rest.[315]

[Sidenote: Creation of peers by statute.]

The next method of conferring an honour of peerage was by creation in
parliament. This was adopted by Edward III. in several instances, though
always, I believe, for the higher titles of duke or earl. It is laid
down by lawyers that whatever the king is said in an ancient record to
have done in full parliament must be taken to have proceeded from the
whole legislature. As a question of fact, indeed, it might be doubted
whether, in many proceedings where this expression is used, and
especially in the creation of peers, the assent of the commons was
specifically and deliberately given. It seems hardly consonant to the
circumstances of their order under Edward III. to suppose their sanction
necessary in what seemed so little to concern their interest. Yet there
is an instance in the fortieth year of that prince where the lords
individually, and the commons with one voice, are declared to have
consented, at the king's request, that the lord de Coucy, who had
married his daughter, and was already possessed of estates in England,
might be raised to the dignity of an earl, whenever the king should
determine what earldom he would confer upon him.[316] Under Richard II.
the marquisate of Dublin is granted to Vere by full consent of all the
estates. But this instrument, besides the unusual name of dignity,
contained an extensive jurisdiction and authority over Ireland.[317] In
the same reign Lancaster was made duke of Guienne, and the duke of
York's son created earl of Rutland, to hold during his father's life.
The consent of the lords and commons is expressed in their patents, and
they are entered upon the roll of parliament.[318] Henry V. created his
brothers dukes of Bedford and Gloucester by request of the lords and
commons.[319] But the patent of Sir John Cornwall, in the tenth of Henry
VI., declares him to be made lord Fanhope, "by consent of the lords, in
the presence of the three estates of parliament;" as if it were designed
to show that the commons had not a legislative voice in the creation of
peers.[320]

[Sidenote: And by patent.]

The mention I have made of creating peers by act of parliament has
partly anticipated the modern form of letters patent, with which the
other was nearly allied. The first instance of a barony conferred by
patent was in the tenth year of Richard II., when Sir John Holt, a judge
of the Common Pleas, was created lord Beauchamp of Kidderminster. Holt's
patent, however, passed while Richard was endeavouring to act in an
arbitrary manner; and in fact he never sat in parliament, having been
attainted in that of the next year by the name of Sir John Holt. In a
number of subsequent patents down to the reign of Henry VII. the assent
of parliament is expressed, though it frequently happens that no mention
of it occurs in the parliamentary roll. And in some instances the roll
speaks to the consent of parliament where the patent itself is
silent.[321]

[Sidenote: Clergy summoned to attend parliament.]

It is now perhaps scarcely known by many persons not unversed in the
constitution of their country, that, besides the bishops and baronial
abbots, the inferior clergy were regularly summoned at every parliament.
In the writ of summons to a bishop he is still directed to cause the
dean of his cathedral church, the archdeacon of his diocese, with one
proctor from the chapter of the former, and two from the body of his
clergy, to attend with him at the place of meeting. This might, by an
inobservant reader, be confounded with the summons to the convocation,
which is composed of the same constituent parts, and, by modern usage,
is made to assemble on the same day. But it may easily be distinguished
by this difference--that the convocation is provincial, and summoned by
the metropolitans of Canterbury and York; whereas the clause commonly
denominated præmunientes (from its first word) in the writ to each
bishop proceeds from the crown, and enjoins the attendance of the clergy
at the national council of parliament.[322]

The first unequivocal instance of representatives appearing for the
lower clergy is in the year 1255, when they are expressly named by the
author of the Annals of Burton.[323] They preceded, therefore, by a few
years the house of commons; but the introduction of each was founded
upon the same principle. The king required the clergy's money, but
dared not take it without their consent.[324] In the double parliament,
if so we may call it, summoned in the eleventh of Edward I. to meet at
Northampton and York, and divided according to the two ecclesiastical
provinces, the proctors of chapters for each province, but not those of
the diocesan clergy, were summoned through a royal writ addressed to the
archbishops. Upon account of the absence of any deputies from the lower
clergy these assemblies refused to grant a subsidy. The proctors of both
descriptions appear to have been summoned by the præmunientes clause in
the 22nd, 23rd, 24th, 28th, and 35th years of the same king; but in some
other parliaments of his reign the præmunientes clause is omitted.[325]
The same irregularity continued under his successor; and the constant
usage of inserting this clause in the bishop's writ is dated from the
twenty-eighth of Edward III.[326]

It is highly probable that Edward I., whose legislative mind was engaged
in modelling the constitution on a comprehensive scheme, designed to
render the clergy an effective branch of parliament, however their
continual resistance may have defeated the accomplishment of this
intention.[327] We find an entry upon the roll of his parliament at
Carlisle, containing a list of all the proctors deputed to it by the
several dioceses of the kingdom. This may be reckoned a clear proof of
their parliamentary attendance during his reign under the præmunientes
clause; since the province of Canterbury could not have been present in
convocation at a city beyond its limits.[328] And indeed, if we were to
found our judgment merely on the language used in these writs, it would
be hard to resist a very strange paradox, that the clergy were not only
one of the three estates of the realm, but as essential a member of the
legislature by their representatives as the commons.[329] They are
summoned in the earliest year extant (23 E. I.) ad tractandum,
ordinandum et faciendum nobiscum, et cum cæteris prælatis, proceribus,
ac aliis incolis regni nostri; in that of the next year, ad ordinandum
de quantitate et modo subsidii; in that of the twenty-eighth, ad
faciendum et consentiendum his, quæ tunc de communi consilio ordinari
contigerit. In later times it ran sometimes ad faciendum et
consentiendum, sometimes only ad consentiendum; which, from the fifth of
Richard II., has been the term invariably adopted.[330] Now, as it is
usual to infer from the same words, when introduced into the writs for
election of the commons, that they possessed an enacting power, implied
in the words ad faciendum, or at least to deduce the necessity of their
assent from the words ad consentiendum, it should seem to follow that
the clergy were invested, as a branch of the parliament, with rights no
less extensive. It is to be considered how we can reconcile these
apparent attributes of political power with the unquestionable facts
that almost all laws, even while they continued to attend, were passed
without their concurrence, and that, after some time, they ceased
altogether to comply with the writ.[331]

The solution of this difficulty can only be found in that estrangement
from the common law and the temporal courts which the clergy throughout
Europe were disposed to effect. In this country their ambition defeated
its own ends; and while they endeavoured by privileges and immunities to
separate themselves from the people, they did not perceive that the line
of demarcation thus strongly traced would cut them off from the sympathy
of common interests. Everything which they could call of ecclesiastical
cognizance was drawn into their own courts; while the administration of
what they contemned as a barbarous system, the temporal law of the
land, fell into the hands of lay judges. But these were men not less
subtle, not less ambitious, not less attached to their profession than
themselves; and wielding, as they did in the courts of Westminster, the
delegated sceptre of judicial sovereignty, they soon began to control
the spiritual jurisdiction, and to establish the inherent supremacy of
the common law. From this time an inveterate animosity subsisted between
the two courts, the vestiges of which have only been effaced by the
liberal wisdom of modern ages. The general love of the common law,
however, with the great weight of its professors in the king's council
and in parliament, kept the clergy in surprising subjection. None of our
kings after Henry III. were bigots; and the constant tone of the commons
serves to show that the English nation was thoroughly averse to
ecclesiastical influence, whether of their own church or the see of
Rome.

It was natural, therefore, to withstand the interference of the clergy
summoned to parliament in legislation, as much as that of the spiritual
court in temporal jurisdiction. With the ordinary subjects, indeed, of
legislation they had little concern. The oppressions of the king's
purveyors, or escheators, or officers of the forests, the abuses or
defects of the common law, the regulations necessary for trading towns
and seaports, were matters that touched them not, and to which their
consent was never required. And, as they well knew there was no design
in summoning their attendance but to obtain money, it was with great
reluctance that they obeyed the royal writ, which was generally obliged
to be enforced by an archiepiscopal mandate.[332] Thus, instead of an
assembly of deputies from an estate of the realm, they became a synod or
convocation. And it seems probable that in most, if not all, instances
where the clergy are said in the roll of parliament to have presented
their petitions, or are otherwise mentioned as a deliberative body, we
should suppose the convocation alone of the province of Canterbury to
be intended.[333] For that of York seems to have been always considered
as inferior, and even ancillary, to the greater province, voting
subsidies, and even assenting to canons, without deliberation, in
compliance with the example of Canterbury;[334] the convocation of which
province consequently assumed the importance of a national council. But
in either point of view the proceedings of this ecclesiastical assembly,
collateral in a certain sense to parliament, yet very intimately
connected with it, whether sitting by virtue of the præmunientes clause
or otherwise, deserve some notice in a constitutional history.

In the sixth year of Edward III. the proctors of the clergy are
specially mentioned as present at the speech pronounced by the king's
commissioner, and retired, along with the prelates, to consult together
upon the business submitted to their deliberation. They proposed
accordingly a sentence of excommunication against disturbers of the
peace, which was assented to by the lords and commons. The clergy are
said afterwards to have had leave, as well as the knights, citizens, and
burgesses, to return to their homes; the prelates and peers continuing
with the king.[335] This appearance of the clergy in full parliament is
not, perhaps, so decisively proved by any later record. But in the
eighteenth of the same reign several petitions of the clergy are granted
by the king and his council, entered on the roll of parliament, and even
the statute roll, and in some respects are still part of our law.[336]
To these it seems highly probable that the commons gave no assent; and
they may be reckoned among the other infringements of their legislative
rights. It is remarkable that in the same parliament the commons, as if
apprehensive of what was in preparation, besought the king that no
petition of the clergy might be granted till he and his council should
have considered whether it would turn to the prejudice of the lords or
commons.[337]

A series of petitions from the clergy, in the twenty-fifth of Edward.
III., had not probably any real assent of the commons, though it is once
mentioned in the enacting words, when they were drawn into a
statute.[338] Indeed the petitions correspond so little with the general
sentiment of hostility towards ecclesiastical privileges manifested by
the lower house of parliament, that they would not easily have obtained
its acquiescence. The convocation of the province of Canterbury
presented several petitions in the fiftieth year of the same king, to
which they received an assenting answer; but they are not found in the
statute-book. This, however, produced the following remonstrance from
the commons at the next parliament: "Also the commons beseech their lord
the king, that no statute nor ordinance be made at the petition of the
clergy, unless by assent of your commons; and that your commons be not
bound by any constitutions which they make for their own profit without
the commons' assent. For they will not be bound by any of your statutes
or ordinances made without their assent."[339] The king evaded a direct
answer to this petition. But the province of Canterbury did not the less
present their own grievances to the king in that parliament, and two
among the statutes of the year seem to be founded upon no other
authority.[340]

In the first session of Richard II. the prelates and clergy of both
provinces are said to have presented their schedule of petitions which
appear upon the roll, and three of which are the foundation of statutes
unassented to in all probability by the commons.[341] If the clergy of
both provinces were actually present, as is here asserted, it must of
course have been as a house of parliament, and not of convocation. It
rather seems, so far as we can trust to the phraseology of records,
that the clergy sat also in a national assembly under the king's writ in
the second year of the same king.[342] Upon other occasions during the
same reign, where the representatives of the clergy are alluded to as a
deliberative body, sitting at the same time with the parliament, it is
impossible to ascertain its constitution; and, indeed, even from those
already cited we cannot draw any positive inference.[343] But whether in
convocation or in parliament, they certainly formed a legislative
council in ecclesiastical matters by the advice and consent of which
alone, without that of the commons (I can say nothing as to the lords),
Edward III. and even Richard II. enacted laws to bind the laity. I have
mentioned in a different place a still more conspicuous instance of this
assumed prerogative; namely, the memorable statute against heresy in the
second of Henry IV.; which can hardly be deemed anything else than an
infringement of the rights of parliament, more clearly established at
that time than at the accession of Richard II. Petitions of the commons
relative to spiritual matters, however frequently proposed, in few or no
instances obtained the king's assent so as to pass into statutes,
unless approved by the convocation.[344] But, on the other hand,
scarcely any temporal laws appear to have passed by the concurrence of
the clergy. Two instances only, so far as I know, are on record: the
parliament held in the eleventh of Richard II. is annulled by that in
the twenty-first of his reign, "with the assent of the lords spiritual
and temporal, _and the proctors of the clergy_, and the commons;"[345]
and the statute entailing the crown on the children of Henry IV. is said
to be enacted on the petition of the prelates, nobles, clergy, and
commons.[346] Both these were stronger exertions of legislative
authority than ordinary acts of parliament, and were very likely to be
questioned in succeeding times.

[Sidenote: Jurisdiction of the king's council.]

The supreme judicature, which had been exercised by the king's court,
was diverted, about the reign of John, into three channels; the
tribunals of King's Bench, Common Pleas, and the Exchequer.[347] These
became the regular fountains of justice, which soon almost absorbed the
provincial jurisdictions of the sheriff and lord of manor. But the
original institution, having been designed for ends of state, police,
and revenue, full as much as for the determination of private suits,
still preserved the most eminent parts of its authority. For the king's
ordinary or privy council, which is the usual style from the reign of
Edward I., seems to have been no other than the king's court (curia
regis) of older times, being composed of the same persons, and having,
in a principal degree, the same subjects of deliberation. It consisted
of the chief ministers; as the chancellor, treasurer, lord steward, lord
admiral, lord marshal, the keeper of the privy seal, the chamberlain,
treasurer, and comptroller of the household, the chancellor of the
exchequer, the master of the wardrobe; and of the judges, king's
serjeant, and attorney-general, the master of the rolls, and justices in
eyre, who at that time were not the same as the judges at Westminster.
When all these were called together, it was a full council; but where
the business was of a more contracted nature, those only who were
fittest to advise were summoned; the chancellor and judges for matters
of law; the officers of state for what concerned the revenue or
household.[348]

The business of this council, out of parliament, may be reduced to two
heads; its deliberative office as a council of advice, and its decisive
power of jurisdiction. With respect to the first, it obviously
comprehended all subjects of political deliberation, which were usually
referred to it by the king: this being in fact the administration or
governing council of state, the distinction of a cabinet being
introduced in comparatively modern times. But there were likewise a vast
number of petitions continually presented to the council, upon which
they proceeded no further than to sort, as it were, and forward them by
endorsement to the proper courts, or advise the suitor what remedy he
had to seek. Thus some petitions are answered, "this cannot be done
without a new law;" some were turned over to the regular court, as the
chancery or king's bench; some of greater moment were endorsed to be
heard "before the great council;" some, concerning the king's interest,
were referred to the chancery, or select persons of the council.

The coercive authority exercised by this standing council of the king
was far more important. It may be divided into acts, legislative and
judicial. As for the first, many ordinances were made in council;
sometimes upon request of the commons in parliament, who felt themselves
better qualified to state a grievance than a remedy; sometimes without
any pretence, unless the usage of government, in the infancy of our
constitution, may be thought to afford one. These were always of a
temporary or partial nature, and were considered as regulations not
sufficiently important to demand a new statute. Thus, in the second year
of Richard II., the council, after hearing read the statute-roll of an
act recently passed, confirming a criminal jurisdiction in certain cases
upon justices of the peace, declared that the intention of parliament,
though not clearly expressed therein, had been to extend that
jurisdiction to certain other cases omitted, which accordingly they
cause to be inserted in the commissions made to these justices under the
great seal.[349] But they frequently so much exceeded what the growing
spirit of public liberty would permit, that it gave rise to complaint in
parliament. The commons petition in 13 R. II. that "neither the
chancellor nor the king's council, after the close of parliament, may
make any ordinance against the common law, or the ancient customs of the
land, or the statutes made heretofore or to be made in this parliament;
but that the common law have its course for all the people, and no
judgment be rendered without due legal process." The king answers, "Let
it be done as has been usual heretofore, saving the prerogative; and if
any one is aggrieved, let him show it specially, and right shall be done
him."[350] This unsatisfactory answer proves the arbitrary spirit in
which Richard was determined to govern.

The judicial power of the council was in some instances founded upon
particular acts of parliament, giving it power to hear and determine
certain causes. Many petitions likewise were referred to it from
parliament, especially where they were left unanswered by reason of a
dissolution. But, independently of this delegated authority, it is
certain that the king's council did anciently exercise, as well out of
parliament as in it, a very great jurisdiction, both in causes criminal
and civil. Some, however, have contended, that whatever they did in this
respect was illegal, and an encroachment upon the common law and Magna
Charta. And be the common law what it may, it seems an indisputable
violation of the charter in its most admirable and essential article, to
drag men in questions of their freehold or liberty before a tribunal
which neither granted them a trial by their peers nor always respected
the law of the land. Against this usurpation the patriots of those times
never ceased to lift their voices. A statute of the fifth year of Edward
III. provides that no man shall be attached, nor his property seized
into the king's hands, against the form of the great charter and the law
of the land. In the twenty-fifth of the same king it was enacted, that
"none shall be taken by petition or suggestion to the king or his
council, unless it be by indictment or presentment, or by writ original
at the common law, nor shall be put out of his franchise or freehold,
unless he be duly put to answer, and forejudged of the same by due
course of law."[351] This was repeated in a short act of the
twenty-eighth of his reign;[352] but both, in all probability, were
treated with neglect; for another was passed some years afterwards,
providing that no man shall be put to answer without presentment before
justices, or matter of record, or by due process and writ original
according to the old law of the land. The answer to the petition whereon
this statute is grounded, in the parliament-roll, expressly declares
this to be an article of the great charter.[353] Nothing, however, would
prevail on the council to surrender so eminent a power, and, though
usurped, yet of so long a continuance. Cases of arbitrary imprisonment
frequently occurred, and were remonstrated against by the commons. The
right of every freeman in that cardinal point was as undubitable,
legally speaking, as at this day; but the courts of law were afraid to
exercise their remedial functions in defiance of so powerful a tribunal.
After the accession of the Lancastrian family, these, like other
grievances, became rather less frequent but the commons remonstrate
several times, even in the minority of Henry VI., against the council's
interference in matters cognizable at common law.[354] In these later
times the civil jurisdiction of the council was principally exercised in
conjunction with the chancery, and accordingly they are generally named
together in the complaint. The chancellor having the great seal in his
custody, the council usually borrowed its process from his court. This
was returnable into chancery even where the business was depending
before the council. Nor were the two jurisdictions less intimately
allied in their character, each being of an equitable nature; and
equity, as then practised, being little else than innovation and
encroachment on the course of law. This part, long since the most
important of the chancellor's judicial function, cannot be traced beyond
the time of Richard II., when, the practice of feoffments to uses having
been introduced, without any legal remedy to secure the cestui que use,
or usufructuary, against his feoffees, the court of chancery undertook
to enforce this species of contract by process of its own.[355]

Such was the nature of the king's ordinary council in itself, as the
organ of his executive sovereignty, and such the jurisdiction which it
habitually exercised. But it is also to be considered in its relation
to the parliament, during whose session, either singly or in conjunction
with the lords' house, it was particularly conspicuous. The great
officers of state, whether peers or not, the judges, the king's
serjeant, and attorney-general, were, from the earliest times, as the
latter still continue to be, summoned by special writs to the upper
house. But while the writ of a peer runs ad tractandum nobiscum et cum
cæteris prælatis, magnatibus et proceribus, that directed to one of the
judges is only ad tractandum nobiscum et cum cæteris de consilio nostro;
and the seats of the latter are upon the woolsacks at one extremity of
the house.

In the reigns of Edward I. and II. the council appear to have been the
regular advisers of the king in passing laws to which the houses of
parliament had assented. The preambles of most statutes during this
period express their concurrence. Thus the statute Westm. I. is said to
be the act of the king by his council, and by the assent of archbishops,
bishops, abbots, priors, earls, barons, and all the commonalty of the
realm being hither summoned. The statute of escheators, 29 E. I., is
said to be agreed by the council, enumerating their names, all whom
appear to be judges or public officers. Still more striking conclusions
are to be drawn from the petitions addressed to the council by both
houses of parliament. In the eighth of Edward II. there are four
petitions from the commons to the king and his council, one from the
lords alone, and one in which both appear to have joined. Later
parliaments of the same reign present us with several more instances of
the like nature. Thus in 18 E. II. a petition begins, "To our lord the
king, and to his council, the archbishops, bishops, prelates, earls,
barons, and others of the commonalty of England, show," &c.[356]

But from the beginning of Edward III.'s reign it seems that the council
and the lords' house in parliament were often blended together into one
assembly. This was denominated the great council, being the lords
spiritual and temporal, with the king's ordinary council annexed to
them, as a council within a council. And even in much earlier times the
lords, as hereditary counsellors, were, either whenever they thought fit
to attend, or on special summonses by the king (it is hard to say
which), assistant members of this council, both for advice and for
jurisdiction. This double capacity of the peerage, as members of the
parliament or legislative assembly and of the deliberative and judicial
council, throws a very great obscurity over the subject. However, we
find that private petitions for redress were, even under Edward I.,
presented to the lords in parliament as much as to the ordinary council.
The parliament was considered a high court of justice, where relief was
to be given in cases where the course of law was obstructed, as well as
where it was defective. Hence the intermission of parliaments was looked
upon as a delay of justice, and their annual meeting is demanded upon
that ground. "The king," says Fleta, "has his court in his council, in
his parliaments, in the presence of bishops, earls, barons, lords, and
other wise men, where the doubtful cases of judgments are resolved, and
new remedies are provided against new injuries, and justice is rendered
to every man according to his desert."[357] In the third year of Edward
II. receivers of petitions began to be appointed at the opening of every
parliament, who usually transmitted them to the ordinary, but in some
instances to the great council. These receivers were commonly three for
England, and three for Ireland, Wales, Gascony, and other foreign
dominions. There were likewise two corresponding classes of auditors or
triers of petitions. These consisted partly of bishops or peers, partly
of judges and other members of the council; and they seem to have been
instituted in order to disburthen the council by giving answers to some
petitions. But about the middle of Edward III.'s time they ceased to act
juridically in this respect, and confined themselves to transmitting
petitions to the lords of the council.

The great council, according to the definition we have given, consisting
of the lords spiritual and temporal, in conjunction with the ordinary
council, or, in other words, of all who were severally summoned to
parliament, exercised a considerable jurisdiction, as well civil as
criminal. In this jurisdiction it is the opinion of Sir M. Hale that
the council, though not peers, had right of suffrage; an opinion very
probable, when we recollect that the council by themselves, both in and
out of parliament, possessed in fact a judicial authority little
inferior; and that the king's delegated sovereignty in the
administration of justice, rather than any intrinsic right of the
peerage, is the foundation on which the judicature of the lords must be
supported. But in the time of Edward III. or Richard II. the lords, by
their ascendency, threw the judges and rest of the council into shade,
and took the decisive jurisdiction entirely to themselves, making use of
their former colleagues but as assistants and advisers, as they still
continue to be held in all the judicial proceedings of that house.[358]

Those statutes which restrain the king's ordinary council from
disturbing men in their freehold rights, or questioning them for
misdemeanours, have an equal application to the lords' house in
parliament, though we do not frequently meet with complaints of the
encroachments made by that assembly. There was, however, one class of
cases tacitly excluded from the operation of those acts, in which the
coercive jurisdiction of this high tribunal had great convenience;
namely, where the ordinary course of justice was so much obstructed by
the defending party, through riots, combinations of maintenance, or
overawing influence, that no inferior court would find its process
obeyed. Those ages, disfigured in their quietest season by rapine and
oppression, afforded no small number of cases that called for this
interposition of a paramount authority.[359] Another indubitable branch
of this jurisdiction was in writs of error; but it may be observed that
their determination was very frequently left to a select committee of
peers and councillors. These, too, cease almost entirely with Henry IV.;
and were scarcely revived till the accession of James I.

Some instances occur in the reign of Edward III. where records have been
brought into parliament, and annulled with assent of the commons as well
as the rest of the legislature.[360] But these were attainders of
treason, which it seemed gracious and solemn to reverse in the most
authentic manner. Certainly the commons had neither by the nature of our
constitution nor the practice of parliament any right of intermeddling
in judicature, save where something was required beyond the existing
law, or where, as in the statute of treasons, an authority of that kind
was particularly reserved to both houses. This is fully acknowledged by
themselves in the first year of Henry IV.[361] But their influence upon
the balance of government became so commanding in a few years
afterwards, that they contrived, as has been mentioned already, to have
petitions directed to them, rather than to the lords or council, and to
transmit them, either with a tacit approbation or in the form of acts,
to the upper house. Perhaps this encroachment of the commons may have
contributed to the disuse of the lords' jurisdiction, who would rather
relinquish their ancient and honourable but laborious function than
share it with such bold usurpers.

[Sidenote: General character of the government in these ages.]

Although the restraining hand of parliament was continually growing more
effectual, and the notions of legal right acquiring more precision, from
the time of Magna Charta to the civil wars under Henry VI., we may
justly say that the general tone of administration was not a little
arbitrary. The whole fabric of English liberty rose step by step,
through much toil and many sacrifices, each generation adding some new
security to the work, and trusting that posterity would perfect the
labour as well as enjoy the reward. A time, perhaps, was even then
foreseen in the visions of generous hope, by the brave knights of
parliament and by the sober sages of justice, when the proudest
ministers of the crown should recoil from those barriers which were then
daily pushed aside with impunity.

There is a material distinction to be taken between the exercise of the
king's undeniable prerogative, however repugnant to our improved
principles of freedom, and the abuse or extension of it to oppressive
purposes. For we cannot fairly consider as part of our ancient
constitution what the parliament was perpetually remonstrating against,
and the statute-book is full of enactments to repress. Doubtless the
continual acquiescence of a nation in arbitrary government may
ultimately destroy all privileges of positive institution, and leave
them to recover, by such means as opportunity shall offer, the natural
and imprescriptible rights for which human societies were established.
And this may perhaps be the case at present with many European kingdoms.
But it would be necessary to shut our eyes with deliberate prejudice
against the whole tenor of the most unquestionable authorities, against
the petitions of the commons, the acts of the legislature, the
testimony of historians and lawyers, before we could assert that England
acquiesced in those abuses and oppressions which it must be confessed
she was unable fully to prevent.

The word prerogative is of a peculiar import, and scarcely understood by
those who come from the studies of political philosophy. We cannot
define it by any theory of executive functions. All these may be
comprehended in it; but also a great deal more. It is best, perhaps, to
be understood by its derivation, and has been said to be that law in
case of the king which is law in no case of the subject.[362] Of the
higher and more sovereign prerogatives I shall here say nothing; they
result from the nature of a monarchy, and have nothing very peculiar in
their character. But the smaller rights of the crown show better the
original lineaments of our constitution. It is said commonly enough that
all prerogatives are given for the subject's good. I must confess that
no part of this assertion corresponds with my view of the subject. It
neither appears to me that these prerogatives were ever given nor that
they necessarily redound to the subject's good. Prerogative, in its old
sense, might be defined an advantage obtained by the crown over the
subject, in cases where their interests came into competition, by reason
of its greater strength. This sprang from the nature of the Norman
government, which rather resembled a scramble of wild beasts, where the
strongest takes the best share, than a system founded upon principles of
common utility. And, modified as the exercise of most prerogatives has
been by the more liberal tone which now pervades our course of
government, whoever attends to the common practice of courts of justice,
and, still more, whoever consults the law-books, will not only be
astonished at their extent and multiplicity, but very frequently at
their injustice and severity.

[Sidenote: Purveyance.]

The real prerogatives that might formerly be exerted were sometimes of
so injurious a nature, that we can hardly separate them from their
abuse: a striking instance is that of purveyance, which will at once
illustrate the definition above given of a prerogative, the limits
within which it was to be exercised, and its tendency to transgress
them. This was a right of purchasing whatever was necessary for the
king's household, at a fair price, in preference to every competitor,
and without the consent of the owner. By the same prerogative, carriages
and horses were impressed for the king's journeys, and lodgings provided
for his attendants. This was defended on a pretext of necessity, or at
least of great convenience to the sovereign, and was both of high
antiquity and universal practice throughout Europe. But the royal
purveyors had the utmost temptation, and doubtless no small store of
precedents, to stretch this power beyond its legal boundary; and not
only to fix their own price too low, but to seize what they wanted
without any payment at all, or with tallies which were carried in vain
to an empty exchequer.[363] This gave rise to a number of petitions from
the commons, upon which statutes were often framed; but the evil was
almost incurable in its nature, and never ceased till that prerogative
was itself abolished. Purveyance, as I have already said, may serve to
distinguish the defects from the abuses of our constitution. It was a
reproach to the law that men should be compelled to send their goods
without their consent; it was a reproach to the administration that they
were deprived of them without payment.

The right of purchasing men's goods for the use of the king was extended
by a sort of analogy to their labour. Thus Edward III. announces to all
sheriffs that William of Walsingham had a commission to collect as many
painters as might suffice for "our works in St. Stephen's chapel,
Westminster, to be at our wages as long as shall be necessary," and to
arrest and keep in prison all who should refuse or be refractory; and
enjoins them to lend their assistance.[364] Windsor Castle owes its
massive magnificence to labourers impressed from every part of the
kingdom. There is even a commission from Edward IV. to take as many
workmen in gold as were wanting, and employ them at the king's cost upon
the trappings of himself and his household.[365]

[Sidenote: Abuses of feudal rights.]

Another class of abuses intimately connected with unquestionable though
oppressive rights of the crown originated in the feudal tenure which
bound all the lands of the kingdom. The king had indisputably a right to
the wardship of his tenants in chivalry, and to the escheats or
forfeitures of persons dying without heirs or attainted for treason. But
his officers, under pretence of wardship, took possession of lands not
held immediately of the crown, claimed escheats where a right heir
existed, and seized estates as forfeited which were protected by the
statute of entails. The real owner had no remedy against this
disposition but to prefer his petition of right in chancery, or, which
was probably more effectual, to procure a remonstrance of the house of
commons in his favour. Even where justice was finally rendered to him he
had no recompense for his damages; and the escheators were not less
likely to repeat an iniquity by which they could not personally suffer.

[Sidenote: Forest laws.]

The charter of the forests, granted by Henry III. along with Magna
Charta,[366] had been designed to crush the flagitious system of
oppression which prevailed in those favourite haunts of the Norman
kings. They had still, however, their peculiar jurisdiction, though,
from the time at least of Edward III., subject in some measure to the
control of the King's Bench.[367] The foresters, I suppose, might find a
compensation for their want of the common law in that easy and
licentious way of life which they affected; but the neighbouring
cultivators frequently suffered from the king's officers who attempted
to recover those adjacent lands, or, as they were called, purlieus,
which had been disafforested by the charter and protected by frequent
perambulations. Many petitions of the commons relate to this grievance.

[Sidenote: Jurisdiction of constable and marshal.]

The constable and marshal of England possessed a jurisdiction, the
proper limits whereof were sufficiently narrow, as it seems, to have
extended only to appeals of treason committed beyond sea, which were
determined by combat, and to military offences within the realm. But
these high officers frequently took upon them to inquire of treasons and
felonies cognizable at common law, and even of civil contracts and
trespasses. This is no bad illustration of the state in which our
constitution stood under the Plantagenets. No colour of right or of
supreme prerogative was set up to justify a procedure so manifestly
repugnant to the great charter. For all remonstrances against these
encroachments the king gave promises in return; and a statute was
enacted, in the thirteenth of Richard II., declaring the bounds of the
constable and marshal's jurisdiction.[368] It could not be denied,
therefore, that all infringements of these acknowledged limits were
illegal, even if they had a hundred fold more actual precedents in their
favour than can be supposed. But the abuse by no means ceased after the
passing of this statute, as several subsequent petitions that it might
be better regarded will evince. One, as it contains a special instance,
I shall insert. It is of the fifth year of Henry IV.: "On several
supplications and petitions made by the commons in parliament to our
lord the king for Bennet Wilman, who is accused by certain of his
ill-wishers and detained in prison, and put to answer before the
constable and marshal, against the statutes and the common law of
England, our said lord the king, by the advice and assent of the lords
in parliament, granted that the said Bennet should be treated according
to the statutes and common law of England, notwithstanding any
commission to the contrary, or accusation against him made before the
constable and marshal." And a writ was sent to the justices of the
King's Bench with a copy of this article from the roll of parliament,
directing them to proceed as they shall see fit according to the laws
and customs of England.[369]

It must appear remarkable that, in a case so manifestly within their
competence, the court of King's Bench should not have issued a writ of
habeas corpus, without waiting for what may be considered as a
particular act of parliament. But it is a natural effect of an arbitrary
administration of government to intimidate courts of justice.[370] A
negative argument, founded upon the want of legal precedent, is
certainly not conclusive when it relates to a distant period, of which
all the precedents have not been noted; yet it must strike us that in
the learned and zealous arguments of Sir Robert Cotton, Mr. Selden, and
others, against arbitrary imprisonment, in the great case of the habeas
corpus, though the statute law is full of authorities in their favour,
we find no instance adduced earlier than the reign of Henry VII., where
the King's Bench has released, or even bailed, persons committed by the
council or the constable, though it is unquestionable that such
committals were both frequent and illegal.[371]

If I have faithfully represented thus far the history of our
constitution, its essential character will appear to be a monarchy
greatly limited by law, though retaining much power that was ill
calculated to promote the public good, and swerving continually into an
irregular course, which there was no restraint adequate to correct. But
of all the notions that have been advanced as to the theory of this
constitution, the least consonant to law and history is that which
represents the king as merely an hereditary executive magistrate, the
first officer of the state. What advantages might result from such a
form of government this is not the place to discuss. But it certainly
was not the ancient constitution of England. There was nothing in this,
absolutely nothing, of a republican appearance. All seemed to grow out
of the monarchy, and was referred to its advantage and honour. The voice
of supplication, even in the stoutest disposition of the commons, was
always humble; the prerogative was always named in large and pompous
expressions. Still more naturally may we expect to find in the law-books
even an obsequious deference to power, from judges who scarcely ventured
to consider it as their duty to defend the subject's freedom, and who
beheld the gigantic image of prerogative, in the full play of its
hundred arms, constantly before their eyes. Through this monarchical
tone, which certainly pervades all our legal authorities, a writer like
Hume, accustomed to philosophical liberality as to the principles of
government, and to the democratical language which the modern aspect of
the constitution and the liberty of printing have produced, fell hastily
into the error of believing that all limitations of royal power during
the fourteenth and fifteenth centuries were as much unsettled in law and
in public opinion as they were liable to be violated by force. Though a
contrary position has been sufficiently demonstrated, I conceive, by the
series of parliamentary proceedings which I have already produced, yet
there is a passage in Sir John Fortescue's treatise De Laudibus Legum
Angliæ, so explicit and weighty, that no writer on the English
constitution can be excused from inserting it. This eminent person,
having been chief justice of the King's Bench under Henry VI., was
governor to the young prince of Wales during his retreat in France, and
received at his hands the office of chancellor. It must never be
forgotten that, in a treatise purposely composed for the instruction of
one who hoped to reign over England, the limitations of government are
enforced as strenuously by Fortescue, as some succeeding lawyers have
inculcated the doctrines of arbitrary prerogative.

[Sidenote: Sir John Fortescue's doctrine as to the English
constitution.]

"A king of England cannot at his pleasure make any alterations in the
laws of the land, for the nature of his government is not only regal,
but political. Had it been merely regal, he would have a power to make
what innovations and alterations he pleased in the laws of the kingdom,
impose tallages and other hardships upon the people whether they would
or no, without their consent, which sort of government the civil laws
point out when they declare Quod principi placuit, legis habet vigorem.
But it is much otherwise with a king whose government is political,
because he can neither make any alteration or change in the laws of the
realm without the consent of the subjects, nor burthen them against
their wills with strange impositions, so that a people governed by such
laws as are made by their own consent and approbation enjoy their
properties securely, and without the hazard of being deprived of them,
either by the king or any other. The same things may be effected under
an absolute prince, provided he do not degenerate into the tyrant. Of
such a prince, Aristotle, in the third of his Politics, says, 'It is
better for a city to be governed by a good man than by good laws.' But
because it does not always happen that the person presiding over a
people is so qualified, St. Thomas, in the book which he writ to the
king of Cyprus, De Regimine Principum, wishes that a kingdom could be so
instituted as that the king might not be at liberty to tyrannize over
his people; which only comes to pass in the present case; that is, when
the sovereign power is restrained by political laws. Rejoice, therefore,
my good prince, that such is the law of the kingdom which you are to
inherit, because it will afford, both to yourself and subjects, the
greatest security and satisfaction."[372]

The two great divisions of civil rule, the absolute, or regal as he
calls it, and the political, Fortescue proceeds to deduce from the
several originals of conquest and compact. Concerning the latter he
declares emphatically a truth not always palatable to princes, that such
governments were instituted by the people, and for the people's good;
quoting St. Augustin for a similar definition of a political society.
"As the head of a body natural cannot change its nerves and sinews,
cannot deny to the several parts their proper energy, their due
proportion and aliment of blood; neither can a king, who is the head of
a body politic, change the laws thereof, nor take from the people what
is theirs by right against their consent. Thus you have, sir, the formal
institution of every political kingdom, from whence you may guess at the
power which a king may exercise with respect to the laws and the
subject. For he is appointed to protect his subjects in their lives,
properties, and laws; for this very end and purpose he has the
delegation of power from the people, and he has no just claim to any
other power but this. Wherefore, to give a brief answer to that question
of yours, concerning the different powers which kings claim over their
subjects, I am firmly of opinion that it arises solely from the
different natures of their original institution, as you may easily
collect from what has been said. So the kingdom of England had its
original from Brute, and the Trojans, who attended him from Italy and
Greece, and became a mixed kind of government, compounded of the regal
and political."[373]

[Sidenote: Erroneous views taken by Hume.]

It would occupy too much space to quote every other passage of the same
nature in this treatise of Fortescue, and in that entitled, Of the
Difference between an Absolute and Limited Monarchy, which, so far as
these points are concerned, is nearly a translation from the
former.[374] But these, corroborated as they are by the statute-book
and by the rolls of parliament, are surely conclusive against the
notions which pervade Mr. Hume's History. I have already remarked that a
sense of the glaring prejudice by which some Whig writers had been
actuated, in representing the English constitution from the earliest
times as nearly arrived at its present perfection, conspired with
certain prepossessions of his own to lead this eminent historian into an
equally erroneous system on the opposite side. And as he traced the
stream backwards, and came last to the times of the Plantagenet dynasty,
with opinions already biassed and even pledged to the world in his
volumes of earlier publication, he was prone to seize hold of, and even
exaggerate, every circumstance that indicated immature civilization, and
law perverted or infringed.[375] To this his ignorance of English
jurisprudence which certainly in some measure disqualified him from
writing our history, did not a little contribute; misrepresentations
frequently occurring in his work, which a moderate acquaintance with the
law of the land would have prevented.[376]

[Sidenote: Instances of illegal condemnation rare.]

It is an honourable circumstance to England that the history of no other
country presents so few instances of illegal condemnations upon
political charges. The judicial torture was hardly known and never
recognised by law.[377] The sentence in capital crimes, fixed
unalterably by custom, allowed nothing to vindictiveness and
indignation. There hardly occurs an example of any one being notoriously
put to death without form of trial, except in moments of flagrant civil
war. If the rights of juries were sometimes evaded by irregular
jurisdictions, they were at least held sacred by the courts of law: and
through all the vicissitudes of civil liberty, no one ever questioned
the primary right of every freeman, handed down from his Saxon
forefathers, to the trial by his peers. A just regard for public safety
prescribes the necessity of severe penalties against rebellion and
conspiracy; but the interpretation of these offences, when intrusted to
sovereigns and their counsellors, has been the most tremendous
instrument of despotic power. In rude ages, even though a general spirit
of political liberty may prevail, the legal character of treason will
commonly be undefined; nor is it the disposition of lawyers to give
greater accuracy to this part of criminal jurisprudence. The nature of
treason appears to have been subject to much uncertainty in England
before the statute of Edward III. If that memorable law did not give all
possible precision to the offence, which we must certainly allow, it
prevented at least those stretches of vindictive tyranny which disgrace
the annals of other countries. The praise, however, must be understood
as comparative. Some cases of harsh if not illegal convictions could
hardly fail to occur in times of violence and during changes of the
reigning family. Perhaps the circumstances have now and then been
aggravated by historians. Nothing could be more illegal than the
conviction of the earl of Cambridge and lord Scrope in 1415, if it be
true, according to Carte and Hume, that they were not heard in their
defence. But whether this is to be absolutely inferred from the
record[378] is perhaps open to question. There seems at least to have
been no sufficient motive for such an irregularity; their participation
in a treasonable conspiracy being manifest from their own confession.
The proceedings against Sir John Mortimer in the 2nd of Henry VI.[379]
are called by Hume highly irregular and illegal. They were, however, by
act of attainder, which cannot well be styled illegal. Nor are they to
be considered as severe. Mortimer had broken out of the Tower, where he
was confined on a charge of treason. This was a capital felony at common
law; and the chief irregularity seems to have consisted in having
recourse to parliament in order to attaint him of treason, when he had
already forfeited his life by another crime.

I would not willingly attribute to the prevalence of Tory dispositions
what may be explained otherwise, the progress which Mr. Hume's
historical theory as to our constitution has been gradually making since
its publication. The tide of opinion, which since the Revolution, and
indeed since the reign of James I., had been flowing so strongly in
favour of the antiquity of our liberties, now seems, among the higher
and more literary classes, to set pretty decidedly the other way. Though
we may still sometimes hear a demagogue chattering about the
witenagemot, it is far more usual to find sensible and liberal men who
look on Magna Charta itself as the result of an uninteresting squabble
between the king and his barons. Acts of force and injustice, which
strike the cursory inquirer, especially if he derives his knowledge from
modern compilations, more than the average tenor of events, are selected
and displayed as fair samples of the law and of its administration. We
are deceived by the comparatively perfect state of our present
liberties, and forget that our superior security is far less owing to
positive law than to the control which is exercised over government by
public opinion through the general use of printing, and to the diffusion
of liberal principles in policy through the same means. Thus disgusted
at a contrast which it was hardly candid to institute, we turn away from
the records that attest the real, though imperfect, freedom of our
ancestors; and are willing to be persuaded that the whole scheme of
English polity, till the commons took on themselves to assert their
natural rights against James I., was at best but a mockery of popular
privileges, hardly recognised in theory, and never regarded in
effect.[380]

This system, when stripped of those slavish inferences that Brady and
Carte attempted to build upon it, admits perhaps of no essential
objection but its want of historical truth. God forbid that our rights
to just and free government should be tried by a jury of antiquaries!
Yet it is a generous pride that intertwines the consciousness of
hereditary freedom with the memory of our ancestors; and no trifling
argument against those who seem indifferent in its cause, that the
character of the bravest and most virtuous among nations has not
depended upon the accidents of race or climate, but been gradually
wrought by the plastic influence of civil rights, transmitted as a
prescriptive inheritance through a long course of generations.

[Sidenote: Causes tending to form the constitution.]

By what means the English acquired and preserved this political liberty,
which, even in the fifteenth century, was the admiration of judicious
foreigners,[381] is a very rational and interesting inquiry. Their own
serious and steady attachment to the laws must always be reckoned among
the principal causes of this blessing. The civil equality of all freemen
below the rank of peerage, and the subjection of peers themselves to the
impartial arm of justice, and to a due share in contribution to public
burthens, advantages unknown to other countries, tended to identify the
interests and to assimilate the feelings of the aristocracy with those
of the people; classes whose dissension and jealousy has been in many
instances the surest hope of sovereigns aiming at arbitrary power. This
freedom from the oppressive superiority of a privileged order was
peculiar to England. In many kingdoms the royal prerogative was at least
equally limited. The statutes of Aragon are more full of remedial
provisions. The right of opposing a tyrannical government by arms was
more frequently asserted in Castile. But nowhere else did the people
possess by law, and I think, upon the whole, in effect, so much security
for their personal freedom and property. Accordingly, the middling
ranks flourished remarkably, not only in commercial towns, but among the
cultivators of the soil. "There is scarce a small village," says Sir J.
Fortescue, "in which you may not find a knight, an esquire, or some
substantial householder (paterfamilias), commonly called a
frankleyn,[382] possessed of considerable estate; besides others who are
called freeholders, and many yeomen of estates sufficient to make a
substantial jury." I would, however, point out more particularly two
causes which had a very leading efficacy in the gradual development of
our constitution; first, the schemes of continental ambition in which
our government was long engaged; secondly, the manner in which feudal
principles of insubordination and resistance were modified by the
prerogatives of the early Norman kings.

1. At the epoch when William the Conqueror ascended the throne, hardly
any other power was possessed by the king of France than what he
inherited from the great fiefs of the Capetian family. War with such a
potentate was not exceedingly to be dreaded, and William, besides his
immense revenue, could employ the feudal services of his vassals, which
were extended by him to continental expeditions. These circumstances
were not essentially changed till after the loss of Normandy; for the
acquisitions of Henry II. kept him fully on an equality with the French
crown, and the dilapidation which had taken place in the royal demesnes
was compensated by several arbitrary resources that filled the exchequer
of these monarchs. But in the reigns of John and Henry III., the
position of England, or rather of its sovereign, with respect to France,
underwent a very disadvantageous change. The loss of Normandy severed
the connexion between the English nobility and the continent; they had
no longer estates to defend, and took not sufficient interest in the
concerns of Guienne to fight for that province at their own cost. Their
feudal service was now commuted for an escuage, which fell very short of
the expenses incurred in a protracted campaign. Tallages of royal towns
and demesne lands, extortion of money from the Jews, every feudal abuse
and oppression, were tried in vain to replenish the treasury, which the
defence of Eleanor's inheritance against the increased energy of France
was constantly exhausting. Even in the most arbitrary reigns, a general
tax upon landholders, in any cases but those prescribed by the feudal
law, had not been ventured; and the standing bulwark of Magna Charta, as
well as the feebleness and unpopularity of Henry III., made it more
dangerous to violate an established principle. Subsidies were therefore
constantly required; but for these it was necessary for the king to meet
parliament, to hear their complaints, and, if he could not elude, to
acquiesce in their petitions. These necessities came still more urgently
upon Edward I., whose ambitious spirit could not patiently endure the
encroachments of Philip the Fair, a rival not less ambitious, but
certainly less distinguished by personal prowess, than himself. What
advantage the friends of liberty reaped from this ardour for continental
warfare is strongly seen in the circumstances attending the Confirmation
of the Charters.

But after this statute had rendered all tallages without consent of
parliament illegal, though it did not for some time prevent their being
occasionally imposed, it was still more difficult to carry on a war with
France or Scotland, to keep on foot naval armaments, or even to preserve
the courtly magnificence which that age of chivalry affected, without
perpetual recurrence to the house of commons. Edward III. very little
consulted the interests of his prerogative when he stretched forth his
hand to seize the phantom of a crown in France. It compelled him to
assemble parliament almost annually, and often to hold more than one
session within the year. Here the representatives of England learned the
habit of remonstrance and conditional supply; and though, in the
meridian of Edward's age and vigour, they often failed of immediate
redress, yet they gradually swelled the statute-roll with provisions to
secure their country's freedom; and acquiring self-confidence by mutual
intercourse, and sense of the public opinion, they became able, before
the end of Edward's reign, and still more in that of his grandson, to
control, prevent, and punish the abuses of administration. Of all these
proud and sovereign privileges, the right of refusing supply was the
keystone. But for the long wars in which our kings were involved, at
first by their possession of Guienne, and afterwards by their
pretensions upon the crown of France, it would have been easy to
suppress remonstrances by avoiding to assemble parliament. For it must
be confessed that an authority was given to the king's proclamations,
and to ordinances of the council, which differed but little from
legislative power, and would very soon have been interpreted by
complaisant courts of justice to give them the full extent of statutes.

It is common indeed to assert that the liberties of England were bought
with the blood of our forefathers. This is a very magnanimous boast, and
in some degree is consonant enough to the truth. But it is far more
generally accurate to say that they were purchased by money. A great
proportion of our best laws, including Magna Charta itself, as it now
stands confirmed by Henry III., were, in the most literal sense,
obtained by a pecuniary bargain with the crown. In many parliaments of
Edward III. and Richard II. this sale of redress is chaffered for as
distinctly, and with as little apparent sense of disgrace, as the most
legitimate business between two merchants would be transacted. So little
was there of voluntary benevolence in what the loyal courtesy of our
constitution styles concessions from the throne; and so little title
have these sovereigns, though we cannot refuse our admiration to the
generous virtues of Edward III. and Henry V., to claim the gratitude of
posterity as the benefactors of their people!

2. The relation established between a lord and his vassal by the feudal
tenure, far from containing principles of any servile and implicit
obedience, permitted the compact to be dissolved in case of its
violation by either party. This extended as much to the sovereign as to
inferior lords; the authority of the former in France, where the system
most flourished, being for several ages rather feudal than political. If
a vassal was aggrieved, and if justice was denied him, he sent a
defiance, that is, a renunciation of fealty to the king, and was
entitled to enforce redress at the point of his sword. It then became a
contest of strength as between two independent potentates, and was
terminated by treaty, advantageous or otherwise, according to the
fortune of war. This privilege, suited enough to the situation of
France, the great peers of which did not originally intend to admit more
than a nominal supremacy in the house of Capet, was evidently less
compatible with the regular monarchy of England. The stern natures of
William the Conqueror and his successors kept in control the mutinous
spirit of their nobles, and reaped the profit of feudal tenures without
submitting to their reciprocal obligations. They counteracted, if I may
so say, the centrifugal force of that system by the application of a
stronger power; by preserving order, administering justice, checking the
growth of baronial influence and riches, with habitual activity,
vigilance, and severity. Still, however, there remained the original
principle, that allegiance depended conditionally upon good treatment,
and that an appeal might be lawfully made to arms against an oppressive
government. Nor was this, we may be sure, left for extreme necessity, or
thought to require a long enduring forbearance. In modern times a king
compelled by his subjects' swords to abandon any pretension would be
supposed to have ceased to reign; and the express recognition of such a
right as that of insurrection has been justly deemed inconsistent with
the majesty of law. But ruder ages had ruder sentiments. Force was
necessary to repel force; and men accustomed to see the king's authority
defied by private riot were not much shocked when it was resisted in
defence of public freedom.

The Great Charter of John was secured by the election of twenty-five
barons as conservators of the compact. If the king, of the justiciary in
his absence, should transgress any article, any four might demand
reparation, and on denial carry their complaint to the rest of their
body. "And those barons, with all the commons of the land, shall
distrain and annoy us by every means in their power; that is, by seizing
our castles, lands, and possessions, and every other mode, till the
wrong shall be repaired to their satisfaction; saving our person, and
our queen and children. And when it shall be repaired they shall obey us
as before."[383] It is amusing to see the common law of distress
introduced upon this gigantic scale; and the capture of the king's
castles treated as analogous to impounding a neighbour's horse for
breaking fences.

A very curious illustration of this feudal principle is found in the
conduct of William earl of Pembroke, one of the greatest names in our
ancient history, towards Henry III. The king had defied him, which was
tantamount to a declaration of war; alleging that he had made an inroad
upon the royal domains. Pembroke maintained that he was not the
aggressor, that the king had denied him justice, and been the first to
invade his territory; on which account he had thought himself absolved
from his homage, and at liberty to use force against the malignity of
the royal advisers. "Nor would it be for the king's honour," the earl
adds, "that I should submit to his will against reason, whereby I should
rather do wrong to him and to that justice which he is bound to
administer towards his people; and I should give an ill example to all
men in deserting justice and right in compliance with his mistaken will.
For this would show that I loved my worldly wealth better than justice."
These words, with whatever dignity expressed, it may be objected, prove
only the disposition of an angry and revolted earl. But even Henry fully
admitted the right of taking arms against himself if he had meditated
his vassal's destruction, and disputed only the application of this
maxim to the earl of Pembroke.[384]

These feudal notions, which placed the moral obligation of allegiance
very low, acting under a weighty pressure from the real strength of the
crown, were favourable to constitutional liberty. The great vassals of
France and Germany aimed at living independently on their fiefs, with no
further concern for the rest than as useful allies having a common
interest against the crown. But in England, as there was no prospect of
throwing off subjection, the barons endeavoured only to lighten its
burthen, fixing limits to prerogative by law, and securing their
observation by parliamentary remonstrances or by dint of arms. Hence,
as all rebellions in England were directed only to coerce the
government, or at the utmost to change the succession of the crown,
without the smallest tendency to separation, they did not impair the
national strength nor destroy the character of the constitution. In all
these contentions it is remarkable that the people and clergy sided with
the nobles against the throne. No individuals are so popular with the
monkish annalists, who speak the language of the populace, as Simon earl
of Leicester, Thomas earl of Lancaster, and Thomas duke of Gloucester,
all turbulent opposers of the royal authority, and probably little
deserving of their panegyrics. Very few English historians of the middle
ages are advocates of prerogative. This may be ascribed both to the
equality of our laws and to the interest which the aristocracy found in
courting popular favour, when committed against so formidable an
adversary as the king. And even now, when the stream that once was
hurried along gullies and dashed down precipices hardly betrays upon its
broad and tranquil bosom the motion that actuates it, it must still be
accounted a singular happiness of our constitution that, all ranks
graduating harmoniously into one another, the interests of peers and
commoners are radically interwoven; each in a certain sense
distinguishable, but not balanced like opposite weights, not separated
like discordant fluids, not to be secured by insolence or jealousy, but
by mutual adherence and reciprocal influences.

[Sidenote: Influence which the state of manners gave the nobility.]

From the time of Edward I. the feudal system and all the feelings
connected with it declined very rapidly. But what the nobility lost in
the number of their military tenants was in some degree compensated by
the state of manners. The higher class of them, who took the chief share
in public affairs, were exceedingly opulent; and their mode of life gave
wealth an incredibly greater efficacy than it possesses at present.
Gentlemen of large estates and good families who had attached themselves
to these great peers, who bore offices which we should call menial in
their households, and sent their children thither for education, were of
course ready to follow their banner in rising, without much inquiry into
the cause. Still less would the vast body of tenants and their
retainers, who were fed at the castle in time of peace, refuse to carry
their pikes and staves into the field of battle. Many devices were used
to preserve this aristocratic influence, which riches and ancestry of
themselves rendered so formidable. Such was the maintenance of suits, or
confederacies for the purpose of supporting each other's claims in
litigation, which was the subject of frequent complaints in parliament,
and gave rise to several prohibitory statutes. By help of such
confederacies parties were enabled to make violent entries upon the
lands they claimed, which the law itself could hardly be said to
discourage.[385] Even proceedings in courts of justice were often liable
to intimidation and influence.[386] A practice much allied to
confederacies of maintenance, though ostensibly more harmless, was that
of giving liveries to all retainers of a noble family; but it had an
obvious tendency to preserve that spirit of factious attachments and
animosities which it is the general policy of a wise government to
dissipate. From the first year of Richard II. we find continual mention
of this custom, with many legal provisions against it, but it was never
abolished till the reign of Henry VII.[387]

[Sidenote: Prevalent habits of rapine.]

These associations under powerful chiefs were only incidentally
beneficial as they tended to withstand the abuses of prerogative. In
their more usual course they were designed to thwart the legitimate
exercise of the king's government in the administration of the laws. All
Europe was a scene of intestine anarchy during the middle ages; and
though England was far less exposed to the scourge of private war than
most nations on the continent, we should find, could we recover the
local annals of every country, such an accumulation of petty rapine and
tumult as would almost alienate us from the liberty which served to
engender it. This was the common tenor of manners, sometimes so much
aggravated as to find a place in general history,[388] more often
attested by records during the three centuries that the house of
Plantagenet sat on the throne. Disseisin, or forcible dispossession of
freeholds, makes one of the most considerable articles in our
law-books.[389] Highway robbery was from the earliest times a sort of
national crime. Capital punishments, though very frequent, made little
impression on a bold and a licentious crew, who had at least the
sympathy of those who had nothing to lose on their side, and flattering
prospects of impunity. We know how long the outlaws of Sherwood lived in
tradition--men who, like some of their betters, have been permitted to
redeem by a few acts of generosity the just ignominy of extensive
crimes. These, indeed, were the heroes of vulgar applause; but when such
a judge as Sir John Fortescue could exult that more Englishmen were
hanged for robbery in one year than French in seven, and that, "if an
Englishman be poor, and see another having riches which may be taken
from him by might, he will not spare to do so,"[390] it may be perceived
how thoroughly these sentiments had pervaded the public mind.

Such robbers, I have said, had flattering prospects of impunity. Besides
the general want of communication, which made one who had fled from his
own neighbourhood tolerably secure, they had the advantage of extensive
forests to facilitate their depredations and prevent detection. When
outlawed or brought to trial, the worst offenders could frequently
purchase charters of pardon, which defeated justice in the moment of her
blow.[391] Nor were the nobility ashamed to patronise men guilty of
every crime. Several proofs of this occur in the rolls. Thus, for
example, in the 22nd of Edward III., the commons pray that, "whereas it
is notorious how robbers and malefactors infest the country, the king
would charge the great men of the land that none such be maintained by
them, privily or openly, but that they lend assistance to arrest and
take such ill-doers."[392]

It is perhaps the most meritorious part of Edward I.'s government that
he bent all his power to restrain these breaches of tranquillity. One of
his salutary provisions is still in constant use, the statute of
coroners. Another, more extensive, and, though partly obsolete, the
foundation of modern laws, is the statute of Winton, which, reciting
that "from day to day robberies, murders, burnings, and theft be more
often used than they have been heretofore, and felons cannot be
attainted by the oath of jurors which had rather suffer robberies on
strangers to pass without punishment than indite the offenders, of whom
great part be people of the same country, or at least, if the offenders
be of another country, the receivers be of places near," enacts that hue
and cry shall be made upon the commission of a robbery, and that the
hundred shall remain answerable for the damage unless the felons be
brought to justice. It may be inferred from this provision that the
ancient law of frank-pledge, though retained longer in form, had lost
its efficiency. By the same act, no stranger or suspicious person was to
lodge even in the suburbs of towns; the gates were to be kept locked
from sunset to sunrising; every host to be answerable for his guest; the
highways to be cleared of trees and underwood for two hundred feet on
each side; and every man to keep arms according to his substance in
readiness to follow the sheriff on hue and cry raised ofter felons.[393]
The last provision indicates that the robbers plundered the country in
formidable bands. One of these, in a subsequent part of Edward's reign,
burned the town of Boston during a fair, and obtained a vast booty,
though their leader had the ill fortune not to escape the gallows.

The preservation of order throughout the country was originally
intrusted not only to the sheriff, coroner, and constables, but to
certain magistrates called conservators of the peace. These, in
conformity to the democratic character of our Saxon government, were
elected by the freeholders in their county court.[394] But Edward I.
issued commissions to carry into effect the statute of Winton; and from
the beginning of Edward III.'s reign the appointment of conservators was
vested in the crown, their authority gradually enlarged by a series of
statutes, and their titles changed to that of justices. They were
empowered to imprison and punish all rioters and other offenders, and
such as they should find by indictment or suspicion to be reputed
thieves or vagabonds, and to take sureties for good behaviour from
persons of evil fame.[395] Such a jurisdiction was hardly more arbitrary
than, in a free and civilized age, it has been thought fit to vest in
magistrates; but it was ill endured by a people who placed their notions
of liberty in personal exemption from restraint rather than any
political theory. An act having been passed (2 R. II. stat. 2, c. 6), in
consequence of unusual riots and outrages, enabling magistrates to
commit the ringleaders of tumultuary assemblies without waiting for
legal process till the next arrival of justices of gaol delivery, the
commons petitioned next year against this "horrible grievous ordinance,"
by which "every freeman in the kingdom would be in bondage to these
justices," contrary to the great charter, and to many statutes, which
forbid any man to be taken without due course of law.[396] So sensitive
was their jealousy of arbitrary imprisonment, that they preferred
enduring riot and robbery to chastising them by any means that might
afford a precedent to oppression, or weaken men's reverence for Magna
Charta.

There are two subjects remaining to which this retrospect of the state
of manners naturally leads us, and which I would not pass unnoticed,
though not perhaps absolutely essential to a constitutional history;
because they tend in a very material degree to illustrate the progress
of society, with which civil liberty and regular government are closely
connected. These are, first, the servitude or villenage of the
peasantry, and their gradual emancipation from that condition; and,
secondly, the continual increase of commercial intercourse with foreign
countries. But as the latter topic will fall more conveniently into the
next part of this work, I shall postpone its consideration for the
present.

[Sidenote: Villenage of the peasantry. Its nature and gradual
extinction.]

In a former passage I have remarked of the Anglo-Saxon ceorls that
neither their situation nor that of their descendants for the earlier
reigns after the Conquest appears to have been mere servitude. But from
the time of Henry II., as we learn from Glanvil, the villein, so called,
was absolutely dependent upon his lord's will, compelled to unlimited
services, and destitute of property, not only in the land he held for
his maintenance, but in his own acquisitions.[397] If a villein
purchased or inherited land, the lord might seize it; if he accumulated
stock, its possession was equally precarious. Against his lord he had no
right of action; because his indemnity in damages, if he could have
recovered any, might have been immediately taken away. If he fled from
his lord's service, or from the land which he held, a writ issued de
nativitate probandâ, and the master recovered his fugitive by law. His
children were born to the same state of servitude; and, contrary to the
rule of the civil law, where one parent was free and the other in
villenage, the offspring followed their father's condition.[398]

This was certainly a severe lot; yet there are circumstances which
materially distinguish it from slavery. The condition of villenage, at
least in later times, was perfectly relative; it formed no distinct
order in the political economy. No man was a villein in the eye of law,
unless his master claimed him: to all others he was a freeman, and might
acquire, dispose of, or sue for property without impediment. Hence Sir
E. Coke argues that villeins are included in the 29th article of Magna
Charta: "No freeman shall be disseised nor imprisoned."[399] For murder,
rape, or mutilation of his villein, the lord was indictable at the
king's suit; though not for assault or imprisonment, which were within
the sphere of his seignorial authority.[400]

This class was distinguished into villeins regardant, who had been
attached from time immemorial to a certain manor, and villeins in gross,
where such territorial prescription had never existed, or had been
broken. In the condition of these, whatever has been said by some
writers, I can find no manner of difference; the distinction was merely
technical, and affected only the mode of pleading.[401] The term in
gross is appropriated in our legal language to property held absolutely
and without reference to any other. Thus it is applied to rights of
advowson or of common, when possessed simply and not as incident to any
particular lands. And there can be no doubt that it was used in the same
sense for the possession of a villein.[402] But there was a class of
persons, sometimes inaccurately confounded with villeins, whom it is
more important to separate. Villenage had a double sense, as it related
to persons or to lands. As all men were free or villeins, so all lands
were held by a free or villein tenure. As a villein might be enfeoffed
of freeholds, though they lay at the mercy of his lord, so a freeman
might hold tenements in villenage. In this case his personal liberty
subsisted along with the burthens of territorial servitude. He was bound
to arbitrary service at the will of the lord, and he might by the same
will be at any moment dispossessed; for such was the condition of his
tenure. But his chattels were secure from seizure, his person from
injury, and he might leave the land whenever he pleased.[403]

From so disadvantageous a condition as this of villenage it may cause
some surprise that the peasantry of England should have ever emerged.
The law incapacitating a villein from acquiring property, placed, one
would imagine, an insurmountable barrier in the way of his
enfranchisement. It followed from thence, and is positively said by
Glanvil, that a villein could not buy his freedom, because the price he
tendered would already belong to his lord.[404] And even in the case of
free tenants in villenage it is not easy to comprehend how their
uncertain and unbounded services could ever pass into slight pecuniary
commutations; much less how they could come to maintain themselves in
their lands, and mock the lord with a nominal tenure according to the
custom of the manor.

This, like many others relating to the progress of society, is a very
obscure inquiry. We can trace the pedigree of princes, fill up the
catalogue of towns besieged and provinces desolated, describe even the
whole pageantry of coronations and festivals, but we cannot recover the
genuine history of mankind. It has passed away with slight and partial
notice by contemporary writers; and our most patient industry can hardly
at present put together enough of the fragments to suggest a tolerably
clear representation of ancient manners and social life. I cannot
profess to undertake what would require a command of books as well as
leisure beyond my reach; but the following observations may tend a
little to illustrate our immediate subject, the gradual extinction of
villenage.

If we take what may be considered as the simplest case, that of a manor
divided into demesne lands of the lord's occupation and those in the
tenure of his villeins, performing all the services of agriculture for
him, it is obvious that his interest was to maintain just so many of
these as his estate required for its cultivation. Land, the cheapest of
articles, was the price of their labour; and though the law did not
compel him to pay this or any other price, yet necessity, repairing in
some degree the law's injustice, made those pretty secure of food and
dwellings who were to give the strength of their arms for his advantage.
But in course of time, as alienations of small parcels of manors to free
tenants came to prevail, the proprietors of land were placed in a new
situation relatively to its cultivators. The tenements in villenage,
whether by law or usage, were never separated from the lordship, while
its domain was reduced to a smaller extent through subinfeudations,
sales, or demises for valuable rent. The purchasers under these
alienations had occasion for labourers; and these would be free servants
in respect of such employers, though in villenage to their original
lord. As he demanded less of their labour, through the diminution of his
domain, they had more to spare for other masters; and retaining the
character of villeins and the lands they held by that tenure, became
hired labourers in husbandry for the greater part of the year. It is
true that all their earnings were at the lord's disposal, and that he
might have made a profit of their labour when he ceased to require it
for his own land. But this, which the rapacity of more commercial times
would have instantly suggested, might escape a feudal superior, who,
wealthy beyond his wants, and guarded by the haughtiness of ancestry
against the desire of such pitiful gains, was better pleased to win the
affection of his dependants than to improve his fortune at their
expense.

The services of villenage were gradually rendered less onerous and
uncertain. Those of husbandry, indeed, are naturally uniform, and might
be anticipated with no small exactness. Lords of generous tempers
granted indulgences which were either intended to be or readily became
perpetual. And thus, in the time of Edward I., we find the tenants in
some manors bound only to stated services, as recorded in the lord's
book.[405] Some of these, perhaps, might be villeins by blood; but free
tenants in villenage were still more likely to obtain this precision in
their services; and from claiming a customary right to be entered in the
court-roll upon the same terms as their predecessors, prevailed at
length to get copies of it for their security.[406] Proofs of this
remarkable transformation from tenants in villenage to copyholders are
found in the reign of Henry III. I do not know, however, that they were
protected, at so early an epoch, in the possession of their estates. But
it is said in the Year-book of the 42nd of Edward III. to be "admitted
for clear law, that, if the customary tenant or copyholder does not
perform his services, the lord may seize his land as forfeited."[407] It
seems implied herein, that, so long as the copyholder did continue to
perform the regular stipulations of his tenure, the lord was not at
liberty to divest him of his estate; and this is said to be confirmed by
a passage in Britton, which has escaped my search; though Littleton
intimates that copyholders could have no remedy against their lord.[408]
However, in the reign of Edward IV. this was put out of doubt by the
judges, who permitted the copyholder to bring his action of trespass
against the lord for dispossession.

While some of the more fortunate villeins crept up into property as well
as freedom under the name of copyholders, the greater part enfranchised
themselves in a different manner. The law, which treated them so
harshly, did not take away the means of escape; nor was this a matter of
difficulty in such a country as England. To this, indeed, the unequal
progression of agriculture and population in different counties would
have naturally contributed. Men emigrated, as they always must, in
search of cheapness or employment, according to the tide of human
necessities. But the villein, who had no additional motive to urge his
steps away from his native place, might well hope to be forgotten or
undiscovered when he breathed a freer air, and engaged his voluntary
labour to a distant master. The lord had indeed an action against him;
but there was so little communication between remote parts of the
country, that it might be deemed his fault or singular ill-fortune if he
were compelled to defend himself. Even in that case the law inclined to
favour him; and so many obstacles were thrown in the way of these suits
to reclaim fugitive villeins, that they could not have operated
materially to retard their general enfranchisement.[409] In one case,
indeed, that of unmolested residence for a year and a day within a
walled city or borough, the villein became free, and the lord was
absolutely barred of his remedy. This provision is contained even in the
laws of William the Conqueror, as contained in Hoveden, and, if it be
not an interpolation, may be supposed to have had a view to strengthen
the population of those places which were designed for garrisons. This
law, whether of William or not, is unequivocally mentioned by
Glanvil.[410] Nor was it a mere letter. According to a record in the
sixth of Edward II., Sir John Clavering sued eighteen villeins of his
manor of Cossey, for withdrawing themselves therefrom with their
chattels; whereupon a writ was directed to them; but six of the number
claimed to be freemen, alleging the Conqueror's charter, and offering to
prove that they had lived in Norwich, paying scot and lot, about thirty
years; which claim was admitted.[411]

By such means a large proportion of the peasantry before the middle of
the fourteenth century had become hired labourers instead of villeins.
We first hear of them on a grand scale in an ordinance made by Edward
III. in the twenty-third year of his reign. This was just after the
dreadful pestilence of 1348, and it recites that, the number of workmen
and servants having been greatly reduced by that calamity, the
remainder demanded excessive wages from their employers. Such an
enhancement in the price of labour, though founded exactly on the same
principles as regulate the value of any other commodity, is too
frequently treated as a sort of crime by lawgivers, who seem to grudge
the poor that transient melioration of their lot which the progress of
population, or other analogous circumstances, will, without any
interference, very rapidly take away. This ordinance therefore enacts
that every man in England, of whatever condition, bond or free, of able
body, and within sixty years of age, not living of his own, nor by any
trade, shall be obliged, when required, to serve any master who is
willing to hire him at such wages as were usually paid three years
since, or for some time preceding; provided that the lords of villeins
or tenants in villenage shall have the preference of their labour, so
that they retain no more than shall be necessary for them. More than
these old wages is strictly forbidden to be offered, as well as
demanded. No one is permitted, under colour of charity, to give alms to
a beggar. And, to make some compensation to the inferior classes for
these severities, a clause is inserted, as wise, just, and practicable
as the rest, for the sale of provisions at reasonable prices.[412]

This ordinance met with so little regard that a statute was made in
parliament two years after, fixing the wages of all artificers and
husbandmen, with regard to the nature and season of their labour. From
this time it became a frequent complaint of the commons that the statute
of labourers was not kept. The king had in this case, probably, no other
reason for leaving their grievance unredressed than his inability to
change the order of Providence. A silent alteration had been wrought in
the condition and character of the lower classes during the reign of
Edward III. This was the effect of increased knowledge and refinement,
which had been making a considerable progress for full half a century,
though they did not readily permeate the cold region of poverty and
ignorance. It was natural that the country people, or uplandish folk, as
they were called, should repine at the exclusion from that enjoyment of
competence, and security for the fruits of their labour, which the
inhabitants of towns so fully possessed. The fourteenth century was, in
many parts of Europe, the age when a sense of political servitude was
most keenly felt. Thus the insurrection of the Jacquerie in France about
the year 1358 had the same character, and resulted in a great measure
from the same causes, as that of the English peasants in 1382. And we
may account in a similar manner for the democratical tone of the French
and Flemish cities, and for the prevalence of a spirit of liberty in
Germany and Switzerland.[413]

I do not know whether we should attribute part of this revolutionary
concussion to the preaching of Wicliffe's disciples, or look upon both
one and the other as phenomena belonging to that particular epoch in the
progress of society. New principles, both as to civil rule and religion,
broke suddenly upon the uneducated mind, to render it bold,
presumptuous, and turbulent. But at least I make little doubt that the
dislike of ecclesiastical power, which spread so rapidly among the
people at this season, connected itself with a spirit of insubordination
and an intolerance of political subjection. Both were nourished by the
same teachers, the lower secular clergy; and however distinct we may
think a religious reformation from a civil anarchy, there was a good
deal common in the language by which the populace were inflamed to
either one or the other. Even the scriptural moralities which were then
exhibited, and which became the foundation of our theatre, afforded fuel
to the spirit of sedition. The common original and common destination of
mankind, with every other lesson of equality which religion supplies to
humble or to console, were displayed with coarse and glaring features in
these representations. The familiarity of such ideas has deadened their
effects upon our minds; but when a rude peasant, surprisingly destitute
of religious instruction during that corrupt age of the church, was led
at once to these impressive truths, we cannot be astonished at the
intoxication of mind they produced.[414]

Though I believe that, compared at least with the aristocracy of other
countries, the English lords were guilty of very little cruelty or
injustice, yet there were circumstances belonging to that period which
might tempt them to deal more hardly than before with their peasantry.
The fourteenth century was an age of greater magnificence than those
which had preceded, in dress, in ceremonies, in buildings; foreign
luxuries were known enough to excite an eager demand among the higher
ranks, and yet so scarce as to yield inordinate prices; while the
landholders were, on the other hand, impoverished by heavy and unceasing
taxation. Hence it is probable that avarice, as commonly happens, had
given birth to oppression; and if the gentry, as I am inclined to
believe, had become more attentive to agricultural improvements, it is
reasonable to conjecture that those whose tenure obliged them to
unlimited services of husbandry were more harassed than under their
wealthy and indolent masters in preceding times.

The storm that almost swept away all bulwarks of civilized and regular
society seems to have been long in collecting itself. Perhaps a more
sagacious legislature might have contrived to disperse it: but the
commons only presented complaints of the refractoriness with which
villeins and tenants in villenage rendered their due services;[415] and
the exigencies of government led to the fatal poll-tax of a groat, which
was the proximate cause of the insurrection. By the demands of these
rioters we perceive that territorial servitude was far from extinct; but
it should not be hastily concluded that they were all personal villeins,
for a large proportion were Kentish-men, to whom that condition could
not have applied; it being a good bar to a writ de nativitate probandâ
that the party's father was born in the county of Kent.[416]

After this tremendous rebellion it might be expected that the
legislature would use little indulgence towards the lower commons. Such
unhappy tumults are doubly mischievous, not more from the immediate
calamities that attend them than from the fear and hatred of the people
which they generate in the elevated classes. The general charter of
manumission extorted from the king by the rioters of Blackheath was
annulled by proclamation to the sheriffs,[417] and this revocation
approved by the lords and commons in parliament; who added, as was very
true, that such enfranchisement could not be made without their consent;
"which they would never give to save themselves from perishing all
together in one day."[418] Riots were turned into treason by a law of
the same parliament.[419] By a very harsh statute in the 12th of Richard
II. no servant or labourer could depart, even at the expiration of his
service, from the hundred in which he lived without permission under the
king's seal; nor might any who had been bred to husbandry till twelve
years old exercise any other calling.[420] A few years afterwards the
commons petitioned that villeins might not put their children to school
in order to advance them by the church; "and this for the honour of all
the freemen of the kingdom." In the same parliament they complained that
villeins fly to cities and boroughs, whence their masters cannot recover
them; and, if they attempt it, are hindered by the people; and prayed
that the lords might seize their villeins in such places without regard
to the franchises thereof. But on both these petitions the king put in a
negative.[421]

From henceforward we find little notice taken of villenage in
parliamentary records, and there seems to have been a rapid tendency to
its entire abolition. But the fifteenth century is barren of materials;
and we can only infer that, as the same causes which in Edward III.'s
time had converted a large portion of the peasantry into free labourers
still continued to operate, they must silently have extinguished the
whole system of personal and territorial servitude. The latter, indeed,
was essentially changed by the establishment of the law of copyhold.

I cannot presume to conjecture in what degree voluntary manumission is
to be reckoned among the means that contributed to the abolition of
villenage. Charters of enfranchisement were very common upon the
continent. They may perhaps have been less so in England. Indeed the
statute de donis must have operated very injuriously to prevent the
enfranchisement of villeins regardant, who were entailed along with the
land. Instances, however, occur from time to time, and we cannot expect
to discover many. One appears as early as the fifteenth year of Henry
III., who grants to all persons born or to be born within his village of
Contishall, that they shall be free from all villenage in body and
blood, paying an aid of twenty shillings to knight the king's eldest
son, and six shillings a year as a quit-rent.[422] So in the twelfth of
Edward III. certain of the king's villeins are enfranchised on payment
of a fine.[423] In strictness of law, a fine from the villein for the
sake of enfranchisement was nugatory, since all he could possess was
already at his lord's disposal. But custom and equity might easily
introduce different maxims; and it was plainly for the lord's interest
to encourage his tenants in the acquisition of money to redeem
themselves, rather than to quench the exertions of their industry by
availing himself of an extreme right. Deeds of enfranchisement occur in
the reigns of Mary and Elizabeth;[424] and perhaps a commission of the
latter princess in 1574, directing the enfranchisement of her bondmen
and bondwomen on certain manors upon payment of a fine, is the last
unequivocal testimony to the existence of villenage;[425] though it is
highly probable that it existed in remote parts of the country some time
longer.[426]

[Sidenote: Reign of Henry VI.]

From this general view of the English constitution, as it stood about
the time of Henry VI., we must turn our eyes to the political
revolutions which clouded the latter years of his reign. The minority of
this prince, notwithstanding the vices and dissensions of his court and
the inglorious discomfiture of our arms in France, was not perhaps a
calamitous period. The country grew more wealthy; the law was, on the
whole, better observed; the power of parliament more complete and
effectual than in preceding times. But Henry's weakness of
understanding, becoming evident as he reached manhood, rendered his
reign a perpetual minority. His marriage with a princess of strong mind,
but ambitious and vindictive, rather tended to weaken the government and
to accelerate his downfall; a certain reverence that had been paid to
the gentleness of the king's disposition being overcome by her
unpopularity. By degrees Henry's natural feebleness degenerated almost
into fatuity; and this unhappy condition seems to have overtaken him
nearly about the time when it became an arduous task to withstand the
assault in preparation against his government. This may properly
introduce a great constitutional subject, to which some peculiar
circumstances of our own age have imperiously directed the consideration
of parliament. Though the proceedings of 1788 and 1810 are undoubtedly
precedents of far more authority than any that can be derived from our
ancient history, yet, as the seal of the legislature has not yet been
set upon this controversy, it is not perhaps altogether beyond the
possibility of future discussion; and at least it cannot be
uninteresting to look back on those parallel or analogous cases by which
the deliberations of parliament upon the question of regency were
guided.

[Sidenote: Historical instances of regencies:]

[Sidenote: during the absence of our kings in France;]

While the kings of England retained their continental dominions, and
were engaged in the wars to which those gave birth, they were of course
frequently absent from this country. Upon such occasions the
administration seems at first to have devolved officially on the
justiciary, as chief servant of the crown. But Henry III. began the
practice of appointing lieutenants, or guardians of the realm (custodes
regni), as they were more usually termed, by way of temporary
substitutes. They were usually nominated by the king without consent of
parliament; and their office carried with it the right of exercising all
the prerogatives of the crown. It was of course determined by the king's
return; and a distinct statute was necessary in the reign of Henry V. to
provide that a parliament called by the guardian of the realm during the
king's absence should not be dissolved by that event.[427] The most
remarkable circumstance attending those lieutenancies was that they were
sometimes conferred on the heir apparent during his infancy. The Black
Prince, then duke of Cornwall, was left guardian of the realm in 1339,
when he was but ten years old;[428] and Richard his son, when still
younger, in 1372, during Edward III.'s last expedition into France.[429]

[Sidenote: at the accession of Henry III.;]

[Sidenote: of Edward I.;]

[Sidenote: of Edward III.;]

[Sidenote: of Richard II.;]

These do not however bear a very close analogy to regencies in the
stricter sense, or substitutions during the natural incapacity of the
sovereign. Of such there had been several instances before it became
necessary to supply the deficiency arising from Henry's derangement. 1.
At the death of John, William earl of Pembroke assumed the title of
rector regis et regni, with the consent of the loyal barons who had just
proclaimed the young king, and probably conducted the government in a
great measure by their advice.[430] But the circumstances were too
critical, and the time is too remote, to give this precedent any
material weight. 2. Edward I. being in Sicily at his father's death, the
nobility met at the Temple church, as we are informed by a contemporary
writer, and, after making a new great seal, appointed the archbishop of
York, Edward earl of Cornwall, and the earl of Gloucester, to be
ministers and guardians of the realm; who accordingly conducted the
administration in the king's name until his return.[431] It is here
observable that the earl of Cornwall, though nearest prince of the
blood, was not supposed to enjoy any superior title to the regency,
wherein he was associated with two other persons. But while the crown
itself was hardly acknowledged to be unquestionably hereditary, it would
be strange if any notion of such a right to the regency had been
entertained. 3. At the accession of Edward III., then fourteen years
old, the parliament, which was immediately summoned, nominated four
bishops, four earls, and six barons as a standing council, at the head
of which the earl of Lancaster seems to have been placed, to advise the
king in all business of government. It was an article in the charge of
treason, or, as it was then styled, of accroaching royal power, against
Mortimer, that he intermeddled in the king's household without the
assent of this council.[432] They may be deemed therefore a sort of
parliamentary regency, though the duration of their functions does not
seem to be defined. 4. The proceedings at the commencement of the next
reign are more worthy of attention. Edward III. dying June 21, 1377, the
keepers of the great seal next day, in absence of the chancellor beyond
sea, gave it into the young king's hands before his council. He
immediately delivered it to the duke of Lancaster, and the duke to Sir
Nicholas Bode for safe custody. Four days afterwards the king in council
delivered the seal to the bishop of St. David's, who affixed it the same
day to divers letters patent.[433] Richard was at this time ten years
and six months old; an age certainly very unfit for the personal
execution of sovereign authority. Yet he was supposed capable of
reigning without the aid of a regency. This might be in virtue of a sort
of magic ascribed by lawyers to the great seal, the possession of which
bars all further inquiry, and renders any government legal. The practice
of modern times requiring the constant exercise of the sign manual has
made a public confession of incapacity necessary in many cases where it
might have been concealed or overlooked in earlier periods of the
constitution. But though no one was invested with the office of regent,
a council of twelve was named by the prelates and peers at the king's
coronation, July 16, 1377, without whose concurrence no public measure
was to be carried into effect. I have mentioned in another place the
modifications introduced from time to time by parliament, which might
itself be deemed a great council of regency during the first years of
Richard.

[Sidenote: of Henry VI.]

5. The next instance is at the accession of Henry VI. This prince was
but nine months old at his father's death; and whether from a more
evident incapacity for the conduct of government in his case than in
that of Richard II., or from the progress of constitutional principles
in the forty years elapsed since the latter's accession, far more
regularity and deliberation were shown in supplying the defect in the
executive authority. Upon the news arriving that Henry V. was dead,
several lords spiritual and temporal assembled, on account of the
imminent necessity, in order to preserve peace, and provide for the
exercise of officers appertaining to the king. These peers accordingly
issued commissions to judges, sheriffs, escheators, and others, for
various purposes, and writs for a new parliament. This was opened by
commission under the great seal directed to the duke of Gloucester, in
the usual form, and with the king's teste.[434] Some ordinances were
made in this parliament by the duke of Gloucester as commissioner, and
some in the king's name. The acts of the peers who had taken on
themselves the administration, and summoned parliament, were confirmed.
On the twenty-seventh day of its session, it is entered upon the roll
that the king, "considering his tender age, and inability to direct in
person the concerns of his realm, by assent of lords and commons,
appoints the duke of Bedford, or, in his absence beyond sea, the duke of
Gloucester, to be protector and defender of the kingdom and English
church, and the king's chief counsellor." Letters patent were made out
to this effect, the appointment being however expressly during the
king's pleasure. Sixteen councillors were named in parliament to assist
the protector in his administration; and their concurrence was made
necessary to the removal and appointment of officers, except some
inferior patronage specifically reserved to the protector. In all
important business that should pass by order of council, the whole, or
major part, were to be present; "but if it were such matter that the
king hath been accustomed to be counselled of, that then the said lords
proceed not therein without the advice of my lords of Bedford or
Gloucester."[435] A few more councillors were added by the next
parliament, and divers regulations established for their
observance.[436]

This arrangement was in contravention of the late king's testament,
which had conferred the regency on the duke of Gloucester, in exclusion
of his elder brother. But the nature and spirit of these proceedings
will be better understood by a remarkable passage in a roll of a later
parliament; where the house of lords, in answer to a request of
Gloucester that he might know what authority he possessed as protector,
remind him that in the first parliament of the king[437] "ye desired to
have had ye governaunce of yis land; affermyng yat hit belonged unto you
of rygzt, as well by ye mene of your birth as by ye laste wylle of ye
kyng yat was your broyer, whome God assoile; alleggyng for you such
groundes and motyves as it was yought to your discretion made for your
intent; whereupon, the lords spiritual and temporal assembled there in
parliament, among which were there my lordes your uncles, the bishop of
Winchester that now liveth, and the duke of Exeter, and your cousin the
earl of March that be gone to God, and of Warwick, and other in great
number that now live, had great and long deliberation and advice,
searched precedents of the governail of the land in time and case
semblable, when kings of this land have been tender of age, took also
information of the laws of the land, of such persons as be notably
learned therein, and finally found your said desire not caused nor
grounded in precedent, nor in the law of the land; the which the king
that dead is, in his life nor might by his last will nor otherwise
altre, change, nor abroge, without the assent of the three estates, nor
commit or grant to any person governance or rule of this land longer
than he lived; but on that other behalf, the said lords found your said
desire not according with the laws of this land, and against the right
and fredome of the estates of the same land. Howe were it that it be not
thought that any such thing wittingly proceeded of your intent; and
nevertheless to keep peace and tranquillity, and to the intent to ease
and appease you, it was advised and appointed by authority of the king,
assenting the three estates of this land, that ye, in absence of my lord
your brother of Bedford, should be chief of the king's council, and
devised unto you a name different from other counsellors, not the name
of tutor, lieutenant, governor, nor of regent, nor no name that should
import authority of governance of the land, but the name of protector
and defensor, which importeth a personal duty of attendance to the
actual defence of the land, as well against enemies outward, if case
required, as against rebels inward, if any were, that God forbid;
granting you therewith certain power, the which is specified and
contained in an act of the said parliament, to endure as long as it
liked the king. In the which, if the intent of the said estates had been
that ye more power and authority should have had, more should have been
expressed therein; to the which appointment, ordinance, and act, ye then
agreed you as for your person, making nevertheless protestation that it
was not your intent in any wise to deroge or do prejudice unto my lord
your brother of Bedford by your said agreement, as toward any right that
he would pretend or claim in the governance of this land; and as toward
any pre-eminence that you might have or belong unto you as chief of
council, it is plainly declared in the said act and articles, subscribed
by my said lord of Bedford, by yourself, and the other lords of the
council. But as in parliament to which ye be called upon your faith and
ligeance as duke of Glocester, as other lords be, and not otherwise, we
know no power nor authority that ye have, other than ye as duke of
Glocester should have, the king being in parliament, at years of mest
discretion: We marvailing with all our hearts that, considering the open
declaration of the authority and power belonging to my lord of Bedford
and to you in his absence, and also to the king's council subscribed
purely and simply by my said lord of Bedford and by you, that you should
in any wise be stirred or moved not to content you therewith or to
pretend you any other: Namely, considering that the king, blessed be our
Lord, is, sith the time of the said power granted unto you, far gone and
grown in person, in wit, and understanding, and like with the grace of
God to occupy his own royal power within few years: and forasmuch
considering the things and causes abovesaid, and other many that long
were to write, We lords aforesaid pray, exhort, and require you to
content you with the power abovesaid and declared, of the which my lord
your brother of Bedford, the king's eldest uncle, contented him: and
that ye none larger power desire, will, nor use; giving you this that is
aboven written for our answer to your foresaid demand, the which we will
dwell and abide with, withouten variance or changing. Over this
beseeching and praying you in our most humble and lowly wise, and also
requiring you in the king's name, that ye, according to the king's
commandment, contained in his writ sent unto you in that behalf, come to
this his present parliament, and intend to the good effect and speed of
matters to be demesned and treted in the same, like as of right ye owe
to do."[438]

It is evident that this plain, or rather rude address to the duke of
Gloucester, was dictated by the prevalence of cardinal Beaufort's party
in council and parliament. But the transactions in the former parliament
are not unfairly represented; and, comparing them with the passage
extracted above, we may perhaps be entitled to infer: 1. That the king
does not possess any constitutional prerogative of appointing a regent
during the minority of his successor; and 2. That neither the heir
presumptive, nor any other person, is entitled to exercise the royal
prerogative during the king's infancy (or, by parity of reasoning, his
infirmity), nor to any title that conveys them; the sole right of
determining the persons by whom, and fixing the limitations under which,
the executive government shall be conducted in the king's name and
behalf, devolving upon the great council of parliament.

The expression used in the lords' address to the duke of Gloucester,
relative to the young king, that he was far gone and grown in person,
wit, and understanding, was not thrown out in mere flattery. In two
years the party hostile to Gloucester's influence had gained ground
enough to abrogate his office of protector, leaving only the honorary
title of chief counsellor.[439] For this the king's coronation, at eight
years of age, was thought a fair pretence; and undoubtedly the loss of
that exceedingly limited authority which had been delegated to the
protector could not have impaired the strength of government. This was
conducted as before by a selfish and disunited council; but the king's
name was sufficient to legalize their measures, nor does any objection
appear to have been made in parliament to such a mockery of the name of
monarchy.

[Sidenote: Henry's mental derangement.]

[Sidenote: Duke of York made protector.]

In the year 1454, the thirty-second of Henry's reign, his unhappy
malady, transmitted perhaps from his maternal grandfather, assumed so
decided a character of derangement or imbecility, that parliament could
no longer conceal from itself the necessity of a more efficient ruler.
This assembly, which had been continued by successive prorogations for
nearly a year, met at Westminster on the 14th of February, when the
session was opened, by the duke of York, as king's commissioner. Kemp,
archbishop of Canterbury and chancellor of England, dying soon
afterwards, it was judged proper to acquaint the king at Windsor by a
deputation of twelve lords with this and other subjects concerning his
government. In fact, perhaps, this was a pretext chosen in order to
ascertain his real condition. These peers reported to the lords' house,
two days afterwards, that they had opened to his majesty the several
articles of their message, but "could get no answer ne sign for no
prayer ne desire," though they repeated their endeavours at three
different interviews. This report, with the instruction on which it was
founded, was, at their prayer, entered of record in parliament. Upon so
authentic a testimony of their sovereign's infirmity, the peers,
adjourning two days for solemnity or deliberation, "elected and
nominated Richard duke of York to be protector and defender of the realm
of England during the king's pleasure." The duke, protesting his
insufficiency, requested "that in this present parliament, and by
authority thereof, it be enacted that, of yourself and of your ful and
mere disposition, ye desire, name, and call me to the said name and
charge, and that of any presumption of myself I take them not upon me,
but only of the due and humble obeisance that I owe to do unto the king
our most dread and sovereign lord, and to you the peerage of this land,
in whom by the occasion of the infirmity of our said sovereign lord
resteth the exercise of his authority, whose noble commandments I am as
ready to perform and obey as any of his liegemen alive, and that, at
such time as it shall please our blessed Creator to restore his most
noble person to healthful disposition, it shall like you so to declare
and notify to his good grace." To this protestation the lords answered
that, for his and their discharge, an act of parliament should be made
conformably to that enacted in the king's infancy, since they were
compelled by an equal necessity again to choose and name a protector and
defender. And to the duke of York's request to be informed how far the
power and authority of his charge should extend, they replied that he
should be chief of the king's council, and "devised therefore to the
said duke a name different from other counsellors, not the name of
tutor, lieutenant, governor, nor of regent, nor no name that shall
import authority of governance of the land; but the said name of
protector and defensor;" and so forth, according to the language of
their former address to the duke of Gloucester. An act was passed
accordingly, constituting the duke of York protector of the church and
kingdom, and chief counsellor of the king, during the latter's pleasure;
or until the prince of Wales should attain years of discretion on whom
the said dignity was immediately to devolve. The patronage of certain
spiritual benefices was reserved to the protector according to the
precedent of the king's minority, which parliament was resolved to
follow in every particular.[440]

It may be conjectured, by the provision made in favour of the prince of
Wales, then only two years old, that the king's condition was supposed
to be beyond hope of restoration. But in about nine months he recovered
sufficient speech and recollection to supersede the duke of York's
protectorate.[441] The succeeding transactions are matter of familiar,
though not, perhaps, very perspicuous history. The king was a prisoner
in his enemies' hands after the affair at St. Albans,[442] when
parliament met in July, 1455. In this session little was done, except
renewing the strongest oaths of allegiance to Henry and his family. But
the two houses meeting again after a prorogation to November 12, during
which time the duke of York had strengthened his party, and was
appointed by commission the king's lieutenant to open the parliament, a
proposition was made by the commons that, "whereas the king had deputed
the duke of York as his commissioner to proceed in this parliament, it
was thought by the commons that, if the king hereafter could not attend
to the protection of the country, an able person should be appointed
protector, to whom they might have recourse for redress of injuries;
especially as great disturbances had lately arisen in the west through
the feuds of the earl of Devonshire and Lord Bonvile."[443] The
archbishop of Canterbury answered for the lords that they would take
into consideration what the commons had suggested. Two days afterwards
the latter appeared again with a request conveyed nearly in the same
terms. Upon their leaving the chamber, the archbishop, who was also
chancellor, moved the peers to answer what should be done in respect of
the request of the commons; adding that "it is understood that they will
not further proceed in matters of parliament, to the time that they have
answer to their desire and request." This naturally ended in the
reappointment of the duke of York to his charge of protector. The
commons indeed were determined to bear no delay. As if ignorant of what
had been resolved in consequence of their second request, they urged it
a third time, on the next day of meeting; and received for answer that
"the king our said sovereign lord, by the advice and assent of his lords
spiritual and temporal being in this present parliament, had named and
desired the duke of York to be protector and defensor of this land." It
is worthy of notice that in these words, and indeed in effect, as
appears by the whole transaction, the house of peers assumed an
exclusive right of choosing the protector, though, in the act passed to
ratify their election, the commons' assent, as a matter of course, is
introduced. The last year's precedent was followed in the present
instance, excepting a remarkable deviation; instead of the words "during
the king's pleasure," the duke was to hold his office "until he should
be discharged of it by the lords in parliament."[444]

This extraordinary clause, and the slight allegations on which it was
thought fit to substitute a vicegerent for the reigning monarch, are
sufficient to prove, even if the common historians were silent, that
whatever passed as to this second protectorate of the duke of York was
altogether of a revolutionary complexion. In the actual circumstances of
civil blood already spilled and the king in captivity, we may justly
wonder that so much regard was shown to the regular forms and precedents
of the constitution. But the duke's natural moderation will account for
part of this, and the temper of the lords for much more. That assembly
appears for the most part to have been faithfully attached to the house
of Lancaster. The partisans of Richard were found in the commons and
among the populace. Several months elapsed after the victory of St.
Albans before an attempt was thus made to set aside a sovereign, not
labouring, so far as we know, under any more notorious infirmity than
before. It then originated in the commons, and seems to have received
but an unwilling consent from the upper house. Even in constituting the
duke of York protector over the head of Henry, whom all men despaired of
ever seeing in a state to face the dangers of such a season, the lords
did not forget the rights of his son. By this latter instrument, as well
as by that of the preceding year, the duke's office was to cease upon
the prince of Wales arriving at the age of discretion.

[Sidenote: Duke of York's claim to the crown.]

But what had long been propagated in secret, soon became familiar to the
public ear; that the duke of York laid claim to the throne. He was
unquestionably heir general of the royal line, through his mother, Anne,
daughter of Roger Mortimer earl of March, son of Philippa, daughter of
Lionel duke of Clarence, third son of Edward III. Roger Mortimer's
eldest son, Edmund, had been declared heir presumptive by Richard II.;
but his infancy during the revolution that placed Henry IV. on the
throne had caused his pretensions to be passed over in silence. The new
king however was induced by a jealousy natural to his situation to
detain the earl of March in custody. Henry V. restored his liberty; and,
though he had certainly connived for a while at the conspiracy planned
by his brother-in-law the earl of Cambridge and Lord Scrope of Masham to
place the crown on his head, that magnanimous prince gave him a free
pardon, and never testified any displeasure. The present duke of York
was honoured by Henry VI. with the highest trusts in France and Ireland;
such as Beaufort and Gloucester could never have dreamed of conferring
on him if his title to the crown had not been reckoned obsolete. It has
been very pertinently remarked that the crime perpetrated by Margaret
and her counsellors in the death of the duke of Gloucester was the
destruction of the house of Lancaster.[445] From this time the duke of
York, next heir in presumption while the king was childless, might
innocently contemplate the prospect of royalty; and when such ideas had
long been passing through his mind, we may judge how reluctantly the
birth of prince Edward, nine years after Henry's marriage, would be
admitted to disturb them. The queen's administration unpopular, careless
of national interests, and partial to his inveterate enemy the duke of
Somerset;[446] the king incapable of exciting fear or respect; himself
conscious of powerful alliances and universal favour; all these
circumstances combined could hardly fail to nourish those opinions of
hereditary right which he must have imbibed from his infancy.

The duke of York preserved through the critical season of rebellion such
moderation and humanity that we may pardon him that bias in favour of
his own pretensions to which he became himself a victim. Margaret
perhaps, by her sanguinary violence in the Coventry parliament of 1460,
where the duke and all his adherents were attainted, left him not the
choice of remaining a subject with impunity. But with us, who are to
weigh these ancient factions in the balance of wisdom and justice, there
should be no hesitation in deciding that the house of Lancaster were
lawful sovereigns of England. I am, indeed, astonished that not only
such historians as Carte, who wrote undisguisedly upon a Jacobite
system, but even men of juster principles, have been inadvertent enough
to mention the right of the house of York. If the original consent of
the nation, if three descents of the crown, if repeated acts of
parliament, if oaths of allegiance from the whole kingdom, and more
particularly from those who now advanced a contrary pretension, if
undisturbed, unquestioned possession during sixty years, could not
secure the reigning family against a mere defect in their genealogy,
when were the people to expect tranquillity? Sceptres were committed,
and governments were instituted, for public protection and public
happiness, not certainly for the benefit of rulers, or for the security
of particular dynasties. No prejudice has less in its favour, and none
has been more fatal to the peace of mankind, than that which regards a
nation of subjects as a family's private inheritance. For, as this
opinion induces reigning princes and their courtiers to look on the
people as made only to obey them, so, when the tide of events has swept
them from their thrones, it begets a fond hope of restoration, a sense
of injury and of imprescriptible rights, which give the show of justice
to fresh disturbances of public order, and rebellions against
established authority. Even in cases of unjust conquest, which are far
stronger than any domestic revolution, time heals the injury of wounded
independence, the forced submission to a victorious enemy is changed
into spontaneous allegiance to a sovereign, and the laws of God and
nature enjoin the obedience that is challenged by reciprocal benefits.
But far more does every national government, however violent in its
origin, become legitimate, when universally obeyed and justly exercised,
the possession drawing after it the right; not certainly that success
can alter the moral character of actions, or privilege usurpation before
the tribunal of human opinion, or in the pages of history, but that the
recognition of a government by the people is the binding pledge of their
allegiance so long as its corresponding duties are fulfilled.[447] And
thus the law of England has been held to annex the subject's fidelity to
the reigning monarch, by whatever title he may have ascended the throne,
and whoever else may be its claimant.[448] But the statute of 11th of
Henry VII. c. 1, has furnished an unequivocal commentary upon this
principle, when, alluding to the condemnations and forfeitures by which
those alternate successes of the white and red roses had almost
exhausted the noble blood of England, it enacts that "no man for doing
true and faithful service to the king for the time being be convict or
attaint of high treason, nor of other offences, by act of parliament or
otherwise."

[Sidenote: War of the Lancastrians and Yorkists.]

Though all classes of men and all parts of England were divided into
factions by this unhappy contest, yet the strength of the Yorkists lay
in London and the neighbouring counties, and generally among the
middling and lower people. And this is what might naturally be
expected. For notions of hereditary right take easy hold of the
populace, who feel an honest sympathy for those whom they consider as
injured; while men of noble birth and high station have a keener sense
of personal duty to their sovereign, and of the baseness of deserting
their allegiance. Notwithstanding the wide-spreading influence of the
Nevils, most of the nobility were well affected to the reigning dynasty.
We have seen how reluctantly they acquiesced in the second protectorate
of the duke of York after the battle of St. Albans. Thirty-two temporal
peers took an oath of fealty to Henry and his issue in the Coventry
parliament of 1460, which attainted the duke of York and the earls of
Warwick and Salisbury.[449] And in the memorable circumstances of the
duke's claim personally made in parliament, it seems manifest that the
lords complied not only with hesitation but unwillingness, and in fact
testified their respect and duty for Henry by confirming the crown to
him during his life.[450] The rose of Lancaster blushed upon the banners
of the Staffords, the Percies, the Veres, the Hollands, and the
Courtneys. All these illustrious families lay crushed for a time under
the ruins of their party. But the course of fortune, which has too great
a mastery over crowns and sceptres to be controlled by men's affection,
invested Edward IV. with a possession which the general consent of the
nation both sanctioned and secured. This was effected in no slight
degree by the furious spirit of Margaret, who began a system of
extermination by acts of attainder and execution of prisoners that
created abhorrence, though it did not prevent imitation. And the
barbarities of her northern army, whom she led towards London after the
battle of Wakefield, lost the Lancastrian cause its former friends,[451]
and might justly convince reflecting men that it were better to risk
the chances of a new dynasty than trust the kingdom to an exasperated
faction.

[Sidenote: Edward IV.]

A period of obscurity and confusion ensues, during which we have as
little insight into constitutional as general history. There are no
contemporary chroniclers of any value, and the rolls of parliament, by
whose light we have hitherto steered, become mere registers of private
bills, or of petitions relating to commerce. The reign of Edward IV. is
the first during which no statute was passed for the redress of
grievances or maintenance of the subject's liberty. Nor is there, if I
am correct, a single petition of this nature upon the roll. Whether it
were that the commons had lost too much of their ancient courage to
present any remonstrances, or that a wilful omission has vitiated the
record, is hard to determine; but we certainly must not imagine that a
government cemented with blood poured on the scaffold, as well as in the
field, under a passionate and unprincipled sovereign, would afford no
scope for the just animadversion of parliament.[452] The reign of Edward
IV. was a reign of terror. One half of the noble families had been
thinned by proscription; and though generally restored in blood by the
reversal of their attainders--a measure certainly deserving of much
approbation--were still under the eyes of vigilant and inveterate
enemies. The opposite faction would be cautious how they resisted a king
of their own creation, while the hopes of their adversaries were only
dormant. And indeed, without relying on this supposition, it is commonly
seen that, when temporary circumstances have given a king the means of
acting in disregard of his subjects' privileges, it is a very difficult
undertaking for them to recover a liberty which has no security so
effectual as habitual possession.

Besides the severe proceedings against the Lancastrian party, which
might be extenuated by the common pretences, retaliation of similar
proscriptions, security for the actual government, or just punishment of
rebellion against a legitimate heir, there are several reputed instances
of violence and barbarity in the reign of Edward IV. which have not such
plausible excuses. Every one knows the common stories of the citizen who
was attainted of treason for an idle speech that he would make his son
heir to the crown, the house where he dwelt; and of Thomas Burdett, who
wished the horns of his stag in the belly of him who had advised the
king to shoot it. Of the former I can assert nothing, though I do not
believe it to be accurately reported. But certainly the accusation
against Burdett, however iniquitous, was not confined to these frivolous
words; which indeed do not appear in his indictment,[453] or in a
passage relative to his conviction in the roll of parliament. Burdett
was a servant and friend of the duke of Clarence, and sacrificed as a
preliminary victim. It was an article of charge against Clarence that he
had attempted to persuade the people that "Thomas Burdett his servant,
which was lawfully and truly attainted of treason, was wrongfully put to
death."[454] There could indeed be no more oppressive usage inflicted
upon meaner persons than this attainder of the duke of Clarence--an act
for which a brother could not be pardoned had he been guilty, and which
deepens the shadow of a tyrannical age, if, as it seems, his offence
toward Edward was but levity and rashness.

But whatever acts of injustice we may attribute, from authority or
conjecture, to Edward's government, it was very far from being
unpopular. His love of pleasure, his affability, his courage and beauty,
gave him a credit with his subjects which he had no real virtue to
challenge. This restored him to the throne, even against the prodigious
influence of Warwick, and compelled Henry VII. to treat his memory with
respect, and acknowledge him as a lawful king.[455] The latter years of
his reign were passed in repose at home after scenes of unparalleled
convulsions, and in peace abroad after more than a century of expensive
warfare. His demands of subsidy were therefore moderate, and easily
defrayed by a nation which was making rapid advances towards opulence.
According to Sir John Fortescue, nearly one fifth of the whole kingdom
had come to the king's hand by forfeiture at some time or other since
the commencement of his reign.[456] Many indeed of these lands had been
restored, and others lavished away in grants, but the surplus revenue
must still have been considerable.

Edward IV. was the first who practised a new method of taking his
subjects' money without consent of parliament, under the plausible name
of benevolences. These came in place of the still more plausible loans
of former monarchs, and were principally levied on the wealthy traders.
Though no complaint appears in the parliamentary records of his reign,
which, as has been observed, complain of nothing, the illegality was
undoubtedly felt and resented. In the remarkable address to Richard by
that tumultuary meeting which invited him to assume the crown, we find,
among general assertions of the state's decay through misgovernment, the
following strong passage:--"For certainly we be determined rather to
aventure and committe us to the perill of owre lyfs and jopardie of
deth, than to lyve in such thraldome and bondage as we have lyved long
tyme heretofore, oppressed and injured by extortions and newe
impositions ayenst the lawes of God and man, and the libertie, old
policie, and lawes of this realme, whereyn every Englishman is
inherited."[457] Accordingly, in Richard III.'s only parliament an act
was passed which, after reciting in the strongest terms the grievances
lately endured, abrogates and annuls for ever all exactions under the
name of benevolence.[458] The liberties of this country were at least
not directly impaired by the usurpation of Richard. But from an act so
deeply tainted with moral guilt, as well as so violent in all its
circumstances, no substantial benefit was likely to spring. Whatever
difficulty there may be in deciding upon the fate of Richard's nephews
after they were immured in the Tower, the more public parts of the
transaction bear unequivocal testimony to his ambitious usurpation.[459]
It would therefore be foreign to the purpose of this chapter to dwell
upon his assumption of the regency, or upon the sort of election,
however curious and remarkable, which gave a pretended authority to his
usurpation of the throne. Neither of these has ever been alleged by any
party in the way of constitutional precedent.

[Sidenote: Conclusion.]

At this epoch I terminate these inquiries into the English constitution;
a sketch very imperfect, I fear, and unsatisfactory, but which may at
least answer the purpose of fixing the reader's attention on the
principal objects, and of guiding him to the purest fountains of
constitutional knowledge. From the accession of the house of Tudor a new
period is to be dated in our history, far more prosperous in the
diffusion of opulence and the preservation of general order than the
preceding, but less distinguished by the spirit of freedom and jealousy
of tyrannical power. We have seen, through the twilight of our
Anglo-Saxon records, a form of civil policy established by our
ancestors, marked, like the kindred governments of the continent, with
aboriginal Teutonic features; barbarous indeed, and insufficient for the
great ends of society, but capable and worthy of the improvement it has
received, because actuated by a sound and vital spirit, the love of
freedom and of justice. From these principles arose that venerable
institution, which none but a free and simple people could have
conceived, trial by peers--an institution common in some degree to other
nations, but which, more widely extended, more strictly retained, and
better modified among ourselves, has become perhaps the first, certainly
among the first, of our securities against arbitrary government. We have
seen a foreign conqueror and his descendants trample almost alike upon
the prostrate nation and upon those who had been companions of their
victory, introduce the servitudes of feudal law with more than their
usual rigour, and establish a large revenue by continual precedents upon
a system of universal and prescriptive extortion. But the Norman and
English races, each unfit to endure oppression, forgetting their
animosities in a common interest, enforce by arms the concession of a
great charter of liberties. Privileges wrested from one faithless
monarch are preserved with continual vigilance against the machinations
of another; the rights of the people become more precise, and their
spirit more magnanimous, during the long reign of Henry III. With
greater ambition and greater abilities than his father, Edward I.
attempts in vain to govern in an arbitrary manner, and has the
mortification of seeing his prerogative fettered by still more important
limitations. The great council of the nation is opened to the
representatives of the commons. They proceed by slow and cautious steps
to remonstrate against public grievances, to check the abuses of
administration, and sometimes to chastise public delinquency in the
officers of the crown. A number of remedial provisions are added to the
statutes; every Englishman learns to remember that he is the citizen of
a free state, and to claim the common law as his birthright, even though
the violence of power should interrupt its enjoyment. It were a strange
misrepresentation of history to assert that the constitution had
attained anything like a perfect state in the fifteenth century; but I
know not whether there are any essential privileges of our countrymen,
any fundamental securities against arbitrary power, so far as they
depend upon positive institution, which may not be traced to the time
when the house of Plantagenet filled the English throne.


FOOTNOTES:

[1] The fullest account we possess of these domestic transactions from
1294 to 1298 is in Walter Hemingford, one of the historians edited by
Hearne, p. 52-168. They have been vilely perverted by Carte, but
extremely well told by Hume, the first writer who had the merit of
exposing the character of Edward I. See too Knyghton in Twysden's Decem
Scriptores, col. 2492.

[2] Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73.

[3] Edward would not confirm the charters, notwithstanding his promise,
without the words, salvo jure coronæ nostræ; on which the two earls
retired from court. When the confirmation was read to the people at St.
Paul's, says Hemingford, they blessed the king on seeing the charters
with the great seal affixed; but when they heard the captious
conclusion, they cursed him instead. At the next meeting of parliament,
the king agreed to omit these insidious words, p. 168.

[4] The supposed statute, De Tallagio non concedendo, is considered by
Blackstone (Introduction to Charters, p. 67) as merely an abstract of
the Confirmatio Chartarum. By that entitled Articuli super Chartas, 28
Edw. I., a court was erected in every county, of three knights or
others, to be elected by the commons of the shire, whose sole province
was to determine offences against the two charters, with the power of
punishing by fine and imprisonment; but not to extend to any case
wherein a remedy by writ was already provided. The Confirmatio Chartarum
is properly denominated a statute, and always printed as such; but in
form, like Magna Charta, it is a charter, or letters patent, proceeding
from the crown, without even reciting the consent of the realm. And its
"teste" is at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with
the count of Flanders, in a war with Philip the Fair. But a parliament
had been held at London, when the barons insisted on these concessions.
The circumstances are not wholly unlike those of Magna Charta.

The Lords' Committee do not seem to reject the statute "de tallagio non
concedendo" altogether, but say that, "if the manuscript containing it
(in Corpus Christi College, Cambridge) is a true copy of a statute, it
is undoubtedly a copy of a statute of the 25th, and not of a statute of
the 34th of Edward I." p. 230. It seems to me on comparing the two, that
the supposed statute de tallagio is but an imperfect transcript of the
king's charter at Ghent. But at least, as one exists in an authentic
form, and the other is only found in an unauthorized copy, there can be
no question which ought to be quoted.

[5] Hody (Treatise on Convocations, p. 126) states the matter thus: in
the Saxon times all bishops and abbots sat and voted in the state
councils, or parliament, as such, and not on account of their tenures.
After the Conquest the abbots sat there not as such, but by virtue of
their tenures, as barons; and the bishops sat in a double capacity, as
bishops, and as barons.

[6] Hody, p. 128.

[7] [Note I.]

[8] Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. c. 17.
Lyttelton's Henry II. vol. ii. p. 217. The last of these writers
supposes, contrary to Selden, that the earls continued to be governors
of their counties under Henry II. Stephen created a few titular earls,
with grants of crown lands to support them; but his successor resumed
the grants, and deprived them of their earldoms.

In Rymer's Foedera, vol. i. p. 3, we find a grant of Matilda, creating
Milo of Gloucester earl of Hereford, with the moat and castle of that
city in fee to him and his heirs, the third penny of the rent of the
city, and of the pleas in the county, three manors and a forest, and the
service of three tenants in chief, with all their fiefs; to be held with
all privileges and liberties as fully as ever any earl in England had
possessed them.

[9] Selden's Works, vol. iii. p. 713-743.

[10] Lyttelton's Henry II. vol. ii. p. 212.

[11] Hody on Convocations, p. 222, 234.

[12] Lib. ii. c. 9.

[13] Hody and Lord Lyttelton maintain these "barons of the second rank"
to have been the sub-vassals of the crown; tenants of the great barons
to whom the name was sometimes improperly applied. This was very
consistent with their opinion, that the commons were a part of
parliament at that time. But Hume, assuming at once the truth of their
interpretation in this instance, and the falsehood of their system,
treats it as a deviation from the established rule, and a proof of the
unsettled state of the constitution.

[14] [Note II.]

[15] M. Paris, p. 785. The barons even tell the king that this was
contrary to _his_ charter, in which nevertheless the clause to that
effect, contained in his father's charter, had been omitted.

[16] Henry II., in 1175, forbad any of those who had been concerned in
the late rebellion to come to his court without a particular summons.
Carte, vol. ii. p. 249.

[17] Upon the subject of tenure by barony, besides the writers already
quoted, see West's Inquiry into the Method of creating Peers, and
Carte's History of England, vol. ii. p. 247.

[18] Hody on Convocations, p. 293.

[19] Brady, Introduction to History of England. Appendix, p. 43.

[20] Brady's History of England, vol. i. Appendix, p. 182.

[21] Brady's Introduction, p. 94.

[22] Hist. of Common Law, vol, i. p. 202.

[23] This assembly is mentioned in the preamble, and afterwards, of the
spurious laws of Edward the Confessor; and I have been accused of
passing it over too slightly. The fact certainly does not rest on the
authority of Hoveden, who transcribes these laws _verbatim_; and they
are in substance an ancient document. There seems to me somewhat rather
suspicious in this assembly of delegates; it looks like a pious fraud to
maintain the old Saxon jurisprudence, which was giving way. But even if
we admit the fact as here told, I still adhere to the assertion that
there is no appearance that these twelve deputies of each county were
invested with any higher authority than that of declaring their ancient
usages. Any supposition of a real legislative parliament would be
inconsistent with all that we know of the state of England under the
Conqueror. And what an anomaly, upon every constitutional principle,
Anglo-Saxon or Norman, would be a parliament of twelve from each county!
Nor is it perfectly manifest that they were chosen by the people; the
word summoneri fecit is first used; and afterwards, electis de (not
_in_) singulis totius patriæ comitatibus. This might be construed of the
king's selection; but perhaps the common interpretation is rather the
better.

William, the compiler informs us, having heard some of the Danish laws,
was disposed to confirm them in preference to those of England; but
yielded to the supplication of the delegates, omnes compatriotæ, qui
leges narraverant, that he would permit them to retain the customs of
their ancestors, imploring him by the soul of King Edward, cujus erant
leges, nec aliorum exterorum. The king at length gave way, by the advice
and request of his barons, consilio et precatu baronum. These of course
were Normans; but what inference can be drawn in favour of parliamentary
representation in England from the behaviour of the rest? They were
supplicants, not legislators.

[24] 2 Prynne's Register, p. 16.

[25] Brady's Introduction, Appendix, pp. 41 and 44. "The language of
these writs implies a distinction between such as were styled barons,
apparently including the earls and the four knights who were to come
from the several counties ad loquendum, and who were also distinguished
from the knights summoned to attend with arms, in performance, it should
seem, of the military service due by their respective tenures; and the
writs, therefore, apparently distinguished certain tenants in chief by
knight-service from barons, if the knights so summoned to attend with
arms were required to attend by reason of their respective tenures in
chief of the king. How the four knights of each county who were thus
summoned to confer with the king were to be chosen, whether by the
county, or according to the mere will of the sheriff, does not appear;
but it seems most probable that they were intended by the king as
representatives of the freeholders of each county, and to balance the
power of the hostile nobles, who were then leagued against him; and the
measure might lead to conciliate the minds of those who would otherwise
have had no voice in the legislative assembly." Report of Lords'
Committee, p. 61.

This would be a remarkable fact, and the motive is by no means
improbable, being perhaps that which led to the large provisions for
summoning tenants in chief, contained in the charter of John, and
afterwards passed over. But this parley of the four knights from each
county, for they are only summoned ad loquendum, may not amount to
bestowing on them any legislative power. It is nevertheless to be
remembered that the word parliament meant, by its etymology, nothing
more; and the words, ad loquendum, may have been used in reference to
that. It is probable that these writs were not obeyed; we have no
evidence that they were, and it was a season of great confusion very
little before the granting of the charter of Henry III.

[26] Brady's Hist. of England, vol. i. Appendix, p. 227.

[27] 2 Prynne, p. 23.

[28] "This writ tends strongly to show that there then existed no law by
which a representation either of the king's tenants in capite or of
others, for the purpose of constituting a legislative assembly, or for
granting an aid, was specially provided; and it seems to have been the
first instance appearing on any record now extant, of an attempt to
substitute representatives elected by bodies of men for the attendance
of the individual so to be represented, personally or by their several
procurators, in an assembly convened for the purpose of obtaining an
aid." Report, p. 95.

[29] 2 Prynne, p. 27.

[30] 12 Ric. II. c. 12. Prynne's 4th Register.

[31] Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law
was not regularly acted upon till 1587. p. 368.

[32] What can one who adopts this opinion of Dr. Brady say to the
following record? Rex militibus, liberis hominibus, et _toti
communitati_ comitatus Wygorniæ tam intra libertates quam extra,
salutem. Cum comites, barones, milites, liberi homines, et communitates
comitatuum regni nostri vicesimam omnium bonorum suorum mobilium,
civesque et burgenses et communitates omnium civitatum et burgorum
ejusdem regni, necnon tenentes de antiquis dominicis coronæ nostræ
quindecimam bonorum suorum mobilium nobis concesserunt. Pat. Rot. 1 E.
II. in Rot. Parl. vol. i. p. 442. See also p. 241 and p. 269. If the
word communitas is here used in any precise sense, which, when possible,
we are to suppose in construing a legal instrument, it must designate,
not the tenants in chief, but the inferior class, who, though neither
freeholders nor free burgesses, were yet contributable to the subsidy on
their goods.

[33] Madox, Firma Burgi, p. 99 and p. 102 note Z.

[34] Prynne's 2nd Register, p. 50.

[35] Carte's Hist. of England, ii. 250.

[36] The present question has been discussed with much ability in the
Edinburgh Review, vol. xxvi. p. 341. [Note III.]

[37] Wilkins, p. 71.

[38] Burgensis Exoniæ urbis habent extra civitatem terram duodecim
carucatarum: quæ nullam consuetudinem reddunt nisi ad ipsam civitatem.
Domesday, p. 100. At Canterbury the burgesses had forty-five houses
without the city, de quibus ipsi habebant gablum et consuetudinem, rex
autem socam et sacam; ipsi quoque burgenses habebant de rege triginta
tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some
resident proprietors, called Lagemanni, had jurisdiction (socam et
sacam) over their tenants. But nowhere have I been able to discover any
trace of municipal self-government; unless Chester may be deemed an
exception, where we read of twelve judices civitatis; but by whom
constituted does not appear. The word lageman seems equivalent to judex.
The guild mentioned above at Canterbury was, in all probability, a
voluntary association: so at Dover we find the burgesses' guildhall,
gihalla burgensium. p. 1.

Many of the passages in Domesday relative to the state of burgesses are
collected in Brady's History of Boroughs; a work which, if read with due
suspicion of the author's honesty, will convey a great deal of
knowledge.

Since the former part of this note was written, I have met with a
charter granted by Henry II. to Lincoln, which seems to refer, more
explicitly than any similar instrument, to municipal privileges of
jurisdiction enjoyed by the citizens under Edward the Confessor. These
charters, it is well known, do not always recite what is true; yet it is
possible that the citizens of Lincoln, which had been one of the five
Danish towns, sometimes mentioned with a sort of distinction by writers
before the Conquest, might be in a more advantageous situation than the
generality of burgesses. Sciatis me concessisse civibus meis Lincoln,
omnes libertates et consuetudines et leges suas, quas habuerunt tempore
Edwardi et Will. et Henr. regum Angliæ, et gildam suam mercatoriam de
hominibus civitatis et de aliis mercatoribus comitatus, sicut illam
habuerunt tempore predictorum, antecessorum nostrorum, regum Angliæ,
melius et liberius. Et omnes homines qui infra quatuor divisas civitates
manent et mercatum deducunt, sint ad gildas, et consuetudines et assisas
civitatis, sicut melius fuerunt temp. Edw. et Will. et Hen. regum
Angliæ. Rymer, t. i. p. 40 (edit. 1816).

I am indebted to the friendly remarks of the periodical critic whom I
have before mentioned for reminding me of other charters of the same
age, expressed in a similar manner, which in my haste I had overlooked,
though printed in common books. But whether these general words ought to
outweigh the silence of Domesday Book I am not prepared to decide. I
have admitted below that the possession of corporate property implies an
elective government for its administration, and I think it perfectly
clear that the guilds made by-laws for the regulation of their members.
Yet this is something different from municipal jurisdiction over all the
inhabitants of a town. [Note IV.]

[39] Madox, Hist. of Exchequer, c. 17.

[40] Madox, Firma Burgi, p. 1. There is one instance, I know not if any
more could be found, of a firma burgi before the Conquest. It was at
Huntingdon. Domesday, p. 203.

[41] Madox, p. 12, 13.

[42] Id. p. 21.

[43] I have read somewhere that this charter was granted in 1101. But
the instrument itself, which is only preserved by an Inspeximus of
Edward IV., does not contain any date. Rymer, t. i. p. 11 (edit. 1816).
Could it be traced so high, the circumstance would be remarkable, as the
earliest charters granted by Louis VI., supposed to be the father of
these institutions, are several years later.

It is said by Mr. Thorpe (Ancient Laws of England, p. 267), that, though
there are ten witnesses, he only finds one who throws any light on the
date: namely, Hugh Bigod, who succeeded his brother William in 1120. But
Mr. Thorpe does not mention in what respect he succeeded. It was as
_dapifer regis_; but he is not so named in the charter. Dugdale's
Baronage, p. 132. The date, therefore, still seems problematical.

[44] This did not, however, save the citizens from paying one hundred
marks to the king for this privilege. Mag. Rot. 5 Steph. apud Madox,
Hist. Exchequer, t. xi. I do not know that the charter of Henry I. can
be suspected; but Brady, in his treatise of Boroughs (p. 38, edit.
1777), does not think proper once to mention it; and indeed uses many
expressions incompatible with its existence.

[45] Blomefield, Hist of Norfolk, vol. ii. p. 16, says that Henry I.
granted the same privileges by charter to Norwich in 1122 which London
possessed. Yet it appears that the king named the port reeve or provost;
but Blomefield suggests that he was probably recommended by the
citizens, the office being annual.

[46] Madox, Firma Burgi, p. 23. Hickes has given us a bond of fellowship
among the thanes of Cambridgeshire, containing several curious
particulars. A composition of eight pounds, exclusive, I conceive, of
the usual weregild, was to be enforced from the slayer of any fellow. If
a fellow (gilda) killed a man of 1200 shillings weregild, each of the
society was to contribute half a marc; for a ceorl, two oræ (perhaps ten
shillings); for a Welshman, one. If however this act was committed
wantonly, the fellow had no right to call on the society for
contribution. If one fellow killed another, he was to pay the legal
weregild to his kindred, and also eight pounds to the society. Harsh
words used by one fellow towards another, or even towards a stranger,
incurred a fine. No one was to eat or drink in the company of one who
had killed his brother fellow, unless in the presence of the king,
bishop, or alderman. Dissertatio Epistolaris, p. 21.

We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances
sworn to by persons both of noble and ignoble rank (ge eorlisce ge
ceorlisce), and confirmed by king Athelstan. These are in the nature of
by-laws for the regulation of certain societies that had been formed for
the preservation of public order. Their remedy was rather violent: to
kill and seize the effects of all who should rob any member of the
association. This property, after deducting the value of the things
stolen, was to be divided into two parts; one given to the criminal's
wife if not an accomplice, the other shared between the king and the
society.

In another fraternity among the clergy and laity of Exeter every fellow
was entitled to a contribution in case of taking a journey, or if his
house was burned. Thus they resembled, in some degree, our friendly
societies; and display an interesting picture of manners, which has
induced me to insert this note, though not greatly to the present
purpose. See more of the Anglo-Saxon guilds in Turner's History, vol.
ii. p. 102. Societies of the same kind, for purposes of religion,
charity, or mutual assistance, rather than trade, may be found long
afterwards. Blomefield's Hist. of Norfolk, vol. iii. p. 494.

[47] See a grant from Turstin, archbishop of York, in the reign of Henry
I., to the burgesses of Beverley, that they may have their _hanshus_
(i.e. guildhall) like those of York, et ibi sua statuta pertractent ad
honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816.

[48] Madox, Firma Burgi, p. 189.

[49] Idem, passim. A few of an earlier date may be found in the new
edition of Rymer.

[50] Lyttelton's History of Henry II., vol. ii. p. 170. Macpherson's
Annals of Commerce, vol. i. p. 331.

[51] Macpherson, p. 245.

[52] Id. p. 282.

[53] Cives Lundinenses, et pars nobilium qui eo tempore consistebant
Lundoniæ, Clitonem Eadmundum unanimi consensu in regem levavere. p. 249.

[54] Chron. Saxon. p. 154. Malmsbury, p. 76. He says the people of
London were become almost barbarians through their intercourse with the
Danes; propter frequentem convictum.

[55] Londinenses, qui sunt quasi optimates pro magnitudine civitatis in
Angliâ. Malmsb. p. 189. Thus too Matthew Paris: cives Londinenses, quos
propter civitatis dignitatem et civium antiquam libertatem Barones
consuevimus appellare. p. 744. And in another place: totius civitatis
cives, quos barones vocant. p. 835. Spelman says that the magistrates of
several other towns were called barons. Glossary, Barones de London.

A singular proof of the estimation in which the citizens of London held
themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn
de Brakelonde (p. 56--Camden Society, 1840). They claimed to be free
from toll in every part of England, and in every jurisdiction, resting
their immunity on the antiquity of London (which was coeval, they said,
with Rome), and on its rank as metropolis of the kingdom. Et dicebant
cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et
ubique, per totam Angliam, à tempore quo Roma primo fundata fuit, et
civitatem Lundoniæ, eodem tempore fundatam, talem debere habere
libertatem per totam Angliam, et ratione civitatis privilegiatæ quæ olim
metropolis fuit et caput regni, et ratione antiquitatis. Palgrave
inclines to think that London never formed part of any kingdom of the
Heptarchy. Introduction to Rot. Cur. Regis. p. 95. But this seems to
imply a republican city in the midst of so many royal states, which
seems hardly probable. Certainly it seems strange, though I cannot
explain it away, that the capital of England should have fallen, as we
generally suppose, to the small and obscure kingdom of Essex.
Winchester, indeed, may be considered as having become afterwards the
capital during the Anglo-Saxon monarchy, so far as that it was for the
most part the residence of our kings. But London was always more
populous.

[56] Drake, the historian of York, maintains that London was less
populous, about the time of the Conquest, than that city; and quotes
Hardynge, a writer of Henry V.'s age, to prove that the interior part of
the former was not closely built. Eboracum, p. 91. York however does not
appear to have contained more than 10,000 inhabitants at the accession
of the Conqueror; and the very exaggerations as to the populousness of
London prove that it must have far exceeded that number. Fitz-Stephen,
the contemporary biographer of Thomas à Becket, tells us of 80,000 men
capable of bearing arms within its precincts; where however his
translator, Pegge, suspects a mistake of the MS. in the numerals. And
this, with similar hyperboles, so imposed on the judicious mind of Lord
Lyttelton, that, finding in Peter of Blois the inhabitants of London
reckoned at quadraginta millia, he has actually proposed to read
quadringenta. Hist. Henry II., vol. iv. ad finem. It is hardly necessary
to observe that the condition of agriculture and internal communication
would not have allowed half that number to subsist.

The subsidy-roll of 1377, published in the Archæologia, vol. vii., would
lead to a conclusion that all the inhabitants of London did not even
then exceed 35,000. If this be true, they could not have amounted,
probably, to so great a number two or three centuries earlier. But the
numbers given in that document have been questioned as to Norwich upon
very plausible grounds, and seem rather suspicious in the present
instance. [Note V.]

[57] This seditious, or at least refractory character of the Londoners,
was displayed in the tumult headed by William Longbeard in the time of
Richard I., and that under Constantine in 1222, the patriarchs of a long
line of city demagogues. Hoveden, p. 765. M. Paris, p. 154.

[58] Hoveden's expressions are very precise, and show that the share
taken by the citizens of London (probably the mayor and aldermen) in
this measure was no tumultuary acclamation, but a deliberate concurrence
with the nobility. Comes Johannes, et fere omnes episcopi, et comites
Angliæ eâdem die intraverunt Londonias; et in crastino prædictus
Johannes frater regis, et archiepiscopus Rothomagensis, et omnes
episcopi, et comites et barones, et cives Londonienses cum illis
convenerunt in atrio ecclesiæ S. Pauli.... Placuit ergo Johanni fratri
regis, et omnibus episcopis, et comitibus et baronibus regni, et civibus
Londoniarum, quod cancellarius ille deponeretur, et deposuerunt eum, &c.
p. 701.

[59] The reader may consult, for a more full account of the English
towns before the middle of the thirteenth century, Lyttelton's History
of Henry II. vol. ii. p. 174; and Macpherson's Annals of Commerce.

[60] Frequent proofs of this may be found in Madox, Hist. of Exchequer,
c. 17, as well as in Matt. Paris, who laments it with indignation. Cives
Londinenses, contra consuetudinem et libertatem civitatis, quasi servi
ultimæ conditionis, non sub nomine aut titulo liberi adjutorii, sed
tallagii, quod multum eos angebat, regi, licet inviti et renitentes,
numerare sunt coacti. p. 492. Heu ubi est Londinensis, toties empta,
toties concessa, toties scripta, toties jurata libertas! &c. p. 627. The
king sometimes suspended their market, that is, I suppose, their right
of toll, till his demands were paid.

[61] These writs are not extant, having perhaps never been returned; and
consequently we cannot tell to what particular places they were
addressed. It appears however that the assembly was intended to be
numerous; for the entry runs: scribitur civibus Ebor, civibus Lincoln,
et cæteris burgis Angliæ. It is singular that no mention is made of
London, which must have had some special summons. Rymer, t. i. p. 803.
Dugdale, Summonitiones ad Parliamentum, p. 1.

[62] It would ill repay any reader's diligence to wade through the vapid
and diluted pages of Tyrrell; but whoever would know what can be best
pleaded for a higher antiquity of our present parliamentary constitution
may have recourse to Hody on Convocations, and Lord Lyttelton's History
of Henry II. vol. ii. p. 276, and vol. iv. p. 79-106. I do not conceive
it possible to argue the question more ingeniously than has been done by
the noble writer last quoted. Whitelocke, in his commentary on the
parliamentary writ, has treated it very much at length, but with no
critical discrimination. [Note VII.]

[63] Madox, Hist. of Exchequer, c. 17.

[64] The only apparent exception to this is in the letter addressed to
the pope by the parliament of 1246; the salutation of which runs thus:
Barones, proceres, et magnates, _ac nobiles portuum maris habitatores_,
necnon et clerus et populus universus, salutem. Matt. Paris, p. 696. It
is plain, I think, from these words, that some of the chief inhabitants
of the Cinque Ports, at that time very flourishing towns, were present
in this parliament. But whether they sat as representatives, or by a
peculiar writ of summons, is not so evident; and the latter may be the
more probable hypothesis of the two.

[65] Thus Matthew Paris tells us that in 1237 the whole kingdom, regni
totius universitas, repaired to a parliament of Henry III. p. 367.

[66] Brady's Introduction to Hist. of England, p. 38.

[67] Convocatis universis Angliæ prelatis et magnatibus, necnon
cunctatum regni sui civitatum et burgorum potentioribus. Wykes, in Gale,
XV Scriptores, t. ii. p. 88. I am indebted to Hody on Convocations for
this reference, which seems to have escaped most of our constitutional
writers.

[68] Hoc anno ... convenerunt archiepiscopi, episcopi, comites et
barones, abbates et priores, et de quolibet comitatu quatuor milites, et
de quâlibet civitate quatuor. Annales Waverleienses in Gale, t. ii. p.
227. I was led to this passage by Atterbury, Rights of Convocations, p.
310, where some other authorities less unquestionable are adduced for
the same purpose. Both this assembly and that mentioned by Wykes in 1269
were certainly parliaments, and acted as such, particularly the former,
though summoned for purposes not strictly parliamentary.

[69] The statute of Marlebridge is said to be made convocatis
discretioribus, tam majoribus quàm minoribus; that of Westminster
primer, par son conseil, et par l'assentements des archievesques,
evesques, abbes, priors, countes, barons, et tout le comminality de la
terre illonques summones. The statute of Gloucester runs, appelles les
plus discretes de son royaume, auxibien des grandes come des meinders.
These preambles seem to have satisfied Mr. Prynne that the commons were
then represented, though the writs are wanting; and certainly no one
could be less disposed to exaggerate their antiquity. 2nd Register, p.
30.

[70] Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. p.
257.

[71] This is commonly denominated the parliament of Acton Burnell; the
clergy and commons having sat in that town, while the barons passed
judgment upon David prince of Wales at Shrewsbury. The towns which were
honoured with the privilege of representation, and may consequently be
supposed to have been at that time the most considerable in England,
were York, Carlisle, Scarborough, Nottingham, Grimsby, Lincoln,
Northampton, Lynn, Yarmouth, Colchester, Norwich, Chester, Shrewsbury,
Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. Rymer,
t. ii. p. 247.

"This [the trial and judgment of Llewellin] seems to have been the only
business transacted at Shrewsbury; for the bishops and abbots, and four
knights of each shire, and two representatives of London and nineteen
other trading towns, summoned to meet the same day in parliament, are
said to have sat at Acton Burnell; and thence the law made for the more
easy recovery of the debts of merchants is called the Statute of Acton
Burnell. It was probably made at the request of the representatives of
the cities and boroughs present in that parliament, authentic copies in
the king's name being sent to seven of those trading towns; but it runs
only in the name of the king and his council." Carte, ii. 195, referring
to Rot. Wall. 11 Edw. I. m. 2nd.

As the parliament was summoned to meet at Shrewsbury, it may be presumed
that the Commons adjourned to Acton Burnell. The word "statute" implies
that some consent was given, though the enactment came from the king and
council. It is entitled in the Book of the Exchequer--des Estatus de
Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at
Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del
reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords'
Committee, p. 191. The enactment by the king and council founded on the
consent of the estates was at Acton Burnell. And the Statute of
Merchants, 13 Edw. I., refers to that of the 11th, as made by the king,
a son parlement que il tint à Acton Burnell, and again mentions l'avant
dit statut fait à Acton Burnell. This seems to afford a voucher for what
is said in my text, which has been controverted by a learned
antiquary.[*] It is certain that the lords were at Shrewsbury in their
judicial character condemning Llewellin; but whether they proceeded
afterwards to Acton Burnell, and joined in the statute, is not quite so
clear.

* Archæological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.

[72] [Note VI.]

[73] Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist.
of Hen. II. vol. iv. p. 89.

[74] 6 Ric. II. stat. 2, c. iv.

[75] Rot. Parl. vol. iv. p. 22.

[76] Though such an argument would not be conclusive, it might afford
some ground for hesitation, if the royal burghs of Scotland were
actually represented in their parliament more than half a century before
the date assigned to the first representation of English towns. Lord
Hailes concludes from a passage in Fordun "that as early as 1211
burgesses gave suit and presence in the great council of the king's
vassals; though the contrary has been asserted with much confidence by
various authors." Annals of Scotland, vol. i. p. 139. Fordun's words,
however, so far from importing that they formed a member of the
legislature, which perhaps Lord Hailes did not mean by the quaint
expression "gave suit and presence," do not appear to me conclusive to
prove that they were actually present. Hoc anno Rex Scotiæ Willelmus
magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt
se daturos decem mille marcas: præter burgenses regni, qui sex millia
promiserunt. Those who know the brief and incorrect style of chronicles
will not think it unlikely that the offer of 6000 marks by the burgesses
was not made in parliament, but in consequence of separate requisitions
from the crown. Pinkerton is of opinion that the magistrates of royal
burghs might upon this, and perhaps other occasions, have attended at
the bar of parliament with their offers of money. But the deputies of
towns do not appear as a part of parliament till 1326. Hist. of
Scotland, vol. i. p. 352, 371.

[77] [Note VII.]

[78] These expressions cannot appear too strong. But it is very
remarkable that to the parliament of 18 Edward III. the writs appear to
have summoned none of the towns, but only the counties. Willis, Notit.
Parliament. vol. i. Preface, p. 13. Prynne's Register, 3rd part, p. 144.
Yet the citizens and burgesses are once, but only once, named as present
in the parliamentary roll; and there is, in general, a chasm in place of
their names, where the different ranks present are enumerated. Rot.
Parl. vol. ii. p. 146. A subsidy was granted at this parliament; so
that, if the citizens and burgesses were really not summoned, it is by
far the most violent stretch of power during the reign of Edward III.
But I know of no collateral evidence to illustrate or disprove it.

[79] Tallages were imposed without consent of parliament in 17 E. I.
Wykes, p. 117; and in 32 E. I. Brady's Hist. of Eng. vol. ii. In the
latter instance the king also gave leave to the lay and spiritual
nobility to set a tallage on their own tenants. This was subsequent to
the Confirmatio Chartarum, and unquestionably illegal.

[80] Prynne's 2nd Register. It may be remarked that writs of summons to
great councils never ran ad faciendum, but ad tractandum, consulendum et
consentiendum; from which some would infer that faciendum had the sense
of enacting; since statutes could not be passed in such assemblies. Id.
p. 92.

[81] 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great
council), p. 48.

[82] Brady's Hist. of England, vol. ii. p. 40; Parliamentary History,
vol. i. p. 206; Rot. Parl. t. ii. p. 66.

[83] Carte, vol. ii. p. 451; Parliamentary History, vol. i. p. 234.

[84] Rot. Parl. vol. i. p. 289.

[85] Id. p. 430.

[86] Id. vol. ii. p. 7.

[87] Id. p. 289, 351, 430.

[88] Id. p. 5.

[89] Id. p. 86.

[90] Rot. Parl. vol. i. p. 285.

[91] 4 E. III. c. 14. Annual sessions of parliament seem fully to
satisfy the words, and still more the spirit, of this act, and of 36 E.
III. c. 10; which however are repealed by implication from the
provisions of 6 Will. III. c. 2. But it was very rare under the
Plantagenet dynasty for a parliament to continue more than a year.

It has been observed that this provision "had probably in view the
administration of justice by the king's court in parliament." Report of
L. C. p. 301. And in another place:--"It is clear that the word
parliament in the reign of Edward I. was not used only to describe a
legislative assembly, but was the common appellation of the ordinary
assembly of the king's great court or council; and that the legislative
assembly of the realm, composed generally, in and after the 23rd of
Edward I., of lords spiritual and temporal, and representatives of the
commons, was usually convened to meet the king's council in one of these
parliaments." p. 171.

Certainly the commons could not desire to have an annual parliament in
order to make new statutes, much less to grant subsidies. It was,
however, important to present their petitions, and to set forth their
grievances to this high court. We may easily reconcile the anxiety so
often expressed by the commons to have frequent sessions of parliament,
with the individual reluctance of members to attend. A few active men
procured these petitions, which the majority could not with decency
oppose, since the public benefit was generally admitted. But when the
writs came down, every pretext was commonly made use of to avoid a
troublesome and ill-remunerated journey to Westminster. For the subject
of annual parliaments see a valuable article by Allen in the 28th volume
of the Edinburgh Review.

[92] This article is so expressed as to make it appear that the
grievance was the high price of commodities. But as this was the natural
effect of a degraded currency, and the whole tenor of these articles
relates to abuses of government, I think it must have meant what I have
said in the text.

[93] Prynne's 2nd Register, p. 68.

[94] Id. p. 75.

[95] Madox, Firma Burgi, p. 6; Rot. Parl. vol. i. p. 449.

[96] Rot. Parl. vol. i. p. 430.

[97] It is however distinctly specified in stat. 7 Edw. II. and in 12
Edw. II., and equivalent words are found in other statutes. Though often
wanting, the testimony to the constitution of parliament is sufficient
and conclusive.

[98] Rot. Parl. vol. i. p. 281.

[99] Walsingham, p. 97. The Lords' committee "have found no evidence of
any writ issued for election of knights, citizens, and burgesses to
attend the same meetings; from the subsequent documents it seems
probable that none were issued, and that the parliament which assembled
at Westminster consisted only of prelates, earls, and barons." p. 259.
We have no record of this parliament; but in that of 5 Edw. II. it is
recited--Come le seizieme jour de Marz l'an de notre regne tierce, a
l'honeur de Dieu et pour le bien de nous et de nostre roiaume, eussions
granté de notre franche volonté, par nos lettres ouvertes aux prelatz,
countes, et barons, _et communes de dit roiaume_, qu'ils puissent eslire
certain persones des prelatz, comtes, et barons, &c. Rot. Parl. i. 281.
The inference therefore of the committee seems erroneous. [Note VIII.]

[100] "La commonaltée" seems in this place to mean the tenants of land,
or commons of the counties, in contradistinction to citizens and
burgesses.

[101] Rot. Parl. vol. ii. p. 66. The Lords' committee observe on this
passage in the roll of parliament, that "the king's right to tallage his
cities, boroughs, and demesnes seems not to have been questioned by the
parliament, though the commissions for setting the tallage were objected
to." p. 305. But how can we believe that after the representatives of
these cities and boroughs had sat, at least at times, for two reigns,
and after the explicit renunciation of all right of tallage by Edward I.
(for it was never pretended that the king could lay a tallage on any
towns which did not hold of himself), there could have been a parliament
which "did not question" the legality of a tallage set without their
consent? The silence of the rolls of parliament would furnish but a poor
argument. But in fact their language is expressive enough. The several
ranks of lords and commons grant the fifteenth penny from the
commonalty, and the tenth from the cities, boroughs, and demesnes of the
king, "that our lord the king may live of his own, and pay for his
expenses, and not aggrieve his people by excessive (outraiouses) prises,
or otherwise." And upon this the king revokes the commission in the
words of the text. Can anything be clearer than that the parliament,
though in a much gentler tone than they came afterwards to assume,
intimate the illegality of the late tallage? As to any other objection
to the commissions, which the committee suppose to have been taken,
nothing appears on the roll.

[102] Rot. Parl. vol. ii. p. 104.

[103] Id.

[104] Rot. Parl. vol. ii. p. 161.

[105] Case of impositions in Howell's State Trials, vol. ii. p. 371-519;
particularly the argument of Mr. Hakewill. Hale's Treatise on the
Customs, in Hargrave's Tracts, vol. i.

Edward III. imposed another duty on cloth exported, on the pretence
that, as the wool must have paid a tax, he had a right to place the
wrought and unwrought article on an equality. The commons remonstrated
against this; but it was not repealed. This took place about 22 E. III.
Hale's Treatise, p. 175.

[106] Rot. Parl. p. 160.

[107] p. 161, 166, 201.

[108] 25 E. III. stat. v. c. 8.

[109] Rot. Parl. vol. ii. p. 366.

[110] Prynne's 4th Register, p. 289.

[111] Rot. Parl. p. 304.

[112] Rot. Parl. p. 310. In the mode of levying subsidies a remarkable
improvement took place early in the reign of Edward III. Originally two
chief taxors were appointed by the king for each county, who named
twelve persons in every hundred to assess the moveable estate of all
inhabitants according to its real value. But in 8 E. III., on complaint
of parliament that these taxors were partial, commissioners were sent
round to compound with every town and parish for a gross sum, which was
from thenceforth the fixed quota of subsidy, and raised by the
inhabitants themselves. Brady on Boroughs, p. 81.

[113] Laws appear to have been drawn up, and proposed to the two houses
by the king, down to the time of Edward I. Hale's Hist. of Common Law,
p. 16.

Sometimes the representatives of particular places address separate
petitions to the king and council; as the citizens of London, the
commons of Devonshire, &c. These are intermingled with the general
petitions, and both together are for the most part very numerous. In the
roll of 50 Edw. III. they amount to 140.

[114] Rot. Parl. p. 239.

[115] Rot. Parl. p. 113.

[116] p. 280.

[117] "If there be any difference between an ordinance and a statute, as
some have collected, it is but only this, that an ordinance is but
temporary till confirmed and made perpetual, but a statute is perpetual
at first, and so have some ordinances also been." Whitelocke on
Parliamentary Writ, vol. ii. p. 297. See Rot. Parl. vol. iii. p. 17;
vol. iv. p. 35.

[118] These may be found in Willis's Notitia Parliamentaria. In 28 E. I.
the universities were summoned to send members to a great council in
order to defend the king's right to the kingdom of Scotland. 1 Prynne.

[119] Rot. Parl. ii. 206.

[120] Rot. Parl. ii 253, 257.

[121] Id. p. 131.

[122] Rot. Parl. ii. p. 128.

[123] Rymer, t. v. p. 282. This instrument betrays in its language
Edward's consciousness of the violent step he was taking; and his wish
to excuse it as much as possible.

[124] The commons in the 17th of Edw. III. petition that the statutes
made two years before be maintained in their force, having granted for
them the subsidies which they enumerate, "which was a great spoiling
(rançon) and grievous charge for them." But the king answered that,
"perceiving the said statute to be against his oath, and to the blemish
of his crown and royalty, and against the law of the land in many
points, he had repealed it. But he would have the articles of the said
statute examined, and what should be found honourable and profitable to
the king and his people put into a new statute, and observed in future."
Rot. Parl. ii. 139. But though this is inserted among the petitions, it
appears from the roll a little before (p. 139, n. 23), that the statute
was actually repealed by common consent; such consent at least being
recited, whether truly or not.

[125] Rymer, t. v. p. 165.

[126] p. 148.

[127] 21 E. III. p. 165.

[128] 28 E. III. p. 261.

[129] 28 E. III. p. 295. Carte says, "the lords and commons, giving this
advice separately, declared," &c. Hist. of England, vol. ii. p. 518. I
can find no mention of the commons doing this in the roll of parliament.

[130] Rymer, p. 269.

[131] p. 114.

[132] p. 304.

[133] Most of our general historians have slurred over this important
session. The best view, perhaps, of its secret history will be found in
Lowth's Life of Wykeham; an instructive and elegant work, only to be
blamed for marks of that academical point of honour which makes a fellow
of a college too indiscriminate an encomiast of its founder. Another
modern book may be named with some commendation, though very inferior in
its execution, Godwin's Life of Chaucer of which the duke of Lancaster
is the political hero.

[134] Rymer, p. 322.

[135] Rymer, p. 322.

[136] p. 329.

[137] Anonym. Hist. Edw. III. ad calcem Hemingford, p. 444, 448.
Walsingham gives a different reason, p. 192.

[138] Rot. Parl. p. 374. Not more than six or seven of the knights who
had sat in the last parliament were returned to this, as appears by the
writs in Prynne's 4th Register, p. 302, 311.

[139] Walsingham, p. 200, says pene omnes; but the list published in
Prynne's 4th Register induces me to qualify this loose expression. Alice
Perrers had bribed, he tells us, many of the lords and all the lawyers
of England; yet by the perseverance of these knights she was convicted.

[140] Rot. Parl. vol. ii. p. 374.

[141] vol. iii. p. 12.

[142] Rot. Parl. vol. iii. p. 12

[143] Rot. Parl. p. 35-38.

[144] Id. p. 57.

[145] See p. 47 of this volume.

[146] Nevertheless, the commons repeated it in their schedule of
petitions; and received an evasive answer, referring to an ordinance
made in the first parliament of the king, the application of which is
indefinite. Rot. Parl. p. 82.

[147] p. 73. In Rymer, t. viii. p. 250, the archbishop of York's name
appears among these commissioners, which makes their number sixteen. But
it is plain by the instrument that only fifteen were meant to be
appointed.

[148] Rot. Parl. 5 R. II. p. 100.

[149] Rot. Parl. 5 R. II. p. 104.

[150] The commons granted a subsidy, 7 R. II., to support Lancaster's
war in Castile. R. P. p. 284. Whether the populace changed their opinion
of him I know not. He was still disliked by them two years before. The
insurgents of 1382 are said to have compelled men to swear that they
would obey king Richard and the commons, and that they would accept no
king named John. Walsingham, p. 248.

[151] Walsing. p. 290, 315, 317.

[152] Rot. Parl. 5 R. II. p. 100; 6 R. II. sess. 1, p. 134.

[153] p. 145.

[154] Rot. Parl. 9 R. II. p. 209.

[155] Ib. p. 213. It is however asserted in the articles of impeachment
against Suffolk, and admitted by his defence, that nine lords had been
appointed in the last parliament, viz. 9 R. II., to inquire into the
state of the household, and reform whatever was amiss. But nothing of
this appears in the roll.

[156] Knyghton, in Twysden x. Script. col. 2680.

[157] Upon full consideration, I am much inclined to give credit to this
passage of Knyghton, as to the main facts; and perhaps even the speech
of Gloucester and the bishop of Ely is more likely to have been made
public by them than invented by so jejune an historian. Walsingham
indeed says nothing of the matter; but he is so unequally informed and
so frequently defective, that we can draw no strong inference from his
silence. What most weighs with me is that parliament met on Oct. 1,
1387, and was not dissolved till Nov. 28; a longer period than the
business done in it seems to have required; and also that Suffolk, who
opened the session as chancellor, is styled "darrein chancellor" in the
articles of impeachment against him; so that he must have been removed
in the interval, which tallies with Knyghton's story. Besides, it is
plain, from the famous questions subsequently put by the king to his
judges at Nottingham, that both the right of retiring without a regular
dissolution, and the precedent of Edward II., had been discussed in
parliament, which does not appear anywhere else than in Knyghton.

[158] Rot. Parl. vol. iii. p. 219.

[159] Articles had been exhibited by the chancellor before the peers, in
the seventh of the king, against Spencer, bishop of Norwich, who had led
a considerable army in a disastrous expedition against the Flemings,
adherents to the anti-pope Clement in the schism. This crusade had been
exceedingly popular, but its ill success had the usual effect. The
commons were not parties in this proceeding. Rot. Parl. p 153.

[160] Rot. Parl. p. 221.

[161] Rot. Parl. p. 281.

[162] The judgment against Simon de Burley, one of those who were
executed on this occasion, upon impeachment of the commons, was reversed
under Henry IV.; a fair presumption of its injustice. Rot. Parl. vol.
iii. p. 464.

[163] Rot. Parl. 14 R II. p. 279; 15 R. II. p. 286.

[164] Rot. Parl. 13 R. II. p. 258.

[165] 17 R. II. p. 313.

[166] Rymer, t. vii. p. 583, 659.

[167] Hume has represented this as if the commons had petitioned for the
continuance of sheriffs beyond a year, and grounds upon this mistake
part of his defence of Richard II. (Note to vol. ii. p. 270, 4to. edit.)
For this he refers to Cotton's Abridgment; whether rightly or not I
cannot say, being little acquainted with that inaccurate book, upon
which it is unfortunate that Hume relied so much. The passage from
Walsingham in the same note is also wholly perverted; as the reader will
discover without further observation. An historian must be strangely
warped who quotes a passage explicitly complaining of illegal acts in
order to infer that those very acts were legal.

[168] The church would perhaps have interfered in behalf of Haxey if he
had only received the tonsure. But it seems that he was actually in
orders; for the record calls him Sir Thomas Haxey, a title at that time
regularly given to the parson of a parish. If this be so, it is a
remarkable authority for the clergy's capacity of sitting in parliament.

[169] Rot. Parl. 20 R. II. p. 339. In Henry IV.'s first parliament the
commons petitioned for Haxey's restoration, and truly say that his
sentence was en aneantissement des custumes de la commune, p. 434. His
judgment was reversed by both houses, as having passed de volonté du roy
Richard en contre droit et la course quel avoit este devant en
parlement. p. 480. There can be no doubt with any man who looks
attentively at the passages relative to Haxey that he was a member of
parliament; though this was questioned a few years ago by the committee
of the house of commons, who made a report on the right of the clergy to
be elected; a right which, I am inclined to believe, did exist down to
the Reformation, as the grounds alleged for Nowell's expulsion in the
first, of Mary, besides this instance of Haxey conspire to prove, though
it has since been lost by disuse.

[170] This assembly, if we may trust the anonymous author of the Life of
Richard II., published by Hearne, was surrounded by the king's troops.
p. 133.

[171] Rot. Parl, 21 R. II. p. 347.

[172] 21 R. II. p. 369.

[173] 13 R. II. p. 256.

[174] This proceeding was made one of the articles of charge against
Richard in the following terms: Item, in parliamento ultimo celebrato
apud Salopiam, idem rex proponens opprimere populum suum procuravit
subtiliter et fecit concedi, quod potestas parliamenti de consensu
omnium statuum regni sui remaneret apud quasdam certas personas ad
terminandum, dissoluto parliamento, certas petitiones in eodem
parliamento porrectas protunc minimè expeditas. Cujus concessionis
colore personæ sic deputatæ processerunt ad alia generaliter
parliamentum illud tangentia; et hoc de voluntate regis; in derogationem
statûs parliamenti, et in magnum incommodum totius regni et perniciosum
exemplum. Et ut super factis eorum hujusmodi aliquem colorem et
auctoritatem viderentur habere, rex fecit rotulos parliamenti pro voto
suo mutari et deleri, contra effectum consensionis prædictæ. Rot. Parl.
1 H. IV. vol. iii. p. 418. Whether the last accusation, of altering the
parliamentary roll, be true or not, there is enough left in it to prove
everything I have asserted in the text. From this it is sufficiently
manifest how unfairly Carte and Hume have drawn a parallel between this
self-deputed legislative commission and that appointed by parliament to
reform the administration eleven years before.

[175] Rot. Parl. p. 372, 385.

[176] Besides the contemporary historians, we may read a full narrative
of these proceedings in the Rolls of Parliament, vol. iii. p. 382. It
appears that Mowbray was the most offending party, since, independently
of Hereford's accusation, he is charged with openly maintaining the
appeals made in the false parliament of the eleventh of the king. But
the banishment of his accuser was wholly unjustifiable by any motives
that we can discover. It is strange that Carte should express surprise
at the sentence upon the duke of Norfolk, while he seems to consider
that upon Hereford as very equitable. But he viewed the whole of this
reign, and of those that ensued, with the jaundiced eye of Jacobitism.

[177] Rot. Parl. 1 H. IV. p. 420, 426; Walsingham, p. 353, 357;
Otterburn, p. 199; Vita Ric. II. p. 147.

[178] It is fair to observe that Froissart's testimony makes most in
favour of the king, or rather against his enemies, where it is most
valuable; that is, in his account of what he heard in the English court
in 1395, 1. iv. c. 62, where he gives a very indifferent character of
the duke of Gloucester. In general this writer is ill-informed of
English affairs, and undeserving to be quoted as an authority.

[179] Rot. Parl. p. 423.

[180] If proof could be required of anything so self-evident as that
these assemblies consisted of exactly the same persons, it may be found
in their writs of expenses, as published by Prynne, 4th Register, p.
450.

[181] 2 R. II. p. 56.

[182] It is positively laid down by the asserters of civil liberty, in
the great case of impositions (Howell's State Trials, vol. ii. p. 443,
507), that no precedents for arbitrary taxation of exports or imports
occur from the accession of Richard II. to the reign of Mary.

[183] 2 R. II. p. 62. This did not find its way to the statute-book.

[184] Rymer, t. vii. p. 544.

[185] Carte, vol. ii. p. 640. Sir M. Hale observes that he finds no
complaints of illegal impositions under the kings of the house of
Lancaster. Hargrave's Tracts, vol. i. p. 184.

[186] Rymer, t. viii. p. 412, 488.

[187] Rot. Parl. vol. iv. p. 216.

[188] Id. p. 301.

[189] Id. p. 302.

[190] Id. vol. iii. p. 546.

[191] Id. p. 568.

[192] Rot. Parl. vol. iii. p. 453.

[193] Id. vol. iv. p. 63.

[194] Walsingham, p. 379.

[195] Walsingham, p. 210. Ruffhead observes in the margin upon this
statute, 8 R. II. c. 3, that it is repealed, but does not take notice
what sort of repeal it had.

[196] 15 R. II. p. 285. See, too, 16 R. II. p. 301, where the same power
is renewed in H. IV.'s parliaments.

[197] 13 H. IV. p. 643.

[198] Rot. Parl. v. 4 H. V. p. 6, 9.

[199] 5 R. II. stat. 2, c. 5; Rot. Parl. 6 R. II. p. 141. Some other
instances of the commons attempting to prevent these unfair practices
are adduced by Ruffhead, in his preface to the Statutes, and in Prynne's
preface to Cotton's Abridgment of the Records. The act 13 R. II. stat.
1, c. 15, that the king's castles and gaols which had been separated
from the body of the adjoining counties should be reunited to them, is
not founded upon any petition that appears on the roll; and probably, by
making search, other instances equally flagrant might be discovered.

[200] There had been, however, a petition of the commons on the same
subject, expressed in very general terms, on which this terrible
superstructure might artfully be raised. p. 474.

[201] p. 626.

[202] We find a remarkable petition in 8 H. IV., professedly aimed
against the Lollards, but intended, as I strongly suspect, in their
favour. It condemns persons preaching against the catholic faith or
sacraments to imprisonment till the next parliament, where they were to
abide such judgment as should be rendered _by the king and peers of the
realm_. This seems to supersede the burning statute of 2 H. IV., and the
spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The
petition was expressly granted; but the clergy, I suppose, prevented its
appearing on the statute roll.

[203] Rot. Parl. vol iii. p. 102.

[204] Rot. Parl. vol. iv. p. 22. It is curious that the authors of the
Parliamentary History say that the roll of this parliament is lost, and
consequently suppress altogether this important petition. Instead of
which they give, as their fashion is, impertinent speeches out of
Holingshed, which are certainly not genuine, and would be of no value if
they were so.

[205] Henry VI. and Edward IV. in some cases passed bills with sundry
provisions annexed by themselves. Thus the act for resumption of grants,
4 E. IV., was encumbered with 289 clauses in favour of so many persons
whom the king meant to exempt from its operation; and the same was done
in other acts of the same description. Rot. Parl. vol. v. p. 517.

[206] The variations of each statute, as now printed, from the
parliamentary roll, whether in form or substance, are noticed in
Cotton's Abridgment. It may be worth while to consult the preface to
Ruffhead's edition of the Statutes, where this subject is treated at
some length.

Perhaps the triple division of our legislature may be dated from this
innovation. For as it is impossible to deny that, while the king
promulgated a statute founded upon a mere petition, he was himself the
real legislator, so I think it is equally fair to assert,
notwithstanding the formal preamble of our statutes, that laws brought
into either house of parliament in a perfect shape, and receiving first
the assent of lords and commons, and finally that of the king, who has
no power to modify them, must be deemed to proceed, and derive their
efficacy, from the joint concurrence of all the three. It is said,
indeed, at a much earlier time, that le ley de la terre est fait en
parlement par le roi, et les seigneurs espirituels et temporels, et tout
la communauté du royaume. Rot. Parl. vol. iii. p. 293. But this, I must
allow, was in the violent session of 11 Ric. II., the constitutional
authority of which is not to be highly prized.

[207] 8 H. V. vol. iv. p. 127.

[208] The house of commons thanked the king for pardoning
Northumberland, whom, as it proved, he had just cause to suspect. 5 H.
IV. p. 525.

[209] 5 H. IV. p. 505.

[210] Rot. Parl. vol. iii. p. 529, 568, 573.

[211] p. 547.

[212] 13 H. IV. p 624.

[213] Rot. Parl. 8 H. IV. p. 585.

[214] 13 H. IV. p. 648, 658.

[215] Rot. Parl. vol. iii. p. 549, 568, 574, 611.

[216] This passage was written before I was aware that the same opinion
had been elaborately maintained by Mr. Luders, in one of his valuable
essays upon points of constitutional history.

[217] Rot. Parl. 8 H. V. vol. iv. p. 125.

[218] p. 128.

[219] p. 130.

[220] 7 R. II. vol. iii. p. 170.

[221] p. 215.

[222] 7 R. II. p. 315.

[223] 4 H. V. vol. iv. p. 98.

[224] p. 135.

[225] Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.

[226] p. 371.

[227] 23 H. VI. vol. v. p. 102. There is rather a curious instance in 3
H. VI. of the jealousy with which the commons regarded any proceedings
in parliament where they were not concerned. A controversy arose between
the earls marshal and of Warwick respecting their precedence; founded
upon the royal blood of the first, and long possession of the second. In
this the commons could not affect to interfere judicially; but they
found a singular way of meddling, by petitioning the king to confer the
dukedom of Norfolk on the earl marshal. vol. iv. p. 273.

[228] Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343.

[229] vol. v. 18 H. VI. p. 17.

[230] 28 H. VI. p. 185.

[231] Rot. Parl. vol. iii. p. 430, 449.

[232] Rot. Parl. 28 H. VI. vol. v. p. 176.

[233] If this were to rest upon antiquity of precedent, one might be
produced that would challenge all competition. In the laws of Ethelbert,
the first Christian king of Kent, at the end of the sixth century, we
find this provision: "If the king call his people to him (i.e. in the
witenagemot), and any one does an injury to one of them, let him pay a
fine." Wilkins, Leges Anglo-Saxon. p. 2.

[234] Hatsell, vol. i. p. 12.

[235] Rot. Parl. 5 H. IV. p. 541.

[236] The clergy had got a little precedence in this. An act passed 8 H.
VI. c. 1, granting privilege from arrest for themselves and servants on
their way to convocation.

[237] Rot. Parl. vol. iv. p. 357.

[238] vol. v. p. 374.

[239] Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.

[240] Upon this subject the reader should have recourse to Hatsell's
Precedents, vol. i. chap. 1.

[241] Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems
to have overlooked this case, for he mentions that of Strickland, in
1571, as the earliest instance of the crown's interference with freedom
of speech in parliament. vol. i. p. 85.

[242] This parliament sat at Gloucester.

[243] Rot. Parl. vol. iii. p. 611.

[244] A notion is entertained by many people, and not without the
authority of some very respectable names, that the king is one of the
three estates of the realm, the lords spiritual and temporal forming
together the second, as the commons in parliament do the third. This is
contradicted by the general tenor of our ancient records and law-books;
and indeed the analogy of other governments ought to have the greatest
weight, even if more reason for doubt appeared upon the face of our own
authorities. But the instances where the three estates are declared or
implied to be the nobility, clergy, and commons, or at least their
representatives in parliament, are too numerous for insertion. This land
standeth, says the Chancellor Stillington, in 7th Edward IV., by three
states, and above that one principal, that is to wit, lords spiritual,
lords temporal, and commons, and over that, state royal, as our
sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is
declared that the treaty of Staples in 1492 was to be confirmed per tres
status regni Angliæ ritè et debitè convocatos, videlicet per prelatos et
clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.

I will not, however, suppress one passage, and the only instance that
has occurred in my reading, where the king does appear to have been
reckoned among the three estates. The commons say, in the 2nd of Henry
IV., that the states of the realm may be compared to a trinity, that is,
the king, the lords spiritual and temporal, and the commons. Rot. Parl.
vol. iii. p. 459. In this expression, however, the sense shows that by
estates of the realm they meant members, or necessary parts, of the
parliament.

Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length,
that the three estates are king, lords, and commons, which seems to have
been a current doctrine among the popular lawyers of the seventeenth
century. His reasoning is chiefly grounded on the baronial tenure of
bishops, the validity of acts passed against their consent, and other
arguments of the same kind; which might go to prove that there are only
at present two estates, but can never turn the king into one.

The source of this error is an inattention to the primary sense of the
word estate (status), which means an order or condition into which men
are classed by the institutions of society. It is only in a secondary,
or rather an elliptical application, that it can be referred to their
representatives in parliament or national councils. The lords temporal,
indeed, of England are identical with the estate of the nobility; but
the house of commons is not, strictly speaking, the estate of
commonalty, to which its members belong, and from which they are
deputed. So the whole body of the clergy are properly speaking one of
the estates, and are described as such in the older authorities, 21 Ric.
II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in
parliament acquired, with less correctness, that appellation. Hody on
Convocations, p. 426. The bishops, indeed, may be said, constructively,
to represent the whole of the clergy, with whose grievances they are
supposed to be best acquainted, and whose rights it is their peculiar
duty to defend. And I do not find that the inferior clergy had any other
representation in the cortes of Castile and Aragon, where the
ecclesiastical order was always counted among the estates of the realm.

[245] Rot. Parl. vol. iii. p. 623.

[246] Rot. Parl. 5 R. II. p. 100.

[247] Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.

[248] Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of
the 33rd of Henry VI., that, where the lords made only some minor
alterations in a bill sent up to them from the commons, even if it
related to a grant of money, the custom was not to remand it for their
assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage
is worth extracting, in order to illustrate the course of proceeding in
parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn
trespas par acte de parliament dont les commons furent assentus, que sil
ne vient eins per tiel jour que il forfeytera tiel summe, et les
seigneurs done plus longe jour, et le bil nient rebaile al commons
arrere; et per Kirby, clerk des roles del parliament, l'use del
parliament est, que si bil vient primes a les commons, et ils passent
ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors;
et si les seigniors _ne le roy_ ne alteront le bil, donques est use a
liverer ceo al clerke del parliamente destre enrol saunz endorser
ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer
ore le bil, ils poyent saunz remandre ceo al commons, come si les
commons graunte poundage, pur quatuor ans, et les grantent nisi par deux
ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi
pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al
commons, et en cest case les seigniors doyent faire un sedule de lour
intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent
pur durer par quatuor ans; et quant les commons ount le bil arrere, et
ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons
volent assenter, donques ils indorse leur respons sur le mergent ne
basse deins le bil en tiel forme, Les commons sont assentans al sedul
des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke
del parliament, ut supra. Et si un bil soit primes liver al seigniors,
et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de
mitter le bil as commons; et donques, si le bil passe les commons, il
est use destre issint endorce, Les commons sont assentants; et ceo prove
que il ad passe les seigniors devant, et lour assent est a cest passer
del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit
rebaile as commons.

A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's
edit.), that a subsidy granted by the commons without assent of the
peers is good enough. This cannot surely have been law at that time.

[249] Rot. Parl. vol. iii. p. 244.

[250] Coke's 4th Institute, p. 15.

[251] Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.

[252] 4 Prynne, p. 261.

[253] Glanvil's Reports, ibid. from Prynne.

[254] Glanvil's Reports, ibid. from Prynne.

[255] Id. ibid. and Rot. Parl. vol. iii. p. 530.

[256] Rot. Parl. vol. v. p. 7.

[257] 3 Prynne's Register, p. 187. This hypothesis, though embraced by
Prynne, is, I confess, much opposed to general opinion; and a very
respectable living writer treats such an interpretation of the statute 7
H. IV. as chimerical. The words cited in the text, "as others," mean
only, according to him, suitors not duly summoned. Heywood on Elections,
vol. i. p. 20. But, as I presume, the summons to freeholders was by
general proclamation; so that it is not easy to perceive what difference
there could be between summoned and unsummoned suitors. And if the words
are supposed to glance at the private summonses to a few friends, by
means of which the sheriffs were accustomed to procure a clandestine
election, one can hardly imagine that such persons would be styled "duly
summoned." It is not unlikely, however, that these large expressions
were inadvertently used, and that they led to that inundation of voters
without property which rendered the subsequent act of Henry VI.
necessary. That of Henry IV. had itself been occasioned by an opposite
evil, the close election of knights by a few persons in the name of the
county.

Yet the consequence of the statute of Henry IV. was not to let in too
many voters, or to render elections tumultuous, in the largest of
English counties, whatever it might be in others. Prynne has published
some singular sheriff's indentures for the county of York, all during
the interval between the acts of Henry IV. and Henry VI., which are
sealed by a few persons calling themselves the attorneys of some peers
and ladies, who, as far as appears, had solely returned the knights of
that shire. 3 Prynne, p. 152. What degree of weight these anomalous
returns ought to possess I leave to the reader.

[258] The majority of prescriptive boroughs have prescriptive
corporations, which carry the legal, which is not always the moral,
presumption of an original charter. But "many boroughs and towns in
England have burgesses by prescription, that never were incorporated."
Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders
thinks, I know not how justly, that in the age of Edward I., which is
most to our immediate purpose, "there were not perhaps thirty
corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I
must allow that, in the opinion of many sound lawyers, the
representation of unchartered, or at least, unincorporated boroughs was
rather a _real_ privilege, and founded upon tenure, than one arising out
of their share in public contributions. Ch. J. Holt in Ashby v. White, 2
Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is
very obscure; and perhaps the more so, because the learning directed
towards it has more frequently been that of advocates pleading for their
clients than of unbiassed antiquaries. If this be kept in view, the
lover of constitutional history will find much information in several of
the reported cases on controverted elections; particularly those of
Tewksbury and Liskeard, in Peckwell's Reports, vol. i.

[259] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in
Peckwell's Reports, vol. i. p. 178.

[260] Littleton, s. 162, 163.

[261] Brady, p. 97.

[262] Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even
argues that this power of omitting ancient boroughs was legally vested
in the sheriff before the 5th of Richard II.; and though the language of
that act implies the contrary of this position, yet it is more than
probable that most of our parliamentary boroughs by prescription,
especially such as were then unincorporated, are indebted for their
privileges to the exercise of the sheriff's discretion; not founded on
partiality, which would rather have led him to omit them, but on the
broad principle that they were sufficiently opulent and important to
send representatives to parliament.

[263] Willis, Notitia Parliamentaria, vol. i. preface, p. 35.

[264] p. 117.

[265] It is a perplexing question whether freeholders in socage were
liable to contribute towards the wages of knights; and authorities might
be produced on both sides. The more probable supposition is, that they
were not exempted. See the various petitions relating to the payment of
wages in Prynne's fourth Register. This is not unconnected with the
question as to their right of suffrage. See p. 115 of this volume.
Freeholders within franchises made repeated endeavours to exempt
themselves from payment of wages. Thus in 9 H. IV. it was settled by
parliament that, to put an end to the disputes on this subject between
the people of Cambridgeshire and those of the Isle of Ely, the latter
should pay 200_l._ and be quit in future of all charges on that account.
Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that
franchise seem to have purchased the right of suffrage, which they still
enjoy, though not, I suppose, suitors to the county-court. In most other
franchises, and in many cities erected into distinct counties, the same
privilege of voting for knights of the shire is practically exercised;
but whether this has not proceeded as much from the tendency of
returning officers and of parliament to favour the right of election in
doubtful cases, as from the merits of their pretensions, may be a
question.

[266] The wages of knights and burgesses were first reduced to this
certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth
Register, p. 53. These were issued at the request of those who had
served, after the dissolution of parliament, and included a certain
number of days, according to the distance of the county whence they
came, for going and returning. It appears by these that thirty-five or
forty miles were reckoned a day's journey; which may correct the
exaggerated notions of bad roads and tardy locomotion that are sometimes
entertained. See Prynne's fourth Register, and Willis's Notitia
Parliamentaria, passim.

The latest entries of writs for expenses in the close rolls are of 2 H.
V.; but they may be proved to have issued much longer; and Prynne traces
them to the end of Henry VIII.'s reign, p. 495. Without the formality of
this writ a very few instances of towns remunerating their burgesses for
attendance in parliament are known to have occurred in later times.
Andrew Marvel is commonly said to have been the last who received this
honourable salary. A modern book asserts that wages were paid in some
Cornish boroughs as late as the eighteenth century. Lysons's Cornwall,
preface, p. xxxii; but the passage quoted in proof of this is not
precise enough to support so unlikely a fact.

[267] 3 Prynne, p. 165.

[268] 4 Prynne, p. 317.

[269] 4 Prynne, p. 320.

[270] 3 Prynne, p. 241.

[271] 5 R. II. stat. ii. c. 4.

[272] Luders's Reports, vol. i. p. 15. Sometimes an elected burgess
absolutely refused to go to parliament, and drove his constituents to a
fresh choice. 3 Prynne, p. 277.

[273] 3 Prynne, p. 252.

[274] 3 Prynne, p. 257, de assensu totius communitatis prædictæ
elegerunt R. W.; so in several other instances quoted in the ensuing
pages.

[275] Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of
equal learning was ever less inclined to depreciate popular rights,
inclines more than we should expect to the school of Brady in this
point. "There is reason to believe that originally the right of election
in boroughs was vested in the governing part of these communities, or in
a select portion of the burgesses; and that, in the progress of the
house of commons to power and importance, the tendency has been in
general to render the elections more popular. It is certain that for
many years burgesses were elected in the county courts, and apparently
by delegates from the boroughs, who were authorised by their
fellow-burgesses to elect representatives for them in parliament. In the
reigns of James I. and Charles I., when popular principles were in their
greatest vigour, there was a strong disposition in the house of commons
to extend the right of suffrage in boroughs, and in many instances these
efforts were crowned with success." Edin. Rev. xxviii. 145. But an
election by delegates chosen for that purpose by the burgesses at large
is very different from one by the governing part of the community. Even
in the latter case, however, this part had generally been chosen, at a
greater or less interval of time, by the entire body. Sometimes, indeed,
corporations fell into self-election and became close.

[276] Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p.
224, &c.

[277] In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci
in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc
comitatu commorantes, duos homines de comitatu Rutland, de
discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But
this deficiency of actual knights soon became very common. In 19 E. II.
there were twenty-eight members returned from shires who were not
knights, and but twenty-seven who were such. The former had at this time
only two shillings or three shillings a day for their wages, while the
real knights had four shillings. 4 Prynne, p. 53. 74. But in the next
reign their wages were put on a level.

[278] Rot. Parl. vol. ii. p. 310.

[279] Rot. Parl. 1 H. V. c. 1.

[280] See the case of Dublin university in the first volume of
Peckwell's Reports of contested elections. Note D, p. 53. The statute
itself was repealed by 14 G. III. c. 58.

[281] By 23 H. VI. c. 15, none but gentlemen born, generosi a
nativitate, are capable of sitting in parliament as knights of counties;
an election was set aside 39 H. VI. because the person returned was not
of gentle birth. Prynne's third Register. p. 161.

[282] Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184.
A letter in that authentic and interesting accession to our knowledge of
ancient times, the Paston collection, shows that eager canvass was
sometimes made by country gentlemen in Edward IV.'s reign to represent
boroughs. This letter throws light at the same time on the creation or
revival of boroughs. The writer tells Sir John Paston, "If ye miss to be
burgess of Malden, and my lord chamberlain will, ye may be in another
place; there be a dozen towns in England that choose no burgess, which
ought to do it: ye may be set in for one of those towns an' ye be
friended." This was in 1472. vol. ii. p. 107.

[283] Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.

[284] Prynne's third Register, p. 171.

[285] 28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by
the people of his county in the Anglo-Saxon period; no instance of this
however, according to lord Lyttelton, occurs after the Conquest.
Shrievalties were commonly sold by the Norman kings. Hist. of Henry II.
vol. ii. p. 921.

[286] Vita Ricardi II. p. 85.

[287] Otterbourne, p. 191. He says of the knights returned on this
occasion, that they were not elected per communitatem, ut mos exigit,
sed per regiam voluntatem.

[288] Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.

[289] Prynne's second Reg. p. 450.

[290] vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.

[291] Upon this dry and obscure subject of inquiry, the nature and
constitution of the house of lords during this period, I have been much
indebted to the first part of Prynne's Register, and to West's Inquiry
into the Manner of creating Peers; which, though written with a party
motive, to serve the ministry of 1719 in the peerage bill, deserves, for
the perspicuity of the method and style, to be reckoned among the best
of our constitutional dissertations.

[292] Baronies were often divided by descent among females into many
parts, each retaining its character as a fractional member of a barony.
The tenants in such case were said to hold of the king by the third,
fourth, or twentieth part of a barony, and did service or paid relief in
such proportion.

[293] Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33.
That a baron could only be tried by his fellow barons was probably a
rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon
Bereford having been accused before the lords in parliament of aiding
and advising Mortimer in his treasons, they declared with one voice that
he was not their peer; wherefore they were not bound to judge him as a
peer of the land; but inasmuch as it was notorious that he had been
concerned in usurpation of royal powers and murder of the liege lord (as
they styled Edward II.), the lords, as judges of parliament, by assent
of the king in parliament, awarded and adjudged him to be hanged. A like
sentence with a like protestation was passed on Mautravers and Gournay.
There is a very remarkable anomaly in the case of Lord Berkley, who,
though undoubtedly a baron, his ancestors having been summoned from the
earliest date of writs, put himself on his trial in parliament, by
twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53;
Rymer, t. iv. p. 734.

[294] Prynne, p. 142, &c.; West's Inquiry.

[295] Prynne, p. 141.

[296] It is worthy of observation that the spiritual peers summoned to
parliament were in general considerably more numerous than the temporal.
Prynne, p. 114. This appears, among other causes, to have saved the
church from that sweeping reformation of its wealth, and perhaps of its
doctrines, which the commons were thoroughly inclined to make under
Richard II. and Henry IV. Thus the reduction of the spiritual lords by
the dissolution of monasteries was indispensably required to bring the
ecclesiastical order into due subjection to the state.

[297] Perhaps it can hardly be said that the king's prerogative
compelled the party summoned, not being a tenant by barony, to take his
seat. But though several spiritual persons appear to have been
discharged from attendance on account of their holding nothing by
barony, as has been justly observed, yet there is, I believe, no
instance of any layman's making such an application. The terms of the
ancient writ of summons, however, in fide et _homagio_ quibus nobis
tenemini, afford a presumption that a feudal tenure was, in construction
of law, the basis of every lord's attendance in parliament. This form
was not finally changed to the present, in fide et _ligeantiâ_, till the
46th of Edw. III. Prynne's first Register, p. 206.

[298] Collins's Proceedings on Claims of Baronies, p. 24 and 73.

[299] Prynne speaks of "the alienation of baronies by sale, gift, or
marriage, after which the new purchasers were summoned instead," as if
it frequently happened. First Register, p. 239. And several instances
are mentioned in the Bergavenny case (Collins's Proceedings, p. 113)
where, land-baronies having been entailed by the owners on their heirs
male, the heirs general have been excluded from inheriting the dignity.

[300] Prynne's first Register, p. 237. This must be understood to mean
that no new families were summoned; for the descendants of some who are
not supposed to have held land-baronies may constantly be found in later
lists. [Note IX.]

[301] West's Inquiry. Prynne, who takes rather lower ground than West,
and was not aware of Sir Henry de Bromflete's descent, admits that a
writ of summons to any one, naming him baron, or dominus, as Baroni de
Greystoke, domino de Furnival, did give an inheritable peerage; not so a
writ generally worded, naming the party knight or esquire, unless he
held by barony.

[302] Lord Abergavenny's case, 12 Coke's Reports; and Collins's
Proceedings on Claims of Baronies by Writ, p. 61.

[303] Prynne's first Register, p. 232. Elsynge, who strenuously contends
against the writ of summons conferring an hereditary nobility, is of
opinion that the party summoned was never omitted in subsequent
parliaments, and consequently was a peer for life. p. 43. But more
regard is due to Prynne's later inquiries.

[304] Case of Willoughby, Collins, p. 8; of Dacres, p. 41; of
Abergavenny, p. 119. But see the case of Grey de Ruthin, p. 222 and 230,
where the contrary position is stated by Selden upon better grounds.

[305] It seems to have been admitted by Lord Redesdale, in the case of
the barony of L'Isle, that a writ of summons, with sufficient proof of
having sat by virtue of it in the house of lords, did in fact create an
hereditary peerage from the fifth year of Richard II., though he
resisted this with respect to claimants who could only deduce their
pedigree from an ancestor summoned by one of the three Edwards.
Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of
West, which denies peerage by writ even to those summoned in several
later reigns, must be taken with limitation. "I am informed," it is said
by Mr. Hart, _arguendo_, "that every person whose name appears in the
writ of summons of 5 Ric. II. was again summoned to the following
parliament, and their posterity have sat in parliament as peers." p.
233.

[306] Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol.
iv. p. 374. Rymer, t. vii. p. 161.

[307] Selden's Works, vol. iii. p. 764. Selden's opinion that bannerets
in the lords' house were the same as barons may seem to call on me for
some contrary authorities, in order to support my own assertion, besides
the passages above quoted from the rolls, of which he would naturally be
supposed a more competent judge. I refer therefore to Spelman's
Glossary, p. 74; Whitelocke on Parliamentary Writ, vol. i. p. 313; and
Elsynge's Method of holding Parliaments, p. 65.

[308] Puis un fut chalengé purce qu'il fut a banniere, et non allocatur;
car s'il soit a banniere, et ne tient pas par baronie, il sera en
l'assise. Year-book 22 Edw. III. fol. 18 a. apud West's Inquiry, p. 22.

[309] Rot. Parl. vol. iv. p. 201.

[310] Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365.

[311] The lords' committee do not like, apparently, to admit that
bannerets were summoned to the house of lords as a distinct class of
peers. "It is observable," they say, "that this statute (5 Ric. II. c.
4) speaks of bannerets as well as of dukes, earls, and barons, as
persons bound to attend the parliament; but it does not follow that
banneret was then considered as a name of dignity distinct from that
honourable knighthood under the king's banner in the field of battle, to
which precedence of all other knights was attributed." p. 342. But did
the committee really believe that all the bannerets of whom we read in
the reigns of Richard II. and afterwards had been knighted at Crecy and
Poictiers? The name is only found in parliamentary proceedings during
comparatively pacific times.

[312] West, whose business it was to represent the barons by writ as
mere assistants without suffrage, cites the writ to them rather
disingenuously, as if it ran vobiscum et cum prelatis, magnatibus ac
proceribus, omitting the important word cæteris. p. 35. Prynne, however,
from whom West has borrowed a great part of his arguments, does not seem
to go the length of denying the right of suffrage to persons so
summoned. First Register, p. 237.

[313] These descended from two persons, each named Geoffrey le Scrope,
chief justices of K.B. and C.B. at the beginning of Edward III.'s reign.
The name of one of them is once found among the barons, but I presume
this to have been an accident, or mistake in the roll; as he is
frequently mentioned afterwards among the judges. Scrope, chief justice
of K.B., was made a _banneret_ in 14 E. III. He was the father of Henry
Scrope of Masham, a considerable person in Edward III. and Richard II.'s
government, whose grandson, Lord Scrope of Masham, was beheaded for a
conspiracy against Henry V. There was a family of Scrupe as old as the
reign of Henry II.; but it is not clear, notwithstanding Dugdale's
assertion, that the Scropes descended from them, or at least that they
held the same lands: nor were the Scrupes barons, as appears by their
paying a relief of only sixty marks for three knights' fees. Dugdale's
Baronage, p. 654.

The want of consistency in old records throws much additional difficulty
over this intricate subject. Thus Scrope of Masham, though certainly a
baron, and tried next year by the peers, is called chevalier in an
instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against
Sir John Oldcastle he is constantly styled knight, though he had been
summoned several times as lord Cobham, in right of his wife, who
inherited that barony. Rot. Parl. vol. iv. p. 107.

[314] Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio edit).

[315] Rot. Parl. vol. iii. p. 427.

[316] Rot. Parl. vol. ii. p. 290.

[317] vol. iii. p. 209.

[318] Id. p. 263, 264.

[319] vol. iv. p. 17.

[320] Id. p. 401.

[321] West's Inquiry, p. 65. This writer does not allow that the king
possessed the prerogative of creating new peers without consent of
parliament. But Prynne (1st Register, p. 225), who generally adopts the
same theory of peerage as West, strongly asserts the contrary; and the
party views of the latter's treatise, which I mentioned above, should be
kept in sight. It was his object to prove that the pending bill to limit
the numbers of the peerage was conformable to the original constitution.

[322] Hody's History of Convocations, p. 12. Dissertatio de antiquâ et
modernâ Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia,
t. 1.

[323] 2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345.
Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that
the clergy had been represented in parliament from the Conquest as well
as before it. Many of the passages he quotes are very inconclusive; but
possibly there may be some weight in one from Matthew Paris, ad ann.
1247 and two or three writs of the reign of Henry III.

[324] Hody, p. 381; Atterbury's Rights of Convocations, p. 221.

[325] Hody, p. 386; Atterbury, p. 222.

[326] Hody, p. 391.

[327] Gilbert's Hist. of Exchequer, p. 47.

[328] Rot. Parl. vol. i. p. 189; Atterbury, p. 229.

[329] The lower house of convocation, in 1547, terrified at the progress
of reformation, petitioned that, "according to the tenor of the king's
writ, and the ancient customs of the realm, they might have room and
place and be associated with the commons in the nether house of this
present parliament, as members of the commonwealth and the king's most
humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No.
17.

This assertion that the clergy had ever been associated as one body with
the commons is not borne out by anything that appears on our records,
and is contradicted by many passages. But it is said that the clergy
were actually so united with the commons in the Irish parliament till
the Reformation. Gilbert's Hist. of the Exchequer, p. 57.

[330] Hody, p. 392.

[331] The præmunientes clause in a bishop's writ of summons was so far
regarded down to the Reformation, that proctors were elected, and their
names returned upon the writ; though the clergy never attended from the
beginning of the fifteenth century, and gave their money only in
convocation. Since the Reformation the clause has been preserved for
form merely in the writ. Wilkins, Dissertatio, ubi supra.

[332] Hody, p. 396. 403, &c. In 1314 the clergy protest even against the
recital of the king's writ to the archbishop directing him to summon the
clergy of his province in his letters mandatory, declaring that the
English clergy had not been accustomed, nor ought by right, to be
convoked by the king's authority. Atterbury, p. 230.

[333] Hody, p. 425. Atterbury, p. 42, 233. The latter seems to think
that the clergy of both provinces never actually met in a national
council or house of parliament, under the præmunientes writ, after the
reign of Edward II., though the proctors were duly returned. But Hody
does not go quite so far, and Atterbury had a particular motive to
enhance the influence of the convocation of Canterbury.

[334] Atterbury, p. 46.

[335] Rot. Parl. vol. ii. p. 64, 65.

[336] 18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the
parliament in which it is very doubtful whether any deputies from cities
and boroughs had a place. The pretended statutes were therefore every
way null; being falsely imputed to an incomplete parliament.

[337] Rot. Parl. vol. ii. p. 151.

[338] 25 E. III. stat. 3.

[339] p. 368. The word _they_ is ambiguous; Whitelocke (on Parliamentary
Writ, vol. ii. p. 346) interprets it of the commons: I should rather
suppose it to mean the clergy.

[340] 50 E. III. c. 4 & 5.

[341] Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le
roy supplient humblement ses devotes oratours, les prelats et la clergie
de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13,
14, 15. But see Hody, p. 425; Atterbury, p. 329.

[342] Rot. Parl. vol. iii. p. 37.

[343] It might be argued, from a passage in the parliament-roll of 21 R.
II., that the clergy of both provinces were not only present, but that
they were accounted an essential part of parliament in temporal matters,
which is contrary to the whole tenor of our laws. The commons are there
said to have prayed that, "whereas many judgments and ordinances
formerly made in parliament had been annulled _because the estate of
clergy had not been present thereat_, the prelates and clergy might make
a proxy with sufficient power to consent in their name to all things
done in this parliament." Whereupon the spiritual lords agreed to
intrust their powers to Sir Thomas Percy, and gave him a procuration
commencing in the following words: "Nos Thomas Cantuar' et Robertus
Ebor' archiepiscopi, ac prælati _et clerus utriusque provinciæ Cantuar'
et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus
interessendi in singulis parliamentis_ domini nostri regis et regni
Angliæ pro tempore celebrandis, necnon tractandi et expediendi in eisdem
quantum ad singula in instanti parliamento pro statu et honore domini
nostri regis, necnon regaliæ suæ, ac quiete, pace, et tranquillitate
regni judicialiter justificandis, venerabili viro domino Thomæ de Percy
militi, nostram plenarie committimus potestatem." It may be perceived by
these expressions, and more unequivocally by the nature of the case,
that it was the judicial power of parliament which the spiritual lords
delegated to their proxy. Many impeachments for capital offences were
coming on, at which, by their canons, the bishops could not assist. But
it can never be conceived that the inferior clergy had any share in this
high judicature. And, upon looking attentively at the words above
printed in italics, it will be evident that the spiritual lords holding
by barony are the only persons designated; whatever may have been meant
by the singular phrase, as applied to them, clerus utriusque provinciæ.
Rot. Parl. vol. iii. p. 348.

[344] Atterbury. p. 346.

[345] 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led
me to this act, which I had overlooked.

[346] Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.

[347] The ensuing sketch of the jurisdiction exercised by the king's
council has been chiefly derived from Sir Matthew Hale's Treatise of the
Jurisdiction of the Lords' House in Parliament, published by Mr.
Hargrave.

[348] The words "privy council" are said not to be used till after the
reign of Henry VI.; the former style was "ordinary" or "continual
council." But a distinction had always been made, according to the
nature of the business: the great officers of state, or, as we might now
say, the ministers, had no occasion for the presence of judges or any
lawyers in the secret councils of the crown. They become, therefore, a
council of government, though always members of the _consilium
ordinarium_; and, in the former capacity, began to keep formal records
of their proceedings. The acts of this council though, as I have just
said, it bore as yet no distinguishing name, are extant from the year
1386, and for seventy years afterwards are known through the valuable
publication of Sir Harris Nicolas.

[349] Rot. Parl. vol. iii. p. 84.

[350] Ibid. p. 266.

[351] 25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th
of Edward III. is the most extensively beneficial act in the whole body
of our laws. It established certainty in treasons, regulated purveyance,
prohibited arbitrary imprisonment and the determination of pleas of
freehold before the council, took away the compulsory finding of
men-at-arms and other troops, confirmed the reasonable aid of the king's
tenants fixed by 3 E. I., and provided that the king's protection should
not hinder civil process or execution.

[352] 28 E. III. c. 3.

[353] 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not
surprising that the king's council should have persisted in these
transgressions of their lawful authority, when we find a similar
jurisdiction usurped by the officers of inferior persons. Complaint is
made in the 18th of Richard II. that men were compelled to answer before
_the council of divers lords and ladies_, for their freeholds and other
matters cognizable at common law, and a remedy for this abuse is given
by petition in chancery, stat. 15 R. II. c. 12. This act is confirmed
with a penalty on its contraveners the next year, 16 R. II. c. 2. The
private gaols which some lords were permitted by law to possess, and for
which there was always a provision in their castles, enabled them to
render this oppressive jurisdiction effectual.

[354] Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI.
vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15
H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to
answer for his freehold in parliament, nor before any court or council
where such things are not cognizable by the law of the land," the king
gave a denial. As it was less usual to refuse promises of this kind than
to forget them afterwards, I do not understand the motive of this.

[355] Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. p. 553.
The last author places this a little later. There is a petition of the
commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many
grantees and feoffees in trust for their grantors and feoffers alienate
or charge the tenements granted, _in which case there is no remedy
unless one is ordered by parliament_, that the king and lords would
provide a remedy. This petition is referred to the king's council to
advise of a remedy against the ensuing parliament. It may perhaps be
inferred from hence that the writ of subpoena out of chancery had not
yet been applied to protect the cestui que use. But it is equally
possible that the commons, being disinclined to what they would deem an
illegal innovation, were endeavouring to reduce these fiduciary estates
within the pale of the common law, as was afterwards done by the statute
of uses. [Note X.]

[356] Rot. Parl. vol. i. p. 416.

[357] L. ii. c. 2.

[358] [Note XI.]

[359] This is remarkably expressed in one of the articles agreed in
parliament 8 H. VI. for the regulation of the council. "Item, that alle
the billes that comprehend matters terminable atte the common lawe shall
be remitted ther to be determined; but if so be that the discresion of
the counseill fele to grete myght on that õ syde, and unmyght on that
other, or elles other cause resonable yat shal move him." Rot. Parl.
vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon
in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the
same, that in theory nothing could be more excellent. In turbulent
times, it is scarcely necessary to remark, great men were too apt to
weigh out justice for themselves, and with no great nicety; a court,
therefore, to which the people might fly for relief against powerful
oppressors, was most especially needful. Law charges also were
considerable; and this, 'the poor man's court, in which he might have
right without paying any money' (Sir T. Smith's Commonwealth, book iii.
ch. 7), was an institution apparently calculated to be of unquestionable
utility. It was the comprehensiveness of the last clause--the 'other
cause resonable'--which was its ruin." Archæologia, vol. xxv. p. 348.
The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's
edition, is very important, as giving a legal authority to the council,
by writs under the great seal, and by writs of proclamation to the
sheriffs, on parties making default, to compel the attendance of any
persons complained of for "great riots, extortions, oppressions, and
grievous offences," under heavy penalties; in case of a peer, "the loss
of his estate, and name of lord, and his place in parliament," and all
his lands for the term of his life; and fine at discretion in the case
of other persons. A proviso is added that no matter determinable by the
law of the realm should be determined in other form than after the
course of law in the king's courts. Sir Francis Palgrave (Essay on the
King's Council, p. 84) observes that this proviso "would in no way
interfere with the effective jurisdiction of the council, inasmuch as it
could always be alleged in the bills which were preferred before it that
the oppressive and grievous offences of which they complained were not
determinable by the ordinary course of the common law" p. 86. But this
takes the word "determinable" to mean _in fact_; whereas I apprehend
that the proviso must be understood to mean cases legally determinable;
the words, I think, will bear no other construction. But as all the
offences enumerated were indictable, we must either hold the proviso to
be utterly inconsistent with the rest of the statute, or suppose that
the words "other form" were intended to prohibit the irregular process
usual with the council; secret examination of witnesses, torture,
neglect of technical formality in specifying charges, punishments not
according to the course of law, and other violations of fair and free
trial, which constituted the greatest grievance in the proceedings of
the council.

[360] The judgment against Mortimer was reversed at the suit of his son,
28 E. III., because he had not been put on his trial. The peers had
adjudged him to death in his absence, upon common notoriety of his
guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of
Arundel's attainder was also reversed, which had passed in 1 E. III.,
when Mortimer was at the height of his power. These precedents taken
together seem to have resulted from no partiality, but a true sense of
justice in respect of treasons, animated by the recent statute. Rot.
Parl. vol. ii. p. 256.

[361] Rot. Parl. vol. iii. p. 427.

[362] Blackstone's Comment. from Finch, vol. i. c. 7.

[363] Letters are directed to all the sheriffs, 2 E. I., enjoining them
to send up a certain number of beeves, sheep, capons, &c., for the
king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c.
12, goods taken by the purveyors were to be paid for on the spot if
under twenty shillings' value, or within three months' time if above
that value. But it is not to be imagined that this law was or could be
observed.

Edward III., impelled by the exigencies of his French war, went still
greater lengths, and seized larger quantities of wool, which he sold
beyond sea, as well as provisions for the supply of his army. In both
cases the proprietors had tallies, or other securities; but their
despair of obtaining payment gave rise, in 1338, to an insurrection.
There is a singular apologetical letter of Edward to the archbishops on
this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col.
2570.

[364] Rymer, t. vi. p. 417.

[365] Idem, t. xi. p. 852.

[366] Matthew Paris asserts that John granted a separate forest-charter,
and supports his position by asserting that of Henry III. at full
length. In fact, the clauses relating to the forest were incorporated
with the great charter of John. Such an error as this shows the
precariousness of historical testimony, even where it seems to be best
grounded.

[367] Coke, fourth Inst. p. 294. The forest domain of the king, says the
author of the Dialogue on the Exchequer under Henry II., is governed by
its own laws, not founded on the common law of the land, but the
voluntary enactment of princes: so that whatever is done by that law is
reckoned not legal in itself, but legal according to forest law, p. 29,
non justum absolutè, sed justum secundum legem forestæ dicatur. I
believe my translation of _justum_ is right; for he is not writing
satirically.

[368] 13 R. II. c. 2.

[369] Rot. Parl. vol. iii. p. 530.

[370] The apprehension of this compliant spirit in the ministers of
justice led to an excellent act in 2 E. III. c. 8, that the judges shall
not omit to do right for any command under the great or privy seal. And
the conduct of Richard II., who sought absolute power by corrupting or
intimidating them, produced another statute in the eleventh year of his
reign (c. 10), providing that neither letters of the king's signet nor
of the privy seal should from thenceforth be sent in disturbance of the
law. An ordinance of Charles V., king of France, in 1369, directs the
parliament of Paris to pay no regard to any letters under his seal
suspending the course of legal procedure, but to consider them as
surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which
was sedulously observed, tended very much to confirm the independence
and integrity of that tribunal.

[371] Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1.
Hume quotes a grant of the office of constable to the earl of Rivers in
7 E. IV., and infers, unwarrantably enough, that "its authority was in
direct contradiction to Magna Charta; and it is evident that no regular
liberty could subsist with it. It involved a full dictatorial power,
continually subsisting in the state." Hist. of England, c. 22. But by
the very words of this patent the jurisdiction given was only over such
causes quæ in curiâ constabularii Angliæ ab antiquo, viz. tempore dicti
Gulielmi conquæstoris, seu aliquo tempore citra, tractari, audiri,
examinari, aut decidi consueverunt aut _jure debuerant aut debent_.
These are expressed, though not very perspicuously, in the statute 13 R.
II. c. 2, that declares the constable's jurisdiction. And the chief
criminal matter reserved by law to the court of this officer was treason
committed out of the kingdom. In violent and revolutionary seasons, such
as the commencement of Edward IV.'s reign, some persons were tried by
martial law before the constable. But, in general, the exercise of
criminal justice by this tribunal, though one of the abuses of the
times, cannot be said to warrant the strong language adopted by Hume.

[372] Fortescue, De Laudibus Legum Angliæ, c. 9.

[373] Id. c. 13.

[374] The latter treatise having been written under Edward IV., whom
Fortescue, as a restored Lancastrian, would be anxious not to offend,
and whom in fact he took some pains to conciliate both in this and other
writings, it is evident that the principles of limited monarchy were as
fully recognised in his reign whatever particular acts of violence might
occur, as they had been under the Lancastrian princes.

[375] The following is one example of these prejudices: In the 9th of
Richard II. a tax on wool granted till the ensuing feast of St. John
Baptist was to be intermitted from thence to that of St. Peter, and then
to recommence; that it might not be claimed as a right. Rot. Parl. vol.
iii. p. 214. Mr. Hume has noticed this provision, as "showing an
accuracy beyond what was to be expected in those _rude_ times." In this
epithet we see the foundation of his mistakes. The age of Richard II.
might perhaps be called rude in some respects. But assuredly in prudent
and circumspect perception of consequences, and an accurate use of
language, there could be no reason why it should be deemed inferior to
our own. If Mr. Hume had ever deigned to glance at the legal decisions
reported in the Year-books of those times, he would have been surprised,
not only at the utmost _accuracy_, but at a subtle refinement in verbal
logic, which none of his own metaphysical treatises could surpass.

[376] [Note XII.]

[377] During the famous process against the knights templars in the
reign of Edward II., the archbishop of York, having taken the
examination of certain templars in his province, felt some doubts which
he propounded to several monasteries and divines. Most of these relate
to the main subject. But one question, fitter indeed for lawyers than
theologians, was, whereas many would not confess without torture,
whether he might make use of this means, _licet hoc in regno Angliæ
nunquam visum fuerit vel auditum_? Et si torquendi sunt, utrum per
clericos vel laicos? Et dato, quòd _nullus omnino tortor inveniri
valeat_ in Angliâ, utrum pro tortoribus mittendum sit ad partes
transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use
are said to have occurred in the 15th century. See a learned 'Reading on
the Use of Torture in the Criminal Law of England, by David Jardine,
Esq., 1837.'

[378] Rot. Parl. vol. iv. p. 65.

[379] Rot. Parl. vol. iv. p. 202.

[380] This was written in 1811 or 1812; and is among many passages which
the progress of time has somewhat falsified.

[381] Philip de Comines takes several opportunities of testifying his
esteem for the English government. See particularly 1. iv. c. i. and 1.
v. c. xix.

[382] By a frankleyn in this place we are to understand what we call a
country squire, like the frankleyn of Chaucer; for the word esquire in
Fortescue's time was only used in its limited sense, for the sons of
peers and knights, or such as had obtained the title by creation or some
other legal means.

The mention of Chaucer leads me to add that the prologue to his
Canterbury Tales is of itself a continual testimony to the plenteous and
comfortable situation of the middle ranks in England, as well as to that
fearless independence and frequent originality of character amongst
them, which liberty and competence have conspired to produce.

[383] Brady's Hist. vol. i.; Appendix, p. 148.

[384] Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p.
41.

[385] If a man was disseised of his land, he might enter upon the
disseisor and reinstate himself without course of law. In what case this
right of entry was taken away, or _tolled_, as it was expressed, by the
death or alienation of the disseisor, is a subject extensive enough to
occupy two chapters of Littleton. What pertains to our inquiry is, that
by an entry in the old law-books we must understand an actual
repossession of the disseisee, not a suit in ejectment, as it is now
interpreted, but which is a comparatively modern proceeding. The first
remedy, says Britton, of the disseisee is to collect a body of his
friends (recoiller amys et force), and without delay to cast out the
disseisors, or at least to maintain himself in possession along with
them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be
made peaceably; and the justices might assemble the posse comitatus to
imprison persons entering on lands by violence (15 R. II. c. 2), but
these laws imply the facts that made them necessary.

[386] No lord, or other person, by 20 R. II. c. 3, was permitted to sit
on the bench with the justices of assise. Trials were sometimes overawed
by armed parties, who endeavoured to prevent their adversaries from
appearing. Paston Letters, vol. iii. p. 119.

[387] From a passage in the Paston Letters (vol. ii. p. 23) it appears
that, far from these acts being regarded, it was considered as a mark of
respect to the king, when he came into a county, for the noblemen and
gentry to meet him with as many attendants in livery as they could
muster. Sir John Paston was to provide twenty men in their livery-gowns,
and the duke of Norfolk two hundred. This illustrates the well-known
story of Henry VII. and the earl of Oxford, and shows the mean and
oppressive conduct of the king in that affair, which Hume has pretended
to justify.

In the first of Edward IV. it is said in the roll of parliament (vol. v.
p. 407), that, "by yeving of liveries and signets, contrary to the
statutes and ordinances made aforetyme maintenaunce of quarrels,
extortions, robberies, murders been multiplied and continued within this
reame, to the grete disturbaunce and inquietation of the same."

[388] Thus to select one passage out of many: Eodem anno (1332) quidam
maligni, fulti quorundam magnatum præsidio, regis adolescentiam
spernentes, et regnum perturbare intendentes, in tantam turbam
creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori
essent. Walsingham, p. 132.

[389] I am aware that in many, probably a great majority of reported
cases, this word was technically used, where some unwarranted
conveyance, such as a feoffment by the tenant for life, was held to have
wrought a disseisin; or where the plaintiff was allowed, for the purpose
of a more convenient remedy, to feign himself disseised, which was
called disseisin by election. But several proofs might be brought from
the parliamentary petitions, and I doubt not, if nearly looked at, from
the Year-books, that in other cases there was an actual and violent
expulsion. And the definition of disseisin in all the old writers, such
as Britton and Littleton, is obviously framed upon its primary meaning
of violent dispossession, which the word had probably acquired long
before the more peaceable disseisins, if I may use the expression,
became the subject of the remedy by assise.

I would speak with deference of Lord Mansfield's elaborate judgment in
Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in
it appear to me rather too strongly stated; and particularly that the
acceptance of the disseisor as tenant by the lord was necessary to
render the disseisin complete; a condition which I have not found hinted
in any law-book. See Butler's note on Co. Litt. p. 330; where that
eminent lawyer expresses similar doubts as to Lord Mansfield's
reasoning. It may however be remarked, that constructive or elective
disseisins, being of a technical nature, were more likely to produce
cases in the Year-books than those accompanied with actual violence,
which would commonly turn only on matters of fact, and be determined by
a jury.

A remarkable instance of violent disseisin, amounting in effect to a
private war, may be found in the Paston Letters occupying most of the
fourth volume. One of the Paston family, claiming a right to Caistor
Castle, kept possession against the duke of Norfolk, who brought a large
force, and laid a regular siege to the place, till it surrendered for
want of provisions. Two of the besiegers were killed. It does not appear
that any legal measures were taken to prevent or punish this outrage.

[390] Difference between an Absolute and Limited Monarchy, p. 99.

[391] The manner in which these were obtained, in spite of law, may be
noticed among the violent courses of prerogative. By statute 2 E. III.
c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons
was taken away, except in cases of homicide per infortunium. Another
act, 14 E. III. c. 15, reciting that the former laws in this respect
have not been kept, declares that all pardons contrary to them shall be
holden as null. This however was disregarded like the rest; and the
commons began tacitly to recede from them, and endeavoured to compromise
the question with the crown. By 27 E. III. stat. I, c. 2, without
adverting to the existing provisions, which may therefore seem to be
repealed by implication, it is enacted that in every charter of pardon,
granted at any one's suggestion, the suggestor's name and the grounds of
his suggestion shall be expressed, that if the same be found untrue it
may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to
find the commons requesting that pardons might not be granted, as if the
subject were wholly, unknown to the law; the king protesting in reply
that he will save his liberty and regality, as his progenitors had done
before, but conceding some regulations, far less remedial than what were
provided already by the 27th of Edward II. Pardons make a pretty large
head in Brooke's Abridgment, and were undoubtedly granted without
scruple by every one of our kings. A pardon obtained in a case of
peculiar atrocity is the subject of a specific remonstrance in 23 H. VI.
Rot. Parl. vol. v. p. 111.

[392] Rot. Parl. vol. ii. p. 201. A strange policy, for which no
rational cause can be alleged, kept Wales and even Cheshire distinct
from the rest of the kingdom. Nothing could be more injurious to the
adjacent counties. Upon the credit of their immunity from the
jurisdiction of the king's courts, the people of Cheshire broke with
armed bands into the neighbouring counties, and perpetrated all the
crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H.
IV. c. 18. As to the Welsh frontier, it was constantly almost in a state
of war, which a very little good sense and benevolence in any one of our
shepherds would have easily prevented, by admitting the conquered people
to partake in equal privileges with their fellow-subjects. Instead of
this, they satisfied themselves with aggravating the mischief by
granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen
were absolutely excluded from bearing offices in Wales. The English
living in the English towns of Wales earnestly petition, 23 H. VI. Rot.
Parl. vol. v. p. 104, 154, that this exclusion may be kept in force.
Complaints of the disorderly state of the Welsh frontier are repeated as
late as 12 E. IV. vol. vi. p. 8.

It is curious that, so early as 15 E. II., a writ was addressed to the
earl of Arundel, justiciary of Wales, directing him to cause twenty-four
discreet persons to be chosen from the north, and as many from the south
of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456.
And we find a similar writ in the 20th of the same king. Prynne's
Register, 4th part, p. 60. Willis says that he has seen a return to one
of these precepts, much obliterated, but from which it appears that
Conway, Beaumaris, and Carnarvon returned members. Notitia
Parliamentaria, vol. i. preface, p. 15.

[393] The statute of Winton was confirmed, and proclaimed afresh by the
sheriffs, 7 R. II. c. 6, after an era of great disorder.

[394] Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.

[395] 1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R.
II. c. 5. The institution excited a good deal of ill-will, even before
these strong acts were passed. Many petitions of the commons in the 28th
E. III., and other years, complain of it. Rot. Parl. vol. ii.

[396] Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E.
II. c. 16, was not founded on a petition, but on the king's answer; so
that the commons were not real parties to it, and accordingly call it an
ordinance in their present petition. This naturally increased their
animosity in treating it as an infringement of the subject's right.

[397] Glanvil, 1. v. c. 5.

[398] According to Bracton, the bastard of a nief, or female villein,
was born in servitude; and where the parents lived on a villein
tenement, the children of a nief, even though married to a freeman, were
villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109.
But Littleton lays down an opposite doctrine, that a bastard was
necessarily free; because, being the child of no father in the
contemplation of law, he could not be presumed to inherit servitude from
any one; and makes no distinction as to the parent's residence. Sect
188. I merely take notice of this change in the law between the reigns
of Henry III. and Edward IV. as an instance of the bias which the judges
showed in favour of personal freedom. Another, if we can rely upon it,
is more important. In the reign of Henry II. a freeman marrying a nief,
and settling on a villein tenement, lost the privileges of freedom
during the time of his occupation; legem terræ quasi nativus amittit.
Glanvil, 1. v. c. 6. This was consonant to the customs of some other
countries, some of which went further, and treated such a person for
ever as a villein. But, on the contrary, we find in Britton, a century
later, that the nief herself by such a marriage became free during the
coverture, c. 31. [Note XIII.]

[399] I must confess that I have some doubts how far this was law at the
epoch of Magna Charta. Glanvil and Bracton both speak of the _status
villenagii_, as opposed to that of liberty, and seem to consider it as a
civil condition, not a merely personal relation. The civil law and the
French treatise of Beaumanoir hold the same language. And Sir Robert
Cotton maintains without hesitation that villeins are not within the
29th section of Magna Charta, "being excluded by the word liber."
Cotton's Posthuma, p. 223. Britton, however, a little after Bracton,
says that in an action the villein is answerable to all men, and all men
to him. p. 79. And later judges, in favorem libertatis, gave this
construction to the villein's situation, which must therefore be
considered as the clear law of England in the fourteenth and fifteenth
centuries.

[400] Littleton, sect. 189, 190, speaks only of an appeal in the two
former cases; but an indictment is à fortiori; and he says, sect. 194,
that an indictment, though not an appeal, lies against the lord for
maiming his villein.

[401] Gurdon, on Courts Baron, p. 592, supposes the villein in gross to
have been the Lazzus or Servus of early times, a domestic serf, and of
an inferior species to the cultivator, or villein regardant. Unluckily
Bracton and Littleton do not confirm this notion, which would be
convenient enough; for in Domesday Book there is a marked distinction
between the Servi and Villani. Blackstone expresses himself inaccurately
when he says the villein in gross was annexed to the person of the lord,
and transferable by deed from one owner to another. By this means indeed
a villein regardant would become a villein in gross, but all villeins
were alike liable to be sold by their owners. Littleton, sect. 181.
Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that
villeins in gross were never numerous (Case of Somerset, Howell's State
Trials, vol. xx. p. 42): drawing this inference from the few cases
relative to them that occur in the Year-books. And certainly the form of
a writ de nativitate probandâ, and the peculiar evidence it required,
which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s
argument, are only applicable to the other species. It is a doubtful
point whether a freeman could, in contemplation of law, become a villein
in gross; though his confession in a court of record, upon a suit
already commenced (for this was requisite), would estop him from
claiming his liberty; and hence Bracton speaks of this proceeding as a
mode by which a freeman might fall into servitude.

[402] [Note XIV.]

[403] Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.

[404] Glanvil, 1. iv. c. 5.

[405] Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p.
13. A passage in another local history rather seems to indicate that
some kind of delinquency was usually alleged, and some ceremony
employed, before the lord entered on the villein's land. In Gissing
manor, 39 E. III., the jury present, that W. G., a villein by blood, was
a rebel and ungrateful toward his lord, for which all his tenements were
seized. His offence was the having said that the lord kept four stolen
sheep in his field. Blomefield's Norfolk, vol. i. p. 114.

[406] Gurdon on Courts Baron, p. 574.

[407] Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the
manor of Brisingham in Norfolk, in 1254, it appears that there were then
ninety-four copyholders and six cottagers in villenage; the former
performing many, but determinate services of labour for the lord.
Blomefield's Norfolk, vol. i. p. 34.

[408] Littl. sect. 77. A copyholder without legal remedy may seem little
better than a tenant in mere villenage, except in name. But though, from
the relation between the lord and copyholder the latter might not be
permitted to sue his superior, yet it does not follow that he might not
bring his action against any person acting under the lord's direction,
in which the defendant could not set up an illegal authority; just as,
although no writ runs against the king, his ministers or officers are
not justified in acting under his command contrary to law. I wish this
note to be considered as correcting one in my first volume, p. 200,
where I have said that a similar law in France rendered the distinction
between a serf and a homme de poote little more than theoretical.

[409] See the rules of pleading and evidence in questions of villenage
fully stated in Mr. Hargrave's argument in the case of Somerset.
Howell's State Trials, vol. xx. p. 38.

[410] 1. v. c. v.

[411] Blomefleld's Norfolk, vol. i. p. 657. I know not how far this
privilege was supposed to be impaired by the statute 34 E. III. c. 11;
which however might, I should conceive, very well stand along with it.

[412] Stat. 23 E. III.

[413] [Note XV.]

[414] I have been more influenced by natural probabilities than
testimony in ascribing this effect to Wicliffe's innovations, because
the historians are prejudiced witnesses against him. Several of them
depose to the connexion between his opinions and the rebellion of 1382;
especially Walsingham, p. 288. This implies no reflection upon Wicliffe,
any more than the crimes of the anabaptists in Munster do upon Luther.
Every one knows the distich of John Ball, which comprehends the essence
of religious democracy:

    "When Adam delved and Eve span,
     Where was then the gentleman?"

The sermon of this priest, as related by Walsingham, p. 275, derives its
argument for equality from the common origin of the species. He is said
to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii.
p. 420.

[415] Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.

[416] 30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation
of Kent, p. 632. Somner on Gavelkind, p. 72.

[417] Rymer, t. vii. p. 316, &c. The king holds this bitter language to
the villeins of Essex, after the death of Tyler and execution of the
other leaders had disconcerted them: Rustici quidem fuistis et estis, in
bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori,
&c. Walsingham, p. 269.

[418] Rot. Parl. vol. iii. p. 100.

[419] 5 R II. c. 7. The words are, riot et rumour _n'autres semblables_;
rather a general way of creating a new treason; but panic puts an end to
jealousy.

[420] 12 R. II. c. 3.

[421] Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV.
c. 17, enacts that no one shall put his son or daughter apprentice to
any trade in a borough, unless he have land or rent to the value of
twenty shillings a year, but that any one may put his children to
school. The reason assigned is the scarcity of labourers in husbandry,
in consequence of people living in _Upland_ apprenticing their children.

[422] Blomefield's Norfolk, vol. iii. p. 571.

[423] Rymer, t. v. p. 44.

[424] Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p.
420; Barrington on Ancient Statutes, p. 278. It is said in a modern book
that villenage was very rare in Scotland, and even that no instance
exists in records of an estate sold with the labourers and their
families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p.
147. But Mr. Chalmers, in his Caledonia, has brought several proofs that
this assertion is too general.

[425] Barrington, ubi supra, from Rymer.

[426] There are several later cases reported wherein villenage was
pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.)
See Hargrave's argument, State Trials, vol. xx. p 41. But these are so
briefly stated, that it is difficult in general to understand them. It
is obvious, however, that judgment was in no case given in favour of the
plea; so that we can infer nothing as to the actual continuance of
villenage.

It is remarkable, and may be deemed by some persons a proof of legal
pedantry, that Sir E. Coke, while he dilates on the law of villenage,
never intimates that it was become antiquated.

[427] 8 H. V. c. 1.

[428] This prince having been sent to Antwerp, six commissioners were
appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.

[429] Rymer, t. vi. p. 748.

[430] Matt. Paris, p. 243.

[431] Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1.

[432] Rot. Parl vol. ii. p. 52.

[433] Rymer, t. vii. p. 171.

[434] Rot. Parl. vol. iv. p. 169.

[435] Rot. Parl. vol. iv. p. 174, 176.

[436] Ibid. p. 201.

[437] I follow the orthography of the roll, which I hope will not be
inconvenient to the reader. Why this orthography, from obsolete and
difficult, so frequently becomes almost modern, as will appear in the
course of these extracts, I cannot conjecture. The usual irregularity of
ancient spelling is hardly sufficient to account for such variations;
but if there be any error, it belongs to the superintendents of that
publication, and is not mine.

[438] Rot. Parl. 6 H. VI. vol. iv. p. 326.

[439] Rot. Parl. 8 H. VI. vol. iv. p. 336.

[440] Rot. Parl. vol. v. p. 241.

[441] Paston Letters, vol. i. p. 81. The proofs of sound mind given in
this letter are not very decisive, but the wits of sovereigns are never
weighed in golden scales.

[442] This may seem an improper appellation for what is usually termed a
battle, wherein 5000 men are said to have fallen. But I rely here upon
my faithful guide, the Paston Letters, p. 100, one of which, written
immediately after the engagement, says that only sixscore were killed.
Surely this testimony outweighs a thousand ordinary chroniclers. And the
nature of the action, which was a sudden attack on the town of St.
Albans, without any pitched combat, renders the larger number
improbable. Whethamstede, himself abbot of St. Albans at the time, makes
the duke of York's army but 3000 fighting men. p. 352. This account of
the trifling loss of life in the battle of St. Albans is confirmed by a
contemporary letter, published in the Archæologia (xx. 519). The whole
number of the slain was but forty-eight, including, however, several
lords.

[443] See some account of these in Paston Letters, vol. i. p. 114.

[444] Rot. Parl. vol. v. p. 284-290.

[445] Hall, p. 210.

[446] The ill-will of York and the queen began as early as 1449, as we
learn from an unequivocal testimony, a letter of that date in the Paston
collection, vol. i. p. 26.

[447] Upon this great question the fourth discourse in Sir Michael
Foster's Reports ought particularly to be read.

[448] Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736).

[449] Rot. Parl. vol. v. p. 351.

[450] Id. p. 375. This entry in the roll is highly interesting and
important. It ought to be read in preference to any of our historians.
Hume, who drew from inferior sources, is not altogether accurate. Yet
one remarkable circumstance, told by Hall and other chroniclers, that
the duke of York stood by the throne, as if to claim it, though omitted
entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans,
who was probably then present. (p. 484, edit. Hearne.) This shows that
we should only doubt, and not reject, unless upon real grounds of
suspicion, the assertions of secondary writers.

[451] The abbey of St. Albans was stripped by the queen and her army
after the second battle fought at that place, Feb. 17, 1461; which
changed Whethamstede the abbot and historiographer from a violent
Lancastrian into a Yorkist. His change of party is quite sudden, and
amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the
Paston family were originally Lancastrian, and returned to that side in
1470.

[452] There are several instances of violence and oppression apparent on
the rolls during this reign, but not proceeding from the crown. One of a
remarkable nature (vol. v. p. 173) was brought forward to throw an odium
on the duke of Clarence, who had been concerned in it. Several passages
indicate the character of the duke of Gloucester.

[453] See in Cro. Car. 120, the indictment against Burdett for
compassing the king's death, and for that purpose conspiring with Stacie
and Blake to calculate his nativity and his son's, ad sciendum quando
iidem rex et Edwardus ejus filius morientur: Also for the same end
dispersing divers rhymes and ballads de murmurationibus, seditionibus et
proditoriis excitationibus, factas et fabricatas apud Holbourn, to the
intent that the people might withdraw their love from the king and
desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem
levarent, ad finalem destructionem ipsorum regis ac domini principis,
&c.

[454] Rot. Parl. vol. vi. p. 193.

[455] The rolls of Henry VII.'s first parliament are full of an absurd
confusion in thought and language, which is rendered odious by the
purposes to which it is applied. Both Henry VI. and Edward IV. are
considered as lawful kings; except in one instance, where Alan
Cotterell, petitioning for the reversal of his attainder, speaks of
Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the
language of a private Lancastrian. And Henry VI. passes for having been
king during his short restoration in 1470, when Edward had been nine
years upon the throne. For the earl of Oxford is said to have been
attainted "for the true allegiance and service he owed and did to Henry
VI. at Barnet field and otherwise." (p. 281.) This might be reasonable
enough on the true principle that allegiance is due to a king _de
facto_; if indeed we could determine who was the king de facto on the
morning of the battle of Barnet. But this principle was not fairly
recognised. Richard III. is always called, "in deed and not in right
king of England." Nor was this merely founded on his usurpation as
against his nephew. For that unfortunate boy is little better treated,
and in the act of resumption, 1 H. VII., while Edward IV. is styled
"late king," appears only with the denomination of "Edward his son, late
called Edward V." (p. 336.) Who then was king after the death of Edward
IV.? And was his son really illegitimate, as an usurping uncle
pretended? Or did the crime of Richard, though punished in him, enure to
the benefit of Henry? These were points which, like the fate of the
young princes in the Tower, he chose to wrap in discreet silence. But
the first question he seems to have answered in his own favour. For
Richard himself, Howard duke of Norfolk, Lord Lovel, and some others,
are attainted (p. 276) for "traiterously intending, compassing, and
imagining" the death of Henry; of course before or at the battle of
Bosworth; and while his right, unsupported by possession, could have
rested only on an hereditary title which it was an insult to the nation
to prefer. These monstrous proceedings explain the necessity of that
conservative statute to which I have already alluded, which passed in
the eleventh year of his reign, and afforded as much security for men
following the plain line of rallying round the standard of their country
as mere law can offer. There is some extraordinary reasoning upon this
act in Carte's History (vol. ii. p. 844), for the purpose of proving
that the adherents of George II. would not be protected by it on the
restoration of the true blood.

[456] Difference of Absolute and Limited Monarchy, p. 83.

[457] Rot. Parl. vol. vi. p. 241.

[458] 1 R. III. c. 2.

[459] The long-debated question as to the murder of Edward and his
brother seems to me more probably solved on the common supposition that
it was really perpetrated by the orders of Richard, than on that of
Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at
least, was in some way released from the Tower, and reappeared as Perkin
Warbeck. But a very strong conviction either way is not readily
attainable.



NOTES TO CHAPTER VIII.

(PART III.)


NOTE I. Page 5.

It is rather a curious speculative question, and such only, we may
presume, it will long continue, whether bishops are entitled, on charges
of treason or felony, to a trial by the peers. If this question be
considered either theoretically or according to ancient authority, I
think the affirmative proposition is beyond dispute. Bishops were at all
times members of the great national council, and fully equal to lay
lords in temporal power as well as dignity. Since the Conquest they have
held their temporalities of the crown by a baronial tenure, which, if
there be any consistency in law, must unequivocally distinguish them
from commoners--since any one holding by barony might be challenged on a
jury, as not being the peer of the party whom he was to try. It is true
that they take no share in the judicial power of the house of lords in
cases of treason or felony; but this is merely in conformity to those
ecclesiastical canons which prohibited the clergy from partaking in
capital judgment, and they have always withdrawn from the house on such
occasions under a protestation of their right to remain. Had it not been
for this particularity, arising wholly out of their own discipline, the
question of their peerage could never have come into dispute. As for the
common argument that they are not tried as peers because they have no
inheritable nobility, I consider it as very frivolous, since it takes
for granted the precise matter in controversy, that an inheritable
nobility is necessary to the definition of peerage, or to its incidental
privileges.

If we come to constitutional precedents, by which, when sufficiently
numerous and unexceptionable, all questions of this kind are ultimately
to be determined, the weight of ancient authority seems to be in favour
of the prelates. In the fifteenth year of Edward III. (1340), the king
brought several charges against archbishop Stratford. He came to
parliament with a declared intention of defending himself before his
peers. The king insisted upon his answering in the court of exchequer.
Stratford however persevered, and the house of lords, by the king's
consent, appointed twelve of their number, bishops, earls, and barons,
to report whether peers ought to answer criminal charges in parliament,
and not elsewhere. This committee reported to the king in full
parliament that the peers of the land ought not to be arraigned, nor put
on trial, except in parliament and by their peers. The archbishop upon
this prayed the king, that, inasmuch as he had been notoriously defamed,
he might be arraigned in full parliament before the peers, and there
make answer; which request the king granted. (Rot. Parl. vol. ii. p.
127. Collier's Eccles. Hist. vol. i. p. 543.) The proceedings against
Stratford went no further; but I think it impossible not to admit that
his right to trial as a peer was fully recognised both by the king and
lords.

This is, however, the latest, and perhaps the only instance of a
prelate's obtaining so high a privilege. In the preceding reign of
Edward II., if we can rely on the account of Walsingham (p. 119), Adam
Orleton, the factious bishop of Hereford, had first been arraigned
before the house of lords, and subsequently convicted by a common jury;
but the transaction was of a singular nature, and the king might
probably be influenced by the difficulty of obtaining a conviction from
the temporal peers, of whom many were disaffected to him, in a case
where privilege of clergy was vehemently claimed. But about 1357 a
bishop of Ely, being accused of harbouring one guilty of murder, though
he demanded a trial by the peers, was compelled to abide the verdict of
a jury. (Collier, p. 557.) In the 31st of Edw. III. (1358) the abbot of
Missenden was hanged for coining. (2 Inst. p. 635.) The abbot of this
monastery appears from Dugdale to have been summoned by writ in the 49th
of Henry III. If he actually held by barony, I do not perceive any
strong distinction between his case and that of a bishop. The leading
precedent, however, and that upon which lawyers principally found their
denial of this privilege to the bishops, is the case of Fisher, who was
certainly tried before an ordinary jury; nor am I aware that any
remonstrance was made by himself, or complaint by his friends, upon this
ground. Cranmer was treated in the same manner; and from these two,
being the most recent precedents, though neither of them in the best of
times, the great plurality of law-books have drawn a conclusion that
bishops are not entitled to trial by the temporal peers. Nor can there
be much doubt that, whenever the occasion shall occur, this will be the
decision of the house of lords.

There are two peculiarities, as it may naturally appear, in the
above-mentioned resolution of the lords in Stratford's case. The first
is, that they claim to be tried, not only before their peers, but in
parliament. And in the case of the bishop of Ely it is said to have been
objected to his claim of trial by his peers, that parliament was not
then sitting. (Collier, ubi sup.) It is most probable, therefore, that
the court of the lord high steward, for the special purpose of trying a
peer, was of more recent institution--as appears also from Sir E. Coke's
expressions. (4 Inst. p. 58.) The second circumstance that may strike a
reader is, that the lords assert their privilege in all criminal cases,
not distinguishing misdemeanors from treasons and felonies. But in this
they were undoubtedly warranted by the clear language of Magna Charta,
which makes no distinction of the kind. The practice of trying a peer
for misdemeanors by a jury of commoners, concerning the origin of which
I can say nothing, is one of those anomalies which too often render our
laws capricious and unreasonable in the eyes of impartial men.

Since writing the above note I have read Stillingfleet's treatise on the
judicial power of the bishops in capital cases--a right which, though
now, I think, abrogated by non-claim and a course of contrary
precedents, he proves beyond dispute to have existed by the common law
and constitutions of Clarendon, to have been occasionally exercised, and
to have been only suspended by their voluntary act. In the course of
this argument he treats of the peerage of the bishops, and produces
abundant evidence from the records of parliament that they were styled
peers, for which, though convinced from general recollection, I had not
leisure or disposition to search. But if any doubt should remain, the
statute 25 E. III. c. 6, contains a legislative declaration of the
peerage of bishops. The whole subject is discussed with much perspicuity
and force by Stillingfleet, who seems however not to press very greatly
the right of trial by peers, aware no doubt of the weight of opposite
precedents. (Stillingfleet's Works, vol. iii. p. 820.) In one
distinction, that the bishops vote in their judicial functions as
barons, but in legislation as magnates, which Warburton has brought
forward as his own in the Alliance of Church and State, Stillingfleet
has perhaps not taken the strongest ground, nor sufficiently accounted
for their right of sitting in judgment on the impeachment of a commoner.
Parliamentary impeachment, upon charges of high public crimes, seems to
be the exercise of a right inherent in the great council of the nation,
some traces of which appear even before the Conquest (Chron. Sax. p.
164, 169), independent of and superseding that of trial by peers, which,
if the 29th section of Magna Charta be strictly construed, is only
required upon indictments at the king's suit. And this consideration is
of great weight in the question, still unsettled, whether a commoner can
be tried by the lords upon an impeachment for treason.

The treatise of Stillingfleet was written on occasion of the objection
raised by the commons to the bishops voting on the question of Lord
Danby's pardon, which he pleaded in bar of his impeachment. Burnet seems
to suppose that their right to final judgment had never been defended,
and confounds judgment with sentence. Mr. Hargrave, strange to say, has
made a much greater blunder, and imagined that the question related to
their right of voting on a bill of attainder, which no one, I believe,
ever disputed. (Notes on Co. Litt. 134 b.)


NOTE II. Page 9.

The constitution of parliament in this period, antecedent to the Great
Charter, has been minutely and scrupulously investigated by the Lords'
Committee on the Dignity of a Peer in 1819. Two questions may be raised
as to the lay portion of the great council of the nation from the
Conquest to the reign of John:--first, Did it comprise any members,
whether from the counties or boroughs, not holding themselves, nor
deputed by others holding in chief of the crown by knight-service or
grand serjeanty? secondly, Were all such tenants _in capite_ personally,
or in contemplation of law, assisting, by advice and suffrage, in
councils held for the purpose of laying on burthens, or for permanent
and important legislation?

The former of these questions they readily determine. The committee have
discovered no proof, nor any likelihood from analogy, that the great
council, in these Norman reigns, was composed of any who did not hold in
chief of the crown by a military tenure, or one in grand serjeanty; and
they exclude, not only tenants in petty serjeanty and socage, but such
as held of an escheated barony, or, as it was called, _de honore_.

They found more difficulty in the second question. It has generally been
concluded, and I may have taken it for granted in my text, that all
military tenants _in capite_ were summoned, or ought to have been
summoned, to any great council of the realm, whether for the purpose of
levying a new tax, or any other affecting the public weal. The
committee, however, laudably cautious in drawing any positive inference,
have moved step by step through this obscure path with a circumspection
as honourable to themselves as it renders their ultimate judgment worthy
of respect.

"The council of the kingdom, however composed (they are adverting to the
reign of Henry I.), must have been assembled by the king's command; and
the king, therefore, may have assumed the power of selecting the persons
to whom he addressed the command, especially if the object of assembling
such a council was not to impose any burthen on any of the subjects of
the realm exempted from such burthens except by their own free grants.
Whether the king was at this time considered as bound by any
constitutional law to address such command to any particular persons,
designated by law as essential parts of such an assembly for all
purposes, the committee have been unable to ascertain. It has generally
been considered as the law of the land that the king had a right to
require the advice of any of his subjects, and their personal services,
for the general benefit of the kingdom; but as, by the terms of the
charters of Henry and of his father, no aid could be required of the
immediate tenants of the crown by military service, beyond the
obligation of their respective tenures, if the crown had occasion for
any extraordinary aid from those tenants, it must have been necessary,
according to law, to assemble all persons so holding, to give their
consent to the imposition. Though the numbers of such tenants of the
crown were not originally very great, as far as appears from Domesday,
yet, if it was necessary to convene all to form a constitutional
legislative assembly, the distances of their respective residences, and
the inconvenience of assembling at one time, in one spot, all those who
thus held of the crown, and upon whom the maintenance of the Conquest
itself must for a considerable time have importantly depended, must have
produced difficulties, even in the reign of the Conqueror; and the
increase of their numbers by subdivision of tenures must have greatly
increased the difficulty in the reign of his son Henry: and at length,
in the reigns of his successors, it must have been almost impossible to
have convened such an assembly, except by general summons of the greater
part of the persons who were to form it; and unless those who obeyed the
summons could bind those who did not, the powers of the assembly when
convened must have been very defective." (p. 40.)

Though I do not perceive why we should assume any great subdivision of
tenures before the statute of _Quia Emptores_, in 18 Edw. I., which
prohibited subinfeudation, it is obvious that the committee have pointed
out the inconvenience of a scheme which gave all tenants _in capite_
(more numerous in Domesday than they perhaps were aware) a right to
assist at great councils. Still, as it is manifest from the early
charters, and explicitly admitted by the committee, that the king could
raise no extraordinary contribution from his immediate vassals by his
own authority, and as there was no feudal subordination between one of
these and another, however differing in wealth, it is clear that they
were legally entitled to a voice, be it through general or special
summons, in the imposition of taxes which they were to pay. It will not
follow that they were summoned, or had an acknowledged right to be
summoned, on the few other occasions when legislative measures were in
contemplation, or in the determinations taken by the king's great
council. This can only be inferred by presumptive proof or
constitutional analogy.

The eleventh article of the Constitutions of Clarendon in 1164 declares
that archbishops, bishops, and all persons of the realm who hold of the
king _in capite_, possess their lands as a barony, and are bound to
attend in the judgments of the king's court like other barons. It is
plain, from the general tenor of these constitutions, that "universæ
personæ regni" must be restrained to ecclesiastics; and the only words
which can be important in the present discussion are "sicut barones
cæteri." "It seems," says the committee, "to follow that all those
termed the king's barons were tenants in chief of the king; but it does
not follow that all tenants in chief of the king were the king's barons,
and as such bound to attend his court. They might not be bound to attend
unless they held their lands of the king in chief 'sicut baroniam,' as
expressed in this article with respect to the archbishops and other
clergy." (p. 44.) They conclude, however, that "upon the whole the
Constitutions of Clarendon, if the existing copies be correct, afford
strong ground for presuming that owing suit to the king's great court
rendered the tenant one of the king's barons or members of that court,
though probably in general none attended who were not specially
summoned. It has been already observed that this would not include all
the king's tenants in chief, and particularly those who did not hold of
him as of his crown, or even to all who did hold of him as of his crown,
but not by knight-service or grand serjeanty, which were alone deemed
military and honourable tenures; though, whether all who held of the
king as of his crown, by knight-service or grand serjeanty, did
originally owe suit to the king's court, or whether that obligation was
confined to persons holding by a particular tenure, called _tenure per
baroniam_, as has been asserted, the Constitutions of Clarendon do not
assist to ascertain." (p. 45.) But this, as they point out, involves
the question whether the _Curia Regis_, mentioned in these
constitutions, was not only a judicial but a legislative assembly, or
one competent to levy a tax on military tenants, since by the terms of
the charter of Henry I., confirmed by that of Henry II., all such
tenants were clearly exempted from taxation, except by their own
consents.

They touch slightly on the reign of Richard I. with the remark that "the
result of all which they have found with respect to the constitution of
the legislative assemblies of the realm still leaves the subject in
great obscurity." (p. 49.) But it is remarkable that they have never
alluded to the presence of tenants in chief, knights as well as barons,
at the parliament of Northampton under Henry II. They come, however,
rather suddenly to the conclusion that "the records of the reign of John
seem to give strong ground for supposing that all the king's tenants in
chief by military tenure, if not all the tenants in chief,[460] were at
one time deemed necessary members of the common councils of the realm,
when summoned for extraordinary purposes, and especially for the purpose
of obtaining a grant of any extraordinary aid to the king; and this
opinion accords with what has generally been deemed originally the law
in France, of other countries where what is called the feudal system of
tenures has been established." (p. 54.) It cannot surely admit of a
doubt, and has been already affirmed more than once by the committee,
that for an extraordinary grant of money the consent of military tenants
in chief was required long before the reign of John. Nor was that a
reign, till the enactment of the Great Charter, when any fresh extension
of political liberty was likely to have become established. But the
difficulty may still remain with respect to "extraordinary purposes" of
another description.

They observe afterwards that "they have found no document before the
Great Charter of John in which the term 'majores barones' has been used,
though in some subsequent documents words of apparently similar import
have been used. From the instrument itself it might be presumed that the
term 'majores barones' was then a term in some degree understood; and
that the distinction had, therefore, an earlier origin, though the
committee have not found the term in any earlier instrument." (p. 67.)
But though the Dialogue on the Exchequer, generally referred to the
reign of Henry II., is not an instrument, it is a law-book of sufficient
reputation, and in this we read--"Quidam de rege tenent in capite quæ ad
coronam pertinent; baronias scilicet majores seu minores." (Lib. ii.
cap. 10.) It would be trifling to dispute that the tenant of a _baronia
major_ might be called a _baro major_. And what could the _secundæ
dignitatis barones_ at Northampton have been but tenants _in capite_
holding fiefs by some line or other distinguishable from a superior
class?[461]

It appears, therefore, on the whole, that in the judgment of the
committee, by no means indulgent in their requisition of evidence, or
disposed to take the more popular side, all the military tenants _in
capite_ were constitutionally members of the _commune concilium_ of the
realm during the Norman constitution. This _commune concilium_ the
committee distinguish from a _magnum concilium_, though it seems
doubtful whether there were any very definite line between the two. But
that the consent of these tenants was required for taxation they
repeatedly acknowledge. And there appears sufficient evidence that they
were occasionally present for other important purposes. It is, however,
very probable that writs of summons were actually addressed only to
those of distinguished name, to those resident near the place of
meeting, or to the servants and favourites of the crown. This seems to
be deducible from the words in the Great Charter, which limit the king's
engagement to summon all tenants in chief, through the sheriff, to the
case of his requiring an aid or scutage, and still more from the
withdrawing of this promise in the first year of Henry III. The
privilege of attending on such occasions, though legally general, may
never have been generally exercised.

The committee seem to have been perplexed about the word _magnates_
employed in several records to express part of those present in great
councils. In general they interpret it, as well as the word _proceres_,
to include persons not distinguished by the name "_barones_;" a word
which in the reign of Henry III. seems to have been chiefly used in the
restricted sense it has latterly acquired. Yet in one instance, a letter
addressed to the justiciar of Ireland, 1 Hen. III., they suppose the
word _magnates_ to "exclude those termed therein 'alii quamplurimi;' and
consequently to be confined to prelates, earls, and barons. This may be
deemed important in the consideration of many other instruments in which
the word _magnates_ has been used to express persons constituting the
'commune concilium regni.'" But this strikes me as an erroneous
construction of the letter. The words are as follows:--"Convenerunt apud
Glocestriam plures regni nostri magnates, episcopi, abbates, comites, et
barones, qui patri nostro viventi semper astiterunt fideliter et devotè,
et alii quamplurimi; applaudentibus clero et populo, &c., publicè fuimus
in regem Angliæ inuncti et coronati." (p. 77.) I think that _magnates_
is a collective word, including the "alii quamplurimi." It appears to me
that _magnates_, and perhaps some other Latin words, correspond to the
witan of the Anglo-Saxons, expressing the legislature in general, under
which were comprised those who held peculiar dignities, whether lay or
spiritual. And upon the whole we may be led to believe that the Norman
great council was essentially of the same composition as the witenagemot
which had preceded it; the king's thanes being replaced by the barons of
the first or second degree, who, whatever may have been the distinction
between them, shared one common character, one source of their
legislative rights--the derivation of their lands as immediate fiefs
from the crown.

The result of the whole inquiry into the constitution of parliament down
to the reign of John seems to be--1. That the Norman kings explicitly
renounced all prerogative of levying money on the immediate military
tenants of the crown, without their consent given in a great council of
the realm; this immunity extending also to their sub-tenants and
dependants. 2. That all these tenants in chief had a constitutional
right to attend, and ought to be summoned; but whether they could attend
without a summons is not manifest. 3. That the summons was usually
directed to the higher barons, and to such of a second class as the king
pleased, many being omitted for different reasons, though all had a
right to it. 4. That on occasions when money was not to be demanded, but
alterations made in the law, some of these second barons, or tenants in
chief, were at least occasionally summoned, but whether by strict right
or usage does not fully appear. 5. That the irregularity of passing many
of them over when councils were held for the purpose of levying money,
led to the provision in the Great Charter of John by which the king
promises that they shall all be summoned through the sheriff on such
occasions; but the promise does not extend to any other subject of
parliamentary deliberation. 6. That even this concession, though but the
recognition of a known right, appeared so dangerous to some in the
government that it was withdrawn in the first charter of Henry III.

The charter of John, as has just been observed, while it removes all
doubt, if any could have been entertained, as to the right of every
military tenant _in capite_ to be summoned through the sheriff, when an
aid or scutage was to be demanded, will not of itself establish their
right of attending parliament on other occasions. We cannot absolutely
assume any to have been, in a general sense, members of the legislature
except the prelates and the _majores barones_. But who were these, and
how distinguished? For distinguished they must now have become, and that
by no new provision, since none is made. The right of personal summons
did not constitute them, for it is on _majores barones_, as already a
determinate rank, that the right is conferred. The extent of property
afforded no definite criterion; at least some baronies, which appear to
have been of the first class, comprehended very few knights' fees: yet
it seems probable that this was the original ground of distinction.[462]

The charter, as renewed in the first year of Henry III., does not only
omit the clause prohibiting the imposition of aids and scutages without
consent, and providing for the summons of all tenants _in capite_ before
either could be levied, but gives the following reason for suspending
this and other articles of king John's charter:--"Quia vero quædam
capitula in priori cartâ continebantur, quæ gravia et dubitabilia
videbantur, _sicut de scutagiis et auxiliis assidendis_ ... placuit
supra-dictis prælatis et magnatibus ea esse in respectu, quousque
plenius consilium habuerimus, et tunc faciemus plurissimè, tam de his
quam de aliis quæ occurrerint emendanda, quæ ad communem omnium
utilitatem pertinuerint, et pacem et statum nostrum et regni nostri."
This charter was made but twenty-four days after the death of John; and
we may agree with the committee (p. 77) in thinking it extraordinary
that these deviations from the charter of Runnymede, in such important
particulars, have been so little noticed. It is worthy of consideration
in what respects the provisions respecting the levying of money could
have appeared grave and doubtful. We cannot believe that the earl of
Pembroke, and the other barons who were with the young king, himself a
child of nine years old and incapable of taking a part, meant to abandon
the constitutional privilege of not being taxed in aids without their
consent. But this they might deem sufficiently provided for by the
charters of former kings and by general usage. It is not, however,
impossible that the government demurred to the prohibition of levying
scutage, which stood on a different footing from extraordinary aids; for
scutage appears to have been formerly taken without consent of the
tenants; and in the second charter of Henry III. there is a clause that
it should be taken as it had been in the time of Henry II. This was a
certain payment for every knight's fee; but if the original provision of
the Runnymede charter had been maintained, none could have been levied
without consent of parliament.

It seems also highly probable that, before the principle of
representation had been established, the greater barons looked with
jealousy on the equality of suffrage claimed by the inferior tenants _in
capite_. That these were constitutionally members of the great council,
at least in respect of taxation, has been sufficiently shown; but they
had hitherto come in small numbers, likely to act always in
subordination to the more potent aristocracy. It became another question
whether they should all be summoned, in their own counties, by a writ
selecting no one through favour, and in its terms compelling all to
obey. And this question was less for the crown, which might possibly
find its advantage in the disunion of its tenants, than for the barons
themselves. They would naturally be jealous of a second order, whom in
their haughtiness they held much beneath them, yet by whom they might be
outnumbered in those councils where they had bearded the king. No
effectual or permanent compromise could be made but by representation,
and the hour for representation was not come.


NOTE III. Page 19.

The Lords' committee, though not very confidently, take the view of
Brady and Blackstone, confining the electors of knights to tenants _in
capite_. They admit that "the subsequent usage, and the subsequent
statutes founded on that usage, afford ground for supposing that in the
49th of Henry III. and in the reign of Edward I. the knights of the
shires returned to parliament were elected at the county courts and by
the suitors of those courts. If the knights of the shires were so
elected in the reigns of Henry III. and Edward I., it seems important to
discover, if possible, who were the suitors of the county courts in
these reigns" (p. 149). The subject, they are compelled to confess,
after a discussion of some length, remains involved in great obscurity,
which their industry has been unable to disperse. They had, however, in
an earlier part of their report (p. 30), thought it highly probable that
the knights of the shires in the reign of Edward III. represented a
description of persons who might in the reign of the Conqueror have been
termed barons. And the general spirit of their subsequent investigation
seems to favour this result, though they finally somewhat recede from
it, and admit at least that, before the close of Edward III.'s reign,
the elective franchise extended to freeholders.

The question, as the committee have stated it, will turn on the
character of those who were suitors to the county court. And, if this
may be granted, I must own that to my apprehension there is no room for
the hypothesis that the county court was differently constituted in the
reign of Edward I. or of Edward III. from what it was very lately, and
what it was long before those princes sat on the throne. In the
Anglo-Saxon period we find this court composed of thanes, but not
exclusively of royal thanes, who were comparatively few. In the laws of
Henry I. we still find sufficient evidence that the suitors of the court
were all who held freehold lands, _terrarum domini_; or, even if we
please to limit this to lords of manors, which is not at all probable,
still without distinction of a mesne or immediate tenure. Vavassors,
that is, mesne tenants, are particularly mentioned in one enumeration of
barons attending the court. In some counties a limitation to tenants _in
capite_ would have left this important tribunal very deficient in
numbers. And as in all our law-books we find the county court composed
of freeholders, we may reasonably demand evidence of two changes in its
constitution, which the adherents to the theory of restrained
representation must combine--one which excluded all freeholders except
those who held immediately of the crown; another which restored them.
The notion that the county court was the king's court baron (Report, p.
150), and thus bore an analogy to that of the lord in every manor,
whether it rests on any modern legal authority or not, seems delusive.
The court baron was essentially a feudal institution; the county court
was from a different source; it was old Teutonic, and subsisted in this
and other countries before the feudal jurisdictions had taken root. It
is a serious error to conceive that, because many great alterations were
introduced by the Normans, there was nothing left of the old system of
society.[463]

It may, however, be naturally inquired why, if the king's tenants in
chief were exclusively members of the national council before the era of
county representation, they did not retain that privilege; especially if
we conceive, as seems on the whole probable, that the knights chosen in
38 Henry III. were actually representatives of the military tenants of
the crown. The answer might be that these knights do not appear to have
been elected in the county court; and when that mode of choosing knights
of the shire was adopted, it was but consonant to the increasing spirit
of liberty, and to the weight also of the barons, whose tenants crowded
the court, that no freeholder should be debarred of his equal suffrage.
But this became the more important, and we might almost add necessary,
when the feudal aids were replaced by subsidies on movables; so that,
unless the mesne freeholders could vote at county elections, they would
have been taxed without their consent and placed in a worse condition
than ordinary burgesses. This of itself seems almost a decisive argument
to prove that they must have joined in the election of knights of the
shire after the _Confirmatio Chartarum_. If we were to go down so late
as Richard II., and some pretend that the mesne freeholders did not vote
before the reign of Henry IV., we find Chaucer's franklin, a vavassor,
capable even of sitting in parliament for his shire. For I do not think
Chaucer ignorant of the proper meaning of that word. And Allen says
(Edinb. Rev. xxviii. 145)--"In the earliest records of the house of
commons we have found many instances of sub-vassals who have represented
their counties in parliament."

If, however, it should be suggested that the practice of admitting the
votes of mesne tenants at county elections may have crept in by degrees,
partly by the constitutional principle of common consent, partly on
account of the broad demarcation of tenants _in capite_ by
knight-service from barons, which the separation of the houses of
parliament produced, thus tending, by diminishing the importance of the
former, to bring them down to the level of other freeholders; partly,
also, through the operation of the statute _Quia Emptores_ (18 Edward
I.), which, by putting an end to subinfeudation, created a new tenant of
the crown upon every alienation of land, however partial, by one who was
such already, and thus both multiplied their numbers and lowered their
dignity; this supposition, though incompatible with the argument built
on the nature of the county court, would be sufficient to explain the
facts, provided we do not date the establishment of the new usage too
low. The Lords' committee themselves, after much wavering, come to the
conclusion that "at length, if not always, two persons were elected by
all the freeholders of the county, whether holding in chief of the crown
or of others" (p. 331). This they infer from the petitions of the
commons that the mesne tenants should be charged with the wages of
knights of the shire; since it would not be reasonable to levy such
wages from those who had no voice in the election. They ultimately
incline to the hypothesis that the change came in silently, favoured by
the growing tendency to enlarge the basis of the constitution, and by
the operation of the statute _Quia Emptores_, which may not have been of
inconsiderable influence. It appears by a petition in 51 Edward III.
that much confusion had arisen with respect to tenures; and it was
frequently disputed whether lands were held of the king or of other
lords. This question would often turn on the date of alienation; and, in
the hurry of an election, the bias being always in favour of an extended
suffrage, it is to be supposed that the sheriff would not reject a claim
to vote which he had not leisure to investigate.


NOTE IV. Page 21.

It now appears more probable to me than it did that some of the greater
towns, but almost unquestionably London, did enjoy the right of electing
magistrates with a certain jurisdiction before the Conquest. The notion
which I found prevailing among the writers of the last century, that the
municipal privileges of towns on the continent were merely derived from
charters of the twelfth century, though I was aware of some degree of
limitation which it required, swayed me too much in estimating the
condition of our own burgesses. And I must fairly admit that I have laid
too much stress on the silence of Domesday Book; which, as has been
justly pointed out, does not relate to matters of internal government,
unless when they involve some rights of property.

I do not conceive, nevertheless, that the municipal government of
Anglo-Saxon boroughs was analogous to that generally established in our
corporations from the reign of Henry II. and his successors. The real
presumption has been acutely indicated by Sir F. Palgrave, arising from
the universal institution of the court-leet, which gave to an alderman,
or otherwise denominated officer, chosen by the suitors, a jurisdiction,
in conjunction with themselves as a jury, over the greater part of civil
disputes and criminal accusations, as well as general police, that might
arise within the hundred. Wherever the town or borough was too large to
be included within a hundred, this would imply a distinct jurisdiction,
which may of course be called municipal. It would be similar to that
which, till lately, existed in some towns--an elective high bailiff or
principal magistrate, without a representative body of aldermen and
councillors. But this is more distinctly proved with respect to London,
which, as is well known, does not appear in Domesday, than as to any
other town. It was divided into wards, answering to hundreds in the
county; each having its own wardmote, or leet, under its elected
alderman. "The city of London, as well within the walls, as its
liberties without the walls, has been divided from time immemorial into
wards, bearing nearly the same relation to the city that the hundred
anciently did to the shire. Each ward is, for certain purposes, a
distinct jurisdiction. The organisation of the existing municipal
constitution of the city is, and always has been, as far as can be
traced, entirely founded upon the ward system." (Introduction to the
French Chronicle of London.--Camden Society, 1844.)

Sir F. Palgrave extends this much further:--"There were certain
districts locally included within the hundreds, which nevertheless
constituted independent bodies politic. The burgesses, the tenants, the
resiants of the king's burghs and manors in ancient demesne, owed
neither suit nor service to the hundred leet. They attended at their own
leet, which differed in no essential respect from the leet of the
hundred. The principle of frank-pledge required that each friborg
should appear by its head as its representative; and consequently, the
jurymen of the leet of the burgh or manor are usually described under
the style of the twelve chief pledges. The legislative and remedial
assembly of the burgh or manor was constituted by the meeting of the
heads of its component parts. The portreeve, constable, headborough,
bailiff, or other the chief executive magistrate, was elected or
presented by the leet jury. Offences against the law were repressed by
their summary presentments. They who were answerable to the community
for the breach of the peace punished the crime. Responsibility and
authority were conjoined. In their legislative capacity they bound their
fellow-townsmen by making by-laws." (Edin. Rev. xxxvi. 309.) "Domesday
Book," he says afterwards, "does not notice the hundred court, or the
county-court; because it was unnecessary to inform the king or his
justiciaries of the existence of the tribunals which were in constant
action throughout all the land. It was equally unnecessary to make a
return of the leets which they knew to be inherent in every burgh. Where
any special municipal jurisdiction existed, as in Chester, Stamford, and
Lincoln, then it became necessary that the franchise should be recorded.
The twelve lagemen in the two latter burghs were probably hereditary
aldermen. In London and in Canterbury aldermen occasionally held their
sokes by inheritance.[464] The negative evidence extorted out of
Domesday has, therefore, little weight." (p. 313.)

It seems, however, not unquestionable whether this representation of an
Anglo-Saxon and Anglo-Norman municipality is not urged rather beyond the
truth. The portreeve of London, their principal magistrate, appears to
have been appointed by the crown. It was not till 1188 that Henry
Fitzalwyn, ancestor of the present Lord Beaumont,[465] became the first
mayor of London. But he also was nominated by the crown, and remained
twenty-four years in office. In the same year the first sheriffs are
said to have been made (_facti_). But John, immediately after his
accession in 1199, granted the citizens leave to choose their own
sheriffs. And his charter of 1215 permits them to elect annually their
mayor. (Maitland's Hist. of London, p. 74, 76.) We read, however, under
the year 1200, in the ancient chronicle lately published, that
twenty-five of the most discreet men of the city were chosen and sworn
to advise for the city, together with the mayor. These were evidently
different from the aldermen, and are the original common council of the
city. They were perhaps meant in a later entry (1229):--"Omnes
aldermanni et magnates civitatis per assensum universorum civium," who
are said to have agreed never to permit a sheriff to remain in office
during two consecutive years.

The city and liberties of London were not wholly under the jurisdiction
of the several wardmotes and their aldermen. Landholders, secular and
ecclesiastical, possessed their exclusive sokes, or jurisdictions, in
parts of both. One of these has left its name to the ward of Portsoken.
The prior of the Holy Trinity, in right of this district, ranked as an
alderman, and held a regular wardmote. The wards of Farringdon are
denominated from a family of that name, who held a part of them by
hereditary right as their territorial franchise. These sokes gave way so
gradually before the power of the citizens, with whom, as may be
supposed, a perpetual conflict was maintained, that there were nearly
thirty of them in the early part of the reign of Henry III., and upwards
of twenty in that of Edward I. With the exception of Portsoken, they
were not commensurate with the city wards, and we find the juries of the
wards, in the third of Edward I., presenting the sokes as liberties
enjoyed by private persons or ecclesiastical corporations, to the
detriment of the crown. But, though the lords of these sokes trenched
materially on the exclusive privileges of the city, it is remarkable
that, no condition but inhabitancy being required in the thirteenth
century for civic franchises, both they and their tenants were citizens,
having individually a voice in municipal affairs, though exempt from
municipal jurisdiction. I have taken most of this paragraph from a
valuable though short notice of the state of London in the thirteenth
century, published in the fourth volume of the Archæological Journal (p.
273).

The inference which suggests itself from these facts is that London, for
more than two centuries after the Conquest, was not so exclusively a
city of traders, a democratic municipality, as we have been wont to
conceive. And as this evidently extends back to the Anglo-Saxon period,
it both lessens the improbability that the citizens bore at times a part
in political affairs, and exhibits them in a new light, as lords and
tenants of lords, as well as what of course they were in part, engaged
in foreign and domestic commerce. It will strike every one, in running
over the list of mayors and sheriffs in the thirteenth century, that a
large proportion of the names are French; indicating, perhaps, that the
territorial proprietors whose sokes were intermingled with the city had
influence enough, through birth and wealth, to obtain an election. The
general polity, Saxon and Norman, was aristocratic; whatever infusion
there might be of a more popular scheme of government, and much
certainly there was, could not resist, even if resistance had been
always the people's desire, the joint predominance of rank, riches,
military habits, and common alliance, which the great baronage of the
realm enjoyed. London, nevertheless, from its populousness, and the
usual character of cities, was the centre of a democratic power, which,
bursting at times into precipitate and needless tumult easily repressed
by force, kept on its silent course till, near the end of the thirteenth
century, the rights of the citizens and burgesses in the legislature
were constitutionally established. [1848.]


NOTE V. Page 26.

If Fitz-Stephen rightly informs us that in London there were 126 parish
churches, besides 13 conventual ones, we may naturally think the
population much underrated at 40,000. But the fashion of building
churches in cities was so general, that we cannot apply a standard from
modern times. Norwich contained sixty parishes.

Even under Henry II., as we find by Fitz-Stephen, the prelates and
nobles had town houses. "Ad hæc omnes fere episcopi, abbates, et
magnates Angliæ, quasi cives et municipes sunt urbis Lundoniæ; sua ibi
habentes ædificia præclara; ubi se recipiunt, ubi divites impensas
faciunt, ad concilia, ad conventus celebres in urbem evocati, à domino
rege vel metropolitano suo, seu propriis tracti negotiis." The eulogy of
London by this writer is very curious; its citizens were thus early
distinguished by their good eating, to which they added amusements less
congenial to later liverymen, hawking, cock-fighting, and much more. The
word _cockney_ is not improbably derived from _cocayne_, the name of an
imaginary land of ease and jollity.

The city of London within the walls was not wholly built, many gardens
and open spaces remaining. And the houses were never more than a single
story above the ground-floor, according to the uniform type of English
dwellings in the twelfth and following centuries. On the other hand, the
liberties contained many inhabitants; the streets were narrower than
since the fire of 1666; and the vast spaces now occupied by warehouses
might have been covered by dwelling-houses. Forty thousand, on the
whole, seems rather a low estimate for these two centuries; but it is
impossible to go beyond the vaguest conjecture.

The population of Paris in the middle ages has been estimated with as
much diversity as that of London. M. Dulaure, on the basis of the
_taille_ in 1313, reckons the inhabitants at 49,110.[466] But he seems
to have made unwarrantable assumptions where his data were deficient. M.
Guérard, on the other hand (Documens Inédits, 1841), after long
calculations, brings the population of the city in 1292 to 215,861. This
is certainly very much more than we could assign to London, or probably
any European city; and, in fact, his estimate goes on two arbitrary
postulates. The extent of Paris in that age, which is tolerably known,
must be decisive against so high a population.[467]

The Winton Domesday, in the possession of the Society of Antiquaries of
London, furnishes some important information as to that city, which, as
well as London, does not appear in the great Domesday Book. This record
is of the reign of Henry I. Winchester had been, as is well known, the
capital of the Anglo-Saxon kings. It has been observed that "the
opulence of the inhabitants may possibly be gathered from the frequent
recurrence of the trade of goldsmith in it, and the populousness of the
town from the enumeration of the streets." (Cooper's Public Records, i.
226.) Of these we find sixteen. "In the petition from the city of
Winchester to king Henry VI. in 1450, no less than nine of these streets
are mentioned as having been ruined." As York appears to have contained
about 10,000 inhabitants under the Confessor, we may probably compute
the population of Winchester at nearly twice that number.


NOTE VI. Page 32.

The Lords' committee extenuate the presumption that either knights or
burgesses sat in any of these parliaments. The "cunctarum regni
civitatum pariter et burgorum potentiores," mentioned by Wikes in 1269
or 1270, they suppose to have been invited in order to witness the
ceremony of translating the body of Edward the Confessor to his tomb
newly prepared in Westminster Abbey (p. 161). It is evident, indeed,
that this assembly acted afterwards as a parliament in levying money.
But the burgesses are not mentioned in this. It cannot, nevertheless, be
presumed from the silence of the historian, who had previously informed
us of their presence at Westminster, that they took no part. It may be
perhaps, more doubtful whether they were chosen by their constituents or
merely summoned as "potentiores."

The words of the statute of Marlbridge (51 Hen. III.), which are
repeated in French by that of Gloucester (6 Edw. I.), do not satisfy the
committee that there was any representation either of counties or
boroughs. "They rather import a selection by the king of the most
discreet men of every degree" (p. 183). And the statutes of 13 Edw. I.,
referring to this of Gloucester, assert it to have been made by the
king, "with prelates, earls, barons, and his council," thus seeming to
exclude what would afterwards have been called the lower house. The
assembly of 1271, described in the Annals of Waverley, "seems to have
been an extraordinary convention, warranted rather by the particular
circumstances under which the country was placed than by any
constitutional law" (p. 173). It was, however, a case of representation;
and following several of the like nature, at least as far as counties
were concerned, would render the principle familiar. The committee are
even unwilling to admit that "la communauté de la terre illocques
summons" in the statute of Westminster I., though expressly
distinguished from the prelates, earls, and barons, appeared in
consequence of election (p. 173). But, if not elected, we cannot suppose
less than that all the tenants in chief, or a large number of them, were
summoned; which, after the experience of representation, was hardly a
probable course.

The Lords' committee, I must still incline to think, have gone too far
when they come to the conclusion that, on the whole view of the evidence
collected on the subject, from the 49th of Hen. III. to the 18th of Edw.
I., there seems strong ground for presuming that, after the 49th of Hen.
III., the constitution of the legislative assembly returned generally to
its old course; that the writs issued in the 49th of Henry III., being a
novelty, were not afterwards precisely followed, as far as appears, in
any instance; and that the writs issued in the 11th of Edw. I., "for
assembling two conventions, at York and Northampton, of knights,
citizens, burgesses, and representatives of towns, without prelates,
earls, and barons, were an extraordinary measure, probably adopted for
the occasion, and never afterwards followed; and that the writs issued
in the 18th of Edw. I., for electing two or three knights for each shire
without corresponding writs for election of citizens or burgesses, and
not directly founded on or conformable to the writs issued in the 49th
of Henry III., were probably adopted for a particular purpose, possibly
to sanction one important law [the statute _Quia Emptores_], and because
the smaller tenants in chief of the crown rarely attended the ordinary
legislative assemblies when summoned, or attended in such small numbers
that a representation of them by knights chosen for the whole shire was
deemed advisable, to give sanction to a law materially affecting all the
tenants in chief, and those holding under them" (p. 204).

The election of two or three knights for the parliament of 18th Edw. I.,
which I have overlooked in my text, appears by an entry on the close
roll of that year, directed to the sheriff of Northumberland; and it is
proved from the same roll that similar writs were directed to all the
sheriffs in England. We do not find that the citizens and burgesses were
present in this parliament; and it is reasonably conjectured that, the
object of summoning it being to procure a legislative consent to the
statute _Quia Emptores_, which put an end to the subinfeudation of
lands, the towns were thought to have little interest in the measure. It
is, however, another early precedent for county representation; and that
of 22nd of Edw. I. (see the writ in Report of Committee, p. 209) is more
regular. We do not find that the citizens and burgesses were summoned to
either parliament.

But, after the 23rd of Edward I., the legislative constitution seems not
to have been unquestionably settled, even in the essential point of
taxation. The Confirmation of the Charters, in the 25th year of that
reign, while it contained a positive declaration that no "aids, tasks,
or prises should be levied in future, without assent of the realm," was
made in consideration of a grant made by an assembly in which
representatives of cities and boroughs do not appear to have been
present. Yet, though the words of the charter or statute are
prospective, it seems to have long before been reckoned a clear right of
the subject, at least by himself, not to be taxed without his consent. A
tallage on royal towns and demesnes, nevertheless, was set without
authority of parliament four years afterwards. This "seems to show,
either that the king's right to tax his demesnes at his pleasure was not
intended to be included in the word tallage in that statute [meaning the
supposed statute _de tallagio non concedendo_], or that the king acted
in contravention of it. But if the king's cities and boroughs were still
liable to tallage at the will of the crown, it may not have been deemed
inconsistent that they should be required to send representatives for
the purpose of granting a general aid to be assessed on the same cities
and boroughs, together with the rest of the kingdom, when such general
aid was granted, and yet should be liable to be tallaged at the will of
the crown when no such general aid was granted" (p. 244).

If in these later years of Edward's reign the king could venture on so
strong a measure as the imposition of a tallage without consent of those
on whom it was levied, it is less surprising that no representatives of
the commons appear to have been summoned to one parliament, or perhaps
two, in his twenty-seventh year, when some statutes were enacted. But,
as this is merely inferred from the want of any extant writ, which is
also the case in some parliaments where, from other sources, we can
trace the commons to have been present, little stress should be laid
upon it.

In the remarks which I have offered in these notes on the Report of the
Lords' Committee, I have generally abstained from repeating any which
Mr. Allen brought forward. But the reader should have recourse to his
learned criticism in the Edinburgh Review. It will appear that the
committee overlooked not a few important records, both in the reign of
Edward I. and that of his son.


NOTE VII. Page 35.

Two considerable authorities have, since the first publication of this
work, placed themselves, one very confidently, one much less so, on the
side of our older lawyers and in favour of the antiquity of borough
representation. Mr. Allen, who, in his review of my volumes (Edinb. Rev.
xxx. 169), observes, as to this point,--"We are inclined, in the main,
to agree with Mr. Hallam," lets us know, two or three years afterwards,
that the scale was tending the other way, when, in his review of the
Report of the Lords' Committee, who give a decided opinion that cities
and boroughs were on no occasion called upon to assist at legislative
meetings before the forty-ninth of Henry III., and are much disposed to
believe that none were originally summoned to parliament, except cities
and boroughs of ancient demesne, or in the hands of the king at the time
when they received the summons, he says,--"We are inclined to doubt the
first of these propositions, and convinced that the latter is entirely
erroneous." (Edinb. Rev. xxxv. 30.) He allows, however, that our kings
had no motive to summon their cities and boroughs to the legislature,
for the purpose of obtaining money, "this being procured through the
justices in eyre, or special commissioners; and therefore, if summoned
at all, it is probable that the citizens and burgesses were assembled on
particular occasions only, when their assistance or authority was wanted
to confirm or establish the measures in contemplation by the
government." But as he alleges no proof that this was ever done, and
merely descants on the importance of London and other cities both before
and after the Conquest, and as such an occasional summons to a great
council, for the purpose of advice, would by no means involve the
necessity of legislative consent, we can hardly reckon this very acute
writer among the positive advocates of a high antiquity for the commons
in parliament.

Sir Francis Palgrave has taken much higher ground, and his theory, in
part at least, would have been hailed with applause by the parliaments
of Charles I. According to this, we are not to look to feudal principles
for our great councils of advice and consent. They were the aggregate of
representatives from the courts-leet of each shire and each borough, and
elected by the juries to present the grievances of the people and to
suggest their remedies. The assembly summoned by William the Conqueror
appears to him not only, as it did to lord Hale, "a sufficient
parliament," but a regular one; "proposing the law and giving the
initiation to the bill which required the king's consent." (Ed. Rev.
xxxvi. 327.) "We cannot," he proceeds, "discover any essential
difference between the powers of these juries and the share of the
legislative authority which was enjoyed by the commons at a period when
the constitution assumed a more tangible shape and form." This is
supported with that copiousness and variety of illustration which
distinguish his theories, even when there hangs over them something not
quite satisfactory to a rigorous inquirer, and when their absolute
originality on a subject so beaten is of itself reasonably suspicious.
Thus we come in a few pages to the conclusion--"Certainly there is no
theory so improbable, so irreconcilable to general history or to the
peculiar spirit of our constitution, as the opinions which are held by
those who deny the substantial antiquity of the house of commons. No
paradox is so startling as the assumption that the knights and burgesses
who stole into the great council between the close of the reign of John
and the beginning of the reign of Edward should convert themselves at
once into the third estate of the realm, and stand before the king and
his peers in possession of powers and privileges which the original
branches of the legislature could neither dispute nor withstand" (p.
332). "It must not be forgotten that the researches of all previous
writers have been directed wholly in furtherance of the opinions which
have been held respecting the feudal origin of parliament. No one has
considered it as a common-law court."

I do not know that it is necessary to believe in a properly feudal
_origin_ of parliament, or that this hypothesis is generally received.
The great council of the Norman kings was, as in common with Sir F.
Palgrave and many others I believe, little else than a continuation of
the witenagemot, the immemorial organ of the Anglo-Saxon aristocracy in
their relation to the king. It might be composed, perhaps, more strictly
according to feudal principles; but the royal thanes had always been
consenting parties. Of the representation of courts-leet we may require
better evidence: aldermen of London, or persons bearing that name,
perhaps as landowners rather than citizens (see a former note), may
possibly have been occasionally present; but it is remarkable that
neither in historians nor records do we find this mentioned; that
aldermen, in the municipal sense, are never enumerated among the
constituents of a witenagemot or a council, though they must, on the
representative theory, have composed a large portion of both. But,
waiving this hypothesis, which the author seems not here to insist upon,
though he returns to it in the Rise and Progress of the English
Commonwealth, why is it "a startling paradox to deny the substantial
antiquity of the house of commons"? By this I understand him to mean
that representatives from counties and boroughs came regularly, or at
least frequently, to the great councils of Saxon and Norman kings. Their
indispensable consent in legislation I do not apprehend him to affirm,
but rather the reverse:--"The supposition that in any early period the
burgesses had a voice in the solemn acts of the legislature is
untenable." (Rise and Progress, &c., i. 314.) But they certainly did, at
one time or other, obtain this right, "or convert themselves," as he
expresses it, "into the third estate of the realm;" so that upon any
hypothesis a great constitutional change was wrought in the powers of
the commons. The revolutionary character of Montfort's parliament in the
49th of Hen. III. would sufficiently account both for the appearance of
representatives from a democracy so favourable to that bold reformer and
for the equality of power with which it was probably designed to invest
them. But whether in the more peaceable times of Edward I. the citizens
or burgesses were recognised as essential parties to every legislative
measure, may, as I have shown, be open to much doubt.

I cannot upon the whole overcome the argument from the silence of all
historians, from the deficiency of all proof as to any presence of
citizens and burgesses, in a representative character as a house of
commons, before the 49th year of Henry III.; because after this time
historians and chroniclers exactly of the same character as the former,
or even less copious and valuable, do not omit to mention it. We are
accustomed in the sister kingdoms, so to speak, of the continent,
founded on the same Teutonic original, to argue against the existence of
representative councils, or other institutions, from the same absence of
positive testimony. No one believes that the three estates of France
were called together before the time of Philip the Fair. No one strains
the representation of cities in the cortes of Castile beyond the date
at which we discover its existence by testimony. It is true that
unreasonable inferences may be made from what is usually called negative
evidence; but how readily and how often are we deceived by a reliance on
testimony! In many instances the negative conclusion carries with it a
conviction equal to a great mass of affirmative proof. And such I reckon
the inference from the language of Roger Hoveden, of Matthew Paris, and
so many more who speak of councils and parliaments full of prelates and
nobles, without a syllable of the burgesses. Either they were absent, or
they were too insignificant to be named; and in that case it is hard to
perceive any motive for requiring their attendance.


NOTE VIII. Page 42.

A record, which may be read in Brady's History of England (vol. ii.
Append. p. 66) and in Rymer (t. iv. p. 1237), relative to the
proceedings on Edward II.'s flight into Wales and subsequent detention,
recites that, "the king having left his kingdom without government, and
gone away with notorious enemies of the queen, prince, and realm, divers
prelates, earls, barons, and knights, then being at Bristol in the
presence of the said queen and duke (prince Edward, duke of Cornwall),
_by the assent of the whole commonalty of the realm there being_,
unanimously elected the said duke to be guardian of the said kingdom; so
that the said duke and guardian should rule and govern the said realm in
the name and by the authority of the king his father, he being thus
absent." But the king being taken and brought back into England, the
power thus delegated to the guardian ceased of course; whereupon the
bishop of Hereford was sent to press the king to permit that the great
seal, which he had with him, the prince having only used his private
seal, should be used in all things that required it. Accordingly the
king sent the great seal to the queen and prince. The bishop is said to
have been thus commissioned to fetch the seal by the prince and queen,
and by the said prelates and peers, _with the assent of the said
commonalty then being at Hereford_. It is plain that these were mere
words of course; for no parliament had been convoked, and no proper
representatives could have been either at Bristol or Hereford. However,
this is a very curious record, inasmuch as it proves the importance
attached to the forms of the constitution at this period.

The Lords' committee dwell much on an enactment in the parliament held
at York in 15 Edw. II. (1322), which they conceived to be the first
express recognition of the constitutional powers of the lower house. It
was there enacted that "for ever thereafter all manner of ordinances or
provisions made by the subjects of the king or his heirs, by any power
or authority whatsoever, concerning the royal power of the king or his
heirs, or against the estate of the crown, should be void and of no
avail or force whatsoever; but the matters to be established for the
estate of the king and of his heirs, and for the estate of the realm and
of the people, should be treated, accorded, and established in
parliament by the king, and by the assent of the prelates, earls, and
barons, and the commonalty of the realm, according as had been before
accustomed. This proceeding, therefore, declared the legislative
authority to reside only in the king, with the assent of the prelates,
earls, and barons, and commons assembled in parliament; and that every
legislative act not done by that authority should be deemed void and of
no effect. By whatever violence this statute may have been obtained, it
declared the constitutional law of the realm on this important subject."
(p. 282.) The violence, if resistance to the usurpation of a subject is
to be called such, was on the part of the king, who had just sent the
earl of Lancaster to the scaffold, and the present enactment was
levelled at the ordinances which had been forced upon the crown by his
faction. The lords ordainers, nevertheless, had been appointed with
consent of the commons, as has been mentioned in the text; so that this
provision in 15 Edward II. seems rather to limit than to enhance the
supreme power of parliament, if it were meant to prohibit any future
enactment of the same kind by its sole authority. But the statute is
declaratory in its nature; nor can we any more doubt that the
legislative authority was reposed in the king, lords, and commons before
this era than that it was so ever afterwards. Unsteady as the
constitutional usage had been through the reign of Edward I., and
willing as both he and his son may have been to prevent its complete
establishment, the necessity of parliamentary consent both for levying
money and enacting laws must have become an article of the public creed
before his death. If it be true that even after this declaratory statute
laws were made without the assent or presence of the commons, as the
Lords' committee incline to hold (p. 285, 286, 287), it was undeniably
an irregular and unconstitutional proceeding; but this can only show
that we ought to be very slow in presuming earlier proceedings of the
same nature to have been more conformable to the spirit of the existing
constitution. The Lords' committee too often reason from the fact to the
right, as well as from the words to the fact; both are fallacious, and
betray them into some vacillation and perplexity. They do not, however,
question, on the whole, but that a new constitution of the legislative
assemblies of the realm had been introduced before the 15th year of
Edward II., and that "the practice had prevailed so long before as to
give it, in the opinion of the parliament then assembled, the force and
effect of a custom, which the parliament declared should thereafter be
considered as established law." (p. 293.) This appears to me rather an
inadequate exposition of the public spirit, of the tendency towards
enlarging the basis of the constitution, to which the "practice and
custom" owed its origin; but the positive facts are truly stated.


NOTE IX. Page 124.

Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus,
et prælatis," whence the Lords' committee infer that the style used in
John's charter was still preserved (Report, p. 277). And though in those
times there might be much irregularity in issuing writs of summons, the
term "majores barones" must have had an application to definite persons.
Of the irregularity we may judge by the fact that under Edward I. about
eighty were generally summoned; under his son never so many as fifty,
sometimes less than forty, as may be seen in Dugdale's Summonitiones ad
Parliamentum. The committee endeavour to draw an inference from this
against a subsisting right of tenure. But if it is meant that the king
had an acknowledged prerogative of omitting any baron at his discretion,
the higher English nobility must have lost its notorious privileges,
sanctioned by long usage, by the analogy of all feudal governments, and
by the charter of John, which, though not renewed in terms, nor intended
to be retained in favour of the lesser barons, or tenants _in capite_,
could not, relatively to the rights of the superior order, have been
designedly relinquished.

The committee wish to get rid of tenure as conferring a right to
summons; they also strongly doubt whether the summons conferred an
hereditary nobility; but they assert that, in the 15th of Edward III.,
"those who may have been deemed to have been in the reign of John
distinguished as _majores barones_ by the honour of a personal writ of
summons, or by the extent and influence of their property, from the
other tenants in chief of the crown, were now clearly become, with the
earls and the newly created dignity of duke, a distinct body of men
denominated peers of the land, and having distinct personal rights;
while the other tenants in chief, whatsoever their rights may have been
in the reign of John, sunk into the general mass." (p. 314.)

The appellation "peers of the land" is said to occur for the first time
in 14 Edw. II. (p. 281), and we find them very distinctly in the
proceedings against Bereford and others at the beginning of the next
reign. They were, of course, entitled to trial by their own order. But
whether all laymen summoned by particular writs to parliament were at
that time considered as peers, and triable by the rest as such, must be
questionable; unless we could assume that the writ of summons already
ennobled the blood, which is at least not the opinion of the committee.
If, therefore, the writ did not constitute an hereditary peer, nor
tenure in chief by barony give a right to sit in parliament, we should
have a difficulty in finding any determinate estate of nobility at all,
exclusive of earls, who were, at all times and without exception,
indisputably noble; an hypothesis manifestly paradoxical, and
contradicted by history and law. If it be said that prescription was the
only title, this may be so far granted that the _majores barones_ had by
prescription, antecedent to any statute or charter, been summoned to
parliament: but this prescription would not be broken by the omission,
through negligence or policy, of an individual tenant by barony in a few
parliaments. The prescription was properly in favour of the class, the
_majores barones_ generally, and as to them it was perfect, extending
itself in right, if not always in fact, to every one who came within its
scope.

In the Third Report of the Lords' Committee, apparently drawn by the
same hand as the Second, they "conjecture that after the establishment
of the commons' house of parliament as a body by election, separate and
distinct from the lords, all idea of a right to a writ of summons to
parliament by reason of tenure had ceased, and that the dignity of
baron, if not conferred by patent, was considered as derived only from
the king's writ of summons." (Third Report, p. 226.) Yet they have not
only found many cases of persons summoned by writ several times whose
descendants have not been summoned, and hesitate even to approve the
decision of the house on the Clifton barony in 1673, when it was
determined that the claimant's ancestor, by writ of summons and sitting
in parliament, was a peer, but doubt whether "even at this day the
doctrine of that case ought to be considered as generally applicable, or
may be limited by time and circumstances."[468] (p. 33.)

It seems, with much deference to more learned investigators, rather
improbable that, either before or after the regular admission of the
knights and burgesses by representation, and consequently the
constitution of a distinct lords' house of parliament, a writ of summons
could have been lawfully withheld at the king's pleasure from any one
holding such lands by barony as rendered him notoriously one of the
_majores barones_. Nor will this be much affected by arguments from the
inexpediency or supposed anomaly of permitting the right of sitting as a
peer of parliament to be transferred by alienation. The Lords' committee
dwell at length upon them. And it is true that, in our original feudal
constitution, the fiefs of the crown could not be alienated without its
consent. But when this was obtained, when a barony had passed by
purchase, it would naturally draw with it, as an incident of tenure, the
privilege of being summoned to parliament, or, in language more
accustomed in those times, the obligation of doing suit and service to
the king in his high court. Nor was the alienee, doubtless, to be taxed
without his own consent, any more than another tenant _in capite_. What
incongruity, therefore, is there in the supposition that, after tenants
in fee simple acquired by statute the power of alienation without
previous consent of the crown, the new purchaser stood on the same
footing in all other respects as before the statute? It is also much to
be observed that the claim to a summons might be gained by some methods
of purchase, using that word, of course, in the legal sense. Thus the
husbands of heiresses of baronies were frequently summoned, and sat as
tenants by courtesy after the wife's death; though it must be owned that
the committee doubt, in their Third Report (p. 47), whether tenancy by
courtesy of a dignity was ever allowed as a right. Thus, too, every
estate created in tail male was a diversion of the inheritance by the
owner's sole will from its course according to law. Yet in the case of
the barony of Abergavenny, even so late as the reign of James I., the
heir male, being in seisin of the lands, was called by writ as baron, to
the exclusion of the heir general. Surely this was an authentic
recognition, not only of baronial tenure as the foundation of a right to
sit in parliament, but of its alienability by the tenant.[469]

If it be asked whether the posterity of a baron aliening the lands which
gave him a right to be summoned to the king's court would be entitled to
the privileges of peerage by nobility of blood, it is true that,
according to Collins, whose opinion the committee incline to follow,
there are instances of persons in such circumstances being summoned. But
this seems not to prove anything to the purpose. The king, no one
doubts, from the time of Edward I., used to summon by writ many who had
no baronial tenure; and the circumstance of having alienated a barony
could not render any one incapable of attending parliament by a
different title. It is very hard to determine any question as to times
of much irregularity; but it seems that the posterity of one who had
parted with his baronial lands would not, in those early times, as a
matter of course, remain noble. A right by tenure seems to exclude a
right by blood; not necessarily, because two collateral titles may
coexist, but in the principle of the constitution. A feudal principle
was surely the more ancient; and what could be more alien to this than a
baron, a peer, an hereditary counsellor, without a fief? Nobility, that
is, gentility of birth, might be testified by a pedigree or a bearing;
but a peer was to be in arms for the crown, to grant his own money as
well as that of others, to lead his vassals, to advise, to exhort, to
restrain the sovereign. The new theory came in by degrees, but in the
decay of every feudal idea; it was the substitution of a different pride
of aristocracy for that of baronial wealth and power; a pride nourished
by heralds, more peaceable, more indolent, more accommodated to the
rules of fixed law and vigorous monarchy. It is difficult to trace the
progress of this theory, which rested on nobility of blood, but yet so
remarkably modified by the original principle of tenure, that the
privileges of this nobility were ever confined to the actual possessor,
and did not take his kindred out of the class of commoners. This
sufficiently demonstrates that the phrase is, so to say, catachrestic,
not used in a proper sense; inasmuch as the actual seisin of the peerage
as an hereditament, whether by writ or by patent, is as much requisite
at present for nobility, as the seisin of an estate by barony was in the
reign of Henry III.

Tenure by barony appears to have been recognised by the house of lords
in the reign of Henry VI., when the earldom of Arundel was claimed as
annexed to the "castle, honour, and lordship aforesaid." The Lords'
committee have elaborately disproved the allegations of descent and
tenure, on which this claim was allowed. (Second Report, p. 406-426.)
But all with which we are concerned is the decision of the crown and of
the house in the 11th year of Henry VI., whether it were right or wrong
as to the particular facts of the case. And here we find that the king,
by the advice and assent of the lords, "considering that Richard
Fitzalan, &c., was seised of the castle, honour, and lordship in fee,
and by reason of his possession thereof, without any other reason or
creation, was earl of Arundel, and held the name, style, and honour of
earl of Arundel, and the place and seat of earl of Arundel in parliament
and councils of the king," &c., admits him to the same seat and place as
his ancestors, earls of Arundel, had held. This was long afterwards
confirmed by act of parliament (3 Car. I.), reciting the dignity of earl
of Arundel to be real and local, &c., and settling the title on certain
persons in tail, with provisions against alienation of the castle and
honour. This appears to establish a tenure by barony in Arundel, as a
recent determination had done in Abergavenny. Arundel was a very
peculiar instance of an earldom by tenure. For we cannot doubt that all
earls were peers of parliament by virtue of that rank, though, in fact,
all held extensive lands of the crown. But in 1669 a new doctrine, which
probably had long been floating among lawyers and in the house of lords,
was laid down by the king in council on a claim to the title of
Fitzwalter. The nature of a barony by tenure having been discussed, it
was found "to have been discontinued for many ages, and not in being" (a
proposition not very tenable, if we look at the Abergavenny case, even
setting aside that of Arundel as peculiar in its character, and as
settled by statute); "and so not fit to be received, or to admit any
pretence of right to succession thereto." It is fair to observe that
some eminent judges were present on this occasion. The committee justly
say that "this decision" (which, after all, was not in the house of
lords) "may perhaps be considered as amounting to a solemn opinion that,
although in early times the right to a writ of summons to parliament as
a baron may have been founded on tenure, a contrary practice had
prevailed for ages, and that, therefore, it was not to be taken as then
forming part of the constitutional law of the land." (p. 446.) Thus
ended barony by tenure. The final decision, for such it has been
considered, and recent attempts to revive the ancient doctrine have been
defeated, has prevented many tedious investigations of claims to
baronial descent, and of alienations in times long past. For it could
not be pretended that every fraction of a barony gave a right to
summons; and, on the other hand, alienations of parcels, and descents to
coparceners, must have been common, and sometimes difficult to disprove.
It was held, indeed, by some, that the _caput baroniæ_, or principal
lordship, contained, as it were, the vital principle of the peerage, and
that its owner was the true baron; but this assumption seems uncertain.

It is not very easy to reconcile this peremptory denial of peerage by
tenure with the proviso in the recent statute taking away tenure by
knight-service, and, inasmuch as it converts all tenure into socage,
that also by barony, "that this act shall not infringe or hurt any title
of honour, feudal or other, by which any person hath or may have right
to sit in the lords' house of parliament, as to his or their title of
honour, or sitting in parliament, and the privilege belonging to them as
peers." (Stat. 12 Car. II. c. 24, s. 11.)

Surely this clause was designed to preserve the incident to baronial
tenure, the privilege of being summoned to parliament, while it
destroyed its original root, the tenure itself. The privy council, in
their decision on the Fitzwalter claim, did not allude to this statute,
probably on account of the above proviso, and seem to argue that, if
tenure by barony was no longer in being, the privilege attached to it
must have been extinguished also. It is, however, observable that tenure
by barony is not taken away by the statute, except by implication. No
act indeed can be more loosely drawn than this, which was to change
essentially the condition of landed property throughout the kingdom. It
literally abolishes all tenure _in capite_; though this is the basis of
the crown's right to escheat, and though lands in common socage, which
the act with a strange confusion opposes to socage _in capite_, were as
much holden of the king or other lord as those by knight-service.
Whether it was intended by the silence about tenure by barony to pass
it over as obsolete, or this arose from negligence alone, it cannot be
doubted that the proviso preserving the right of sitting in parliament
by a feudal honour was introduced in order to save that privilege, as
well for Arundel and Abergavenny as for any other that might be entitled
to it.[470]


NOTE X. Page 142.

The equitable jurisdiction of the Court of Chancery has been lately
traced, in some respects, though not for the special purpose mentioned
in the text, higher than the reign of Richard II. This great minister of
the crown, as he was at least from the time of the Conquest,[471] always
till the reign of Edward III. an ecclesiastic of high dignity, and
honourably distinguished as the keeper of the king's conscience, was
peculiarly intrusted with the duty of redressing the grievances of the
subject, both when they sprung from misconduct of the government,
through its subordinate officers, and when the injury had been inflicted
by powerful oppressors. He seems generally to have been the chief or
president of the council, when it exerted that jurisdiction which we
have been sketching in the text, and which will be the subject of
another note. But he is more prominent when presiding in a separate
tribunal as a single judge.

The Court of Chancery is not distinctly to be traced under Henry III.
For a passage in Matthew Paris, who says of Radulfus de Nevil--"Erat
regis fidelissimus cancellarius, et inconcussa columna veritatis,
singulis sua jura, præcipue pauperibus, justè reddens et indilatè," may
be construed of his judicial conduct in the council. This province
naturally, however, led to a separation of the two powers. And in the
reign of Edward I. we find the king sending certain of the petitions
addressed to him, praying extraordinary remedies, to the chancellor and
master of the rolls, or to either separately, by writ under the privy
seal, which was the usual mode by which the king delegated the exercise
of his prerogative to his council, directing them to give such remedy as
should appear to be consonant to honesty (or equity, _honestati_).
"There is reason to believe," says Mr. Spence (Equitable Jurisdiction,
p. 335), "that this was not a novelty." But I do not know upon what
grounds this is believed. Writs, both those of course and others, issued
from Chancery in the same reign. (Palgrave's Essay on King's Council, p.
15.) Lord Campbell has given a few specimens of petitions to the
council, and answers endorsed upon them, in the reign of Edward I.,
communicated to him by Mr. Hardy from the records of the Tower. In all
these the petitions are referred to the chancellor for justice. The
entry, at least as given by lord Campbell, is commonly so short that we
cannot always determine whether the petition was on account of wrongs by
the crown or others. The following is rather more clear than the
rest:--"18 Edw. I. The king's tenants of Aulton complain that Adam
Gordon ejected them from their pasture, contrary to the tenor of the
king's writ. Resp. Veniant partes coram cancellario, et ostendat ei Adam
quare ipsos ejecit, et fiat iis justitia." Another is a petition
concerning concealment of dower, for which, perhaps, there was no legal
remedy.

In the reign of Edward II. the peculiar jurisdiction of the chancellor
was still more distinctly marked. "From petitions and answers lately
discovered, it appears that during this reign the jurisdiction of the
Court of Chancery was considerably extended, as the 'consuetudo
cancellariæ' is often familiarly mentioned. We find petitions referred
to the chancellor in his court, either separately, or in conjunction
with the king's justices, or the king's serjeants; on disputes
respecting the wardship of infants, partition, dower, rent-charges,
tithes, and goods of felons. The chancellor was in full possession of
his jurisdiction over charities, and he superintended the conduct of
coroners. Mere wrongs, such as malicious prosecutions and trespasses to
personal property, are sometimes the subject of proceedings before him;
but I apprehend that those were cases where, from powerful combinations
and confederacies, redress could not be obtained in the courts of common
law." (Lives of Chanc. vol. i. p. 204.)

Lord Campbell, still with materials furnished by Mr. Hardy, has given
not less than thirty-eight entries during the reign of Edward II., where
the petition, though sometimes directed to the council, is referred to
the chancellor for determination. One only of these, so far as we can
judge from their very brief expression, implies anything of an equitable
jurisdiction. It is again a case of dower, and the claimant is remitted
to the Chancery; "et fiat sibi ibidem justitia, quia non potest juvari
per communem legem per breve de dote." This case is in the Rolls of
Parliament (i. 340), and had been previously mentioned by Mr. Bruce in a
learned memoir on the Court of Star-Chamber. (Archæologia, xxv. 345.) It
is difficult to say whether this fell within the modern rules of equity,
but the general principle is evidently the same.

Another petition is from the commonalty of Suffolk to the council,
complaining of false indictments and presentments in courts-leet. It is
answered--"Si quis sequi voluerit adversus falsos indicatores et
procuratores de falsis indictamentis, sequatur in Cancell. et habebit
remedium consequens." Several other entries in this list are
illustrative of the jurisdiction appertaining, in fact at least, to the
council and the chancellor; and being of so early a reign form a
valuable accession to those which later records have furnished to Sir
Matthew Hale and others.

The Court of Chancery began to decide causes as a court of equity,
according to Mr. Hardy, in the reign of Edward III., probably about 22
Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would
carry this jurisdiction higher, and the instances already mentioned may
be sufficient just to prove that it had begun to exist. It certainly
seems no unnatural supposition that the great principle of doing
justice, by which the council and the chancellor professed to guide
their exercise of judicature, may have led them to grant relief in some
of those numerous instances where the common law was defective or its
rules too technical and unbending. But, as has been observed, the actual
entries, as far as quoted, do not afford many precedents of equity. Mr.
Hardy, indeed, suggests (p. 25) that the _Curia Regis_ in the Norman
period proceeded on equitable principles; and that this led to the
removal of plaints into it from the county-court. This is, perhaps, not
what we should naturally presume. The subtle and technical spirit of the
Norman lawyers is precisely that which leads, in legal procedure, to
definite and unbending rules; while in the lower courts, where
Anglo-Saxon thanes had ever judged by the broad rules of justice,
according to the circumstances of the case, rather than a strict line of
law which did not yet exist, we might expect to find all the uncertainty
and inconsistency which belongs to a system of equity, until, as in
England, it has acquired by length of time the uniformity of law, but
none at least of the technicality so characteristic of our Norman common
law, and by which the great object of judicial proceedings was so
continually defeated. This, therefore, does not seem to me a probable
cause of the removal of suits from the county-court or court-baron to
those of Westminster. The true reason, as I have observed in another
place, was the partiality of these local tribunals. And the expense of
trying a suit before the justices in eyre might not be very much greater
than in the county-court.

I conceive, therefore, that the three supreme courts at Westminster
proceeded upon those rules of strict law which they had chiefly
themselves established; and this from the date of their separation from
the original _Curia Regis_. But whether the king's council may have
given more extensive remedies than the common law afforded, as early at
least as the reign of Henry III., is what we are not competent,
apparently, to affirm or deny. We are at present only concerned with
the Court of Chancery. And it will be interesting to quote the
deliberate opinion of a late distinguished writer, who has taken a
different view of the subject from any of his predecessors.

"After much deliberation," says Lord Campbell, "I must express my clear
conviction that the chancellor's equitable jurisdiction is as
indubitable and as ancient as his common-law jurisdiction, and that it
may be traced in a manner equally satisfactory. The silence of Bracton,
Glanvil, Fleta, and other early juridical writers, has been strongly
relied upon to disprove the equitable jurisdiction of the chancellor;
but they as little notice his common-law jurisdiction, most of them
writing during the subsistence of the _Aula Regia_; and they all speak
of the Chancery, not as a court, but merely as an office for the making
and sealing of writs. There are no very early decisions of the
chancellors on points of law any more than of equity, to be found in the
Year-books or old abridgments.... By 'equitable jurisdiction' must be
understood the extraordinary interference of the chancellor, without
common-law process or regard to the common-law rules of proceeding, upon
the petition of a party grieved who was without adequate remedy in a
court of common law; whereupon the opposite party was compelled to
appear and to be examined, either personally or upon written
interrogatories: and evidence being heard on both sides, without the
interposition of a jury, an order was made _secundum æquum et bonum_,
which was enforced by imprisonment. Such a jurisdiction had belonged to
the Aula Regia, and was long exercised by parliament; and, when
parliament was not sitting, by the king's ordinary council. Upon the
dissolution of the _Aula Regia_ many petitions, which parliament or the
council could not conveniently dispose of, were referred to the
chancellor, sometimes with and sometimes without assessors. To avoid the
circuity of applying to parliament or the council, the petition was very
soon, in many instances, addressed originally to the chancellor
himself." (Lives of Chancellors, i. 7.)

In the latter part of Edward III.'s long reign this equitable
jurisdiction had become, it is likely, of such frequent exercise, that
we may consider the following brief summary by Lord Campbell as probable
by analogy and substantially true, if not sustained in all respects by
the evidence that has yet been brought to light:--"The jurisdiction of
the Court of Chancery was now established in all matters where its own
officers were concerned, in petitions of right where an injury was
alleged to be done to a subject by the king or his officers in relieving
against judgments in courts of law (lord C. gives two instances), and
generally in cases of fraud, accident, and trust." (p. 291.)

In the reign of Richard II. the writ of _subpoena_ was invented by
John de Waltham, master of the rolls; and to this a great importance
seems to have been attached at the time, as we may perceive by the
frequent complaints of the commons in parliament, and by the
traditionary abhorrence in which the name of the inventor was held. "In
reality," says lord Campbell, "he first framed it in its present form
when a clerk in Chancery in the latter end of the reign of Edward III.;
but the invention consisted in merely adding to the old clause,
_Quibusdam certis de causis, the words 'Et hoc sub poena centum
librarum nullatenus omittas_;' and I am at a loss to conceive how such
importance was attached to it, or how it was supposed to have brought
about so complete a revolution in equitable proceedings, for the penalty
was never enforced; and if the party failed to appear, his default was
treated, according to the practice prevailing in our own time, as a
contempt of court, and made the foundation of compulsory process." (p.
296.)

The commons in parliament, whose sensitiveness to public grievances was
by no means accompanied by an equal sagacity in devising remedies, had,
probably without intention, vastly enhanced the power of the chancellor
by a clause in a remedial act passed in the thirty-sixth year of Edward
III., that, "If any man that feeleth himself aggrieved contrary to any
of the articles above written, or others contained in divers statutes,
will come into the Chancery, or any for him, and thereof make his
complaint, he shall presently there have remedy by force of the said
articles or statutes, without elsewhere pursuing to have remedy." Yet
nothing could be more obvious than that the breach of any statute was
cognizable before the courts of law. And the mischief of permitting men
to be sued vexatiously before the chancellor becoming felt, a statute
was enacted, thirty years indeed after this time (17 Ric. II. c. 6),
analogous altogether to those in the late reign respecting the
jurisdiction of the council, which, reciting that "people be compelled
to come before the king's council, or in the Chancery, by writs grounded
on untrue suggestions," provides that "the chancellor for the time
being, presently after that such suggestions be duly found and proved
untrue, shall have power to ordain and award damages, according to his
discretion, to him which is so troubled unduly as aforesaid." "This
remedy," lord Campbell justly remarks, "which was referred to the
discretion of the chancellor himself, whose jurisdiction was to be
controlled, proved, as might be expected, wholly ineffectual; but it was
used as a parliamentary recognition of his jurisdiction, and a pretence
for refusing to establish any other check on it." (p. 247.)

A few years before this statute the commons had petitioned (13 Ric. II.,
Rot. Parl. iii. 269) that the chancellor might make no order against the
common law, and that no one should appear before the chancellor where
remedy was given by the common law. "This carries with it an admission,"
as lord C. observes, "that a power of jurisdiction did reside in the
chancellor, so long as he did not determine against the common law, nor
interfere where the common law furnished a remedy. The king's answer,
'that it should continue as the usage had been heretofore,' clearly
demonstrates that such an authority, restrained within due bounds, was
recognised by the constitution of the country." (p. 305.)

The act of 17 Ric. II. seems to have produced a greater regularity in
the proceedings of the court, and put an end to such hasty interference,
on perhaps verbal suggestions, as had given rise to this remedial
provision. From the very year in which the statute was enacted we find
bills in Chancery, and the answers to them, regularly filed; the grounds
of demanding relief appear, and the chancellor renders himself in every
instance responsible for the orders he has issued, by thus showing that
they came within his jurisdiction. There are certainly many among the
earlier bills in Chancery, which, according to the statute law and the
great principle that they were determinable in other courts, could not
have been heard; but we are unable to pronounce how far the allegation
usually contained or implied, that justice could not be had elsewhere,
was founded on the real circumstances. A calendar of these early
proceedings (in abstract) is printed in the Introduction to the first
volume of the Calendar of Chancery Proceedings in the Reign of
Elizabeth, and may also be found in Cooper's Public Records, i. 356.

The struggle, however, in behalf of the common law was not at an end. It
is more than probable that the petitions against encroachments of
Chancery, which fill the rolls under Henry IV., Henry V., and in the
minority of Henry VI., emanated from that numerous and jealous body
whose interests as well as prejudices were so deeply affected. Certain
it is that the commons, though now acknowledging an equitable
jurisdiction, or rather one more extensive than is understood by the
word "equitable," in the greatest judicial officer of the crown, did not
cease to remonstrate against his transgression of these boundaries. They
succeeded so far, in 1436, as to obtain a statute (15 Hen. VI. c. 4) in
these words:--"For that divers persons have before this time been
greatly vexed and grieved by writs of _subpoena_, purchased for
matters determinable by the common law of this land, to the great damage
of such persons so vexed, in suspension and impediment of the common law
as aforesaid; Our lord the king doth command that the statutes thereof
made shall be duly observed, according to the form and effect of the
same, and that no writ of _subpoena_ be granted from henceforth until
surety be found to satisfy the party so grieved and vexed for his
damages and expenses, if so be that the matter cannot be made good which
is contained in the bill." It was the intention of the commons, as
appears by the preamble of this statute, and more fully by their
petition in Rot. Parl. (iv. 101), that the matters contained in the bill
on which the _subpoena_ was issued should be not only true in
themselves, but such as could not be determined at common law. But the
king's answer appears rather equivocal.

The principle seems nevertheless to have been generally established,
about the reign of Henry VI., that the Court of Chancery exercises
merely a remedial jurisdiction, not indeed controllable by courts of
law, unless possibly in such circumstances as cannot be expected, but
bound by its general responsibility to preserve the limits which ancient
usage and innumerable precedents have imposed. It was at the end of this
reign, and not in that of Richard II., according to the writer so often
quoted, that the great enhancement of the chancellor's authority, by
bringing feoffments to uses within it, opened a new era in the history
of our law. And this the judges brought on themselves by their narrow
adherence to technical notions. They now began to discover this; and
those of Edward IV., as lord Campbell well says, were "very bold men,"
having repealed the statute _de donis_ by their own authority in
Taltarum's case--a stretch of judicial power beyond any that the Court
of Chancery had ventured upon. They were also exceedingly jealous of
that court; and in one case, reported in the Year-books (22 Edw. IV.
37), advised a party to disobey an injunction from the Court of
Chancery, telling him that, if the chancellor committed him to the
Fleet, they would discharge the prisoner by _habeas corpus_. (Lord
Campbell, p. 394.) The case seems to have been one where, in modern
times, no injunction would have been granted, the courts of law being
competent to apply a remedy.


NOTE XI. Page 145.

This intricate subject has been illustrated, since the first publication
of these volumes, in an Essay upon the original Authority of the King's
Council, by Sir Francis Palgrave (1834), written with remarkable
perspicuity and freedom from diffusiveness. But I do not yet assent to
the judgment of the author as to the legality of proceedings before the
council, which I have represented as unconstitutional, and which
certainly it was the object of parliament to restrain.

"It seems," he says, "that in the reign of Henry III. the council was
considered as a court of peers within the terms of Magna Charta; and
before which, as a court of original jurisdiction, the rights of tenants
holding _in capite_ or by barony were to be discussed and decided, and
it unquestionably exercised a direct jurisdiction over all the king's
subjects" (p. 34). The first volume of Close Rolls, published by Mr.
Hardy since Sir F. Palgrave's Essay, contains no instances of
jurisdiction exercised by the council in the reign of John. But they
begin immediately afterwards, in the minority of Henry III.; so that we
have not only the fullest evidence that the council took on itself a
coercive jurisdiction in matters of law at that time, but that it had
not done so before: for the Close Rolls of John are so full as to render
the negative argument satisfactory. It will, of course, be understood
that I take the facts on the authority of Mr. Hardy (Introduction to
Close Rolls, vol. ii.), whose diligence and accuracy are indisputable.
Thus this exercise of judicial power began immediately after the Great
Charter. And yet, if it is to be reconciled with the twenty-ninth
section, it is difficult to perceive in what manner that celebrated
provision for personal liberty against the crown, which has always been
accounted the most precious jewel in the whole coronet, the most
valuable stipulation made at Runnymede, and the most enduring to later
times, could merit the fondness with which it has been regarded. "Non
super eum ibimus, nec super eum mittemus, nisi per legale judicium
parium suorum, vel per legem terræ." If it is alleged that the
jurisdiction of the king's council was the law of the land, the whole
security falls to the ground and leaves the grievance as it stood,
unredressed. Could the judgment of the council have been reckoned, as
Sir P. Palgrave supposes, a "judicium parium suorum," except perhaps in
the case of tenants in chief? The word is commonly understood of that
trial _per pais_ which, in one form or another, is of immemorial
antiquity in our social institutions.

"Though this jurisdiction," he proceeds, "was more frequently called
into action when parliament was sitting, still it was no less inherent
in the council at all other times; and until the middle of the reign of
Edward III. no exception had ever been taken to the form of its
proceedings." He subjoins indeed in a note, "Unless the statute of 5
Edw. III. c. 9, may be considered as an earlier testimony against the
authority of the council. This, however, is by no means clear, and there
is no corresponding petition in the parliament roll from which any
further information could be obtained" (p. 34).

The irresistible conclusion from this passage is, that we have been
wholly mistaken in supposing the commons under Edward III. and his
successors to have resisted an illegal encroachment of power in the
king's ordinary council, while it had in truth been exercising an
ancient jurisdiction, never restrained by law and never complained of by
the subject. This would reverse our constitutional theory to no small
degree, and affect so much the spirit of my own pages, that I cannot
suffer it to pass, coming on an authority so respectable, without some
comment. But why is it asserted that this jurisdiction was inherent in
the council? Why are we to interpret Magna Charta otherwise than
according to the natural meaning of the words and the concurrent voice
of parliament? The silence of the commons in parliament under Edward II.
as to this grievance will hardly prove that it was not felt, when we
consider how few petitions of a public nature, during that reign, are on
the rolls. But it may be admitted that they were not so strenuous in
demanding redress, because they were of comparatively recent origin as
an estate of parliament, as they became in the next long reign, the most
important, perhaps, in our early constitutional history.

It is doubted by Sir F. Palgrave whether the statute of 5 Edw. III. c.
9, can be considered as a testimony against the authority of the
council. It is, however, very natural so to interpret it, when we look
at the subsequent statutes and petitions of the commons, directed for
more than a century to the same object. "No man shall be taken," says
lord Coke (2 Inst. 46), "that is, restrained of liberty, by petition or
suggestion to the king or to his council, unless it be by indictment or
presentment of good and lawful men, where such deeds be done. This
branch and divers other parts of this act have been wholly explained by
divers acts of parliament, &c., quoted in the margent." He then gives
the titles of six statutes, the first being this of 5 Edw. III. c. 9.
But let us suppose that the petition of the commons in 25 Edw. III.
demanded an innovation in law, as it certainly did in long-established
usage. And let us admit what is justly pointed out by Sir F. Palgrave,
that the king's first answer to their petition is not commensurate to
its request, and reserves, though it is not quite easy to see what, some
part of its extraordinary jurisdiction.[472] Still the statute itself,
enacted on a similar petition in a subsequent parliament, is explicit
that "none shall be taken by petition or suggestion to the king or his
council, unless it be by indictment or presentment" (in a criminal
charge), "or by writ original at the common law" (in a civil suit), "nor
shall be put out of his franchise of freehold, unless he have been duly
put to answer, and forejudged of the same by due course of law."

Lord Hale has quoted a remarkable passage from a Year-book, not long
after these statutes of 25 Edw. III. and 28 Edw. III., which, if Sir F.
Palgrave had not overlooked, he would have found not very favourable to
his high notions of the king's prerogative in council. "In after ages,"
says Hale, "the constant opinion and practice was to disallow any
reversals of judgment by the council, which appears by the notable case
in Year-book, 39 Edw. III. 14." (Jurisdiction of Lords' House, p. 41.)
It is indeed a notable case, wherein the chancellor before the council
reverses a judgment of a court of law. "Mes les justices ne pristoient
nul regard al reverser devant le council, par ceo que ce ne fust place
ou jugement purroit estre reverse." If the council could not exercise
this jurisdiction on appeal, which is not perhaps expressly taken away
by any statute, much less against the language of so many statutes could
they lawfully entertain any original suit. Such, however, were the
vacillations of a motley assembly, so steady the perseverance of
government in retaining its power, so indefinite the limits of ancient
usage, so loose the phrases of remedial statutes, passing sometimes by
their generality the intentions of those who enacted them, so useful,
we may add, and almost indispensable, was a portion of those
prerogatives which the crown exercised through the council and chancery,
that we find soon afterwards a statute (37 Edw. III. c. 18), which
recognises in some measure those irregular proceedings before the
council, by providing only that those who make suggestions to the
chancellor and great council, by which men are put in danger against the
form of the charter, shall give security for proving them. This is
rendered more remedial by another act next year (38 Edw. III. c. 9),
which, however, leaves the liberty of making such suggestions untouched.
The truth is, that the act of 25 Edw. III. went to annihilate the legal
and equitable jurisdiction of the Court of Chancery--the former of which
had been long exercised, and the latter was beginning to spring up. But
the 42 Edw. III. c. 3, which seems to go as far as the former in the
enacting words, will be found, according to the preamble, to regard only
criminal charges.

Sir Francis Palgrave maintains that the council never intermitted its
authority, but on the contrary "it continually assumed more consistency
and order. It is probable that the long absences of Henry V. from
England invested this body with a greater degree of importance. After
every minority and after every appointment of a select or extraordinary
council by authority of the legislature, we find that the ordinary
council acquired a fresh impulse and further powers. Hence the next
reign constitutes a new era" (p. 80). He proceeds to give the same
passage which I have quoted from Rot. Parl. 8 Hen. VI., vol. v. p. 343,
as well as one in an earlier parliament (2 Hen. VI. p. 28). But I had
neglected to state the whole case where I mention the articles settled
in parliament for the regulation of the council. In the first place,
this was not the king's ordinary council, but one specially appointed by
the lords in parliament for the government of the realm during his
minority. They consisted of certain lords spiritual and temporal, the
chancellor, the treasurer, and a few commoners. These commissioners
delivered a schedule of provisions "for the good and the governance of
the land, which the lords that be of the king's council desireth" (p.
28). It does not explicitly appear that the commons assented to these
provisions; but it may be presumed, at least in a legal sense, by their
being present and by the schedule being delivered into parliament,
"baillez en meme le parlement." But in the 8 Hen. VI., where the same
provision as to the jurisdiction of this extraordinary council is
repeated, the articles are said, after being approved by the lords
spiritual and temporal, to have been read "coram domino rege in eodem
parliamento, in presentia trium regni statuum" (p. 343). It is always
held that what is expressly declared to be done in presence of all the
estates is an act of parliament.

We find, therefore, a recognition of the principle which had always been
alleged in defence of the ordinary council in this parliamentary
confirmation--the principle that breaches of the law, which the law
could not, through the weakness of its ministers, or corruption, or
partiality, sufficiently repress, must be reserved for the strong arm of
royal authority. "Thus," says Sir Francis Palgrave, "did the council
settle and define its principles and practice. A new tribunal was
erected, and one which obtained a virtual supremacy over the common law.
The exception reserved to their 'discretion' of interfering wherever
their lordships felt too much might on one side, and too much unmight on
the other, was of itself sufficient to embrace almost every dispute or
trial" (p. 81).

But, in the first place, this latitude of construction was not by any
means what the parliament meant to allow, nor could it be taken, except
by wilfully usurping powers never imparted; and, secondly, it was not
the ordinary council which was thus constituted during the king's
minority; nor did the jurisdiction intrusted to persons so specially
named in parliament extend to the regular officers of the crown. The
restraining statutes were suspended for a time in favour of a new
tribunal. But I have already observed that there was always a class of
cases precisely of the same kind as those mentioned in the act creating
this tribunal, tacitly excluded from the operation of those statutes,
wherein the coercive jurisdiction of the king's ordinary council had
great convenience, namely, where the course of justice was obstructed by
riots, combinations of maintenance, or overawing influence. And there
is no doubt that, down to the final abolition of the Court of Star
Chamber (which was no other than the _consilium ordinarium_ under a
different name), these offences were cognizable in it, without the
regular forms of the common law.[473]

"From the reign of Edward IV. we do not trace any further opposition to
the authority either of the chancery or of the council. These courts had
become engrafted on the constitution; and if they excited fear or
jealousy, there was no one who dared to complain. Yet additional
parliamentary sanction was not considered as unnecessary by Henry VII.,
and in the third year of his reign an act was passed for giving the
Court of Star Chamber, which had now acquired its determinate name,
further authority to punish divers misdemeanours." (Palgrave, p. 97.)

It is really more than we can grant that the jurisdiction of the
_consilium ordinarium_ had been engrafted on the constitution, when the
statute-book was full of laws to restrain, if not to abrogate it. The
acts already mentioned, in the reign of Henry VI., by granting a
temporary and limited jurisdiction to the council, demonstrate that its
general exercise was not acknowledged by parliament. We can only say
that it may have continued without remonstrance in the reign of Edward
IV. I have observed in the text that the Rolls of Parliament under
Edward IV. contain no complaints of grievances. But it is not quite
manifest that the council did exercise in that reign as much
jurisdiction as it had once done. Lord Hale tells us that "this
jurisdiction was gradually brought into great disuse, though there
remain some straggling footsteps of their proceedings till near 3 Hen.
VII." (Hist. of Lords' Jurisdiction, p. 38.) And the famous statute in
that year, which erected a new court, sometimes improperly called the
Court of Star Chamber, seems to have been prompted by a desire to
restore, in a new and more legal form, a jurisdiction which was become
almost obsolete, and, being in contradiction to acts of parliament,
could not well be rendered effective without one.[474]

We cannot but discover, throughout the learned and luminous Essay on
the Authority of the King's Council, a strong tendency to represent its
exercise as both constitutional and salutary. The former epithet cannot,
I think, be possibly applicable in the face of statute law; for what
else determines our constitution? But it is a problem with some, whether
the powers actually exerted by this anomalous court, admitting them to
have been, at least latterly, in contravention of many statutes, may not
have been rendered necessary by the disorderly condition of society and
the comparative impotence of the common law. This cannot easily be
solved with the defective knowledge that we possess. Sometimes, no
doubt, the "might on one side, and unmight on the other," as the answer
to a petition forcibly expresses it, afforded a justification which,
practically at least, the commons themselves were content to allow. But
were these exceptional instances so frequent as not to leave a much
greater number wherein the legal remedy by suit before the king's
justices of assise might have been perfectly effectual? For we are not
concerned with the old county-courts, which were perhaps tumultuary and
partial enough, but with the regular administration, civil and criminal,
before the king's justices of oyer and terminer and of gaol delivery.
Had not they, generally speaking, in the reign of Edward III. and his
successors, such means of enforcing the execution of law as left no
sufficient pretext for recurring to an arbitrary tribunal? Liberty, we
should remember, may require the sacrifice of some degree of security
against private wrong, which a despotic government, with an unlimited
power of restraint, can alone supply. If no one were permitted to travel
on the high road without a licence, or, as now so usual, without a
passport, if no one could keep arms without a registry, if every one
might be indefinitely detained on suspicion, the evil doers of society
would be materially impeded, but at the expense, to a certain degree, of
every man's freedom and enjoyment. Freedom being but a means to the
greatest good, times might arise when it must yield to the security of
still higher blessings; but the immediate question is, whether such were
the state of society in the fourteenth and fifteenth centuries. Now,
that it was lawless and insecure, comparatively with our own times or
the times of our fathers, is hardly to be disputed. But if it required
that arbitrary government which the king's council were anxious to
maintain, the representatives of the commons in parliament, knights and
burgesses, not above the law, and much interested in the conservation of
property, must have complained very unreasonably for more than a hundred
years. They were apparently as well able to judge as our writers can be;
and if they reckoned a trial by jury at _nisi prius_ more likely, on the
whole, to insure a just adjudication of a civil suit, than one before
the great officers of state and other constituent members of the
ordinary council, it does not seem clear to me that we have a right to
assert the contrary. This mode of trial by jury, as has been seen in
another place, had acquired, by the beginning of the fifteenth century,
its present form; and considering the great authority of the judges of
assise, it may not, probably, have given very frequent occasion for
complaint of partiality or corrupt influence.


NOTE XII. Page 156.

The learned author of the Inquiry into the Rise and Growth of the Royal
Prerogative in England has founded his historical theory on the
confusion which he supposes to have grown up between the ideal king of
the constitution and the personal king on the throne. By the former he
means the personification of abstract principles, sovereign power, and
absolute justice, which the law attributes to the _genus_ king, but
which flattery or other motives have transferred to the possessor of the
crown for the time being, and have thus changed the Teutonic _cyning_,
the first man of the commonwealth, the man of the highest weregild, the
man who was so much responsible that he might be sued for damages in his
own courts or deposed for misgovernment, into the sole irresponsible
person of indefeasible prerogatives, of attributes almost divine, whom
Bracton and a long series of subsequent lawyers raised up to a height
far beyond the theory of our early constitution.

This is supported with great acuteness and learning; nor is it possible
to deny that the king of England, as the law-books represent him, is
considerably different from what we generally conceive an ancient
German chieftain to have been. Yet I doubt whether Mr. Allen has not
laid too much stress on this, and given to the fictions of law a greater
influence than they possessed in those times to which his inquiry
relates; and whether, also, what he calls the monarchical theory was so
much derived from foreign sources as he apprehends. We have no occasion
to seek, in the systems of civilians or the dogmas of churchmen, what
arose from a deep-seated principle of human nature. A king is a person;
to persons alone we attach the attributes of power and wisdom; on
persons we bestow our affection or our ill-will. An abstraction, a
politic idea of royalty, is convenient for lawyers; it suits the
speculative reasoner, but it never can become so familiar to a people,
especially one too rude to have listened to such reasoners, as the
simple image of the king, the one man whom we are to love and to fear.
The other idea is a sort of monarchical pantheism, of which the
vanishing point is a republic. And to this the prevalent theory, that
kings are to reign but not to govern, cannot but lead. It is a
plausible, and in the main, perhaps, for the times we have reached, a
necessary theory; but it renders monarchy ultimately scarcely possible.
And it was neither the sentiment of the Anglo-Saxons, nor of the Norman
baronage; the feudal relation was essentially and exclusively personal;
and if we had not enough, in a more universal feeling of human nature,
to account for loyalty, we could not mistake its inevitable connexion
with the fealty and homage of the vassal. The influence of Roman notions
was not inconsiderable upon the continent; but they never prevailed very
much here; and though, after the close alliance between the church and
state established by the Reformation, the whole weight of the former was
thrown into the scale of the crown, the mediæval clergy, as I have
observed in the text, were anything rather than upholders of despotic
power.

It may be very true that, by considering the monarchy as a merely
political institution, the scheme of prudent men to avoid confusion, and
confer the _minimum_ of personal authority on the reigning prince, the
principle of his irresponsibility seems to be better maintained. But the
question to which we are turning our eyes is not a political one; it
relates to the positive law and positive sentiments of the English
nation in the mediæval period. And here I cannot put a few necessary
fictions grown up in the courts, such as, the king never dies, the king
can do no wrong, the king is everywhere, against the tenor of our
constitutional language, which implies an actual and active personality.
Mr. Allen acknowledges that the act against the Despensers under Edward
II., and re-confirmed after its repeal, for promulgating the doctrine
that allegiance had more regard to the crown than to the person of the
king, "seems to establish, as the deliberate opinion of the legislature,
that allegiance is due to the person of the king generally, and not
merely to his crown or politic capacity, so as to be released and
destroyed by his misgovernment of the kingdom" (p. 14); which, he adds,
is not easily reconcilable with the deposition of Richard II. But that
was accomplished by force, with whatever formalities it may have been
thought expedient to surround it.

We cannot, however, infer from the declaration of the legislature, that
allegiance is due to the king's person and not to his politic capacity,
any such consequence as that it is not, in any possible case, to be
released by his misgovernment. This was surely not in the spirit of any
parliament under Edward II. or Edward III.; and it is precisely because
allegiance is due to the person, that, upon either feudal or natural
principles, it might be cancelled by personal misconduct. A contrary
language was undoubtedly held under the Stuarts; but it was not that of
the mediæval period.

The tenet of our law, that all the soil belongs theoretically to the
king, is undoubtedly an enormous fiction, and very repugnant to the
barbaric theory preserved by the Saxons, that all unappropriated land
belonged to the folk, and was unalienable without its consent.[475] It
was, however, but an extension of the feudal tenure to the whole
kingdom, and rested on the personality of feudal homage. William
established it more by his power than by any theory of lawyers; though
doubtless his successors often found lawyers as ready to shape the acts
of power into a theory as if they had originally projected them. And
thus grew up the high schemes of prerogative, which, for many centuries,
were in conflict with those of liberty. We are not able, nevertheless,
to define the constitutional authority of the Saxon kings; it was not
legislative, nor was that of William and his successors ever such; it
was not exclusive of redress for private wrong, nor was this ever the
theory of English law, though the method of remedy might not be
sufficiently effective; yet it had certainly grown before the Conquest,
with no help from Roman notions, to something very unlike that of the
German kings in Tacitus.


NOTE XIII. Page 172.

The reduction of the free ceorls into villenage, especially if as
general as is usually assumed, is one of the most remarkable innovations
during the Anglo-Norman period; and one which, as far as our published
records extend, we cannot wholly explain. Observations have been made on
it by Mr. Wright, in the Archæologia (vol. xxx. p. 225). After adverting
to the oppression of the peasants in Normandy, which produced several
rebellions, he proceeds thus:--"These feelings of hatred and contempt
for the peasantry were brought into our island by the Norman barons in
the latter half of the eleventh century. The Saxon laws and customs
continued; but the Normans acted as the Franks had done towards the
Roman coloni; they enforced with harshness the laws which were in their
own favour, and gradually threw aside, or broke through, those which
were in favour of the miserable serf."

In the Laws of Henry I. we find the weregild of the twyhinder, or
villein, set at 200 shillings in Wessex, "quæ caput regni est et legum"
(c. 70). But this expression argues an Anglo-Saxon source; and, in fact,
so much in that treatise seems to be copied, without regard to the
change of times, from old authorities, mixed up with provisions of a
feudal or Norman character, that we hardly know how to distinguish what
belongs to each period. It is far from improbable that villenage, in the
sense the word afterwards bore, that is, an absolutely servile tenure of
lands, not only without legal rights over them, but with an incapacity
of acquiring either immovable or movable property against the lord, may
have made considerable strides before the reign of Henry II.[476] But
unless light should be thrown on its history by the publication of more
records, it seems almost impossible to determine the introduction of
predial villenage more precisely than to say it does not appear in the
laws of England at the Conquest, and it does so in the time of Glanvil.
Mr. Wright's Memoir in the Archæologia, above quoted, contains some
interesting matter; but he has too much confounded the _theow_, or
Anglo-Saxon slave, with the _ceorl_; not even mentioning the latter,
though it is indisputable that _villanus_ is the equivalent of _ceorl_,
and _servus_ of _theow_.

But I suspect that we go a great deal too far in setting down the
descendants of these ceorls, that is, the whole Anglo-Saxon population
except thanes and burgesses, as almost universally to be counted such
villeins as we read of in our law-books, or in concluding that the
cultivators of the land, even in the thirteenth century, were wholly, or
at least generally, servile. It is not only evident that small
freeholders were always numerous, but we are, perhaps, greatly deceived
in fancying that the occupiers of villein tenements were usually
villeins. _Terre-tenants en villenage_ and tenants _par copie_, who were
undoubtedly free, appear in the early Year-books, and we know not why
they may not always have existed.[477] This, however, is a subject which
I am not sufficiently conversant with records to explore; it deserves
the attention of those well-informed and diligent antiquaries whom we
possess. Meantime it is to be observed that the lands occupied by
_villani_ or _bordarii_, according to the Domesday survey, were much
more extensive than the copyholds of the present day; and making every
allowance for enfranchisements, we can hardly believe that all these
lands, being, in fact, by far the greater part of the soil, were the
_villenagia_ of Glanvil's and Bracton's age. It would be interesting to
ascertain at what time the latter were distinguished from _libera
tenementa_; at what time, that is, the distinction of territorial
servitude, independent as it was of the personal state of the occupant,
was established in England.


NOTE XIV. Page 173.

This identity of condition between the villein regardant and in gross
appears to have been, even lately, called in question, and some adhere
to the theory which supposes an inferiority in the latter. The following
considerations will prove that I have not been mistaken in rejecting
it:--

I. It will not be contended that the words "regardant" and "in gross"
indicate of themselves any specific difference between the two, or can
mean anything but the title by which the villein was held; prescriptive
and territorial in one case, absolute in the other. For the proof,
therefore, of any such difference we require some ancient authority,
which has not been given. II. The villein regardant might be severed
from the manor, with or without land, and would then become a villein in
gross. If he was sold as a domestic serf, he might, perhaps, be
practically in a lower condition than before, but his legal state was
the same. If he was aliened with lands, parcel of the manor, as in the
case of its descent to coparceners who made partition, he would no
longer be regardant, because that implied a prescriptive dependence on
the lord, but would occupy the same tenements and be in exactly the same
position as before. "Villein in gross," says Littleton, "is where a man
is seised of a manor whereunto a villein is regardant, and granteth the
same villein by deed to another; then he is a villein in gross, and not
regardant." (Sect. 181.) III. The servitude of all villeins was so
complete that we cannot conceive degrees in it. No one could purchase
lands or possess goods of his own; we do not find that any one, being
strictly a villein, held by certain services; "he must have regard,"
says Coke, "to that which is commanded unto him; or, in the words of
Bracton, 'a quo præstandum servitium incertum et indeterminatum, ubi
scire non poterit vespere quod servitium fieri debet mane.'" (Co. Lit.
120, b.) How could a villein in gross be lower than this? It is true
that the villein had one inestimable advantage over the American negro,
that he was a freeman, except relatively to his lord; possibly he might
be better protected against personal injury; but in his incapacity of
acquiring secure property, or of refusing labour, he was just on the
same footing. It may be conjectured that some villeins in gross were
descended from the _servi_, of whom we find 25,000 enumerated in
Domesday. Littleton says, "If a man and his ancestors, whose heir he is,
have been seised of a villein and of his ancestors, as of villeins in
gross, time out of memory of man, these are villeins in gross." (Sect.
182.)

It has been often asserted that villeins in gross seem not to have been
a numerous class, and it might not be easy to adduce distinct instances
of them in the fourteenth and fifteenth centuries, though we should
scarcely infer, from the pains Littleton takes to describe them, that
none were left in his time. But some may be found in an earlier age. In
the ninth of John, William sued Ralph the priest for granting away lands
which he held to Canford priory. Ralph pleaded that they were his
freehold. William replied that he held them in villenage, and that he
(the plaintiff) had sold one of Ralph's sisters for four shillings.
(Blomefield's Norfolk, vol. iii. p. 860, 4to. edition.) And Mr. Wright
has found in Madox's Formulare Anglicanum not less than five instances
of villeins sold with their family and chattels, but without land.
(Archæologia, xxx. 228.) Even where they were sold along with land,
unless it were a manor, they would, as has been observed before, have
been villeins in gross. I have, however, been informed that in
valuations under escheats in the old records a separate value is never
put upon villeins; their alienation without the land was apparently not
contemplated. Few cases concerning villeins in gross, it has been said,
occur in the Year-books; but villenage of any kind does not furnish a
great many; and in several I do not perceive, in consulting the report,
that the party can be shown to have been regardant. One reason why
villeins in gross should have become less and less numerous was that
they could, for the most part, only be claimed by showing a written
grant, or by prescription through descent; so that, if the title-deed
were lost, or the descent unproved, the villein became free.

Manumissions were often, no doubt, gratuitous; in some cases the villein
seems to have purchased his freedom. For though in strictness, as
Glanvil tells us, he could not "libertatem suam suis denariis quærere,"
inasmuch as all he possessed already belonged to the lord, it would have
been thought a meanness to insist on so extreme a right. In order,
however, to make the deed more secure, it was usual to insert the name
of a third person as paying the consideration-money for the
enfranchisement. (Archæologia, xxx. 228.)

It appears not by any means improbable that regular money payments, or
other fixed liabilities, were often substituted instead of uncertain
services for the benefit of the lord as well as the tenant. And when
these had lasted a considerable time in any manor, the villenage of the
latter, without any manumission, would have expired by desuetude. But,
perhaps, an entry of his tenure on the court-roll, with a copy given to
himself, would operate of itself, in construction of law, as a
manumission. This I do not pretend to determine.


NOTE XV. Page 179.

The public history of Europe in the middle ages inadequately represents
the popular sentiment, or only when it is expressed too loudly to escape
the regard of writers intent sometimes on less important subjects. But
when we descend below the surface, a sullen murmur of discontent meets
the ear, and we perceive that mankind was not more insensible to wrongs
and sufferings than at present. Besides the various outbreakings of the
people in several counties, and their complaints in parliament, after
the commons obtained a representation, we gain a conclusive insight into
the spirit of the times by their popular poetry. Two very interesting
collections of this kind have been lately published by the Camden
Society, through the diligence of Mr. Thomas Wright; one, the Poems
attributed to Walter Mapes; the other, the Political Songs of England,
from John to Edward II.

Mapes lived under Henry II., and has long been known as the reputed
author of humorous Latin verses; but it seems much more probable, that
the far greater part of the collection lately printed is not from his
hand. They may pass, not for the production of a single person, but
rather of a class, during many years, or, in general words, a century,
ending with the death of Henry III. in 1272. Many of them are
professedly written by an imaginary Golias.

"They are not the expressions of hostility of one man against an order
of monks, but of the indignant patriotism of a considerable portion of
the English nation against the encroachments of civil and ecclesiastical
tyranny." (Introduction to Poems ascribed to Walter Mapes, p. 21.) The
poems in this collection reflect almost entirely on the pope and the
higher clergy. They are all in rhyming Latin, and chiefly, though with
exceptions, in the loose trochaic metre called Leonine. The authors,
therefore, must have been clerks, actuated by the spirit which, in a
church of great inequality in its endowments, and with a very numerous
body of poor clergy, is apt to gain strength, but certainly, as
ecclesiastical history bears witness, not one of mere envious malignity
towards the prelates and the court of Rome. These deserved nothing
better, in the thirteenth century, than biting satire and indignant
reproof, and the poets were willing enough to bestow both.

But this popular poetry of the middle ages did not confine itself to the
church. In the collection entitled 'Political Songs' we have some
reflecting on Henry III., some on the general administration. The famous
song on the battle of Lewes in 1264 is the earliest in English; but in
the reign of Edward I. several occur in that language. Others are in
French or in Latin; one complaining of the taxes is in an odd mixture of
these two languages; which, indeed, is not without other examples in
mediæval poetry. These Latin songs could not, of course, have been
generally understood. But what the priests sung in Latin, they said in
English; the lower clergy fanned the flame, and gave utterance to what
others felt. It may, perhaps, be remarked, as a proof of general
sympathy with the democratic spirit which was then fermenting, that we
have a song of exultation on the great defeat which Philip IV. had just
sustained at Courtrai, in 1302, by the burgesses of the Flemish cities,
on whose liberties he had attempted to trample (p. 187). It is true that
Edward I. was on ill terms with France, but the political interests of
the king would not, perhaps, have dictated the popular ballad.

It was an idle exaggeration in him who said that, if he could make the
ballads of a people, any one might make their laws. Ballads, like the
press, and especially that portion of the press which bears most analogy
to them, generally speaking, give vent to a spirit which has been at
work before. But they had, no doubt, an influence in rendering more
determinate, as well as more active, that resentment of wrong, that
indignation at triumphant oppression, that belief in the vices of the
great, which, too often for social peace and their own happiness, are
cherished by the poor. In comparison, indeed, with the efficacy of the
modern press, the power, of ballads is trifling. Their lively
sprightliness, the humorous tone of their satire, even their metrical
form, sheathe the sting; and it is only in times when political
bitterness is at its height that any considerable influence can be
attached to them, and then it becomes undistinguishable from more
energetic motives. Those which we read in the collection above mentioned
appear to me rather the signs of popular discontent than greatly
calculated to enhance it. In that sense they are very interesting, and
we cannot but desire to see the promised continuation to the end of
Richard II.'s reign.[478] They are said to have become afterwards less
frequent, though the wars of the Roses were likely to bring them,
forward.

Some of the political songs are written in France, though relating to
our kings John and Henry III. Deducting these, we have two in Latin for
the former reign; seven in Latin, three in French (or what the editor
calls Anglo-Norman, which is really the same thing), one in a mixture of
the two, and one in English, for the reign of Henry III. In the reigns
of Edward I. and Edward II. we have eight in Latin, three in French,
nine in English, and four in mixed languages; a style employed probably
for amusement. It must be observed that a large proportion of these
songs contain panegyric and exultation on victory rather than satire;
and that of the satire much is general, and much falls on the church; so
that the animadversions on the king and the nobility are not very
frequent, though with considerable boldness; but this is more shown in
the Latin than the English poems.


FOOTNOTES:

[460] This hypothetical clause is somewhat remarkable. Grand serjeanty
is of course included by parity under military service. But did any hold
of the king in socage, except on his demesne lands? There might be some
by petty serjeanty. Yet the committee, as we have just seen, absolutely
exclude these from any share in the great councils of the Conqueror and
his immediate descendants.

[461] Mr. Spence has ingeniously conjectured, observing that in some
passages of Domesday (he quotes two, but I only find one) the barons who
held more than six manors paid their relief directly to the king, while
those who had six or less paid theirs to the sheriff (Yorkshire, 298,
b), that "this may tend to solve the disputed question as to what
constituted one of the greater barons mentioned in the Magna Charta of
John and other early Norman documents; for, by analogy to the mode in
which the relief was paid, the greater barons were summoned by
particular writs, the rest by one general summons through the sheriff."
History of Equitable Jurisdiction, p. 40.

[462] See quotation from Spence's Equitable Jurisdiction, a little
above. The barony of Berkeley was granted in 1 Ric. I., to be holden by
the service of five knights, which was afterwards reduced to three.
Nicolas's Report of Claim to Barony of L'Isle, Appendix, p. 318.

[463] A charter of Henry I., published in the new edition of Rymer (i.
p. 12), fully confirms what is here said. Sciatis quod concedo et
præcipio, ut à modo comitatus mei et hundreda in illis locis et iisdem
terminis sedeant, sicut sederunt in tempore regis Edwardi, et non
aliter. Ego enim, quando voluero, faciam ea satis summoneri propter mea
dominica necessaria ad voluntatem meam. Et si modo exurgat placitum de
divisione terrarum, si est inter barones meos dominicos, tractetur
placitum in curea mea. Et si est inter vavassores duorum dominorum,
tractetur in comitatu. Et hoc duello fiat, nisi in eis remanserit. Et
volo et præcipio, ut omnes de comitatu eant ad comitatus et hundreda,
sicut fecerunt in tempore regis Edwardi. But it is also easily proved
from the Leges Henrici Primi.

[464] See the ensuing part of this note.

[465] This pedigree is elaborately, and with pious care, traced by Mr.
Stapleton, in his excellent introduction to the old chronicle of London,
already quoted. The name Alwyn appears rather Saxon than Norman, so that
we may presume the first mayor to have been of English descent; but
whether he were a merchant, or a landholder living in the city, must be
undecided.

[466] Hist. de Paris, vol. iii. p. 231.

[467] John of Troyes says, in 1467, that from sixty to eighty thousand
men appeared in arms. Dulaure (Hist. de Paris, vol. iii. p. 505) says
this gives 120,000 for the whole population; but it gives double, which
is incredible. In the thirteenth and fourteenth centuries the houses
were still cottages: only four streets were paved; they were very narrow
and dirty, and often inundated by the Seine. Ib. p. 198.

[468] This doubt was soon afterwards changed into a proposition,
strenuously maintained by the supposed compiler of these Reports, lord
Redesdale, on the claim to the barony of L'Isle in 1829. The ancestor
had been called by writ to several parliaments of Edw. III.; and having
only a daughter, the negative argument from the omission of his
posterity is of little value; for though the husbands of heiresses were
frequently summoned, this does not seem to have been an universal
practice. It was held by lord Redesdale, that, at least until the
statute of 5 Richard II. c. 4, no hereditary or even personal right to
the peerage was created by the writ of summons. The house of lords
rejected the claim, though the language of their resolution is not
conclusive as to the principle. The opinion of lord R. has been ably
impugned by Sir Harris Nicolas, in his Report of the L'Isle Peerage,
1829.

[469] The Lords' committee (Second Report, p. 436) endeavour to elude
the force of this authority; but it manifestly appears that the Nevilles
were preferred to the Fanes for the particular barony in question;
though some satisfaction was made to the claimant of the latter family
by calling her to a different peerage.

[470] The continuance of barony by tenure has been controverted by Sir
Harris Nicolas, in some remarks on such a claim preferred by the present
earl Fitzharding while yet a commoner, in virtue of the possession of
Berkeley castle, published as an Appendix to his Report of the L'Isle
Peerage. In the particular case there seem to have been several
difficulties, independently of the great one, that, in the reign of
Charles II., barony by tenure had been finally condemned. But there is
surely a great general difficulty on the opposite side, in the
hypothesis that, while it is acknowledged that there were, in the reigns
of Edward I. and Edward II., certain known persons holding by barony and
called peers of the realm, it could have been agreeable to the feudal or
to the English constitution that the king, by refusing to the posterity
of such barons a writ of summons to parliament, might deprive them of
their nobility, and reduce them for ever to the rank of commoners.

[471] It has been doubted, notwithstanding the authority of Spelman, and
some earlier but rather precarious testimony, whether the chancellor
before the Conquest was any more than a scribe or secretary. Palgrave,
in the Quarterly Review, xxxiv. 291. The Anglo-Saxon charters, as far as
I have observed, never mention him as a witness; which seems a very
strong circumstance. Ingulfus, indeed, has given a pompous account of
chancellor Turketul; and, if the history ascribed to Ingulfus be
genuine, the office must have been of high dignity. Lord Campbell
assumes this in his Lives of the Chancellors.

[472] The words of the petition and answer are the following:--

"Item, que nul franc homme ne soit mys a respondre de son franc
tenement, ne de riens qui touche vie et membre, fyns ou redemptions, par
apposailles devant le conseil notre seigneur le roi, ne devant ses
ministres queconques, sinoun par proces de ley de ces en arere use."

"Il plest a notre seigneur le roi que les leies de son roialme soient
tenuz et gardez en lour force, et que nul homme soit tenu a respondre de
son fraunk tenement, sinoun par processe de ley: mes de chose que touche
vie ou membre, contemptz ou excesse, soit fait come ad este use ces en
arere." Rot. Par. ii. 228.

It is not easy to perceive what was reserved by the words "chose que
touche vie ou membre;" for the council never determined these. Possibly
it regarded accusations of treason or felony, which they might entertain
as an inquest, though they would ultimately be tried by a jury.
Contempts are easily understood; and by excesses were meant riots and
seditions. These political offences, which could not be always safely
tried in a lower court, it was the constant intention of the government
to reserve for the council.

[473] See Note in p. 145, for the statute 31 H. VI. c. 2.

[474] See Constitutional History of England, vol. i. p. 49. (1842.)

[475] It has been mentioned in a former note, on Mr. Allen's authority,
that the folcland had acquired the appellation _terra regis_ before the
Conquest.

[476] A presumptive proof of this may be drawn from a chapter in the
Laws of Henry I. c. 81, where the penalty payable by a villein for
certain petty offences is set at thirty pence; that of a _cotset_ at
fifteen; and of a theow at six. The passage is extremely obscure; and
this proportion of the three classes of men is almost the only part that
appears evident. The cotset, who is often mentioned in Domesday, may
thus have been an inferior villein, nearly similar to what Glanvil and
later law-books call such.

[477] The following passage in the Chronicle of Brakelond does not
mention any manumission of the ceorl on whom abbot Samson conferred a
manor:--Unum solum manerium carta sua confirmavit cuidam Anglico
natione, _glebæ adscripto_, de cujus fidelitate plenius confidebat quia
bonus agricola erat, et quia nesciebat loqui Gallicè. p. 24.

[478] Mr. Wright has given a few specimens in Essays on the Literature
and Popular Superstitions of England in the Middle Ages, vol. i. p. 257.
In fact we may reckon Piers Plowman an instance of popular satire,
though far superior to the rest.



CHAPTER IX.[479]

ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES.

PART I.

     Introduction--Decline of Literature in the latter Period of the Roman
     Empire--Its Causes--Corruption of the Latin Language--Means by which
     it was effected--Formation of new Languages--General Ignorance of the
     Dark Ages--Scarcity of Books--Causes that prevented the total
     Extinction of Learning--Prevalence of Superstition and Fanaticism--
     General Corruption of Religion--Monasteries--their Effects--
     Pilgrimages--Love of Field Sports--State of Agriculture--of Internal
     and Foreign Trade down to the End of the Eleventh Century--Improvement
     of Europe dated from that Age.


It has been the object of every preceding chapter of this work, either
to trace the civil revolutions of states during the period of the middle
ages, or to investigate, with rather more minute attention, their
political institutions. There remains a large tract to be explored, if
we would complete the circle of historical information, and give to our
knowledge that copiousness and clear perception which arise from
comprehending a subject under numerous relations. The philosophy of
history embraces far more than the wars and treaties, the factions and
cabals of common political narration; it extends to whatever illustrates
the character of the human species in a particular period, to their
reasonings and sentiments, their arts and industry. Nor is this
comprehensive survey merely interesting to the speculative philosopher;
without it the statesman would form very erroneous estimates of events,
and find himself constantly misled in any analogical application of them
to present circumstances. Nor is it an uncommon source of error to
neglect the general signs of the times, and to deduce a prognostic from
some partial coincidence with past events, where a more enlarged
comparison of all the facts that ought to enter into the combination
would destroy the whole parallel. The philosophical student, however,
will not follow the antiquary into his minute details; and though it is
hard to say what may not supply matter for a reflecting mind, there is
always some danger of losing sight of grand objects in historical
disquisition, by too laborious a research into trifles. I may possibly
be thought to furnish, in some instances, an example of the error I
condemn. But in the choice and disposition of topics to which the
present chapter relates, some have been omitted oh account of their
comparative insignificance, and others on account of their want of
connexion with the leading subject. Even of those treated I can only
undertake to give a transient view; and must bespeak the reader's
candour to remember that passages which, separately taken, may often
appear superficial, are but parts of the context of a single chapter, as
the chapter itself is of an entire work.

The Middle Ages, according to the division I have adopted, comprise
about one thousand years, from the invasion of France by Clovis to that
of Naples by Charles VIII. This period, considered as to the state of
society, has been esteemed dark through ignorance, and barbarous through
poverty and want of refinement. And although this character is much less
applicable to the last two centuries of the period than to those which
preceded its commencement, yet we cannot expect to feel, in respect of
ages at best imperfectly civilized and slowly progressive, that interest
which attends a more perfect development of human capacities, and more
brilliant advances in improvement. The first moiety indeed of these ten
ages is almost absolutely barren, and presents little but a catalogue of
evils. The subversion of the Roman empire, and devastation of its
provinces, by barbarous nations, either immediately preceded, or were
coincident with the commencement of the middle period. We begin in
darkness and calamity; and though the shadows grow fainter as we
advance, yet we are to break off our pursuit as the morning breathes
upon us, and the twilight reddens into the lustre of day.

[Sidenote: Decline of learning in Roman empire.]

No circumstance is so prominent on the first survey of society during
the earlier centuries of this period as the depth of ignorance in which
it was immersed; and as from this, more than any single cause, the moral
and social evils which those ages experienced appear to have been
derived and perpetuated, it deserves to occupy the first place in the
arrangement of our present subject. We must not altogether ascribe the
ruin of literature to the barbarian destroyers of the Roman empire. So
gradual, and, apparently, so irretrievable a decay had long before
spread over all liberal studies, that it is impossible to pronounce
whether they would not have been almost equally extinguished if the
august throne of the Cæsars had been left to moulder by its intrinsic
weakness. Under the paternal sovereignty of Marcus Aurelius the
approaching declension of learning might be scarcely perceptible to an
incurious observer. There was much indeed to distinguish his times from
those of Augustus; much lost in originality of genius, in correctness of
taste, in the masterly conception and consummate finish of art, in
purity of the Latin, and even of the Greek language. But there were men
who made the age famous, grave lawyers, judicious historians, wise
philosophers; the name of learning was honourable, its professors were
encouraged; and along the vast surface of the Roman empire there was
perhaps a greater number whose minds were cultivated by intellectual
discipline than under the more brilliant reign of the first emperor.

[Sidenote: Its causes.]

It is not, I think, very easy to give a perfectly satisfactory solution
of the rapid downfall of literature between the ages of Antonine and of
Diocletian. Perhaps the prosperous condition of the empire from Trajan
to Marcus Aurelius, and the patron age which those good princes bestowed
on letters, gave an artificial health to them for a moment, and
suspended the operation of a disease which had already begun to
undermine their vigour. Perhaps the intellectual energies of mankind can
never remain stationary; and a nation that ceases to produce original
and inventive minds, born to advance the landmarks of knowledge or
skill, will recede from step to step, till it loses even the secondary
merits of imitation and industry. During the third century, not only
there were no great writers, but even few names of indifferent writers
have been recovered by the diligence of modern inquiry.[480] Law
neglected, philosophy perverted till it became contemptible, history
nearly silent, the Latin tongue growing rapidly barbarous, poetry rarely
and feebly attempted, art more and more vitiated; such were the symptoms
by which the age previous to Constantine announced the decline of human
intellect. If we cannot fully account for this unhappy change, as I have
observed, we must, however, assign much weight to the degradation of
Rome and Italy in the system of Severus and his successors, to the
admission of barbarians into the military and even civil dignities of
the empire, to the discouraging influence of provincial and illiterate
sovereigns, and to the calamities which followed for half a century the
first invasion of the Goths and the defeat of Decius. To this sickly
condition of literature the fourth century supplied no permanent remedy.
If under the house of Constantine the Roman world suffered rather less
from civil warfare or barbarous invasions than in the preceding age, yet
every other cause of decline just enumerated prevailed with aggravated
force; and the fourth century set in storms, sufficiently destructive in
themselves, and ominous of those calamities which humbled the majesty of
Rome at the commencement of the ensuing period, and overwhelmed the
Western Empire in absolute and final ruin before its termination.

The diffusion of literature is perfectly distinguishable from its
advancement; and whatever obscurity we may find in explaining the
variations of the one, there are a few simple causes which seem to
account for the other. Knowledge will be spread over the surface of a
nation in proportion to the facilities of education; to the free
circulation of books; to the emoluments and distinctions which literary
attainments are found to produce; and still more to the reward which
they meet in the general respect and applause of society. This cheering
incitement, the genial sunshine of approbation, has at all times
promoted the cultivation of literature in small republics rather than
large empires, and in cities compared with the country. If these are the
sources which nourish literature, we should naturally expect that they
must have become scanty or dry when learning languishes or expires.
Accordingly, in the later ages of the Roman empire a general
indifference towards the cultivation of letters became the
characteristic of its inhabitants. Laws were indeed enacted by
Constantine, Julian, Theodosius, and other emperors, for the
encouragement of learned men and the promotion of liberal education. But
these laws, which would not perhaps have been thought necessary in
better times, were unavailing to counteract the lethargy of ignorance in
which even the native citizens of the empire were contented to repose.
This alienation of men from their national literature may doubtless be
imputed in some measure to its own demerits. A jargon of mystical
philosophy, half fanaticism and half imposture, a barren and inflated
eloquence, a frivolous philology, were not among those charms of wisdom
by which man is to be diverted from pleasure or aroused from indolence.

In this temper of the public mind there was little probability that new
compositions of excellence would be produced, and much doubt whether the
old would be preserved. Since the invention of printing, the absolute
extinction of any considerable work seems a danger too improbable for
apprehension. The press pours forth in a few days a thousand volumes,
which, scattered like seeds in the air over the republic of Europe,
could hardly be destroyed without the extirpation of its inhabitants.
But in the times of antiquity manuscripts were copied with cost, labour,
and delay; and if the diffusion of knowledge be measured by the
multiplication of books, no unfair standard, the most golden ages of
ancient learning could never bear the least comparison with the three
last centuries. The destruction of a few libraries by accidental fire,
the desolation of a few provinces by unsparing and illiterate
barbarians, might annihilate every vestige of an author, or leave a few
scattered copies, which, from the public indifference, there was no
inducement to multiply, exposed to similar casualties in succeeding
times.

We are warranted by good authorities to assign, as a collateral cause of
this irretrievable revolution the neglect of heathen literature by the
Christian church. I am not versed enough in ecclesiastical writers to
estimate the degree of this neglect; nor am I disposed to deny that the
mischief was beyond recovery before the accession of Constantine. From
the primitive ages, however, it seems that a dislike of pagan learning
was pretty general among Christians. Many of the fathers undoubtedly
were accomplished in liberal studies, and we are indebted to them for
valuable fragments of authors whom we have lost. But the literary
character of the church is not to be measured by that of its more
illustrious leaders. Proscribed and persecuted, the early Christians had
not perhaps access to the public schools, nor inclination to studies
which seemed, very excusably, uncongenial to the character of their
profession. Their prejudices, however, survived the establishment of
Christianity. The fourth council of Carthage in 398 prohibited the
reading of secular books by bishops. Jerome plainly condemns the study
of them except for pious ends. All physical science especially was held
in avowed contempt, as inconsistent with revealed truths. Nor do there
appear to have been any canons made in favour of learning, or any
restriction on the ordination of persons absolutely illiterate.[481]
There was indeed abundance of what is called theological learning
displayed in the controversies of the fourth and fifth centuries; and
those who admire such disputations may consider the principal champions
in them as contributing to the glory, or at least retarding the decline,
of literature. But I believe rather that polemical disputes will be
found not only to corrupt the genuine spirit of religion, but to degrade
and contract the faculties. What keenness and subtlety these may
sometimes acquire by such exercise is more like that worldly shrewdness
we see in men whose trade it is to outwit their neighbours than the
clear and calm discrimination of philosophy. However this may be, it
cannot be doubted that the controversies agitated in the church during
these two centuries must have diverted studious minds from profane
literature, and narrowed more and more the circle of that knowledge
which they were desirous to attain.

The torrent of irrational superstitions which carried all before it in
the fifth century, and the progress of ascetic enthusiasm, had an
influence still more decidedly inimical to learning. I cannot indeed
conceive any state of society more adverse to the intellectual
improvement of mankind than one which admitted of no middle line between
gross dissoluteness and fanatical mortification. An equable tone of
public morals, social and humane, verging neither to voluptuousness nor
austerity, seems the most adapted to genius, or at least to letters, as
it is to individual comfort and national prosperity. After the
introduction of monkery and its unsocial theory of duties, the serious
and reflecting part of mankind, on whom science most relies, were turned
to habits which, in the most favourable view, could not quicken the
intellectual energies; and it might be a difficult question whether the
cultivators and admirers of useful literature were less likely to be
found among the profligate citizens of Rome and their barbarian
conquerors or the melancholy recluses of the wilderness.

Such therefore was the state of learning before the subversion of the
Western Empire. And we may form some notion how little probability there
was of its producing any excellent fruits, even if that revolution had
never occurred, by considering what took place in Greece during the
subsequent ages; where, although there was some attention shown to
preserve the best monuments of antiquity, and diligence in compiling
from them, yet no one original writer of any superior merit arose, and
learning, though plunged but for a short period into mere darkness, may
be said to have languished in a middle region of twilight for the
greater part of a thousand years.

But not to delay ourselves in this speculation, the final settlement of
barbarous nations in Gaul, Spain, and Italy consummated the ruin of
literature. Their first irruptions were uniformly attended with
devastation; and if some of the Gothic kings, after their establishment,
proved humane and civilized sovereigns, yet the nation gloried in its
original rudeness, and viewed with no unreasonable disdain arts which
had neither preserved their cultivators from corruption nor raised them
from servitude. Theodoric, the most famous of the Ostrogoth kings in
Italy, could not write his name, and is said to have restrained his
countrymen from attending those schools of learning by which he, or
rather perhaps his minister Cassiodorus, endeavoured to revive the
studies of his Italian subjects. Scarcely one of the barbarians, so long
as they continued unconfused with the native inhabitants, acquired the
slightest tincture of letters; and the praise of equal ignorance was
soon aspired to and attained by the entire mass of the Roman laity.
They, however, could hardly have divested themselves so completely of
all acquaintance with even the elements of learning, if the language in
which books were written had not ceased to be their natural dialect.
This remarkable change in the speech of France, Spain, and Italy is most
intimately connected with the extinction of learning; and there is
enough of obscurity as well as of interest in the subject to deserve
some discussion.

[Sidenote: Corruption of the Latin language.]

It is obvious, on the most cursory view of the French and Spanish
languages, that they, as well as the Italian, are derived from one
common source, the Latin. That must therefore have been at some period,
and certainly not since the establishment of the barbarous nations in
Spain and Gaul, substituted in ordinary use for the original dialects of
those countries which are generally supposed to have been Celtic, not
essentially differing from those which are spoken in Wales and Ireland.
Rome, says Augustin, imposed not only her yoke, but her language, upon
conquered nations. The success of such an attempt is indeed very
remarkable. Though it is the natural effect of conquest, or even of
commercial intercourse, to ingraft fresh words and foreign idioms on the
stock of the original language, yet the entire disuse of the latter, and
adoption of one radically different, scarcely takes place in the lapse
of a far longer period than that of the Roman dominion in Gaul. Thus, in
part of Britany the people speak a language which has perhaps sustained
no essential alteration from the revolution of two thousand years; and
we know how steadily another Celtic dialect has kept its ground in
Wales, notwithstanding English, laws and government, and the long line
of contiguous frontier which brings the natives of that principality
into contact with Englishmen. Nor did the Romans ever establish their
language (I know not whether they wished to do so) in this island, as we
perceive by that stubborn British tongue which has survived two
conquests.[482]

In Gaul and in Spain, however, they did succeed, as the present state of
the French and peninsular languages renders undeniable, though by
gradual changes, and not, as the Benedictine authors of the Histoire
Littéraire de la France seem to imagine, by a sudden and arbitrary
innovation.[483] This is neither possible in itself, nor agreeable to
the testimony of Irenæus, bishop of Lyons at the end of the second
century, who laments the necessity of learning Celtic.[484] But although
the inhabitants of these provinces came at length to make use of Latin
so completely as their mother tongue that few vestiges of their original
Celtic could perhaps be discovered in their common speech, it does not
follow that they spoke with the pure pronunciation of Italians, far less
with that conformity to the written sounds which we assume to be
essential to the expression of Latin words.

[Sidenote: Ancient Latin pronunciation.]

It appears to be taken for granted that the Romans pronounced their
language as we do at present, so far at least as the enunciation of all
the consonants, however we may admit our deviations from the classical
standard in propriety of sounds and in measure of time. Yet the example
of our own language, and of French, might show us that orthography may
become a very inadequate representative of pronunciation. It is indeed
capable of proof that in the purest ages of Latinity some variation
existed between these two. Those numerous changes in spelling which
distinguish the same words in the poetry of Ennius and of Virgil are
best explained by the supposition of their being accommodated, to the
current pronunciation. Harsh combinations of letters, softened down
through delicacy of ear or rapidity of utterance, gradually lost their
place in the written language. Thus _exfregit_ and _adrogavit_ assumed a
form representing their more liquid sound; and _auctor_ was latterly
spelled _autor_, which has been followed in French and Italian. _Autor_
was probably so pronounced at all times; and the orthography was
afterwards corrected or corrupted, whichever we please to say, according
to the sound. We have the best authority to assert that the final _m_
was very faintly pronounced, rather it seems as a rest and short
interval between two syllables than an articulate letter; nor indeed can
we conceive upon what other ground it was subject to elision before a
vowel in verse, since we cannot suppose that the nice ears of Rome would
have submitted to a capricious rule of poetry for which Greece presented
no analogy.[485]

A decisive proof, in my opinion, of the deviation which took place,
through the rapidity of ordinary elocution, from the strict laws of
enunciation, may be found in the metre of Terence. His verses, which are
absolutely refractory to the common laws of prosody, may be readily
scanned by the application of this principle. Thus, in the first act of
the Heautontimorumenos, a part selected at random, I have found, I.
Vowels contracted or dropped so as to shorten the word by a syllable; in
_rei_, _viâ_, _diutius_, _ei_, _solius_, _eam_, _unius_, _suam_,
_divitias_, _senex_, _voluptatem_, _illius_, _semel_; II. The
proceleusmatic foot, or four short syllables, instead of the dactyl;
scen. i. v. 59, 73, 76, 88, 109; scen. ii. v. 36; III. The elision of
_s_ in words ending with _us_ or _is_ short, and sometimes even of the
whole syllable, before the next word beginning with a vowel; in scen. i.
v. 30, 81, 98, 101, 116, 119; scen. ii. v. 28. IV. The first syllable
of _ille_ is repeatedly shortened, and indeed nothing is more usual in
Terence than this licence; whence we may collect how ready this word was
for abbreviation into the French and Italian articles. V. The last
letter of _apud_ is cut off, scen. i. v. 120; and scen. ii. v. 8. VI.
_Hodie_ is used as a pyrrhichius, in scen. ii. v. 11. VII. Lastly, there
is a clear instance of a short syllable, the antepenultimate of
_impulerim_, lengthened on account of the accent at the 113th verse of
the first scene.

[Sidenote: Its corruption by the populace,]

[Sidenote: and the provincials.]

These licences are in all probability chiefly colloquial, and would not
have been adopted in public harangues, to which the precepts of
rhetorical writers commonly relate. But if the more elegant language of
the Romans, since such we must suppose to have been copied by Terence
for his higher characters, differed so much in ordinary discourse from
their orthography, it is probable that the vulgar went into much greater
deviations. The popular pronunciation errs generally, we might say
perhaps invariably, by abbreviation of words, and by liquefying
consonants, as is natural to the rapidity of colloquial speech.[486] It
is by their knowledge of orthography and etymology that the more
educated part of the community is preserved from these corrupt modes of
pronunciation. There is always therefore a standard by which common
speech may be rectified; and in proportion to the diffusion of knowledge
and politeness the deviations from it will be more slight and gradual.
But in distant provinces, and especially where the language itself is
but of recent introduction, many more changes may be expected to occur.
Even in France and England there are provincial dialects, which, if
written with all their anomalies of pronunciation as well as idiom,
would seem strangely out of unison with the regular language; and in
Italy, as is well known, the varieties of dialect are still more
striking. Now, in an advancing state of society, and especially with
such a vigorous political circulation as we experience in England,
language will constantly approximate to uniformity, as provincial
expressions are more and more rejected for incorrectness or inelegance.
But, where literature is on the decline, and public misfortunes contract
the circle of those who are solicitous about refinement, as in the last
ages of the Roman empire, there will be no longer any definite standard
of living speech, nor any general desire to conform to it if one could
be found; and thus the vicious corruptions of the vulgar will entirely
predominate. The niceties of ancient idiom will be totally lost, while
new idioms will be formed out of violations of grammar sanctioned by
usage, which, among a civilized people, would have been proscribed at
their appearance.

Such appears to have been the progress of corruption in the Latin
language. The adoption of words from the Teutonic dialects of the
barbarians, which took place very freely, would not of itself have
destroyed the character of that language, though it sullied its purity.
The worst law Latin of the middle ages is still Latin, if its barbarous
terms have been bent to the regular inflections. It is possible, on the
other hand, to write whole pages of Italian, wherein every word shall be
of unequivocal Latin derivation, though the character and personality,
if I may so say, of the language be entirely dissimilar. But, as I
conceive, the loss of literature took away the only check upon arbitrary
pronunciation and upon erroneous grammar. Each people innovated through
caprice, imitation of their neighbours, or some of those indescribable
causes which dispose the organs of different nations to different
sounds. The French melted down the middle consonants; the Italians
omitted the final. Corruptions arising out of ignorance were mingled
with those of pronunciation. It would have been marvellous if illiterate
and semi-barbarous provincials had preserved that delicate precision in
using the inflections of tenses which our best scholars do not clearly
attain. The common speech of any people whose language is highly
complicated will be full of solecisms. The French inflections are not
comparable in number or delicacy to the Latin, and yet the vulgar
confuse their most ordinary forms.

But, in all probability, the variation of these derivative languages
from popular Latin has been considerably less than it appears. In the
purest ages of Latinity the citizens of Rome itself made use of many
terms which we deem barbarous, and of many idioms which we should reject
as modern. That highly complicated grammar, which the best writers
employed, was too elliptical and obscure, too deficient in the
connecting parts of speech, for general use. We cannot indeed ascertain
in what degree the vulgar Latin differed from that of Cicero or Seneca.
It would be highly absurd to imagine, as some are said to have done,
that modern Italian was spoken at Rome under Augustus.[487] But I
believe it may be asserted not only that much the greater part of those
words in the present language of Italy which strike us as incapable of a
Latin etymology are in fact derived from those current in the Augustan
age, but that very many phrases which offended nicer ears prevailed in
the same vernacular speech, and have passed from thence into the modern
French and Italian. Such, for example, was the frequent use of
prepositions to indicate a relation between two parts of a sentence
which a classical writer would have made to depend on mere
inflection.[488]

From the difficulty of retaining a right discrimination of tense seems
to have proceeded the active auxiliary verb. It is possible that this
was borrowed from the Teutonic languages of the barbarians, and
accommodated both by them and by the natives to words of Latin origin.
The passive auxiliary is obtained by a very ready resolution of any
tense in that mood, and has not been altogether dispensed with even in
Greek, while in Latin it is used much more frequently. It is not quite
so easy to perceive the propriety of the active habeo or teneo, one or
both of which all modern languages have adopted as their auxiliaries in
conjugating the verb. But in some instances this analysis is not
improper; and it may be supposed that nations, careless of etymology or
correctness, applied the same verb by a rude analogy to cases where it
ought not strictly to have been employed.[489]

Next to the changes founded on pronunciation and to the substitution of
auxiliary verbs for inflections, the usage of the definite and
indefinite articles in nouns appears the most considerable step in the
transmutation of Latin into its derivative languages. None but Latin, I
believe, has ever wanted this part of speech; and the defect to which
custom reconciled the Romans would be an insuperable stumbling-block to
nations who were to translate their original idiom into that language. A
coarse expedient of applying _unus_, _ipse_, or _ille_ to the purposes
of an article might perhaps be no unfrequent vulgarism of the
provincials; and after the Teutonic tribes brought in their own grammar,
it was natural that a corruption should become universal, which in fact
supplied a real and essential deficiency.

[Sidenote: Pronunciation no longer regulated by quantity.]

That the quantity of Latin syllables is neglected, or rather lost, in
modern pronunciation, seems to be generally admitted. Whether, indeed,
the ancient Romans, in their ordinary speaking, distinguished the
measure of syllables with such uniform musical accuracy as we imagine,
giving a certain time to those termed long, and exactly half that
duration to the short, might very reasonably be questioned; though this
was probably done, or attempted to be done, by every reader of poetry.
Certainly, however, the laws of quantity were forgotten, and an
accentual pronunciation came to predominate, before Latin had ceased to
be a living language. A Christian writer named Commodianus, who lived
before the end of the third century according to some, or, as others
think, in the reign of Constantine, has left us a philological
curiosity, in a series of attacks on the pagan superstitions, composed
in what are meant to be verses, regulated by accent instead of quantity,
exactly as we read Virgil at present.[490]

It is not improbable that Commodianus may have written in Africa, the
province in which more than any the purity of Latin was debased. At the
end of the fourth century St. Augustin assailed his old enemies, the
Donatists, with nearly the same arms that Commodianus had wielded
against heathenism. But as the refined and various music of hexameters
was unlikely to be relished by the vulgar, he prudently adopted a
different measure.[491] All the nations of Europe seem to love the
trochaic verse; it was frequent on the Greek and Roman stage; it is more
common than any other in the popular poetry of modern languages. This
proceeds from its simplicity, its liveliness, and its ready
accommodation to dancing and music. In St. Austin's poem he united to a
trochaic measure the novel attraction of rhyme.

As Africa must have lost all regard to the rules of measure in the
fourth century, so it appears that Gaul was not more correct in the next
two ages. A poem addressed by Auspicius bishop of Toul to count
Arbogastes, of earlier date probably than the invasion of Clovis, is
written with no regard to quantity.[492] The bishop by whom this was
composed is mentioned by his contemporaries as a man of learning.
Probably he did not choose to perplex the barbarian to whom he was
writing (for Arbogastes is plainly a barbarous name) by legitimate Roman
metre. In the next century Gregory of Tours informs us that Chilperic
attempted to write Latin verses; but the lines could not be reconciled
to any division of feet; his ignorance having confounded long and short
syllables together.[493] Now Chilperic must have learned to speak Latin
like other kings of the Franks, and was a smatterer in several kinds of
literature. If Chilperic therefore was not master of these distinctions,
we may conclude that the bishops and other Romans with whom he conversed
did not observe them; and that his blunders in versification arose from
ignorance of rules, which, however fit to be preserved in poetry, were
entirely obsolete in the living Latin of his age. Indeed the frequency
of false quantities in the poets even of the fifth, but much more of the
sixth century, is palpable. Fortunatus is quite full of them. This seems
a decisive proof that the ancient pronunciation was lost. Avitus tells
us that few preserved the proper measure of syllables in singing. Yet he
was bishop of Vienne, where a purer pronunciation might be expected than
in the remoter parts of Gaul.[494]

[Sidenote: Change of Latin into Romance.]

Defective, however, as it had become in respect of pronunciation, Latin
was still spoken in France during the sixth and seventh centuries. We
have compositions of that time, intended for the people, in grammatical
language. A song is still extant in rhyme and loose accentual measure,
written upon a victory of Clotaire II. over the Saxons in 622, and
obviously intended for circulation among the people.[495] Fortunatus
says, in his Life of St. Aubin of Angers, that he should take care not
to use any expression unintelligible to the people.[496] Baudemind, in
the middle of the seventh century, declares, in his Life of St. Amand,
that he writes in a rustic and vulgar style, that the reader may be
excited to imitation.[497] Not that these legends were actually perused
by the populace, for the very art of reading was confined to a few. But
they were read publicly in the churches, and probably with a
pronunciation accommodated to the corruptions of ordinary language.
Still the Latin syntax must have been tolerably understood; and we may
therefore say that Latin had not ceased to be a living language, in Gaul
at least, before the latter part of the seventh century. Faults indeed
against the rules of grammar, as well as unusual idioms, perpetually
occur in the best writers of the Merovingian period, such as Gregory of
Tours; while charters drawn up by less expert scholars deviate much
further from purity.[498]

The corrupt provincial idiom became gradually more and more dissimilar
to grammatical Latin; and the lingua Romana rustica, as the vulgar
_patois_ (to borrow a word that I cannot well translate) had been
called, acquired a distinct character as a new language in the eighth
century.[499] Latin orthography, which had been hitherto pretty well
maintained in books, though not always in charters, gave way to a new
spelling, conformably to the current pronunciation. Thus we find lui,
for illius, in the Formularies of Marculfus; and Tu lo juva in a liturgy
of Charlemagne's age, for Tu illum juva. When this barrier was once
broken down, such a deluge of innovation poured in that all the
characteristics of Latin were effaced in writing as well as speaking,
and the existence of a new language became undeniable. In a council held
at Tours in 813 the bishops are ordered to have certain homilies of the
fathers translated into the rustic Roman, as well as the German
tongue.[500] After this it is unnecessary to multiply proofs of the
change which Latin had undergone.

[Sidenote: Its corruption in Italy.]

In Italy the progressive corruptions of the Latin language were
analogous to those which occurred in France, though we do not find in
writings any unequivocal specimens of a new formation at so early a
period. But the old inscriptions, even of the fourth and fifth
centuries, are full of solecisms and corrupt orthography. In legal
instruments under the Lombard kings the Latin inflections are indeed
used, but with so little regard to propriety that it is obvious the
writers had not the slightest tincture of grammatical knowledge. This
observation extends to a very large proportion of such documents down to
the twelfth century, and is as applicable to France and Spain as it is
to Italy. In these charters the peculiar characteristics of Italian
orthography and grammar frequently appear. Thus we find, in the eighth
century, diveatis for debeatis, da for de in the ablative, avendi for
habendi, dava for dabat, cedo a deo, and ad ecclesia, among many similar
corruptions.[501] Latin was so changed, it is said by a writer of
Charlemagne's age, that scarcely any part of it was popularly known.
Italy indeed had suffered more than France itself by invasion, and was
reduced to a lower state of barbarism, though probably, from the greater
distinctness of pronunciation habitual to the Italians, they lost less
of their original language than the French. I do not find, however, in
the writers who have treated this subject, any express evidence of a
vulgar language distinct from Latin earlier than the close of the tenth
century, when it is said in the epitaph of Pope Gregory V., who died in
999, that he instructed the people in three dialects--the Frankish or
German, the vulgar, and the Latin.[502]

[Sidenote: Ignorance consequent on the disuse of Latin.]

When Latin had thus ceased to be a living language, the whole treasury
of knowledge was locked up from the eyes of the people. The few who
might have imbibed a taste for literature, if books had been accessible
to them, were reduced to abandon pursuits that could only be cultivated
through a kind of education not easily within their reach. Schools,
confined to cathedrals and monasteries, and exclusively designed for the
purposes of religion, afforded no encouragement or opportunities to the
laity.[503] The worst effect was, that, as the newly-formed languages
were hardly made use of in writing, Latin being still preserved in all
legal instruments and public correspondence, the very use of letters, as
well as of books, was forgotten. For many centuries, to sum up the
account of ignorance in a word, it was rare for a layman, of whatever
rank, to know how to sign his name.[504] Their charters, till the use of
seals became general, were subscribed with the mark of the cross. Still
more extraordinary it was to find one who had any tincture of learning.
Even admitting every indistinct commendation of a monkish biographer
(with whom a knowledge of church-music would pass for literature[505]),
we could make out a very short list of scholars. None certainly were
more distinguished as such than Charlemagne and Alfred. But the former,
unless we reject a very plain testimony, was incapable of writing;[506]
and Alfred found difficulty in making a translation from the pastoral
instruction of St. Gregory, on account of his imperfect knowledge of
Latin.[507]

Whatever mention, therefore, we find of learning and the learned during
these dark ages, must be understood to relate only to such as were
within the pale of clergy, which indeed was pretty extensive, and
comprehended many who did not exercise the offices of religious
ministry. But even the clergy were, for a long period, not very
materially superior, as a body, to the uninstructed laity. A cloud of
ignorance overspread the whole face of the church, hardly broken by a
few glimmering lights, who owe much of their distinction to the
surrounding darkness. In the sixth century the best writers in Latin
were scarcely read;[508] and perhaps from the middle of this age to the
eleventh there was, in a general view of literature, little difference
to be discerned. If we look more accurately, there will appear certain
gradual shades of twilight on each side of the greatest obscurity.
France reached her lowest point about the beginning of the eighth
century; but England was at that time more respectable, and did not fall
into complete degradation till the middle of the ninth. There could be
nothing more deplorable than the state of letters in Italy and in
England during the succeeding century; but France cannot be denied to
have been uniformly, though very slowly, progressive from the time of
Charlemagne.[509]

Of this prevailing ignorance it is easy to produce abundant testimony.
Contracts were made verbally, for want of notaries capable of drawing up
charters; and these, when written, were frequently barbarous and
ungrammatical to an incredible degree. For some considerable intervals
scarcely any monument of literature has been preserved, except a few
jejune chronicles, the vilest legends of saints, or verses equally
destitute of spirit and metre. In almost every council the ignorance of
the clergy forms a subject for reproach. It is asserted by one held in
992 that scarcely a single person was to be found in Rome itself who
knew the first elements of letters.[510] Not one priest of a thousand in
Spain, about the age of Charlemagne, could address a common letter of
salutation to another.[511] In England, Alfred declares that he could
not recollect a single priest south of the Thames (the most civilized
part of England), at the time of his accession, who understood the
ordinary prayers, or could translate Latin into his mother tongue.[512]
Nor was this better in the time of Dunstan, when, it is said, none of
the clergy knew how to write or translate a Latin letter.[513] The
homilies which they preached were compiled for their use by some
bishops, from former works of the same kind, or the writings of the
fathers.

[Sidenote: Scarcity of books.]

This universal ignorance was rendered unavoidable, among other causes,
by the scarcity of books, which could only be procured at an immense
price. From the conquest of Alexandria by the Saracens at the beginning
of the seventh century, when the Egyptian papyrus almost ceased to be
imported into Europe, to the close of the eleventh, about which time the
art of making paper from cotton rags seems to have been introduced,
there were no materials for writing except parchment, a substance too
expensive to be readily spared for mere purposes of literature.[514]
Hence an unfortunate practice gained ground, of erasing a manuscript in
order to substitute another on the same skin. This occasioned the loss
of many ancient authors, who have made way for the legends of saints, or
other ecclesiastical rubbish.

[Sidenote: Want of eminent men in literature.]

If we would listen to some literary historians, we should believe that
the darkest ages contained many individuals, not only distinguished
among their contemporaries, but positively eminent for abilities and
knowledge. A proneness to extol every monk of whose production a few
letters or a devotional treatise survives, every bishop of whom it is
related that he composed homilies, runs through the laborious work of
the Benedictines of St. Maur, the Literary History of France, and, in a
less degree, is observable even in Tiraboschi, and in most books of this
class. Bede, Alcuin, Hincmar, Raban, and a number of inferior names,
become real giants of learning in their uncritical panegyrics. But one
might justly say that ignorance is the smallest defect of the writers of
these dark ages. Several of them were tolerably acquainted with books;
but that wherein they are uniformly deficient is original argument or
expression. Almost every one is a compiler of scraps from the fathers,
or from such semi-classical authors as Boethius, Cassiodorus, or
Martianus Capella.[515] Indeed I am not aware that there appeared more
than two really considerable men in the republic of letters from the
sixth to the middle of the eleventh century--John, surnamed Scotus or
Erigena, a native of Ireland; and Gerbert, who became pope by the name
of Silvester II.: the first endowed with a bold and acute metaphysical
genius; the second excellent, for the time when he lived, in
mathematical science and mechanical inventions.[516]

[Sidenote: Causes of the preservation of learning--religion.]

If it be demanded by what cause it happened that a few sparks of ancient
learning survived throughout this long winter, we can only ascribe their
preservation to the establishment of Christianity. Religion alone made a
bridge, as it were, across the chaos, and has linked the two periods of
ancient and modern civilization. Without this connecting principle,
Europe might indeed have awakened to intellectual pursuits, and the
genius of recent times needed not to be invigorated by the imitation of
antiquity. But the memory of Greece and Rome would have been feebly
preserved by tradition, and the monuments of those nations might have
excited, on the return of civilization, that vague sentiment of
speculation and wonder with which men now contemplate Persepolis or the
Pyramids. It is not, however, from religion simply that we have derived
this advantage, but from religion as it was modified in the dark ages.
Such is the complex reciprocation of good and evil in the dispensations
of Providence, that we may assert, with only an apparent paradox, that,
had religion been more pure, it would have been less permanent, and that
Christianity has been preserved by means of its corruptions. The sole
hope for literature depended on the Latin language; and I do not see why
that should not have been lost, if three circumstances in the prevailing
religious system, all of which we are justly accustomed to disapprove,
had not conspired to maintain it--the papal supremacy, the monastic
institutions, and the use of a Latin liturgy. 1. A continual intercourse
was kept up, in consequence of the first, between Rome and the several
nations of Europe; her laws were received by the bishops, her legates
presided in councils; so that a common language was as necessary in the
church as it is at present in the diplomatic relations of kingdoms. 2.
Throughout the whole course of the middle ages there was no learning,
and very little regularity of manners, among the parochial clergy.
Almost every distinguished man was either the member of a chapter or of
a convent. The monasteries were subjected to strict rules of discipline,
and held out, at the worst, more opportunities for study than the
secular clergy possessed, and fewer for worldly dissipations. But their
most important service was as secure repositories for books. All our
manuscripts have been preserved in this manner, and could hardly have
descended to us by any other channel; at least there were intervals when
I do not conceive that any royal or private libraries existed.[517] 3.
Monasteries, however, would probably have contributed very little
towards the preservation of learning, if the Scriptures and the liturgy
had been translated out of Latin when that language ceased to be
intelligible. Every rational principle of religious worship called for
such a change; but it would have been made at the expense of posterity.
One might presume, if such refined conjectures were consistent with
historical caution, that the more learned and sagacious ecclesiastics of
those times, deploring the gradual corruption of the Latin tongue, and
the danger of its absolute extinction, were induced to maintain it as a
sacred language, and the depository, as it were, of that truth and that
science which would be lost in the barbarous dialects of the vulgar.
But a simpler explanation is found in the radical dislike of innovation
which is natural to an established clergy. Nor did they want as good
pretexts, on the ground of convenience, as are commonly alleged by the
opponents of reform. They were habituated to the Latin words of the
church-service, which had become, by this association, the readiest
instruments of devotion, and with the majesty of which the Romance
jargon could bear no comparison. Their musical chants were adapted to
these sounds, and their hymns depended, for metrical effect, on the
marked accents and powerful rhymes which the Latin language affords. The
vulgate Latin of the Bible was still more venerable. It was like a copy
of a lost original; and a copy attested by one of the most eminent
fathers, and by the general consent of the church. These are certainly
no adequate excuses for keeping the people in ignorance; and the gross
corruption of the middle ages is in a great degree assignable to this
policy. But learning, and consequently religion, have eventually derived
from it the utmost advantage.

[Sidenote: Superstitions.]

In the shadows of this universal ignorance a thousand superstitions,
like foul animals of night, were propagated and nourished. It would be
very unsatisfactory to exhibit a few specimens of this odious brood,
when the real character of those times is only to be judged by their
accumulated multitude. In every age it would be easy to select proofs of
irrational superstition, which, separately considered, seem to degrade
mankind from its level in the creation; and perhaps the contemporaries
of Swedenborg and Southcote have no right to look very contemptuously
upon the fanaticism of their ancestors. There are many books from which
a sufficient number of instances may be collected to show the absurdity
and ignorance of the middle ages in this respect. I shall only mention
two, as affording more general evidence than any local or obscure
superstition. In the tenth century an opinion prevailed everywhere that
the end of the world was approaching. Many charters begin with these
words, "As the world is now drawing to its close." An army marching
under the emperor Otho I. was so terrified by an eclipse of the sun,
which it conceived to announce this consummation, as to disperse
hastily on all sides. As this notion seems to have been founded on some
confused theory of the millennium, it naturally died away when the
seasons proceeded in the eleventh century with their usual
regularity.[518] A far more remarkable and permanent superstition was
the appeal to Heaven in judicial controversies, whether through the
means of combat or of ordeal. The principle of these was the same; but
in the former it was mingled with feelings independent of religion--the
natural dictates of resentment in a brave man unjustly accused, and the
sympathy of a warlike people with the display of skill and intrepidity.
These, in course of time, almost obliterated the primary character of
judicial combat, and ultimately changed it into the modern duel, in
which assuredly there is no mixture of superstition.[519] But, in the
various tests of innocence which were called ordeals, this stood
undisguised and unqualified. It is not necessary to describe what is so
well known--the ceremonies of trial by handling hot iron, by plunging
the arm into boiling fluids, by floating or sinking in cold water, or by
swallowing a piece of consecrated bread. It is observable that, as the
interference of Heaven was relied upon as a matter of course, it seems
to have been reckoned nearly indifferent whether such a test was adopted
as must, humanly considered, absolve all the guilty, or one that must
convict all the innocent. The ordeals of hot iron or water were,
however, more commonly used; and it has been a perplexing question by
what dexterity these tremendous proofs were eluded. They seem at least
to have placed the decision of all judicial controversies in the hands
of the clergy, who must have known the secret, whatever that might be,
of satisfying the spectators that an accused person had held a mass of
burning iron with impunity. For several centuries this mode of
investigation was in great repute, though not without opposition from
some eminent bishops. It does discredit to the memory of Charlemagne
that he was one of its warmest advocates.[520] But the judicial combat,
which indeed might be reckoned one species of ordeal, gradually put an
end to the rest; and as the church acquired better notions of law, and a
code of her own, she strenuously exerted herself against all these
barbarous superstitions.[521]

[Sidenote: Enthusiastic risings.]

But the religious ignorance of the middle ages sometimes burst out in
ebullitions of epidemical enthusiasm, more remarkable than these
superstitious usages, though proceeding in fact from similar causes. For
enthusiasm is little else than superstition put in motion, and is
equally founded on a strong conviction of supernatural agency without
any just conceptions of its nature. Nor has any denomination of
Christians produced, or even sanctioned, more fanaticism than the church
of Rome. These epidemical frenzies, however, to which I am alluding,
were merely tumultuous, though certainly fostered by the creed of
perpetual miracles which the clergy inculcated, and drawing a legitimate
precedent for religious insurrection from the crusades. For these, among
other evil consequences, seem to have principally excited a wild
fanaticism that did not sleep for several centuries.[522]

The first conspicuous appearance of it was in the reign of Philip
Augustus, when the mercenary troops, dismissed from the pay of that
prince and of Henry II., committed the greatest outrages in the south of
France. One Durand, a carpenter, deluded it is said by a contrived
appearance of the Virgin, put himself at the head of an army of the
populace, in order to destroy these marauders. His followers were styled
Brethren of the White Caps, from the linen coverings of their heads.
They bound themselves not to play at dice nor frequent taverns, to wear
no affected clothing, to avoid perjury and vain swearing. After some
successes over the plunderers, they went so far as to forbid the lords
to take any dues from their vassals, on pain of incurring the
indignation of the brotherhood. It may easily be imagined that they were
soon entirely discomfited, so that no one dared to own that he had
belonged to them.[523]

During the captivity of St. Louis in Egypt, a more extensive and
terrible ferment broke out in Flanders, and spread from thence over
great part of France. An impostor declared himself commissioned by the
Virgin to preach a crusade, not to the rich and noble, who for their
pride had been rejected of God, but the poor. His disciples were called
Pastoureaux, the simplicity of shepherds having exposed them more
readily to this delusion. In a short time they were swelled by the
confluence of abundant streams to a moving mass of a hundred thousand
men, divided into companies, with banners bearing a cross and a lamb,
and commanded by the impostor's lieutenants. He assumed a priestly
character, preaching, absolving, annulling marriages. At Amiens,
Bourges, Orleans, and Paris itself, he was received as a divine prophet.
Even the regent Blanche, for a time, was led away by the popular tide.
His main topic was reproach of the clergy for their idleness and
corruption--a theme well adapted to the ears of the people, who had long
been uttering similar strains of complaint. In some towns his followers
massacred the priests and plundered the monasteries. The government at
length began to exert itself; and the public sentiment turning against
the authors of so much confusion, this rabble was put to the sword or
dissipated.[524] Seventy years afterwards an insurrection, almost
exactly parallel to this, burst out under the same pretence of a
crusade. These insurgents, too, bore the name of Pastoureaux, and their
short career was distinguished by a general massacre of the Jews.[525]

But though the contagion of fanaticism spreads much more rapidly among
the populace, and in modern times is almost entirely confined to it,
there were examples, in the middle ages, of an epidemical religious
lunacy, from which no class was exempt. One of these occurred about the
year 1260, when a multitude of every rank, age, and sex, marching two by
two in procession along the streets and public roads, mingled groans and
dolorous hymns with the sound of leathern scourges which they exercised
upon their naked backs. From this mark of penitence, which, as it bears
at least all the appearance of sincerity, is not uncommon in the church
of Rome, they acquired the name of Flagellants. Their career began, it
is said, at Perugia, whence they spread over the rest of Italy, and into
Germany and Poland. As this spontaneous fanaticism met with no
encouragement from the church, and was prudently discountenanced by the
civil magistrate, it died away in a very short time.[526] But it is more
surprising that, after almost a century and a half of continual
improvement and illumination, another irruption of popular extravagance
burst out under circumstances exceedingly similar.[527] "In the month
of August 1399," says a contemporary historian, "there appeared all over
Italy a description of persons, called Bianchi, from the white linen
vestment that they wore. They passed from province to province, and from
city to city, crying out Misericordia! with their faces covered and bent
towards the ground, and bearing before them a great crucifix. Their
constant song was Stabat Mater dolorosa. This lasted three months; and
whoever did not attend their procession was reputed a heretic."[528]
Almost every Italian writer of the time takes notice of these Bianchi;
and Muratori ascribes a remarkable reformation of manners (though
certainly a very transient one) to their influence.[529] Nor were they
confined to Italy, though no such meritorious exertions are imputed to
them in other countries. In France their practice of covering the face
gave such opportunity to crimes as to be prohibited by the
government;[530] and we have an act on the rolls of the first parliament
of Henry IV., forbidding any one, "under pain of forfeiting all his
worth, to receive the new sect in white clothes, pretending to great
sanctity," which had recently appeared in foreign parts.[531]

[Sidenote: Pretended miracles.]

The devotion of the multitude was wrought to this feverish height by the
prevailing system of the clergy. In that singular polytheism, which had
been grafted on Christianity, nothing was so conspicuous as the belief
of perpetual miracles--if indeed those could properly be termed miracles
which, by their constant recurrence, even upon trifling occasions, might
seem within the ordinary dispensations of Providence. These
superstitions arose in what are called primitive times, and are
certainly no part of popery, if in that word we include any especial
reference to the Roman see. But successive ages of ignorance swelled the
delusion to such an enormous pitch, that it was as difficult to trace,
we may say without exaggeration, the real religion of the Gospel in the
popular belief of the laity, as the real history of Charlemagne in the
romance of Turpin. It must not be supposed that these absurdities were
produced, as well as nourished, by ignorance. In most cases they were
the work of deliberate imposture. Every cathedral or monastery had its
tutelar saint, and every saint his legend, fabricated in order to enrich
the churches under his protection, by exaggerating his virtues, his
miracles, and consequently his power of serving those who paid liberally
for his patronage.[532] Many of those saints were imaginary persons;
sometimes a blundered inscription added a name to the calendar, and
sometimes, it is said, a heathen god was surprised at the company to
which he was introduced, and the rites with which he was honoured.[533]

[Sidenote: Mischiefs arising from this superstition.]

It would not be consonant to the nature of the present work to dwell
upon the erroneousness of this religion; but its effect upon the moral
and intellectual character of mankind was so prominent, that no one can
take a philosophical view of the middle ages without attending more than
is at present fashionable to their ecclesiastical history. That the
exclusive worship of saints, under the guidance of an artful though
illiterate priesthood, degraded the understanding and begot a stupid
credulity and fanaticism, is sufficiently evident. But it was also so
managed as to loosen the bonds of religion and pervert the standard of
morality. If these inhabitants of heaven had been represented as stern
avengers, accepting no slight atonement for heavy offences, and prompt
to interpose their control over natural events for the detection and
punishment of guilt, the creed, however impossible to be reconciled with
experience, might have proved a salutary check upon a rude people, and
would at least have had the only palliation that can be offered for a
religious imposture, its political expediency. In the legends of those
times, on the contrary, they appeared only as perpetual intercessors,
so good-natured and so powerful, that a sinner was more emphatically
foolish than he is usually represented if he failed to secure himself
against any bad consequences. For a little attention to the saints, and
especially to the Virgin, with due liberality to their servants, had
saved, he would be told, so many of the most atrocious delinquents, that
he might equitably presume upon similar luck in his own case.

This monstrous superstition grew to its height in the twelfth century.
For the advance that learning then made was by no means sufficient to
counteract the vast increase of monasteries, and the opportunities which
the greater cultivation of modern languages afforded for the diffusion
of legendary tales. It was now, too, that the veneration paid to the
Virgin, in early times very great, rose to an almost exclusive idolatry.
It is difficult to conceive the stupid absurdity and the disgusting
profaneness of those stories which were invented by the monks to do her
honour. A few examples have been thrown into a note.[534]

[Sidenote: Not altogether unmixed with good.]

Whether the superstition of these dark ages had actually passed that
point when it becomes more injurious to public morals and the welfare of
society than the entire absence of all religious notions is a very
complex question, upon which I would by no means pronounce an
affirmative decision.[535] A salutary influence, breathed from the
spirit of a more genuine religion, often displayed itself among the
corruptions of a degenerate superstition. In the original principles of
monastic orders, and the rules by which they ought at least to have been
governed, there was a character of meekness, self-denial, and charity
that could not wholly be effaced. These virtues, rather than justice
and veracity, were inculcated by the religious ethics of the middle
ages; and in the relief of indigence it may, upon the whole, be asserted
that the monks did not fall short of their profession.[536] This
eleemosynary spirit indeed remarkably distinguishes both Christianity
and Mohammedism from the moral systems of Greece and Rome, which were
very deficient in general humanity and sympathy with suffering. Nor do
we find in any single instance during ancient times, if I mistake not,
those public institutions for the alleviation of human miseries which
have long been scattered over every part of Europe. The virtues of the
monks assumed a still higher character when they stood forward as
protectors of the oppressed. By an established law, founded on very
ancient superstition, the precincts of a church afforded sanctuary to
accused persons. Under a due administration of justice this privilege
would have been simply and constantly mischievous, as we properly
consider it to be in those countries where it still subsists. But in the
rapine and tumult of the middle ages the right of sanctuary might as
often be a shield to innocence as an immunity to crime. We can hardly
regret, in reflecting on the desolating violence which prevailed, that
there should have been some green spots in the wilderness where the
feeble and the persecuted could find refuge. How must this right have
enhanced the veneration for religious institutions! How gladly must the
victims of internal warfare have turned their eyes from the baronial
castle, the dread and scourge of the neighbourhood, to those venerable
walls within which not even the clamour of arms could be heard to
disturb the chant of holy men and the sacred service of the altar! The
protection of the sanctuary was never withheld. A son of Chilperic king
of France having fled to that of Tours, his father threatened to ravage
all the lands of the church unless they gave him up. Gregory the
historian, bishop of the city, replied in the name of his clergy that
Christians could not be guilty of an act unheard of among pagans. The
king was as good as his word, and did not spare the estate of the
church, but dared not infringe its privileges. He had indeed previously
addressed a letter to St. Martin, which was laid on his tomb in the
church, requesting permission to take away his son by force; but the
honest saint returned no answer.[537]

[Sidenote: Vices of the monks and clergy.]

The virtues indeed, or supposed virtues, which had induced a credulous
generation to enrich so many of the monastic orders, were not long
preserved. We must reject, in the excess of our candour, all testimonies
that the middle ages present, from the solemn declaration of councils
and reports of judicial inquiry to the casual evidence of common fame in
the ballad or romance, if we would extenuate the general corruption of
those institutions. In vain new rules of discipline were devised, or the
old corrected by reforms. Many of their worst vices grew so naturally
out of their mode of life, that a stricter discipline could have no
tendency to extirpate them. Such were the frauds I have already noticed,
and the whole scheme of hypocritical austerities. Their extreme
licentiousness was sometimes hardly concealed by the cowl of sanctity. I
know not by what right we should disbelieve the reports of the
visitation under Henry VIII., entering as they do into a multitude of
specific charges both probable in their nature and consonant to the
unanimous opinion of the world.[538] Doubtless there were many
communities, as well as individuals, to whom none of these reproaches
would apply. In the very best view, however, that can be taken of
monasteries, their existence is deeply injurious to the general morals
of a nation. They withdraw men of pure conduct and conscientious
principles from the exercise of social duties, and leave the common mass
of human vice more unmixed. Such men are always inclined to form schemes
of ascetic perfection, which can only be fulfilled in retirement; but in
the strict rules of monastic life, and under the influence of a
grovelling superstition, their virtue lost all its usefulness. They fell
implicitly into the snares of crafty priests, who made submission to the
church not only the condition but the measure of all praise. "He is a
good Christian," says Eligius, a saint of the seventh century, "who
comes frequently to church; who presents an oblation that it may be
offered to God on the altar; who does not taste the fruits of his land
till he has consecrated a part of them to God; who can repeat the Creed
or the Lord's Prayer. Redeem your souls from punishment while it is in
your power; offer presents and tithes to churches, light candles in holy
places, as much as you can afford, come more frequently to church,
implore the protection of the saints; for, if you observe these things,
you may come with security at the day of judgment to say, Give unto us,
Lord, for we have given unto thee."[539]

With such a definition of the Christian character, it is not surprising
that any fraud and injustice became honourable when it contributed to
the riches of the clergy and glory of their order. Their frauds,
however, were less atrocious than the savage bigotry with which they
maintained their own system and infected the laity. In Saxony, Poland,
Lithuania, and the countries on the Baltic Sea, a sanguinary persecution
extirpated the original idolatry. The Jews were everywhere the objects
of popular insult and oppression, frequently of a general massacre,
though protected, it must be confessed, by the laws of the church, as
well as in general by temporal princes.[540] Of the crusades it is only
necessary to repeat that they began in a tremendous eruption of
fanaticism, and ceased only because that spirit could not be constantly
kept alive. A similar influence produced the devastation of Languedoc,
the stakes and scaffolds of the Inquisition, and rooted in the religious
theory of Europe those maxims of intolerance which it has so slowly, and
still perhaps so imperfectly, renounced.

From no other cause are the dictates of sound reason and the moral sense
of mankind more confused than by this narrow theological bigotry. For as
it must often happen that men to whom the arrogance of a prevailing
faction imputes religious error are exemplary for their performance of
moral duties, these virtues gradually cease to make their proper
impression, and are depreciated by the rigidly orthodox as of little
value in comparison with just opinions in speculative points. On the
other hand, vices are forgiven to those who are zealous in the faith. I
speak too gently, and with a view to later times; in treating of the
dark ages it would be more correct to say that crimes were commended.
Thus Gregory of Tours, a saint of the church, after relating a most
atrocious story of Clovis--the murder of a prince whom he had
previously instigated to parricide--continues the sentence: "For God
daily subdued his enemies to his hand, and increased his kingdom;
because he walked before him in uprightness, and did what was pleasing
in his eyes."[541]

[Sidenote: Commutation of penances.]

It is a frequent complaint of ecclesiastical writers that the rigorous
penances imposed by the primitive canons upon delinquents were commuted
in a laxer state of discipline for less severe atonements, and
ultimately indeed for money.[542] We must not, however, regret that the
clergy should have lost the power of compelling men to abstain fifteen
years from eating meat, or to stand exposed to public derision at the
gates of a church. Such implicit submissiveness could only have produced
superstition and hypocrisy among the laity, and prepared the road for a
tyranny not less oppressive than that of India or ancient Egypt. Indeed
the two earliest instances of ecclesiastical interference with the
rights of sovereigns--namely, the deposition of Wamba in Spain and that
of Louis the Debonair--were founded upon this austere system of
penitence. But it is true that a repentance redeemed by money or
performed by a substitute could have no salutary effect on the sinner;
and some of the modes of atonement which the church most approved were
particularly hostile to public morals. None was so usual as pilgrimage,
whether to Jerusalem or Rome, which were the great objects of devotion;
or to the shrine of some national saint--a James of Compostella, a
David, or a Thomas à Becket. This licensed vagrancy was naturally
productive of dissoluteness, especially among the women. Our English
ladies, in their zeal to obtain the spiritual treasures of Rome, are
said to have relaxed the necessary caution about one that was in their
own custody.[543] There is a capitulary of Charlemagne directed against
itinerant penitents, who probably considered the iron chain around their
necks an expiation of future as well as past offences.[544]

The crusades may be considered as martial pilgrimages on an enormous
scale, and their influence upon general morality seems to have been
altogether pernicious. Those who served under the cross would not indeed
have lived very virtuously at home; but the confidence in their own
merits, which the principle of such expeditions inspired, must have
aggravated the ferocity and dissoluteness of their ancient habits.
Several historians attest the depravation of morals which existed both
among the crusaders and in the states formed out of their
conquests.[545]

[Sidenote: Want of law.]

While religion had thus lost almost every quality that renders it
conducive to the good order of society, the control of human law was
still less efficacious. But this part of my subject has been anticipated
in other passages of the present work; and I shall only glance at the
want of regular subordination, which rendered legislative and judicial
edicts a dead letter, and at the incessant private warfare, rendered
legitimate by the usages of most continental nations. Such hostilities,
conducted as they must usually have been with injustice and cruelty,
could not fail to produce a degree of rapacious ferocity in the general
disposition of a people. And this certainly was among the
characteristics of every nation for many centuries.

[Sidenote: Degradation of morals.]

It is easy to infer the degradation of society during the dark ages from
the state of religion and police. Certainly there are a few great
landmarks of moral distinctions so deeply fixed in human nature, that no
degree of rudeness can destroy, nor even any superstition remove them.
Wherever an extreme corruption has in any particular society defaced
these sacred archetypes that are given to guide and correct the
sentiments of mankind, it is in the course of Providence that the
society itself should perish by internal discord or the sword of a
conqueror. In the worst ages of Europe there must have existed the seeds
of social virtues, of fidelity, gratitude, and disinterestedness,
sufficient at least to preserve the public approbation of more elevated
principles than the public conduct displayed. Without these imperishable
elements there could have been no restoration of the moral energies;
nothing upon which reformed faith, revived knowledge, renewed law, could
exercise their nourishing influences. But history, which reflects only
the more prominent features of society, cannot exhibit the virtues that
were scarcely able to struggle through the general depravation. I am
aware that a tone of exaggerated declamation is at all times usual with
those who lament the vices of their own time; and writers of the middle
ages are in abundant need of allowance on this score. Nor is it
reasonable to found any inferences as to the general condition of
society on single instances of crimes, however atrocious, especially
when committed under the influence of violent passion. Such enormities
are the fruit of every age, and none is to be measured by them. They
make, however, a strong impression at the moment, and thus find a place
in contemporary annals, from which modern writers are commonly glad to
extract whatever may seem to throw light upon manners. I shall,
therefore, abstain from producing any particular cases of dissoluteness
or cruelty from the records of the middle ages, lest I should weaken a
general proposition by offering an imperfect induction to support it,
and shall content myself with observing that times to which men
sometimes appeal, as to a golden period, were far inferior in every
moral comparison to those in which we are thrown.[546] One crime, as
more universal and characteristic than others, may be particularly
noticed. All writers agree in the prevalence of judicial perjury. It
seems to have almost invariably escaped human punishment; and the
barriers of superstition were in this, as in every other instance, too
feeble to prevent the commission of crimes. Many of the proofs by ordeal
were applied to witnesses as well as those whom they accused; and
undoubtedly trial by combat was preserved in a considerable degree on
account of the difficulty experienced in securing a just cause against
the perjury of witnesses. Robert king of France, perceiving how
frequently men forswore themselves upon the relics of saints, and less
shocked apparently at the crime than at the sacrilege, caused an empty
reliquary of crystal to be used, that those who touched it might incur
less guilt in fact, though not in intention. Such an anecdote
characterizes both the man and the times.[547]

[Sidenote: Love of field sports.]

The favourite diversions of the middle ages, in the intervals of war,
were those of hunting and hawking. The former must in all countries be a
source of pleasure; but it seems to have been enjoyed in moderation by
the Greeks and the Romans. With the northern invaders, however, it was
rather a predominant appetite than an amusement; it was their pride and
their ornament, the theme of their songs, the object of their laws, and
the business of their lives. Falconry, unknown as a diversion to the
ancients, became from the fourth century an equally delightful
occupation.[548] From the Salic and other barbarous codes of the fifth
century to the close of the period under our review, every age would
furnish testimony to the ruling passion for these two species of chace,
or, as they were sometimes called, the mysteries of woods and rivers. A
knight seldom stirred from his house without a falcon on his wrist or a
greyhound that followed him. Thus are Harold and his attendants
represented, in the famous tapestry of Bayeux. And in the monuments of
those who died anywhere but on the field of battle, it is usual to find
the greyhound lying at their feet, or the bird upon their wrists. Nor
are the tombs of ladies without their falcon; for this diversion, being
of less danger and fatigue than the chace, was shared by the delicate
sex.[549]

It was impossible to repress the eagerness with which the clergy,
especially after the barbarians were tempted by rich bishoprics to take
upon them the sacred functions, rushed into these secular amusements.
Prohibitions of councils, however frequently repeated, produced little
effect. In some instances a particular monastery obtained a
dispensation. Thus that of St. Denis, in 774, represented to Charlemagne
that the flesh of hunted animals was salutary for sick monks, and that
their skins would serve to bind the books in the library.[550] Reasons
equally cogent, we may presume, could not be wanting in every other
case. As the bishops and abbots were perfectly feudal lords, and often
did not scruple to lead their vassals into the field, it was not to be
expected that they should debar themselves of an innocent pastime. It
was hardly such indeed, when practised at the expense of others.
Alexander III., by a letter to the clergy of Berkshire, dispenses with
their keeping the archdeacon in dogs and hawks during his
visitation.[551] This season gave jovial ecclesiastics an opportunity of
trying different countries. An archbishop of York, in 1321, seems to
have carried a train of two hundred persons, who were maintained at the
expense of the abbeys on his road, and to have hunted with a pack of
hounds from parish to parish.[552] The third council of Lateran, in
1180, had prohibited this amusement on such journeys, and restricted
bishops to a train of forty or fifty horses.[553]

Though hunting had ceased to be a necessary means of procuring food, it
was a very convenient resource, on which the wholesomeness and comfort,
as well as the luxury, of the table depended. Before the natural
pastures were improved, and new kinds of fodder for cattle discovered,
it was impossible to maintain the summer stock during the cold season.
Hence a portion of it was regularly slaughtered and salted for winter
provision. We may suppose that, when no alternative was offered but
these salted meats, even the leanest venison was devoured with relish.
There was somewhat more excuse therefore for the severity with which the
lords of forests and manors preserved the beasts of chace than if they
had been considered as merely objects of sport. The laws relating to
preservation of game were in every country uncommonly rigorous. They
formed in England that odious system of forest laws which distinguished
the tyranny of our Norman kings. Capital punishment for killing a stag
or wild boar was frequent, and perhaps warranted by law, until the
charter of John.[554] The French code was less severe, but even Henry
IV. enacted the pain of death against the repeated offence of chasing
deer in the royal forests. The privilege of hunting was reserved to the
nobility till the reign of Louis IX., who extended it in some degree to
persons of lower birth.[555]

This excessive passion for the sports of the field produced those evils
which are apt to result from it--a strenuous idleness which disdained
all useful occupations, and an oppressive spirit towards the peasantry.
The devastation committed under the pretence of destroying wild animals,
which had been already protected in their depredations, is noticed in
serious authors, and has also been the topic of popular ballads.[556]
What effect this must have had on agriculture it is easy to conjecture.
The levelling of forests, the draining of morasses, and the extirpation
of mischievous animals which inhabit them, are the first objects of
man's labour in reclaiming the earth to his use; and these were
forbidden by a landed aristocracy, whose control over the progress of
agricultural improvement was unlimited, and who had not yet learned to
sacrifice their pleasures to their avarice.

[Sidenote: Bad state of agriculture;]

These habits of the rich, and the miserable servitude of those who
cultivated the land, rendered its fertility unavailing. Predial
servitude indeed, in some of its modifications, has always been the
great bar to improvement. In the agricultural economy of Rome the
labouring husbandman, a menial slave of some wealthy senator, had not
even that qualified interest in the soil which the tenure of villenage
afforded to the peasant of feudal ages. Italy, therefore, a country
presenting many natural impediments, was but imperfectly reduced into
cultivation before the irruption of the barbarians.[557] That revolution
destroyed agriculture with every other art, and succeeding calamities
during five or six centuries left the finest regions of Europe
unfruitful and desolate. There are but two possible modes in which the
produce of the earth can be increased; one by rendering fresh land
serviceable, the other by improving the fertility of that which is
already cultivated. The last is only attainable by the application of
capital and of skill to agriculture, neither of which could be expected
in the ruder ages of society. The former is, to a certain extent, always
practicable while waste lands remain; but it was checked by laws hostile
to improvement, such as the manerial and commonable rights in England,
and by the general tone of manners.

Till the reign of Charlemagne there were no towns in Germany, except a
few that had been erected on the Rhine and Danube by the Romans. A house
with its stables and farm-buildings, surrounded by a hedge or enclosure,
was called a court, or, as we find it in our law-books, a curtilage; the
toft or homestead of a more genuine English dialect. One of these, with
the adjacent domain of arable fields and woods, had the name of a villa
or manse. Several manses composed a march; and several marches formed a
pagus or district.[558] From these elements in the progress of
population arose villages and towns. In France undoubtedly there were
always cities of some importance. Country parishes contained several
manses or farms of arable land, around a common pasture, where every one
was bound by custom to feed his cattle.[559]

[Sidenote: of internal trade;]

The condition even of internal trade was hardly preferable to that of
agriculture. There is not a vestige perhaps to be discovered for several
centuries of any considerable manufacture; I mean, of working up
articles of common utility to an extent beyond what the necessities of
an adjacent district required.[560] Rich men kept domestic artisans
among their servants; even kings, in the ninth century, had their
clothes made by the women upon their farms;[561] but the peasantry must
have been supplied with garments and implements of labour by purchase;
and every town, it cannot be doubted, had its weaver, its smith, and its
currier. But there were almost insuperable impediments to any extended
traffic--the insecurity of moveable wealth, and difficulty of
accumulating it; the ignorance of mutual wants; the peril of robbery in
conveying merchandise, and the certainty of extortion. In the domains of
every lord a toll was to be paid in passing his bridge, or along his
highway, or at his market.[562] These customs, equitable and necessary
in their principle, became in practice oppressive, because they were
arbitrary, and renewed in every petty territory which the road might
intersect. Several of Charlemagne's capitularies repeat complaints of
these exactions, and endeavour to abolish such tolls as were not founded
on prescription.[563] One of them rather amusingly illustrates the
modesty and moderation of the landholders. It is enacted that no one
shall be compelled to go out of his way in order to pay toll at a
particular bridge, when he can cross the river more conveniently at
another place.[564] These provisions, like most others of that age, were
unlikely to produce much amendment. It was only the milder species,
however, of feudal lords who were content with the tribute of merchants.
The more ravenous descended from their fortresses to pillage the wealthy
traveller, or shared in the spoil of inferior plunderers, whom they both
protected and instigated. Proofs occur, even in the later periods of the
middle ages, when government had regained its energy, and civilization
had made considerable progress, of public robberies systematically
perpetrated by men of noble rank. In the more savage times, before the
twelfth century, they were probably too frequent to excite much
attention. It was a custom in some places to waylay travellers, and not
only to plunder, but to sell them as slaves, or compel them to pay a
ransom. Harold son of Godwin, having been wrecked on the coast of
Ponthieu, was imprisoned by the lord, says an historian, according to
the custom of that territory.[565] Germany appears to have been, upon
the whole, the country where downright robbery was most unscrupulously
practised by the great. Their castles, erected on almost inaccessible
heights among the woods, became the secure receptacles of predatory
bands, who spread terror over the country. From these barbarian lords of
the dark ages, as from a living model, the romances are said to have
drawn their giants and other disloyal enemies of true chivalry.
Robbery, indeed, is the constant theme both of the Capitularies and of
the Anglo-Saxon laws; one has more reason to wonder at the intrepid
thirst of lucre, which induced a very few merchants to exchange the
products of different regions, than to ask why no general spirit of
commercial activity prevailed.

[Sidenote: and of foreign commerce.]

Under all these circumstances it is obvious that very little oriental
commerce could have existed in these western countries of Europe.
Destitute as they have been created, speaking comparatively, of natural
productions fit for exportation, their invention and industry are the
great resources from which they can supply the demands of the East.
Before any manufactures were established in Europe, her commercial
intercourse with Egypt and Asia must of necessity have been very
trifling; because, whatever inclination she might feel to enjoy the
luxuries of those genial regions, she wanted the means of obtaining
them. It is not therefore necessary to rest the miserable condition of
oriental commerce upon the Saracen conquests, because the poverty of
Europe is an adequate cause; and, in fact, what little traffic remained
was carried on with no material inconvenience through the channel of
Constantinople. Venice took the lead in trading with Greece and more
eastern countries.[566] Amalfi had the second place in the commerce of
those dark ages. These cities imported, besides natural productions, the
fine clothes of Constantinople; yet as this traffic seems to have been
illicit, it was not probably extensive.[567] Their exports were gold and
silver, by which, as none was likely to return, the circulating money of
Europe was probably less in the eleventh century than at the subversion
of the Roman empire; furs, which were obtained from the Sclavonian
countries; and arms, the sale of which to pagans or Saracens was vainly
prohibited by Charlemagne and by the Holy See.[568] A more scandalous
traffic, and one that still more fitly called for prohibitory laws, was
carried on in slaves. It is an humiliating proof of the degradation of
Christendom, that the Venetians were reduced to purchase the luxuries of
Asia by supplying the slave-market of the Saracens.[569] Their apology
would perhaps have been, that these were purchased from their heathen
neighbours; but a slave-dealer was probably not very inquisitive as to
the faith or origin of his victim. This trade was not peculiar to
Venice. In England it was very common, even after the Conquest, to
export slaves to Ireland, till, in the reign of Henry II., the Irish
came to a non-importation agreement, which put a stop to the
practice.[570]

From this state of degradation and poverty all the countries of Europe
have recovered, with a progression in some respects tolerably uniform,
in others more unequal; and the course of their improvement, more
gradual and less dependent upon conspicuous civil revolutions than their
decline, affords one of the most interesting subjects into which a
philosophical mind can inquire. The commencement of this restoration has
usually been dated from about the close of the eleventh century; though
it is unnecessary to observe that the subject does not admit of
anything approximating to chronological accuracy. It may, therefore, be
sometimes not improper to distinguish the first six of the ten centuries
which the present work embraces under the appellation of the _dark_
ages; an epithet which I do not extend to the twelfth and three
following. In tracing the decline of society from the subversion of the
Roman empire, we have been led, not without connexion, from ignorance to
superstition, from superstition to vice and lawlessness, and from thence
to general rudeness and poverty. I shall pursue an inverted order in
passing along the ascending scale, and class the various improvements
which took place between the twelfth and fifteenth centuries under three
principal heads, as they relate to the wealth, the manners, or the taste
and learning of Europe. Different arrangements might probably be
suggested, equally natural and convenient; but in the disposition of
topics that have not always an unbroken connexion with each other, no
method can be prescribed as absolutely more scientific than the rest.
That which I have adopted appears to me as philosophical and as little
liable to transitions as any other.


FOOTNOTES:

[479] The subject of the present chapter, so far as it relates to the
condition of literature in the middle ages, has been again treated by me
in the first and second chapters of a work, published in 1836, the
Introduction to the History of Literature in the Fifteenth, Sixteenth,
and Seventeenth Centuries. Some things will be found in it more exactly
stated, others newly supplied from recent sources.

[480] The authors of Histoire Littéraire de la France, t. i., can only
find three writers of Gaul, no inconsiderable part of the Roman Empire,
mentioned upon any authority; two of whom are now lost. In the preceding
century the number was considerably greater.

[481] Mosheim, Cent. 4. Tiraboschi endeavours to elevate higher the
learning of the early Christians, t. ii. p. 328. Jortin, however,
asserts that many of the bishops in the general councils of Ephesus and
Chalcedon could not write their names. Remarks on Ecclesiast. Hist. vol.
ii. p. 417.

[482] Gibbon roundly asserts that "the language of Virgil and Cicero,
though with some inevitable mixture of corruption, was so universally
adopted in Africa, Spain, Gaul, Great Britain, and Pannonia, that the
faint traces of the Punic or Celtic idioms were preserved only in the
mountains or among the peasants." Decline and Fall, vol. i. p. 60 (8vo.
edit.). For Britain he quotes Tacitus's Life of Agricola as his voucher.
But the only passage in this work that gives the least colour to
Gibbon's assertion is one in which Agricola is said to have encouraged
the children of British chieftains to acquire a taste for liberal
studies, and to have succeeded so much by judicious commendation of
their abilities, ut qui modo linguam Romanam abnuebant, eloquentiam
concupiscerent. (c. 21.) This, it is sufficiently obvious, is very
different from the national adoption of Latin as a mother tongue.

[483] t. vii. preface.

[484] It appears, by a passage quoted from the digest by M. Bonamy, Mém.
de l'Acad. des Inscriptions, t. xxiv. p. 589, that Celtic was spoken in
Gaul, or at least parts of it, as well as Punic in Africa.

[485] Atque eadem illa litera, quoties ultima est, et vocalem verbi
sequentis ita contingit, ut in eam transire possit, etiam si scribitur,
tamen parum exprimitur, ut _Multum ille_, et _Quantum erat_: adeo ut
pene cujusdam novæ literæ sonum reddat. Neque enim eximitur, sed
obscuratur, et tantùm aliqua inter duos vocales velut nota est, ne ipsæ
coeant. Quintilian, Institut. 1. ix. c. 4, p. 585, edit. Capperonier.

[486] The following passage of Quintilian is an evidence both of the
omission of harsh or superfluous letters by the best speakers, and of
the corrupt abbreviations usual with the worst. Dilucida vero erit
pronunciatio primum, si verba tota exegerit, quorum pars devorari, pars
destitui solet, plerisque extremas syllabas non proferentibus, dum
priorum sono indulgent. Ut est autem necessaria verborum explanatio, ita
omnes computare et velut adnumerare literas, molestum et odiosum.--Nam
et vocales frequentissimè coeunt, et consonantium quædam insequente
vocali dissimulantur; utriusque exemplum posuimus; Multum ille et
terris. Vitatur etiam duriorum inter se congressus, unde _pellexit_ et
_collegit_, et quæ alio loco dicta sunt. 1. ii. c. 3, p. 696.

[487] Tiraboschi (Storia dell. Lett. Ital. t. iii. preface, p. v.)
imputes this paradox to Bembo and Quadrio; but I can hardly believe that
either of them could maintain it in a literal sense.

[488] M. Bonamy, in an essay printed in Mém. de l'Académie des
Inscriptions, t. xxiv., has produced several proofs of this from the
classical writers on agriculture and other arts, though some of his
instances are not in point, as any schoolboy would have told him. This
essay, which by some accident had escaped my notice till I had nearly
finished the observations in my text, contains, I think, the best view
that I have seen of the process of transition by which Latin was changed
into French and Italian. Add however, the preface to Tiraboschi's third
volume and the thirty-second dissertation of Muratori.

[489] See Lanzi, Saggio della Lingua Etrusca, t. i. c. 431; Mém. de
l'Acad. des Inscrip. t. xxiv. p. 632.

[490] No description can give so adequate a notion of this extraordinary
performance as a short specimen. Take the introductory lines; which
really, prejudices of education apart, are by no means inharmonious:--

    Præfatio nostra viam erranti demonstrat,
    Respectumque bonum, cum venerit sæculi meta,
    Æternum fieri, quod discredunt inscia corda.
    Ego similiter erravi tempore multo,
    Fana prosequendo, parentibus insciis ipsis.
    Abstuli me tandem inde, legendo de lege.
    Testificor Dominum, doleo, proh! civica turba
    Inscia quod perdit, pergens deos quærere vanos.
    Ob ea perdoctus ignoros instruo verum.

Commodianus however did not keep up this excellence in every part. Some
of his lines are not reducible to any pronunciation, without the summary
rules of Procrustes; as for instance:--

Paratus ad epulas, et refugiscere præcepta; or, Capillos inficitis,
oculos fuligine relinitis.

It must be owned that this text is exceedingly corrupt, and I should not
despair of seeing a truly critical editor, unscrupulous as his
fraternity are apt to be, improve his lines into unblemished hexameters.
Till this time arrives, however, we must consider him either as utterly
ignorant of metrical distinctions, or at least as aware that the
populace whom he addressed did not observe them in speaking. Commodianus
is published by Dawes at the end of his edition of Minucius Felix. Some
specimens are quoted in Harris's Philological Inquiries.

[491] Archæologia, vol. xiv. p. 188. The following are the first
lines:--

    Abundantia peccatorum solet fratres conturbare;
    Propter hoc Dominus noster voluit nos præmonere,
    Comparans regnum coelorum reticulo misso in mare,
    Congreganti multos pisces, omne genus hinc et inde,
    Quos cum traxissent ad littus, tunc coeperunt separare,
    Bonos in vasa miserunt, reliquos malos in mare.

This trash is much below the level of Augustin; but it could not have
been later than his age.

[492] Recueil des Historiens, t. i. p. 814; it begins in the following
manner:--

    Præcelso expectabili bis Arbogasto comiti
    Auspicius, qui diligo, salutem dico plurimam.
    Magnas coelesti Domino rependo corde gratias
    Quod te Tullensi proxime magnum in urbe vidimus.
    Multis me tuis artibus lætificabas antea,
    Sed nunc fecisti maximo me exultare gaudio.

[493] Chilpericus rex ... confecit duos libros, quorum versiculi debiles
nullis pedibus subsistere possunt: in quibus, dum non intelligebat, pro
longis syllabas breves posuit, et pro brevibus longas statuebat. 1. vi.
c. 46.

[494] Mém. de l'Académie des Inscriptions, t. xvii. Hist. Littéraire de
la France, t. ii. p. 28. It seems rather probable that the poetry of
Avitus belongs to the fifth century, though not very far from its
termination. He was the correspondent of Sidonius Apollinaris, who died
in 489, and we may presume his poetry to have been written rather early
in life.

[495] One stanza of this song will suffice to show that the Latin
language was yet unchanged:--

    De Clotario est canere rege Francorum,
    Qui ivi pugnare cum gente Saxonum,
    Quam graviter provenisset missis Saxonum,
    Si non fuisset inclitus Faro de gente
    Burgundionum.

[496] Præcavendum est, ne ad aures populi minus aliquid intelligibile
proferatur. Mém. de l'Acad. t. xvii. p. 712.

[497] Rustico et plebeio sermone propter exemplum et imitationem. Id.
ibid.

[498] Hist. Littéraire de la France, t. iii. p. 5. Mém. de l'Académie,
t. xxiv. p. 617. Nouveau Traité de Diplomatique, t. iv. p. 485.

[499] Hist. Littéraire de la France, t. vii. p. 12. The editors say that
it is mentioned by name even in the seventh century, which is very
natural, as the corruption of Latin had then become striking. It is
familiarly known that illiterate persons _understand_ a more correct
language than they use themselves; so that the corruption of Latin might
have gone to a considerable length among the people, while sermons were
preached, and tolerably comprehended, in a purer grammar.

[500] Mém. de l'Acad. des Insc. t. xvii. See two memoirs in this volume
by du Clos and le Boeuf, especially the latter, as well as that
already mentioned in t. xxiv. p. 582, by M. Bonamy.

[501] Muratori, Dissert. i. and xliii.

[502]
      Usus Franciscâ, vulgari, et voce Latinâ.
      Instituit populos eloquio tripici.

Fontanini dell'Eloquenza Italiana, p. 15. Muratori, Dissert. xxxii.

[503] Histoire Littéraire de la France, t. vi. p. 20. Muratori, Dissert.
xliii.

[504] Nouveau Traité de Diplomatique, t. ii. p. 419. This became, the
editors say, much less unusual about the end of the thirteenth century;
a pretty late period! A few signatures to deeds appear in the fourteenth
century; in the next they are more frequent. Ibid. The emperor Frederic
Barbarossa could not read (Struvius, Corpus Hist. German. t. i. p. 377),
nor John king of Bohemia in the middle of the fourteenth century
(Sismondi, t. v. p. 205), nor Philip the Hardy, king of France, although
the son of St. Louis. (Velly, t. vi. p. 426.)

[505] Louis IV., king of France, laughing at Fulk count of Anjou, who
sang anthems among the choristers of Tours, received the following pithy
epistle from his learned vassal: Noveritis, domines quod rex illiteratus
est asinus coronatus. Gesta Comitum Andegavensium. In the same book,
Geoffrey, father of our Henry II., is said to be optime literatus; which
perhaps imports little more learning than his ancestor Fulk possessed.

[506] The passage in Eginhard, which has occasioned so much dispute,
speaks for itself: Tentabat et scribere, tabulasque et codicillos ad hoc
in lecticula sub cervicalibus circumferre solebat, ut, cum vacuum tempus
esset, manum effigiandis literis assuefaceret; sed parum prosperè
successit labor præposterus ac serò inchoatus.

Many are still unwilling to believe that Charlemagne could not write. M.
Ampère observes that the emperor asserts himself to have been the author
of the Libri Carolini, and is said by some to have composed verses.
Hist. Litt. de la France, iii. 37. But did not Henry VIII. claim a book
against Luther, which was not written by himself? _Qui facit per alium,
facit per se_, is in all cases a royal prerogative. Even if the book
were Charlemagne's own, might he not have dictated it? I have been
informed that there is a manuscript at Vienna with autograph notes of
Charlemagne in the margin. But is there sufficient evidence of their
genuineness? The great difficulty is to get over the words which I have
quoted from Eginhard. M. Ampère ingeniously conjectures that the passage
does not relate to simple common writing, but to calligraphy; the art of
delineating characters in a beautiful manner, practised by the copyists,
and of which a contemporaneous specimen may be seen in the well-known
Bible of the British Museum. Yet it must be remembered that
Charlemagne's early life passed in the depths of ignorance; and Eginhard
gives a fair reason why he failed in acquiring the art of writing, that
he began too late. Fingers of fifty are not made for a new skill. It is
not, of course, implied by the words, that he could not write his own
name; but that he did not acquire such a facility as he desired. [1848.]

[507] Spelman, Vit. Alfred. Append.

[508] Hist. Littéraire de la France, t. iii. p. 5.

[509] These four dark centuries, the eighth, ninth, tenth, and eleventh,
occupy five large quarto volumes of the Literary History of France, by
the fathers of St. Maur. But the most useful part will be found in the
general view at the commencement of each volume; the remainder is taken
up with biographies, into which a reader may dive at random, and
sometimes bring up a curious fact. I may refer also to the 14th volume
of Leber, Collections Relatives à l'Histoire de France, where some
learned dissertations by the Abbés Lebeuf and Goujet, a little before
the middle of the last century, are reprinted. [Note I.]

Tiraboschi, Storia della Letteratura, t. iii., and Muratori's
forty-third Dissertation, are good authorities for the condition of
letters in Italy; but I cannot easily give references to all the books
which I have consulted.

[510] Tiraboschi, t. iii. p. 198.

[511] Mabillon, De Re Diplomaticâ, p. 55. The reason alleged, indeed, is
that they were wholly occupied with studying Arabic, in order to carry
on a controversy with the Saracens. But, as this is not very credible,
we may rest with the main fact that they could write no Latin.

[512] Spelman, Vit. Alfred. Append. The whole drift of Alfred's preface
to this translation is to defend the expediency of rendering books into
English, on account of the general ignorance of Latin. The zeal which
this excellent prince shows for literature is delightful. Let us
endeavour, he says, that all the English youth, especially the children
of those who are free-born, and can educate them, may learn to read
English before they take to any employment. Afterwards such as please
may be instructed in Latin. Before the Danish invasion indeed, he tells
us, churches were well furnished with books; but the priests got little
good from them, being written in a foreign language which they could not
understand.

[513] Mabillon, De Re Diplomaticâ, p. 55. Ordericus Vitalis, a more
candid judge of our unfortunate ancestors than other contemporary
annalists, says that the English were, at the Conquest, rude and almost
illiterate, which he ascribes to the Danish invasion. Du Chesne, Hist.
Norm. Script. p. 518. However, Ingulfus tells us that the library of
Croyland contained above three hundred volumes, till the unfortunate
fire that destroyed that abbey in 1091. Gale, XV Scriptores, t. i. 93.
Such a library was very extraordinary in the eleventh century, and could
not have been equalled for some ages afterwards. Ingulfus mentions at
the same time a nadir, as he calls it, or planetarium, executed in
various metals. This had been presented to abbot Turketul in the tenth
century by a king of France, and was, I make no doubt, of Arabian or
Greek manufacture.

[514] Parchment was so scarce that none could be procured about 1120 for
an illuminated copy of the Bible. Warton's Hist. of English Poetry,
Dissert. II. I suppose the deficiency was of skins beautiful enough for
this purpose; it cannot be meant that there was no parchment for legal
instruments.

Manuscripts written on papyrus, as may be supposed from the fragility of
the material, as well as the difficulty of procuring it, are of extreme
rarity. That in the British Museum, being a charter to a church at
Ravenna in 572, is in every respect the most curious: and indeed both
Mabillon and Muratori seem never to have seen anything written on
papyrus, though they trace its occasional use down to the eleventh or
twelfth centuries. Mabillon, De Re Diplomaticâ, 1. ii.; Muratori,
Antichità Italiane, Dissert. xliii. p. 602. But the authors of the
Nouveau Traité de Diplomatique speak of several manuscripts on this
material as extant in France and Italy. t. i. p. 493.

As to the general scarcity and high price of books in the middle ages,
Robertson (Introduction to Hist. Charles V. note x.), and Warton in the
above-cited dissertation, not to quote authors less accessible, have
collected some of the leading facts; to whom I refer the reader.

[515] Lest I should seem to have spoken too peremptorily, I wish it to
be understood that I pretend to hardly any direct acquaintance with
these writers, and found my censure on the authority of others, chiefly
indeed on the admissions of those who are too disposed to fall into a
strain of panegyric. See Histoire Littéraire de la France, t. iv. p. 281
et alibi.

[516] John Scotus, who, it is almost needless to say, must not be
confounded with the still more famous metaphysician Duns Scotus, lived
under Charles the Bald, in the middle of the ninth century. It admits of
no doubt that John Scotus was, in a literary and philosophical sense,
the most remarkable man of the dark ages; no one else had his boldness,
his subtlety in threading the labyrinths of metaphysical speculations
which, in the west of Europe, had been utterly disregarded. But it is
another question whether he can be reckoned an original writer; those
who have attended most to his treatise De Divisione Naturæ, the most
abstruse of his works, consider it as the development of an oriental
philosophy, acquired during his residence in Greece, and nearly
coinciding with some of the later Platonism of the Alexandrian school,
but with a more unequivocal tendency to pantheism. This manifests itself
in some extracts which have latterly been made from the treatise De
Divisione Naturæ; but though Scotus had not the reputation of
unblemished orthodoxy, the drift of his philosophy was not understood in
that barbarous period. He might, indeed, have excited censure by his
intrepid preference of reason to authority. "Authority," he says,
"springs from reason, not reason from authority--true reason needs not
be confirmed by any authority." La véritable importance historique, says
Ampère, de Scot Erigène n'est donc pas dans ses opinions; celles-ci
n'ont d'autre intérêt que leur date et le lieu où elles apparaissent.
Sans doute, il est piquant et bizarre de voir ces opinions orientales et
alexandrines surgir au IXe siècle, à Paris, à la cour de Charles le
Chauve; mais ce qui n'est pas seulement piquant et bizarre, ce qui
intéresse le développement de l'esprit humain, c'est que la question ait
été posée, dès lors, si nettement entre l'autorité et la raison, et si
énergiquement résolue en faveur de la seconde. En un mot, par ses idées,
Scot Erigène est encore un philosophe de l'antiquité Grecque; et par
l'indépendance hautement accusée de son point de vue philosophique, il
est déjà un dévancier de la philosophie moderne. Hist. Litt. iii. 146.

Silvester II. died in 1003. Whether he first brought the Arabic
numeration into Europe, as has been commonly said, seems uncertain; it
was at least not much practised for some centuries after his death.

[517] Charlemagne had a library at Aix-la-Chapelle, which he directed to
be sold at his death for the benefit of the poor. His son Louis is said
to have collected some books. But this rather confirms, on the whole, my
supposition that, in some periods, no royal or private libraries
existed, since there were not always princes or nobles with the spirit
of Charlemagne, or even Louis the Debonair.

"We possess a catalogue," says M. Ampère (quoting d'Achery's
Spicilegium, ii. 310), "of the library in the abbey of St. Riquier,
written in 831; it consists of 256 volumes, some containing several
works. Christian writers are in great majority; but we find also the
Eclogues of Virgil, the Rhetoric of Cicero, the History of Homer, that
is, the works ascribed to Dictys and Dares." Ampère, iii. 236. Can
anything be lower than this, if nothing is omitted more valuable than
what is mentioned? The Rhetoric of Cicero was probably the spurious
books Ad Herennium. But other libraries must have been somewhat better
furnished than this; else the Latin authors would have been still less
known in the ninth century than they actually were.

In the gradual progress of learning, a very small number of princes
thought it honourable to collect books. Perhaps no earlier instance can
be mentioned than that of a most respectable man, William III., duke of
Guienne, in the first part of the eleventh century. Fuit dux iste, says
a contemporary writer, a pueritia doctus literis, et satis notitiam
Scripturarum habuit; librorum copiam in palatio suo servavit; et si
forte a frequentia causarum et tumultu vacaret, lectioni per seipsum
operam dabat longioribus noctibus elucubrans in libris, donec somno
vinceretur. Rec. des Hist. x. 155.

[518] Robertson, Introduction to Hist. Charles V. note 13; Schmidt,
Hist. des Allemands, t. ii. p. 380; Hist. Littéraire de la France, t.
vi.

[519] Duelling, in the modern sense of the word, exclusive of casual
frays and single combat during war, was unknown before the sixteenth
century. But we find one anecdote which seems to illustrate its
derivation from the judicial combat. The dukes of Lancaster and
Brunswick, having some differences, agreed to decide them by duel before
John king of France. The lists were prepared with the solemnity of a
real trial by battle; but the king interfered to prevent the engagement.
Villaret, t. ix. p. 71. The barbarous practice of wearing swords as a
part of domestic dress, which tended very much to the frequency of
duelling, was not introduced till the latter part of the 15th century. I
can only find one print in Montfaucon's Monuments of the French monarchy
where a sword is worn without armour before the reign of Charles VIII.:
though a few, as early as the reign of Charles VI., have short daggers
in their girdles. The exception is a figure of Charles VII. t. iii. pl.
47.

[520] Baluzii Capitularia, p. 444. It was prohibited by Louis the
Debonair; a man, as I have noticed in another place, not inferior, as a
legislator, to his father. Ibid. p. 668. "The spirit of party," says a
late writer, "has often accused the church of having devised these
barbarous methods of discovering truth--the duel and the ordeal; nothing
can be more unjust. Neither one nor the other is derived from
Christianity; they existed long before in the Germanic usages." Ampère,
Hist. Litt. de la France, iii. 180. Any one must have been very ignorant
who attributed the invention of ordeals to the church. But during the
dark ages they were always sanctioned. Agobard, from whom M. Ampère
gives a quotation, in the reign of Louis the Debonair wrote strongly
against them; but this was the remonstrance of a superior man in an age
that was ill-inclined to hear him.

[521] Ordeals were not actually abolished in France, notwithstanding the
law of Louis above-mentioned, so late as the eleventh century (Bouquet,
t. xi. p. 430), nor in England till the reign of Henry III. Some of the
stories we read, wherein accused persons have passed triumphantly
through these severe proofs, are perplexing enough: and perhaps it is
safer, as well as easier, to deny than to explain them. For example, a
writer in the Archæologia (vol. xv. p. 172) has shown that Emma, queen
of Edward the Confessor, did not perform her trial by stepping
_between_, as Blackstone imagines, but _upon_ nine red-hot ploughshares.
But he seems not aware that the whole story is unsupported by any
contemporary or even respectable testimony. A similar anecdote is
related of Cunegunda, wife of the emperor Henry II., which probably gave
rise to that of Emma. There are, however, medicaments, as is well known,
that protect the skin to a certain degree against the effect of fire.
This phenomenon would pass for miraculous, and form the basis of those
exaggerated stories in monkish books.

[522] The most singular effect of this crusading spirit was witnessed in
1211, when a multitude, amounting, as some say, to 90,000, chiefly
composed of children, and commanded by a child, set out for the purpose
of recovering the Holy Land. They came for the most part from Germany,
and reached Genoa without harm. But, finding there an obstacle which
their imperfect knowledge of geography had not anticipated, they soon
dispersed in various directions. Thirty thousand arrived at Marseilles,
where part were murdered, part probably starved, and the rest sold to
the Saracens. Annali di Muratori, A.D. 1211; Velly, Hist. de France, t.
iv. p. 206.

[523] Velly, t. iii. p. 295; Du Cange, v. Capuciati.

[524] Velly, Hist. de France, t. v. p. 7; Du Cange, v. Pastorelli.

[525] Velly, Hist. de France, t. viii. p. 99. The continuator of Nangis
says, sicut fumus subitò evanuit tota illa commotio. Spicilegium, t.
iii. p. 77.

[526] Velly, t. v. p. 279; Du Cange, v. Verberatio.

[527] Something of a similar kind is mentioned by G. Villani, under the
year 1310. 1. viii. c. 122.

[528] Annal. Mediolan. in Murat. Script. Rer. Ital. t. xvi. p. 832; G.
Stella. Ann. Genuens. t. xvii. p. 1072; Chron. Foroliviense, t. xix. p.
874; Ann. Bonincontri, t. xxi. p. 79.

[529] Dissert. 75. Sudden transitions from profligate to austere manners
were so common among individuals, that we cannot be surprised at their
sometimes becoming in a manner national. Azarius, a chronicler of Milan,
after describing the almost incredible dissoluteness of Pavia, gives an
account of an instantaneous reformation wrought by the preaching of a
certain friar. This was about 1350. Script. Rer. Ital. t. xvi. p. 375.

[530] Villaret, t. xii. p. 327.

[531] Rot. Parl. v. iii. p. 428.

[532] This is confessed by the authors of Histoire Littéraire de la
France, t. ii. p. 4, and indeed by many catholic writers. I need not
quote Mosheim, who more than confirms every word of my text.

[533] Middleton's Letter from Rome. If some of our eloquent countryman's
positions should be disputed, there are still abundant catholic
testimonies that imaginary saints have been canonized.

[534] Le Grand d'Aussy has given us, in the fifth volume of his
Fabliaux, several of the religious tales by which the monks endeavoured
to withdraw the people from romances of chivalry. The following
specimens will abundantly confirm my assertions, which may perhaps
appear harsh and extravagant to the reader.

There was a man whose occupation was highway robbery; but whenever he
set out on any such expedition, he was careful to address a prayer to
the Virgin. Taken at last, he was sentenced to be hanged. While the cord
was round his neck he made his usual prayer, nor was it ineffectual. The
Virgin supported his feet "with her white hands," and thus kept him
alive two days, to the no small surprise of the executioner, who
attempted to complete his work with strokes of a sword. But the same
invisible hand turned aside the weapon, and the executioner was
compelled to release his victim, acknowledging the miracle. The thief
retired into a monastery, which is always the termination of these
deliverances.

At the monastery of St. Peter, near Cologne, lived a monk perfectly
dissolute and irreligious, but very devout towards the Apostle.
Unluckily he died suddenly without confession. The fiends came as usual
to seize his soul. St. Peter, vexed at losing so faithful a votary,
besought God to admit the monk into Paradise. His prayer was refused;
and though the whole body of saints, apostles, angels, and martyrs
joined at his request to make interest, it was of no avail. In this
extremity he had recourse to the Mother of God. "Fair lady," he said,
"my monk is lost if you do not interfere for him; but what is impossible
for us will be but sport to you, if you please to assist us. Your Son,
if you but speak a word, must yield, since it is in your power to
command him." The Queen Mother assented, and, followed by all the
virgins, moved towards her Son. He who had himself given the precept,
Honour thy father and thy mother, no sooner saw his own parent approach
than he rose to receive her; and taking her by the hand inquired her
wishes. The rest may be easily conjectured. Compare the gross stupidity,
or rather the atrocious impiety of this tale, with the pure theism of
the Arabian Nights, and judge whether the Deity was better worshipped at
Cologne or at Bagdad.

It is unnecessary to multiply instances of this kind. In one tale the
Virgin takes the shape of a nun, who had eloped from the convent, and
performs her duties ten years, till, tired of a libertine life, she
returns unsuspected. This was in consideration of her having never
omitted to say an Ave as she passed the Virgin's image. In another, a
gentleman, in love with a handsome widow, consents, at the instigation
of a sorcerer, to renounce God and the saints, but cannot be persuaded
to give up the Virgin, well knowing that if he kept her his friend he
should obtain pardon through her means. Accordingly she inspired his
mistress with so much passion that he married her within a few days.

These tales, it may be said, were the production of ignorant men, and
circulated among the populace. Certainly they would have excited
contempt and indignation in the more enlightened clergy. But I am
concerned with the general character of religious notions among the
people: and for this it is better to take such popular compositions,
adapted to what the laity already believed, than the writings of
comparatively learned and reflecting men. However, stories of the same
cast are frequent in the monkish historians. Matthew Paris, one of the
most respectable of that class, and no friend to the covetousness or
relaxed lives of the priesthood, tells us of a knight who was on the
point of being damned for frequenting tournaments, but saved by a
donation he had formerly made to the Virgin. p. 290.

[535] This hesitation about so important a question is what I would by
no means repeat. Beyond every doubt, the evils of superstition in the
middle ages, though separately considered very serious, are not to be
weighed against the benefits of the religion with which they were so
mingled. The fashion of the eighteenth century, among protestants
especially, was to exaggerate the crimes and follies of mediæval
ages--perhaps I have fallen into it a little too much; in the present we
seem more in danger of extenuating them. We still want an inflexible
impartiality in all that borders on ecclesiastical history, which, I
believe, has never been displayed on an extensive scale. A more
captivating book can hardly be named than the Mores Catholici of Mr.
Digby; and it contains certainly a great deal of truth; but the general
effect is that of a _mirage_, which confuses and deludes the sight. If
those "ages of faith" were as noble, as pure, as full of human kindness,
as he has delineated them, we have had a bad exchange in the centuries
since the Reformation. And those who gaze at Mr. Digby's enchantments
will do well to consider how they can better escape this consequence
than he has done. Dr. Maitland's Letters on the Dark Ages, and a great
deal more that comes from the pseudo-Anglican or Anglo-catholic press,
converge to the same end; a strong sympathy with the mediæval church, a
great indulgence to its errors, and indeed a reluctance to admit them,
with a corresponding estrangement from all that has passed in the last
three centuries. [1848.]

[536] I am inclined to acquiesce in this general opinion; yet an account
of expenses at Bolton Abbey, about the reign of Edward II., published in
Whitaker's History of Craven, p. 51, makes a very scanty show of
almsgiving in this opulent monastery. Much, however, was no doubt given
in victuals. But it is a strange error to conceive that English
monasteries before the dissolution fed the indigent part of the nation,
and gave that general relief which the poor-laws are intended to afford.

Piers Plowman is indeed a satirist; but he plainly charges the monks
with want of charity.

    Little had lordes to do to give landes from their heires
    To religious that have no ruthe though it raine on their aultres;
    In many places there the parsons be themself at ease,
    Of the poor they have no pitie and that is their poor charitie.

[537] Schmidt, Hist. des Allemands, t. i. p. 374.

[538] See Fosbrooke's British Monachism (vol. i. p. 127, and vol. ii. p.
8) for a farrago of evidence against the monks. Clemangis, a French
theologian of considerable eminence at the beginning of the fifteenth
century, speaks of nunneries in the following terms:--Quid aliud sunt
hoc tempore puellarum monasteria, nisi quædam non dico Dei sanctuaria,
sed Veneris execranda prostibula, sed lascivorum et impudicorum juvenum
ad libidines explendas receptacula? ut idem sit hodie puellam velare,
quod et publicè ad scortandum exponere. William Prynne, from whose
records (vol. ii. p. 229) I have taken this passage, quotes it on
occasion of a charter of king John, banishing thirty nuns of Ambresbury
into different convents, propter vitæ suæ turpitudinem.

[539] Mosheim, cent. vii. c. 3. Robertson has quoted this passage, to
whom perhaps I am immediately indebted for it. Hist. Charles V., vol. i.
note 11.

I leave this passage as it stood in former editions. But it is due to
justice that this extract from Eligius should never be quoted in future,
as the translator of Mosheim has induced Robertson and many others, as
well as myself, to do. Dr. Lingard has pointed out that it is a very
imperfect representation of what Eligius has written; for though he has
dwelled on these devotional practices as parts of the definition of a good
Christian, he certainly adds a great deal more to which no one could
object. Yet no one is, in fact, to blame for this misrepresentation,
which, being contained in popular books, has gone forth so widely.
Mosheim, as will appear on referring to him, did not quote the passage as
containing a complete definition of the Christian character. His
translator, Maclaine, mistook this, and wrote, in consequence, the severe
note which Robertson has copied. I have seen the whole passage in
d'Achery's Spicilegium (vol. v. p. 213, 4to. edit.), and can testify that
Dr. Lingard is perfectly correct. Upon the whole, this is a striking proof
how dangerous it is to take any authorities at second-hand.--_Note to
Fourth Edition._ Much clamour has been made about the mistake of Maclaine,
which was innocent and not unnatural. It has been commented upon,
particularly by Dr. Arnold, as a proof of the risk we run of
misrepresenting authors by quoting them at second-hand. And this is
perfectly true, and ought to be constantly remembered. But, so long as we
acknowledge the immediate source of our quotation, no censure is due,
since in works of considerable extent this use of secondary authorities is
absolutely indispensable, not to mention the frequent difficulty of
procuring access to original authors [1848.]

[540] Mr. Turner has collected many curious facts relative to the
condition of the Jews, especially in England. Hist. of England, vol. ii.
p. 95. Others may be found dispersed in Velly's History of France; and
many in the Spanish writers, Mariana and Zurita. The following are from
Vaissette's History of Languedoc. It was the custom at Toulouse to give
a blow on the face to a Jew every Easter; this was commuted in the
twelfth century for a tribute. t. ii. p. 151. At Beziers another usage
prevailed, that of attacking the Jews' houses with stones from Palm
Sunday to Easter. No other weapon was to be used; but it generally
produced bloodshed. The populace were regularly instigated to the
assault by a sermon from the bishop. At length a prelate wiser than the
rest abolished this ancient practice, but not without receiving a good
sum from the Jews. p. 485.

[541] Greg. Tur. 1. ii. c. 40. Of Theodebert, grandson of Clovis, the
same historian says, Magnum se et in omni bonitate præcipuum reddidit.
In the next paragraph we find a story of his having two wives, and
looking so tenderly on the daughter of one of them, that her mother
tossed her over a bridge into the river. 1. iii. c. 25. This indeed is a
trifle to the passage in the text. There are continual proofs of
immorality in the monkish historians. In the history of Ramsey Abbey,
one of our best documents for Anglo-Saxon times, we have an anecdote of
a bishop who made a Danish nobleman drunk, that he might cheat him of an
estate, which is told with much approbation. Gale, Script. Anglic. t. i.
p. 441. Walter de Hemingford recounts with excessive delight the
well-known story of the Jews who were persuaded by the captain of their
vessel to walk on the sands at low water, till the rising tide drowned
them; and adds that the captain was both pardoned and rewarded for it by
the king, gratiam promeruit et præmium. This is a mistake, inasmuch as
he was hanged; but it exhibits the character of the historian,
Hemingford, p. 21.

[542] Fleury, Troisième Discours sur l'Histoire Ecclésiastique.

[543] Henry, Hist. of England, vol. ii. c. 7.

[544] Du Cange, v. Peregrinatio. Non sinantur vagari isti nudi cum
ferro, qui dicunt se datâ poenitentiâ ire vagantes. Melius videtur, ut
si aliquod inconsuetum et capitale crimen commiserint, in uno loco
permaneant laborantes et servientes et poenitentiam agentes, secundum
quod canonicè iis impositum sit.

[545] I. de Vitriaco, in Gesta Dei per Francos, t. i.; Villani, 1. vii.
c. 144.

[546] Henry has taken pains in drawing a picture, not very favourable,
of Anglo-Saxon manners. Book II. chap. 7. This perhaps is the best
chapter, as the volume is the best volume, of his unequal work. His
account of the Anglo-Saxons is derived in a great degree from William of
Malmsbury, who does not spare them. Their civil history, indeed, and
their laws, speak sufficiently against the character of that people. But
the Normans had little more to boast of in respect of moral correctness.
Their luxurious and dissolute habits are as much noticed as their
insolence. Vid. Ordericus Vitalis, p. 602; Johann. Sarisburiensis
Policraticus, p. 194; Velly, Hist. de France, t. iii. p. 59. The state
of manners in France under the first two races of kings, and in Italy
both under the Lombards and the subsequent dynasties, may be collected
from their histories, their laws, and those miscellaneous facts which
books of every description contain. Neither Velly, nor Muratori,
Dissert. 23, are so satisfactory as we might desire.

[547] Velly, Hist. de France, t. ii. p. 335. It has been observed, that
Quid mores sine legibus? is as just a question as that of Horace; and
that bad laws must produce bad morals. The strange practice of requiring
numerous compurgators to prove the innocence of an accused person had a
most obvious tendency to increase perjury.

[548] Muratori, Dissert. 23, t. i. p. 306 (Italian); Beckman's Hist. of
Inventions, vol. i. p. 319; Vie privée des Français, t. ii. p. 1.

[549] Vie privée des Français, t. i. p. 320; t. ii. p. 11.

[550] Ibid. t. i. p. 324.

[551] Rymer, t. i. p. 61.

[552] Whitaker's Hist. of Craven, p. 340, and of Whalley, p. 171.

[553] Velly, Hist. de France, t. iii. p. 236.

[554] John of Salisbury inveighs against the game-laws of his age, with
an odd transition from the Gospel to the Pandects. Nec veriti sunt
hominem pro unâ bestiolâ perdere, quem unigentius Dei Filius sanguine
redemit suo. Quæ feræ naturæ sunt, et de jure occupantium fiunt, sibi
audet humana temeritas vindicare, &c. Polycraticon, p. 18.

[555] Le Grand, Vie privée des Français, t. i. p. 325.

[556] For the injuries which this people sustained from the seigniorial
rights of the chace, in the eleventh century, see the Recueil des
Historiens, in the valuable preface to the eleventh volume, p. 181. This
continued to be felt in France down to the revolution, to which it did
not perhaps a little contribute. (See Young's Travels in France.) The
monstrous privilege of free-warren (monstrous, I mean, when not
originally founded upon the property of the soil) is recognised by our
own laws; though, in this age, it is not often that a court and jury
will sustain its exercise. Sir Walter Scott's ballad of the Wild
Huntsman, from a German original, is well known; and, I believe, there
are several others in that country not dissimilar in subject.

[557] Muratori, Dissert. 21. This dissertation contains ample evidence
of the wretched state of culture in Italy, at least in the northern
parts, both before the irruption of the barbarians, and, in a much
greater degree, under the Lombard kings.

[558] Schmidt, Hist. des Allem. t. i. p. 408. The following passage
seems to illustrate Schmidt's account of German villages in the ninth
century, though relating to a different age and country. "A toft," says
Dr. Whitaker, "is a homestead in a village, so called from the small
tufts of maple, elm, ash, and other wood, with which dwelling-houses
were anciently overhung. Even now it is impossible to enter Craven
without being struck with the insulated homesteads, surrounded by their
little garths, and overhung with tufts of trees. These are the genuine
tofts and crofts of our ancestors, with the substitution only of stone
for the wooden crocks and thatched roofs of antiquity." Hist. of Craven,
p. 380.

[559] It is laid down in the Speculum Saxonicum, a collection of feudal
customs which prevailed over most of Germany, that no one might have a
separate pasture for his cattle unless he possessed three mansi. Du
Cange, v. Mansus. There seems to have been a price paid, I suppose to
the lord, for agistment in the common pasture.

[560] The only mention of a manufacture, as early as the ninth or tenth
centuries, that I remember to have met with, is in Schmidt, t. ii. p.
146, who says that cloths were exported from Friesland to England and
other parts. He quotes no authority, but I am satisfied that he has not
advanced the fact gratuitously.

[561] Schmidt, t. i. p. 411; t. ii. p. 146.

[562] Du Cange, Pedagium, Pontaticum, Teloneum, Mercatum, Stallagium,
Lastagium, &c.

[563] Baluz. Capit. p. 621 et alibi.

[564] Ut nullus cogatur ad pontem ire ad fluvium transeundum propter
telonei causas quando ille in alio loco compendiosius illud flumen
transire potest. p. 764 et alibi.

[565] Eadmer apud Recueil des Historiens des Gaules, t. xi. preface, p.
192. Pro ritu illius loci, a domino terræ captivitati addicitur.

[566] Heeren has frequently referred to a work published in 1789, by
Marini, intitled, Storia civile e politica del Commerzio de' Veneziani,
which casts a new light upon the early relations of Venice with the
East. Of this book I know nothing; but a memoir by de Guignes, in the
thirty-seventh volume of the Academy of Inscriptions, on the commerce of
France with the East before the crusades, is singularly unproductive;
the fault of the subject, not of the author.

[567] There is an odd passage in Luitprand's relation of his embassy
from the Emperor Otho to Nicephorus Phocas. The Greeks making a display
of their dress, he told them that in Lombardy the common people wore as
good clothes as they. How, they said, can you procure them? Through the
Venetian and Amalfitan dealers, he replied, who gain their subsistence
by selling them to us. The foolish Greeks were very angry, and declared
that any dealer presuming to export their fine clothes should be
flogged, Luitprandi Opera, p. 155, edit. Antwerp. 1640.

[568] Baluz. Capitul. p. 775. One of the main advantages which the
Christian nations possessed over the Saracens was the coat of mail, and
other defensive armour; so that this prohibition was founded upon very
good political reasons.

[569] Schmidt, Hist. des Allem, t. ii. p. 146; Heeren, sur l'Influence
des Croisades, p. 316. In Baluze we find a law of Carloman, brother to
Charlemagne: Ut mancipia Christiana paganis non vendantur. Capitularia,
t. i. p. 150, vide quoque, p. 361.

[570] William of Malmsbury accuses the Anglo-Saxon nobility of selling
their female servants, even when pregnant by them, as slaves to
foreigners, p. 102. I hope there were not many of these Yaricoes; and
should not perhaps have given credit to an historian rather prejudiced
against the English, if I had not found too much authority for the
general practice. In the canons of a council at London in 1102 we read,
Let no one from henceforth presume to carry on that wicked traffic by
which men of England have hitherto been sold like brute animals.
Wilkins's Concilia, t. i. p. 383. And Giraldus Cambrensis says that the
English before the Conquest were generally in the habit of selling their
children and other relations to be slaves in Ireland, without having
even the pretext of distress or famine, till the Irish, in a national
synod, agreed to emancipate all the English slaves in the kingdom. Id.
p. 471. This seems to have been designed to take away all pretext for
the threatened invasion of Henry II. Lyttelton, vol. iii. p. 70.



PART II.

     Progress of Commercial Improvement in Germany, Flanders, and England
     --in the North of Europe--in the Countries upon the Mediterranean Sea
     --Maritime Laws--Usury--Banking Companies--Progress of Refinement in
     Manners--Domestic Architecture--Ecclesiastical Architecture--State of
     Agriculture in England--Value of Money--Improvement of the Moral
     Character of Society--its Causes--Police--Changes in Religious Opinion
     --Various Sects--Chivalry--its Progress, Character, and Influence--
     Causes of the Intellectual Improvement of European Society--1. The
     Study of Civil Law--2. Institution of Universities--their Celebrity--
     Scholastic Philosophy--3. Cultivation of Modern Languages--Provençal
     Poets--Norman Poets--French Prose Writers--Italian--early Poets in
     that Language--Dante--Petrarch--English Language--its Progress--
     Chaucer--4. Revival of Classical Learning--Latin Writers of the
     Twelfth Century--Literature of the Fourteenth Century--Greek
     Literature--its Restoration in Italy--Invention of Printing.


[Sidenote: European commerce.]

The geographical position of Europe naturally divides its maritime
commerce into two principal regions--one comprehending those countries
which border on the Baltic, the German and the Atlantic oceans; another,
those situated around the Mediterranean Sea. During the four centuries
which preceded the discovery of America, and especially the two former
of them, this separation was more remarkable than at present, inasmuch
as their intercourse, either by land or sea, was extremely limited. To
the first region belonged the Netherlands, the coasts of France,
Germany, and Scandinavia, and the maritime districts of England. In the
second we may class the provinces of Valencia and Catalonia, those of
Provence and Languedoc, and the whole of Italy.

[Sidenote: Woollen manufacture of Flanders.]

1. The former, or northern division, was first animated by the woollen
manufacture of Flanders. It is not easy either to discover the early
beginnings of this, or to account for its rapid advancement. The
fertility of that province and its facilities of interior navigation
were doubtless necessary causes; but there must have been some temporary
encouragement from the personal character of its sovereigns, or other
accidental circumstances. Several testimonies to the flourishing
condition of Flemish manufactures occur in the twelfth century, and
some might perhaps be found even earlier.[571] A writer of the
thirteenth asserts that all the world was clothed from English wool
wrought in Flanders.[572] This, indeed, is an exaggerated vaunt; but the
Flemish stuffs were probably sold wherever the sea or a navigable river
permitted them to be carried. Cologne was the chief trading city upon
the Rhine; and its merchants, who had been considerable even under the
emperor Henry IV., established a factory at London in 1220. The woollen
manufacture, notwithstanding frequent wars and the impolitic regulations
of magistrates,[573] continued to flourish in the Netherlands (for
Brabant and Hainault shared it in some degree with Flanders), until
England became not only capable of supplying her own demand, but a rival
in all the marts of Europe. "All Christian kingdoms, and even the Turks
themselves," says an historian of the sixteenth century, "lamented the
desperate war between the Flemish cities and their count Louis, that
broke out in 1380. For at that time Flanders was a market for the
traders of all the world. Merchants from seventeen kingdoms had their
settled domiciles at Bruges, besides strangers from almost unknown
countries who repaired thither."[574] During this war, and on all other
occasions, the weavers both of Ghent and Bruges distinguished themselves
by a democratical spirit, the consequence, no doubt, of their numbers
and prosperity.[575] Ghent was one of the largest cities in Europe, and,
in the opinion of many, the best situated.[576] But Bruges, though in
circuit but half the former, was more splendid in its buildings, and the
seat of far more trade; being the great staple both for Mediterranean
and northern merchandise.[577] Antwerp, which early in the sixteenth
century drew away a large part of this commerce from Bruges, was not
considerable in the preceding ages; nor were the towns of Zealand and
Holland much noted except for their fisheries, though those provinces
acquired in the fifteenth century some share of the woollen manufacture.

[Sidenote: Export of wool from England.]

For the first two centuries after the Conquest our English towns, as has
been observed in a different place, made some forward steps towards
improvement, though still very inferior to those of the continent. Their
commerce was almost confined to the exportation of wool, the great
staple commodity of England, upon which, more than any other, in its raw
or manufactured state, our wealth has been founded. A woollen
manufacture, however, indisputably existed under Henry II.;[578] it is
noticed in regulations of Richard I.; and by the importation of woad
under John it may be inferred to have still flourished. The disturbances
of the next reign, perhaps, or the rapid elevation of the Flemish towns,
retarded its growth, though a remarkable law was passed by the Oxford
parliament in 1261, prohibiting the export of wool and the importation
of cloth. This, while it shows the deference paid by the discontented
barons, who predominated in that parliament, to their confederates the
burghers, was evidently too premature to be enforced. We may infer from
it, however, that cloths were made at home, though not sufficiently for
the people's consumption.[579]

Prohibitions of the same nature, though with a different object, were
frequently imposed on the trade between England and Flanders by Edward
I. and his son. As their political connexions fluctuated, these princes
gave full liberty and settlement to the Flemish merchants, or banished
them at once from the country.[580] Nothing could be more injurious to
England than this arbitrary vacillation. The Flemings were in every
respect our natural allies; but besides those connexions with France,
the constant enemy of Flanders, into which both the Edwards occasionally
fell, a mutual alienation had been produced by the trade of the former
people with Scotland, a trade too lucrative to be resigned at the king
of England's request.[581] An early instance of that conflicting
selfishness of belligerents and neutrals, which was destined to
aggravate the animosities and misfortunes of our own time.[582]

[Sidenote: English woollen manufacture.]

A more prosperous era began with Edward III., the father, as he may
almost be called, of English commerce, a title not indeed more glorious,
but by which he may perhaps claim more of our gratitude than as the hero
of Crecy. In 1331 he took advantage of discontents among the
manufacturers of Flanders to invite them as settlers into his
dominions.[583] They brought the finer manufacture of woollen cloths,
which had been unknown in England. The discontents alluded to resulted
from the monopolizing spirit of their corporations, who oppressed all
artisans without the pale of their community. The history of
corporations brings home to our minds one cardinal truth, that political
institutions have very frequently but a relative and temporary
usefulness, and that what forwarded improvement during one part of its
course may prove to it in time a most pernicious obstacle. Corporations
in England, we may be sure, wanted nothing of their usual character; and
it cost Edward no little trouble to protect his colonists from the
selfishness and from the blind nationality of the vulgar.[584] The
emigration of Flemish weavers into England continued during this reign,
and we find it mentioned, at intervals, for more than a century.

[Sidenote: Increase of English commerce.]

Commerce now became, next to liberty, the leading object of parliament.
For the greater part of our statutes from the accession of Edward III.
bear relation to this subject; not always well devised, or liberal, or
consistent, but by no means worse in those respects than such as have
been enacted in subsequent ages. The occupation of a merchant became
honourable; and, notwithstanding the natural jealousy of the two
classes, he was placed, in some measure, on a footing with landed
proprietors. By the statute of apparel, in 37 Edw. III., merchants and
artificers who had five hundred pounds value in goods and chattels might
use the same dress as squires of one hundred pounds a year. And those
who were worth more than this might dress like men of double that
estate. Wool was still the principal article of export and source of
revenue. Subsidies granted by every parliament upon this article were,
on account of the scarcity of money, commonly taken in kind. To prevent
evasion of this duty seems to have been the principle of those
multifarious regulations which fix the staple, or market for wool, in
certain towns, either in England, or, more commonly, on the continent.
To these all wool was to be carried, and the tax was there collected. It
is not easy, however, to comprehend the drift of all the provisions
relating to the staple, many of which tend to benefit foreign at the
expense of English merchants. By degrees the exportation of woollen
cloths increased so as to diminish that of the raw material, but the
latter was not absolutely prohibited during the period under
review;[585] although some restrictions were imposed upon it by Edward
IV. For a much earlier statute, in the 11th of Edward III., making the
exportation of wool a capital felony, was in its terms provisional,
until it should be otherwise ordered by the council; and the king almost
immediately set it aside.[586]

[Sidenote: Manufactures of France and Germany.]

A manufacturing district, as we see in our own country, sends out, as it
were, suckers into all its neighbourhood. Accordingly, the woollen
manufacture spread from Flanders along the banks of the Rhine and into
the northern provinces of France.[587] I am not, however, prepared to
trace its history in these regions. In Germany the privileges conceded
by Henry V. to the free cities, and especially to their artisans, gave a
soul to industry; though the central parts of the empire were, for many
reasons, very ill-calculated for commercial enterprise during the middle
ages.[588] But the French towns were never so much emancipated from
arbitrary power as those of Germany or Flanders; and the evils of
exorbitant taxation, with those produced by the English wars, conspired
to retard the advance of manufactures in France. That of linen made some
little progress; but this work was still, perhaps, chiefly confined to
the labour of female servants.[589]

[Sidenote: Baltic trade.]

The manufactures of Flanders and England found a market, not only in
these adjacent countries, but in a part of Europe which for many ages
had only been known enough to be dreaded. In the middle of the eleventh
century a native of Bremen, and a writer much superior to most others of
his time, was almost entirely ignorant of the geography of the Baltic;
doubting whether any one had reached Russia by that sea, and reckoning
Esthonia and Courland among its islands.[590] But in one hundred years
more the maritime regions of Mecklenburg and Pomerania, inhabited by a
tribe of heathen Sclavonians, were subdued by some German princes; and
the Teutonic order some time afterwards, having conquered Prussia,
extended a line of at least comparative civilization as far as the gulf
of Finland. The first town erected on the coasts of the Baltic was
Lubec, which owes its foundation to Adolphus count of Holstein, in 1140.
After several vicissitudes it became independent of any sovereign but
the emperor in the thirteenth century. Hamburgh and Bremen, upon the
other side of the Cimbric peninsula, emulated the prosperity of Lubec;
the former city purchased independence of its bishop in 1225. A colony
from Bremen founded Riga in Livonia about 1162. The city of Dantzic grew
into importance about the end of the following century. Konigsberg was
founded by Ottocar king of Bohemia in the same age.

But the real importance of these cities is to be dated from their
famous union into the Hanseatic confederacy. The origin of this is
rather obscure, but it may certainly be nearly referred in point of time
to the middle of the thirteenth century,[591] and accounted for by the
necessity of mutual defence, which piracy by sea and pillage by land had
taught the merchants of Germany. The nobles endeavoured to obstruct the
formation of this league, which indeed was in great measure designed to
withstand their exactions. It powerfully maintained the influence which
the free imperial cities were at this time acquiring. Eighty of the most
considerable places constituted the Hanseatic confederacy, divided into
four colleges, whereof Lubec, Cologne, Brunswic, and Dantzic were the
leading towns. Lubec held the chief rank, and became, as it were, the
patriarchal see of the league; whose province it was to preside in all
general discussions for mercantile, political, or military purposes, and
to carry them into execution. The league had four principal factories in
foreign parts, at London, Bruges, Bergen, and Novogorod; endowed by the
sovereigns of those cities with considerable privileges, to which every
merchant belonging to a Hanseatic town was entitled.[592] In England the
German guildhall or factory was established by concession of Henry III.;
and in later periods the Hanse traders were favoured above many others
in the capricious vacillations of our mercantile policy.[593] The
English had also their factories on the Baltic coast as far as Prussia
and in the dominions of Denmark.[594]

[Sidenote: Rapid progress of English trade.]

This opening of a northern market powerfully accelerated the growth of
our own commercial opulence, especially after the woollen manufacture
had begun to thrive. From about the middle of the fourteenth century we
find continual evidences of a rapid increase in wealth. Thus, in 1363,
Picard, who had been lord mayor some years before, entertained Edward
III. and the Black Prince, the kings of France, Scotland, and Cyprus,
with many of the nobility, at his own house in the Vintry, and
presented them with handsome gifts.[595] Philpot, another eminent
citizen in Richard II.'s time, when the trade of England was
considerably annoyed by privateers, hired 1000 armed men, and despatched
them to sea, where they took fifteen Spanish vessels with their
prizes.[596] We find Richard obtaining a great deal from private
merchants and trading towns. In 1379 he got 5000_l._ from London, 1000
marks from Bristol, and in proportion from smaller places. In 1386
London gave 4000_l._ more, and 10,000 marks in 1397.[597] The latter sum
was obtained also for the coronation of Henry VI.[598] Nor were the
contributions of individuals contemptible, considering the high value of
money. Hinde, a citizen of London, lent to Henry IV. 2000_l._ in 1407,
and Whittington one half of that sum. The merchants of the staple
advanced 4000_l._ at the same time.[599] Our commerce continued to be
regularly and rapidly progressive during the fifteenth century. The
famous Canynges of Bristol, under Henry VI. and Edward IV., had ships of
900 tons burthen.[600] The trade and even the internal wealth of England
reached so much higher a pitch in the reign of the last-mentioned king
than at any former period, that we may perceive the wars of York and
Lancaster to have produced no very serious effect on national
prosperity. Some battles were doubtless sanguinary; but the loss of
lives in battle is soon repaired by a flourishing nation; and the
devastation occasioned by armies was both partial and transitory.

[Sidenote: Intercourse with the south of Europe.]

A commercial intercourse between these northern and southern regions of
Europe began about the early part of the fourteenth century, or, at most,
a little sooner. Until, indeed, the use of the magnet was thoroughly
understood, and a competent skill in marine architecture, as well as
navigation, acquired, the Italian merchants were scarce likely to attempt
a voyage perilous in itself and rendered more formidable by the imaginary
difficulties which had been supposed to attend an expedition beyond the
straits of Hercules. But the English, accustomed to their own rough seas,
were always more intrepid, and probably more skilful navigators. Though it
was extremely rare, even in the fifteenth century, for an English trading
vessel to appear in the Mediterranean,[601] yet a famous military
armament, that destined for the crusade of Richard I., displayed at a very
early time the seamanship of our countrymen. In the reign of Edward II. we
find mention in Rymer's collection of Genoese ships trading to Flanders
and England. His son was very solicitous to preserve the friendship of
that opulent republic; and it is by his letters to his senate, or by royal
orders restoring ships unjustly seized, that we come by a knowledge of
those facts which historians neglect to relate. Pisa shared a little in
this traffic, and Venice more considerably; but Genoa was beyond all
competition at the head of Italian commerce in these seas during the
fourteenth century. In the next her general decline left it more open to
her rival; but I doubt whether Venice ever maintained so strong a
connexion with England. Through London and Bruges, their chief station in
Flanders, the merchants of Italy and of Spain transported oriental produce
to the farthest parts of the north. The inhabitants of the Baltic coast
were stimulated by the desire of precious luxuries which they had never
known; and these wants, though selfish and frivolous, are the means by
which nations acquire civilization, and the earth is rendered fruitful of
its produce. As the carriers of this trade the Hanseatic merchants
resident in England and Flanders derived profits through which eventually
of course those countries were enriched. It seems that the Italian vessels
unloaded at the marts of London or Bruges, and that such part of their
cargoes as were intended for a more northern trade came there into the
hands of the German merchants. In the reign of Henry VI. England carried
on a pretty extensive traffic with the countries around the Mediterranean,
for whose commodities her wool and woollen cloths enabled her to pay.

[Sidenote: Commerce of the Mediterranean countries.]

[Sidenote: Amalfi.]

The commerce of the southern division, though it did not, I think,
produce more extensively beneficial effects upon the progress of
society, was both earlier and more splendid than that of England and the
neighbouring countries. Besides Venice, which has been mentioned
already, Amalfi kept up the commercial intercourse of Christendom with
the Saracen countries before the first crusade.[602] It was the singular
fate of this city to have filled up the interval between two periods of
civilization, in neither of which she was destined to be distinguished.
Scarcely known before the end of the sixth century, Amalfi ran a
brilliant career, as a free and trading republic, which was checked by
the arms of a conqueror in the middle of the twelfth. Since her
subjugation by Roger king of Sicily, the name of a people who for a
while connected Europe with Asia has hardly been repeated, except for
two discoveries falsely imputed to them, those of the Pandects and of
the compass.

[Sidenote: Pisa, Genoa, Venice.]

But the decline of Amalfi was amply compensated to the rest of Italy by
the constant elevation of Pisa, Genoa, and Venice in the twelfth and
ensuing ages. The crusades led immediately to this growing prosperity of
the commercial cities. Besides the profit accruing from so many naval
armaments which they supplied, and the continual passage of private
adventurers in their vessels, they were enabled to open a more extensive
channel of oriental traffic than had hitherto been known. These three
Italian republics enjoyed immunities in the Christian principalities of
Syria; possessing separate quarters in Acre, Tripoli, and other cities,
where they were governed by their own laws and magistrates. Though the
progress of commerce must, from the condition of European industry, have
been slow, it was uninterrupted; and the settlements in Palestine were
becoming important as factories, an use of which Godfrey and Urban
little dreamed, when they were lost through the guilt and imprudence of
their inhabitants.[603] Villani laments the injury sustained by commerce
in consequence of the capture of Acre, "situated, as it was, on the
coast of the Mediterranean, in the centre of Syria, and, as we might
say, of the habitable world, a haven for all merchandize, both from the
East and the West, which all the nations of the earth frequented for
this trade."[604] But the loss was soon retrieved, not perhaps by Pisa
and Genoa, but by Venice, who formed connexions with the Saracen
governments, and maintained her commercial intercourse with Syria and
Egypt by their licence, though subject probably to heavy exactions.
Sanuto, a Venetian author at the beginning of the fourteenth century,
has left a curious account of the Levant trade which his countrymen
carried on at that time. Their imports it is easy to guess, and it
appears that timber, brass, tin, and lead, as well as the precious
metals, were exported to Alexandria, besides oil, saffron, and some of
the productions of Italy, and even wool and woollen cloths.[605] The
European side of the account had therefore become respectable.

The commercial cities enjoyed as great privileges at Constantinople as
in Syria, and they bore an eminent part in the vicissitudes of the
Eastern empire. After the capture of Constantinople by the Latin
crusaders, the Venetians, having been concerned in that conquest,
became, of course, the favoured traders under the new dynasty;
possessing their own district in the city, with their magistrate or
podestà, appointed at Venice, and subject to the parent republic. When
the Greeks recovered the seat of their empire, the Genoese, who, from
jealousy of their rivals, had contributed to that revolution, obtained
similar immunities. This powerful and enterprising state, in the
fourteenth century, sometimes the ally, sometimes the enemy, of the
Byzantine court, maintained its independent settlement at Pera. From
thence she spread her sails into the Euxine, and, planting a colony at
Caffa in the Crimea, extended a line of commerce with the interior
regions of Asia, which even the skill and spirit of our own times has
not yet been able to revive.[606]

The French provinces which border on the Mediterranean Sea partook in
the advantages which it offered. Not only Marseilles, whose trade had
continued in a certain degree throughout the worst ages, but Narbonne,
Nismes, and especially Montpelier, were distinguished for commercial
prosperity.[607] A still greater activity prevailed in Catalonia. From
the middle of the thirteenth century (for we need not trace the
rudiments of its history) Barcelona began to emulate the Italian cities
in both the branches of naval energy, war and commerce. Engaged in
frequent and severe hostilities with Genoa, and sometimes with
Constantinople, while their vessels traded to every part of the
Mediterranean, and even of the English Channel, the Catalans might
justly be reckoned among the first of maritime nations. The commerce of
Barcelona has never since attained so great a height as in the fifteenth
century.[608]

[Sidenote: Their manufactures.]

The introduction of a silk manufacture at Palermo, by Roger Guiscard in
1148, gave perhaps the earliest impulse to the industry of Italy. Nearly
about the same time the Genoese plundered two Moorish cities of Spain,
from which they derived the same art. In the next age this became a
staple manufacture of the Lombard and Tuscan republics, and the
cultivation of mulberries was enforced by their laws.[609] Woollen
stuffs, though the trade was perhaps less conspicuous than that of
Flanders, and though many of the coarser kinds were imported from
thence, employed a multitude of workmen in Italy, Catalonia, and the
south of France.[610] Among the trading companies into which the
middling ranks were distributed, those concerned in silk and woollens
were most numerous and honourable.[611]

[Sidenote: Invention of the mariner's compass.]

A property of a natural substance, long overlooked even though it
attracted observation by a different peculiarity, has influenced by its
accidental discovery the fortunes of mankind more than all the
deductions of philosophy. It is, perhaps, impossible to ascertain the
epoch when the polarity of the magnet was first known in Europe. The
common opinion, which ascribes its discovery to a citizen of Amalfi in
the fourteenth century, is undoubtedly erroneous. Guiot de Provins, a
French poet, who lived about the year 1200, or, at the latest, under St.
Louis, describes it in the most unequivocal language. James de Vitry, a
bishop in Palestine, before the middle of the thirteenth century, and
Guido Guinizzelli, an Italian poet of the same time, are equally
explicit. The French, as well as Italians, claim the discovery as their
own; but whether it were due to either of these nations, or rather
learned from their intercourse with the Saracens, is not easily to be
ascertained.[612] For some time, perhaps, even this wonderful
improvement in the art of navigation might not be universally adopted by
vessels sailing within the Mediterranean, and accustomed to their old
system of observations. But when it became more established, it
naturally inspired a more fearless spirit of adventure. It was not, as
has been mentioned, till the beginning of the fourteenth century that
the Genoese and other nations around that inland sea steered into the
Atlantic Ocean towards England and Flanders. This intercourse with the
northern countries enlivened their trade with the Levant by the exchange
of productions which Spain and Italy do not supply, and enriched the
merchants by means of whose capital the exports of London and of
Alexandria were conveyed into each other's harbours.

[Sidenote: Maritime laws.]

The usual risks of navigation, and those incident to commercial
adventure, produce a variety of questions in every system of
jurisprudence, which, though always to be determined, as far as
possible, by principles of natural justice, must in many cases depend
upon established customs. These customs of maritime law were anciently
reduced into a code by the Rhodians, and the Roman emperors preserved or
reformed the constitutions of that republic. It would be hard to say how
far the tradition of this early jurisprudence survived the decline of
commerce in the darker ages; but after it began to recover itself,
necessity suggested, or recollection prompted, a scheme of regulations
resembling in some degree, but much more enlarged than those of
antiquity. This was formed into a written code, Il Consolato del Mare,
not much earlier, probably, than the middle of the thirteenth century;
and its promulgation seems rather to have proceeded from the citizens of
Barcelona than from those of Pisa or Venice, who have also claimed to be
the first legislators of the sea.[613] Besides regulations simply
mercantile, this system has defined the mutual rights of neutral and
belligerent vessels, and thus laid the basis of the positive law of
nations in its most important and disputed cases. The king of France and
count of Provence solemnly acceded to this maritime code, which hence
acquired a binding force within the Mediterranean Sea; and in most
respects the law merchant of Europe is at present conformable to its
provisions. A set of regulations, chiefly borrowed from the Consolato,
was compiled in France under the reign of Louis IX., and prevailed in
their own country. These have been denominated the laws of Oleron, from
an idle story that they were enacted by Richard I., while his expedition
to the Holy Land lay at anchor in that island.[614] Nor was the north
without its peculiar code of maritime jurisprudence; namely, the
Ordinances of Wisbuy, a town in the isle of Gothland, principally
compiled from those of Oleron, before the year 1400, by which the Baltic
traders were governed.[615]

[Sidenote: Frequency of piracy.]

[Sidenote: Law of reprisals.]

There was abundant reason for establishing among maritime nations some
theory of mutual rights, and for securing the redress of injuries, as
far as possible, by means of acknowledged tribunals. In that state of
barbarous anarchy which so long resisted the coercive authority of civil
magistrates, the sea held out even more temptation and more impunity
than the land; and when the laws had regained their sovereignty, and
neither robbery nor private warfare was any longer tolerated, there
remained that great common of mankind, unclaimed by any king, and the
liberty of the sea was another name for the security of plunderers. A
pirate, in a well-armed quick-sailing vessel, must feel, I suppose, the
enjoyments of his exemption from control more exquisitely than any
other freebooter; and darting along the bosom of the ocean, under the
impartial radiance of the heavens, may deride the dark concealments and
hurried flights of the forest robber. His occupation is, indeed,
extinguished by the civilization of later ages, or confined to distant
climates. But in the thirteenth and fourteenth centuries, a rich vessel
was never secure from attack; and neither restitution nor punishment of
the criminals was to be obtained from governments who sometimes feared
the plunderer and sometimes connived at the offence.[616] Mere piracy,
however, was not the only danger. The maritime towns of Flanders,
France, and England, like the free republics of Italy, prosecuted their
own quarrels by arms, without asking the leave of their respective
sovereigns. This practice, exactly analogous to that of private war in
the feudal system, more than once involved the kings of France and
England in hostility.[617] But where the quarrel did not proceed to such
a length as absolutely to engage two opposite towns, a modification of
this ancient right of revenge formed part of the regular law of nations,
under the name of reprisals. Whoever was plundered or injured by the
inhabitant of another town obtained authority from his own magistrates
to seize the property of any other person belonging to it, until his
loss should be compensated. This law of reprisal was not confined to
maritime places; it prevailed in Lombardy, and probably in the German
cities. Thus, if a citizen of Modena was robbed by a Bolognese, he
complained to the magistrates of the former city, who represented the
case to those of Bologna, demanding redress. If this were not
immediately granted, letters of reprisals were issued to plunder the
territory of Bologna till the injured party should be reimbursed by sale
of the spoil.[618] In the laws of Marseilles it is declared, "If a
foreigner take anything from a citizen of Marseilles, and he who has
jurisdiction over the said debtor or unjust taker does not cause right
to be done in the same, the rector or consuls, at the petition of the
said citizen, shall grant him reprisals upon all the goods of the said
debtor or unjust taker, and also upon the goods of others who are under
the jurisdiction of him who ought to do justice, and would not, to the
said citizen of Marseilles."[619] Edward III. remonstrates, in an
instrument published by Rymer, against letters of marque granted by the
king of Aragon to one Berenger de la Tone, who had been robbed by an
English pirate of 2000_l._, alleging that, inasmuch as he had always
been ready to give redress to the party, it seemed to his counsellors
that there was no just cause for reprisals upon the king's or his
subjects' property.[620] This passage is so far curious as it asserts
the existence of a customary law of nations, the knowledge of which was
already a sort of learning. Sir E. Coke speaks of this right of private
reprisals as if it still existed;[621] and, in fact, there are instances
of granting such letters as late as the reign of Charles I.

[Sidenote: Liability of aliens for each other's debts.]

A practice, founded on the same principles as reprisal, though rather
less violent, was that of attaching the goods or persons of resident
foreigners for the debts of their countrymen. This indeed, in England,
was not confined to foreigners until the statute of Westminster I. c.
23, which enacts that "no stranger who is of this realm shall be
distrained in any town or market for a debt wherein he is neither
principal nor surety." Henry III. had previously granted a charter to
the burgesses of Lubec, that they should "not be arrested for the debt
of any of their countrymen, unless the magistrates of Lubec neglected to
compel payment."[622] But by a variety of grants from Edward II. the
privileges of English subjects under the statute of Westminster were
extended to most foreign nations.[623] This unjust responsibility had
not been confined to civil cases. One of a company of Italian merchants,
the Spini, having killed a man, the officers of justice seized the
bodies and effects of all the rest.[624]

[Sidenote: Great profits of trade,]

[Sidenote: and high rate of interest.]

[Sidenote: Money dealings of the Jews.]

If under all these obstacles, whether created by barbarous manners, by
national prejudice, or by the fraudulent and arbitrary measures of
princes, the merchants of different countries became so opulent as
almost to rival the ancient nobility, it must be ascribed to the
greatness of their commercial profits. The trading companies possessed
either a positive or a virtual monopoly, and held the keys of those
eastern regions, for the luxuries of which the progressive refinement of
manners produced an increasing demand. It is not easy to determine the
average rate of profit;[625] but we know that the interest of money was
exceedingly high throughout the middle ages. At Verona, in 1228, it was
fixed by law at twelve and a half per cent.; at Modena, in 1270, it
seems to have been as high as twenty.[626] The republic of Genoa,
towards the end of the fourteenth century, when Italy had grown wealthy,
paid only from seven to ten per cent. to her creditors.[627] But in
France and England the rate was far more oppressive. An ordinance of
Philip the Fair, in 1311, allows twenty per cent. after the first year
of the loan.[628] Under Henry III., according to Matthew Paris, the
debtor paid ten per cent. every two months;[629] but this is absolutely
incredible as a general practice. This was not merely owing to scarcity
of money, but to the discouragement which a strange prejudice opposed,
to one of the most useful and legitimate branches of commerce. Usury, or
lending money for profit, was treated as a crime by the theologians of
the middle ages; and though the superstition has been eradicated, some
part of the prejudice remains in our legislation. This trade in money,
and indeed a great part of inland trade in general, had originally
fallen to the Jews, who were noted for their usury so early as the sixth
century.[630] For several subsequent ages they continued to employ their
capital and industry to the same advantage, with little molestation from
the clergy, who always tolerated their avowed and national infidelity,
and often with some encouragement from princes. In the twelfth century
we find them not only possessed of landed property in Languedoc, and
cultivating the studies of medicine and Rabbinical literature in their
own academy at Montpelier, under the protection of the count of
Toulouse, but invested with civil offices.[631] Raymond Roger, viscount
of Carcasonne, directs a writ "to his bailiffs, Christian and
Jewish."[632] It was one of the conditions imposed by the church on the
count of Toulouse, that he should allow no Jews to possess magistracy in
his dominions.[633] But in Spain they were placed by some of the
municipal laws on the footing of Christians, with respect to the
composition for their lives, and seem in no other European country to
have been so numerous or considerable.[634] The diligence and expertness
of this people in all pecuniary dealings recommended them to princes who
were solicitous about the improvement of their revenue. We find an
article in the general charter of privileges granted by Peter III. of
Aragon, in 1283, that no Jew should hold the office of a bayle or judge.
And two kings of Castile, Alonzo XI. and Peter the Cruel, incurred much
odium by employing Jewish ministers in their treasury. But, in other
parts of Europe, their condition had, before that time, begun to change
for the worse--partly from the fanatical spirit of the crusades, which
prompted the populace to massacre, and partly from the jealousy which
their opulence excited. Kings, in order to gain money and popularity at
once, abolished the debts due to the children of Israel, except a part
which they retained as the price of their bounty. One is at a loss to
conceive the process of reasoning in an ordinance of St. Louis, where,
"for the salvation of his own soul and those of his ancestors, he
releases to all Christians a third part of what was owing by them to
Jews."[635] Not content with such edicts, the kings of France sometimes
banished the whole nation from their dominions, seizing their effects at
the same time; and a season of alternative severity and toleration
continued till, under Charles VI., they were finally expelled from the
kingdom, where they never afterwards possessed any legal
settlement.[636] They were expelled from England under Edward I., and
never obtained any legal permission to reside till the time of Cromwell.
This decline of the Jews was owing to the transference of their trade in
money to other hands. In the early part of the thirteenth century the
merchants of Lombardy and of the south of France[637] took up the
business of remitting money by bills of exchange,[638] and of making
profit upon loans. The utility of this was found so great, especially by
the Italian clergy, who thus in an easy manner drew the income of their
transalpine benefices, that in spite of much obloquy, the Lombard
usurers established themselves in every country, and the general
progress of commerce wore off the bigotry that had obstructed their
reception. A distinction was made between moderate and exorbitant
interest; and though the casuists did not acquiesce in this legal
regulation, yet it satisfied, even in superstitious times, the
consciences of provident traders.[639] The Italian bankers were
frequently allowed to farm the customs in England, as a security
perhaps for loans which, were not very punctually repaid.[640] In 1345
the Bardi at Florence, the greatest company in Italy, became bankrupt,
Edward III. owing them, in principal and interest, 900,000 gold florins.
Another, the Peruzzi, failed at the same time, being creditors to Edward
for 600,000 florins. The king of Sicily owed 100,000 florins to each of
these bankers. Their failure involved, of course, a multitude of
Florentine citizens, and was a heavy misfortune to the state.[641]

[Sidenote: Banks of Genoa and others.]

The earliest bank of deposit, instituted for the accommodation of
private merchants, is said to have been that of Barcelona, in 1401.[642]
The banks of Venice and Genoa were of a different description. Although
the former of these two has the advantage of greater antiquity, having
been formed, as we are told, in the twelfth century, yet its early
history is not so clear as that of Genoa, nor its political importance
so remarkable, however similar might be its origin.[643] During the wars
of Genoa in the fourteenth century, she had borrowed large sums of
private citizens, to whom the revenues were pledged for repayment. The
republic of Florence had set a recent, though not a very encouraging
example of a public loan, to defray the expense of her war against
Mastino della Scala, in 1336. The chief mercantile firms, as well as
individual citizens, furnished money on an assignment of the taxes,
receiving fifteen per cent. interest, which appears to have been above
the rate of private usury.[644] The state was not unreasonably
considered a worse debtor than some of her citizens, for in a few years
these loans were consolidated into a general fund, or _monte_, with some
deduction from the capital and a great diminution of interest; so that
an original debt of one hundred florins sold only for twenty-five.[645]
But I have not found that these creditors formed at Florence a corporate
body, or took any part, as such, in the affairs of the republic. The
case was different at Genoa. As a security, at least, for their
interest, the subscribers to public loans were permitted to receive the
produce of the taxes by their own collectors, paying the excess into the
treasury. The number and distinct classes of these subscribers becoming
at length inconvenient, they were formed, about the year 1407, into a
single corporation, called the bank of St. George, which was from that
time the sole national creditor and mortgagee. The government of this
was intrusted to eight protectors. It soon became almost independent of
the state. Every senator, on his admission, swore to maintain the
privileges of the bank, which were confirmed by the pope, and even by
the emperor. The bank interposed its advice in every measure of
government, and generally, as is admitted, to the public advantage. It
equipped armaments at its own expense, one of which subdued the island
of Corsica; and this acquisition, like those of our great Indian
corporation, was long subject to a company of merchants, without any
interference of the mother country.[646]

[Sidenote: Increase of domestic expenditure.]

The increasing wealth of Europe, whether derived from internal
improvement or foreign commerce, displayed itself in more expensive
consumption, and greater refinements of domestic life. But these effects
were for a long time very gradual, each generation making a few steps in
the progress, which are hardly discernible except by an attentive
inquirer. It is not till the latter half of the thirteenth century that
an accelerated impulse appears to be given to society. The just
government and suppression of disorder under St. Louis, and the
peaceful temper of his brother Alfonso, count of Toulouse and Poitou,
gave France leisure to avail herself of her admirable fertility.
England, that to a soil not greatly inferior to that of France united
the inestimable advantage of an insular position, and was invigorated,
above all, by her free constitution and the steady industriousness of
her people, rose with a pretty uniform motion from the time of Edward I.
Italy, though the better days of freedom had passed away in most of her
republics, made a rapid transition from simplicity to refinement. "In
those times," says a writer about the year 1300, speaking of the age of
Frederic II., "the manners of the Italians were rude. A man and his wife
ate off the same plate. There was no wooden-handled knives, nor more
than one or two drinking cups in a house. Candles of wax or tallow were
unknown; a servant held a torch during supper. The clothes of men were
of leather unlined: scarcely any gold or silver was seen on their dress.
The common people ate flesh but three times a week, and kept their cold
meat for supper. Many did not drink wine in summer. A small stock of
corn seemed riches. The portions of women were small; their dress, even
after marriage, was simple. The pride of men was to be well provided
with arms and horses; that of the nobility to have lofty towers, of
which all the cities in Italy were full. But now frugality has been
changed for sumptuousness; every thing exquisite is sought after in
dress; gold, silver, pearls, silks, and rich furs. Foreign wines and
rich meats are required. Hence usury, rapine, fraud, tyranny," &c.[647]
This passage is supported by other testimonies nearly of the same time.
The conquest of Naples by Charles of Anjou in 1266 seems to have been
the epoch of increasing luxury throughout Italy. His Provençal knights
with their plumed helmets and golden collars, the chariot of his queen
covered with blue velvet and sprinkled with lilies of gold, astonished
the citizens of Naples.[648] Provence had enjoyed a long tranquillity,
the natural source of luxurious magnificence; and Italy, now liberated
from the yoke of the empire, soon reaped the same fruit of a condition
more easy and peaceful than had been her lot for several ages. Dante
speaks of the change of manners at Florence from simplicity and virtue
to refinement and dissoluteness, in terms very nearly similar to those
quoted above.[649]

Throughout the fourteenth century there continued to be a rapid but
steady progression in England of what we may denominate elegance,
improvement, or luxury; and if this was for a time suspended in France,
it must be ascribed to the unusual calamities which befell that country
under Philip of Valois and his son. Just before the breaking out of the
English wars an excessive fondness for dress is said to have
distinguished not only the higher ranks, but the burghers, whose foolish
emulation at least indicates their easy circumstances.[650] Modes of
dress hardly perhaps deserve our notice on their own account; yet so far
as their universal prevalence was a symptom of diffused wealth, we
should not overlook either the invectives bestowed by the clergy on the
fantastic extravagances of fashion, or the sumptuary laws by which it
was endeavoured to restrain them.

[Sidenote: Sumptuary laws.]

The principle of sumptuary laws was partly derived from the small
republics of antiquity, which might perhaps require that security for
public spirit and equal rights--partly from the austere and injudicious
theory of religion disseminated by the clergy. These prejudices united
to render all increase of general comforts odious under the name of
luxury; and a third motive more powerful than either, the jealousy with
which the great regard anything like imitation in those beneath them,
co-operated to produce a sort of restrictive code in the laws of Europe.
Some of these regulations are more ancient; but the chief part were
enacted, both in France and England, during the fourteenth century,
extending to expenses of the table as well as apparel. The first statute
of this description in our own country was, however, repealed the next
year;[651] and subsequent provisions were entirely disregarded by a
nation which valued liberty and commerce too much to obey laws conceived
in a spirit hostile to both. Laws indeed designed by those governments
to restrain the extravagance of their subjects may well justify the
severe indignation which Adam Smith has poured upon all such
interference with private expenditure. The kings of France and England
were undoubtedly more egregious spendthrifts than any others in their
dominions; and contributed far more by their love of pageantry to excite
a taste for dissipation in their people than by their ordinances to
repress it.

[Sidenote: Domestic manners of Italy.]

Mussus, an historian of Placentia, has left a pretty copious account of
the prevailing manners among his countrymen about 1388, and expressly
contrasts their more luxurious living with the style of their ancestors
seventy years before, when, as we have seen, they had already made
considerable steps towards refinement. This passage is highly
interesting, because it shows the regular tenor of domestic economy in
an Italian city rather than a mere display of individual magnificence,
as in most of the facts collected by our own and the French antiquaries.
But it is much too long for insertion in this place.[652] No other
country, perhaps, could exhibit so fair a picture of middle life: in
France the burghers, and even the inferior gentry, were for the most
part in a state of poverty at this period, which they concealed by an
affectation of ornament; while our English yeomanry and tradesmen were
more anxious to invigorate their bodies by a generous diet than to
dwell in well furnished houses, or to find comfort in cleanliness and
elegance.[653] The German cities, however, had acquired with liberty the
spirit of improvement and industry. From the time that Henry V. admitted
their artisans to the privileges of free burghers they became more and
more prosperous;[654] while the steadiness and frugality of the German
character compensated for some disadvantages arising out of their inland
situation. Spire, Nuremberg, Ratisbon, and Augsburg were not indeed like
the rich markets of London and Bruges, nor could their burghers rival
the princely merchants of Italy; but they enjoyed the blessings of
competence diffused over a large class of industrious freemen, and in
the fifteenth century one of the politest Italians could extol their
splendid and well furnished dwellings, their rich apparel, their easy
and affluent mode of living, the security of their rights and just
equality of their laws.[655]

[Sidenote: Civil architecture.]

No chapter in the history of national manners would illustrate so well,
if duly executed, the progress of social life as that dedicated to
domestic architecture. The fashions of dress and of amusements are
generally capricious and irreducible to rule; but every change in the
dwellings of mankind, from the rudest wooden cabin to the stately
mansion, has been dictated by some principle of convenience, neatness,
comfort, or magnificence. Yet this most interesting field of research
has been less beaten by our antiquaries than others comparatively
barren. I do not pretend to a complete knowledge of what has been
written by these learned inquirers; but I can only name one book in
which the civil architecture of our ancestors has been sketched, loosely
indeed, but with a superior hand, and another in which it is partially
noticed. I mean by the first a chapter in the Appendix to Dr. Whitaker's
History of Whalley; and by the second Mr. King's Essays on Ancient
Castles in the Archæologia.[656] Of these I shall make free use in the
following paragraphs.

The most ancient buildings which we can trace in this island, after the
departure of the Romans, were circular towers of no great size, whereof
many remain in Scotland, erected either on a natural eminence or on an
artificial mound of earth. Such are Conisborough Castle in Yorkshire and
Castleton in Derbyshire, built perhaps, according to Mr. King, before
the Conquest.[657] To the lower chambers of those gloomy keeps there was
no admission of light or air except through long narrow loop-holes and
an aperture in the roof. Regular windows were made in the upper
apartments. Were it not for the vast thickness of the walls, and some
marks of attention both to convenience and decoration in these
structures, we might be induced to consider them as rather intended for
security during the transient inroad of an enemy than for a chieftain's
usual residence. They bear a close resemblance, except by their circular
form and more insulated situation, to the peels, or square towers of
three or four stories, which are still found contiguous to ancient
mansion-houses, themselves far more ancient, in the northern
counties,[658] and seem to have been designed for places of refuge.

In course of time, the barons who owned these castles began to covet a
more comfortable dwelling. The keep was either much enlarged, or
altogether relinquished as a place of residence except in time of siege;
while more convenient apartments were sometimes erected in the tower of
entrance, over the great gateway, which led to the inner ballium or
court-yard. Thus at Tunbridge Castle, this part of which is referred by
Mr. King to the beginning of the thirteenth century, there was a room,
twenty-eight feet by sixteen, on each side of the gateway; another above
of the same dimensions, with an intermediate room over the entrance; and
one large apartment on the second floor occupying the whole space, and
intended for state. The windows in this class of castles were still
little better than loop-holes on the basement story, but in the upper
rooms often large and beautifully ornamented, though always looking
inwards to the court. Edward I. introduced a more splendid and
convenient style of castles, containing many habitable towers, with
communicating apartments. Conway and Carnarvon will be familiar
examples. The next innovation was the castle-palace--of which Windsor,
if not quite the earliest, is the most magnificent instance. Alnwick,
Naworth, Harewood, Spofforth, Kenilworth, and Warwick, were all built
upon this scheme during the fourteenth century, but subsequent
enlargements have rendered caution necessary to distinguish their
original remains. "The odd mixture," says Mr. King, "of convenience and
magnificence with cautious designs for protection and defence, and with
the inconveniences of the former confined plan of a close fortress, is
very striking." The provisions for defence became now, however, little
more than nugatory; large arched windows, like those of cathedrals,
were introduced into halls, and this change in architecture manifestly
bears witness to the cessation of baronial wars and the increasing love
of splendour in the reign of Edward III.

To these succeeded the castellated houses of the fifteenth century, such
as Herstmonceux in Sussex, Haddon Hall in Derbyshire, and the older part
of Knowle in Kent.[659] They resembled fortified castles in their strong
gateways, their turrets and battlements, to erect which a royal licence
was necessary; but their defensive strength could only have availed
against a sudden affray or attempt at forcible dispossession. They were
always built round one or two court-yards, the circumference of the
first, when they were two, being occupied by the offices and servants'
rooms, that of the second by the state-apartments. Regular quadrangular
houses, not castellated, were sometimes built during the same age, and
under Henry VII. became universal in the superior style of domestic
architecture.[660] The quadrangular form, as well from security and
convenience as from imitation of conventual houses, which were always
constructed upon that model, was generally preferred--even where the
dwelling-house, as indeed was usual, only took up one side of the
enclosure, and the remaining three contained the offices, stables, and
farm-buildings, with walls of communication. Several very old parsonages
appear to have been built in this manner.[661] It is, however, not very
easy to discover any large fragments of houses inhabited by the gentry
before the reign, at soonest, of Edward III., or even to trace them by
engravings in the older topographical works, not only from the
dilapidations of time, but because very few considerable mansions had
been erected by that class. A great part of England affords no stone fit
for building, and the vast though unfortunately not inexhaustible
resources of her oak forests were easily applied to less durable and
magnificent structures. A frame of massive timber, independent of walls
and resembling the inverted hull of a large ship, formed the skeleton,
as it were, of an ancient hall--the principal beams springing from the
ground naturally curved, and forming a Gothic arch overhead. The
intervals of these were filled up with horizontal planks; but in the
earlier buildings, at least in some districts, no part of the walls was
of stone.[662] Stone houses are, however, mentioned as belonging to
citizens of London, even in the reign of Henry II.;[663] and, though not
often perhaps regularly hewn stones, yet those scattered over the soil
or dug from flint quarries, bound together with a very strong and
durable cement, were employed in the construction of manerial houses,
especially in the western counties and other parts where that material
is easily procured.[664] Gradually even in timber buildings the
intervals of the main beams, which now became perpendicular, not
throwing off their curved springers till they reached a considerable
height, were occupied by stone walls, or where stone was expensive, by
mortar or plaster, intersected by horizontal or diagonal beams, grooved
into the principal piers.[665] This mode of building continued for a
long time, and is still familiar to our eyes in the older streets of the
metropolis and other towns, and in many parts of the country.[666] Early
in the fourteenth century the art of building with brick, which had been
lost since the Roman dominion, was introduced probably from Flanders.
Though several edifices of that age are constructed with this material,
it did not come into general use till the reign of Henry VI.[667] Many
considerable houses as well as public buildings were erected with bricks
during his reign and that of Edward IV., chiefly in the eastern
counties, where the deficiency of stone was most experienced. Few, if
any, brick mansion-houses of the fifteenth century exist, except in a
dilapidated state; but Queen's College and Clare Hall at Cambridge, and
part of Eton College, are subsisting witnesses to the durability of the
material as it was then employed.

[Sidenote: Meanness of ordinary mansion-houses.]

It is an error to suppose that the English gentry were lodged in
stately or even in well-sized houses. Generally speaking, their
dwellings were almost as inferior to those of their descendants in
capacity as they were in convenience. The usual arrangement consisted of
an entrance-passage running through the house, with a hall on one side,
a parlour beyond, and one or two chambers above, and on the opposite
side, a kitchen, pantry, and other offices.[668] Such was the ordinary
manor-house of the fifteenth and sixteenth centuries, as appears not
only from the documents and engravings, but as to the latter period,
from the buildings themselves, sometimes, though not very frequently,
occupied by families of consideration, more often converted into
farm-houses or distinct tenements. Larger structures were erected by men
of great estates during the reigns of Henry IV. and Edward IV.; but very
few can be traced higher; and such has been the effect of time, still
more through the advance or decline of families and the progress of
architectural improvement, than the natural decay of these buildings,
that I should conceive it difficult to name a house in England, still
inhabited by a gentleman and not belonging to the order of castles, the
principal apartments of which are older than the reign of Henry VII. The
instances at least must be extremely few.[669]

France by no means appears to have made a greater progress than our own
country in domestic architecture. Except fortified castles, I do not
find in the work of a very miscellaneous but apparently diligent
writer,[670] any considerable dwellings mentioned before the reign of
Charles VII., and very few of so early a date.[671] Jacques Coeur, a
famous merchant unjustly persecuted by that prince, had a handsome house
at Paris, as well as another at Bourges.[672] It is obvious that the
long calamities which France endured before the expulsion of the English
must have retarded this eminent branch of national improvement.

Even in Italy, where from the size of her cities and social refinements
of her inhabitants, greater elegance and splendour in building were
justly to be expected, the domestic architecture of the middle ages did
not attain any perfection. In several towns the houses were covered with
thatch, and suffered consequently from destructive fires. Costanzo, a
Neapolitan historian near the end of the sixteenth century, remarks the
change of manners that had occurred since the reign of Joanna II. one
hundred and fifty years before. The great families under the queen
expended all their wealth on their retainers, and placed their chief
pride in bringing them into the field. They were ill lodged, not
sumptuously clothed, nor luxurious in their tables. The house of
Caracciolo, high steward of that princess, one of the most powerful
subjects that ever existed, having fallen into the hands of persons
incomparably below his station, had been enlarged by them, as
insufficient for their accommodation.[673] If such were the case in the
city of Naples so late as the beginning of the fifteenth century, we may
guess how mean were the habitations in less polished parts of Europe.

[Sidenote: Invention of chimneys and glass windows.]

The two most essential improvements in architecture during this period,
one of which had been missed by the sagacity of Greece and Rome, were
chimneys and glass windows. Nothing apparently can be more simple than
the former; yet the wisdom of ancient times had been content to let the
smoke escape by an aperture in the centre of the roof; and a discovery,
of which Vitruvius had not a glimpse, was made, perhaps in this country,
by some forgotten semi-barbarian. About the middle of the fourteenth
century the use of chimneys is distinctly mentioned in England and in
Italy; but they are found in several of our castles which bear a much
older date.[674] This country seems to have lost very early the art of
making glass, which was preserved in France, whence artificers were
brought into England to furnish the windows in some new churches in the
seventh century.[675] It is said that in the reign of Henry III. a few
ecclesiastical buildings had glazed windows.[676] Suger, however, a
century before, had adorned his great work, the abbey of St. Denis,
with windows, not only glazed but painted;[677] and I presume that other
churches of the same class, both in France and England, especially after
the lancet-shaped window had yielded to one of ampler dimensions, were
generally decorated in a similar manner. Yet glass is said not to have
been employed in the domestic architecture of France before the
fourteenth century;[678] and its introduction into England was probably
by no means earlier. Nor indeed did it come into general use during the
period of the middle ages. Glazed windows were considered as moveable
furniture, and probably bore a high price. When the earls of
Northumberland, as late as the reign of Elizabeth, left Alnwick Castle,
the windows were taken out of their frames, and carefully laid by.[679]

[Sidenote: Furniture of houses.]

But if the domestic buildings of the fifteenth century would not seem
very spacious or convenient at present, far less would this luxurious
generation be content with their internal accommodations. A gentleman's
house containing three or four beds was extraordinarily well provided;
few probably had more than two. The walls were commonly bare, without
wainscot or even plaster; except that some great houses were furnished
with hangings, and that perhaps hardly so soon as the reign of Edward
IV. It is unnecessary to add, that neither libraries of books nor
pictures could have found a place among furniture. Silver plate was very
rare, and hardly used for the table. A few inventories of furniture that
still remain exhibit a miserable deficiency.[680] And this was
incomparably greater in private gentlemen's houses than among citizens,
and especially foreign merchants. We have an inventory of the goods
belonging to Contarini, a rich Venetian trader, at his house in St.
Botolph's Lane, A.D. 1481. There appear to have been no less than ten
beds, and glass windows are especially noticed as moveable furniture. No
mention however is made of chairs or looking-glasses.[681] If we compare
this account, however trifling in our estimation, with a similar
inventory of furniture in Skipton Castle, the great honour of the earls
of Cumberland, and among the most splendid mansions of the north, not at
the same period, for I have not found any inventory of a nobleman's
furniture so ancient, but in 1572, after almost a century of continual
improvement, we shall be astonished at the inferior provision of the
baronial residence. There were not more than seven or eight beds in this
great castle; nor had any of the chambers either chairs, glasses, or
carpets.[682] It is in this sense, probably, that we must understand
Æneas Sylvius, if he meant any thing more than to express a traveller's
discontent, when he declares that the kings of Scotland would rejoice to
be as well lodged as the second class of citizens at Nuremberg.[683] Few
burghers of that town had mansions, I presume, equal to the palaces of
Dumferlin or Stirling, but it is not unlikely that they were better
furnished.

[Sidenote: Farm-houses and cottages.]

In the construction of farm-houses and cottages, especially the latter,
there have probably been fewer changes; and those it would be more
difficult to follow. No building of this class can be supposed to exist
of the antiquity to which the present work is confined; and I do not
know that we have any document as to the inferior architecture of
England, so valuable as one which M. de Paulmy has quoted for that of
France, though perhaps more strictly applicable to Italy, an illuminated
manuscript of the fourteenth century, being a translation of
Crescentio's work on agriculture, illustrating the customs, and, among
other things, the habitations of the agricultural class. According to
Paulmy, there is no other difference between an ancient and a modern
farm-house than arises from the introduction of tiled roofs.[684] In the
original work of Crescentio, a native of Bologna, who composed this
treatise on rural affairs about the year 1300, an Italian farm-house,
when built at least according to his plan, appears to have been
commodious both in size and arrangement.[685] Cottages in England seem
to have generally consisted of a single room without division of
stories. Chimneys were unknown in such dwellings till the early part of
Elizabeth's reign, when a very rapid and sensible improvement took place
in the comforts of our yeomanry and cottagers.[686]

[Sidenote: Ecclesiastical architecture.]

It must be remembered that I have introduced this disadvantageous
representation of civil architecture, as a proof of general poverty and
backwardness in the refinements of life. Considered in its higher
departments, that art is the principal boast of the middle ages. The
common buildings, especially those of a public kind, were constructed
with skill and attention to durability. The castellated style displays
these qualities in great perfection; the means are well adapted to
their objects, and its imposing grandeur, though chiefly resulting no
doubt from massiveness and historical association, sometimes indicates a
degree of architectural genius in the conception. But the most
remarkable works of this art are the religious edifices erected in the
twelfth and three following centuries. These structures, uniting
sublimity in general composition with the beauties of variety and form,
intricacy of parts, skilful or at least fortunate effects of shadow and
light, and in some instances with extraordinary mechanical science, are
naturally apt to lead those antiquaries who are most conversant with
them into too partial estimates of the times wherein they were founded.
They certainly are accustomed to behold the fairest side of the picture.
It was the favourite and most honourable employment of ecclesiastical
wealth, to erect, to enlarge, to repair, to decorate cathedral and
conventual churches. An immense capital must have been expended upon
these buildings in England between the Conquest and the Reformation. And
it is pleasing to observe how the seeds of genius, hidden as it were
under the frost of that dreary winter, began to bud in the first
sunshine of encouragement. In the darkest period of the middle ages,
especially after the Scandinavian incursions into France and England,
ecclesiastical architecture, though always far more advanced than any
other art, bespoke the rudeness and poverty of the times. It began
towards the latter part of the eleventh century, when tranquillity, at
least as to former enemies, was restored, and some degree of learning
reappeared, to assume a more noble appearance. The Anglo-Norman
cathedrals were perhaps as much distinguished above other works of man
in their own age, as the more splendid edifices of a later period. The
science manifested in them is not, however, very great; and their style,
though by no means destitute of lesser beauties, is upon the whole an
awkward imitation of Roman architecture, or perhaps more immediately of
the Saracenic buildings in Spain and those of the lower Greek
empire.[687] But about the middle of the twelfth century, this manner
began to give place to what is improperly denominated the Gothic
architecture;[688] of which the pointed arch, formed by the segments of
two intersecting semicircles of equal radius and described about a
common diameter, has generally been deemed the essential characteristic.
We are not concerned at present to inquire whether this style originated
in France or Germany, Italy or England, since it was certainly almost
simultaneous in all these countries;[689] nor from what source it was
derived--a question of no small difficulty. I would only venture to
remark, that whatever may be thought of the origin of the pointed arch,
for which there is more than one mode of accounting, we must perceive a
very oriental character in the vast profusion of ornament, especially on
the exterior surface, which is as distinguishing a mark of Gothic
buildings as their arches, and contributes in an eminent degree both to
their beauties and to their defects. This indeed is rather applicable to
the later than the earlier stage of architecture, and rather to
continental than English churches. Amiens is in a far more florid style
than Salisbury, though a contemporary structure. The Gothic species of
architecture is thought by most to have reached its perfection,
considered as an object of taste, by the middle or perhaps the close of
the fourteenth century, or at least to have lost something of its
excellence by the corresponding part of the next age; an effect of its
early and rapid cultivation, since arts appear to have, like
individuals, their natural progress and decay. The mechanical
execution, however, continued to improve, and is so far beyond the
apparent intellectual powers of those times, that some have ascribed the
principal ecclesiastical structures to the fraternity of freemasons,
depositaries of a concealed and traditionary science. There is probably
some ground for this opinion; and the earlier archives of that
mysterious association, if they existed, might illustrate the progress
of Gothic architecture, and perhaps reveal its origin. The remarkable
change into this new style, that was almost contemporaneous in every
part of Europe, cannot be explained by any local circumstances, or the
capricious taste of a single nation.[690]

[Sidenote: Agriculture in some degree progressive.]

It would be a pleasing task to trace with satisfactory exactness the
slow, and almost perhaps insensible progress of agriculture and internal
improvement during the latter period of the middle ages. But no
diligence could recover the unrecorded history of a single village;
though considerable attention has of late been paid to this interesting
subject by those antiquaries, who, though sometimes affecting to despise
the lights of modern philosophy, are unconsciously guided by their
effulgence. I have already adverted to the wretched condition of
agriculture during the prevalence of feudal tenures, as well as before
their general establishment.[691] Yet even in the least civilized ages,
there were not wanting partial encouragements to cultivation, and the
ameliorating principle of human industry struggled against destructive
revolutions and barbarous disorder. The devastation of war from the
fifth to the eleventh century rendered land the least costly of all
gifts, though it must ever be the most truly valuable and permanent.
Many of the grants to monasteries, which strike us as enormous, were of
districts absolutely wasted, which would probably have been reclaimed by
no other means. We owe the agricultural restoration of a great part of
Europe to the monks. They chose, for the sake of retirement, secluded
regions which they cultivated with the labour of their hands.[692]
Several charters are extant, granted to convents, and sometimes to
laymen, of lands which they had recovered from a desert condition, after
the ravages of the Saracens.[693] Some districts were allotted to a body
of Spanish colonists, who emigrated, in the reign of Louis the Debonair,
to live under a Christian sovereign.[694] Nor is this the only instance
of agricultural colonies. Charlemagne transplanted part of his conquered
Saxons into Flanders, a country at that time almost unpeopled; and at a
much later period, there was a remarkable reflux from the same country,
or rather from Holland to the coasts of the Baltic Sea. In the twelfth
century, great numbers of Dutch colonists settled along the whole line
between the Ems and the Vistula. They obtained grants of uncultivated
land on condition of fixed rents, and were governed by their own laws
under magistrates of their own election.[695]

There cannot be a more striking proof of the low condition of English
agriculture in the eleventh century, than is exhibited by Domesday Book.
Though almost all England had been partially cultivated, and we find
nearly the same manors, except in the north, which exist at present, yet
the value and extent of cultivated ground are inconceivably small. With
every allowance for the inaccuracies and partialities of those by whom
that famous survey was completed,[696] we are lost in amazement at the
constant recurrence of two or three carucates in demesne, with other
lands occupied by ten or a dozen villeins, valued altogether at forty
shillings, as the return of a manor, which now would yield a competent
income to a gentleman. If Domesday Book can he considered as even
approaching to accuracy in respect of these estimates, agriculture must
certainly have made a very material progress in the four succeeding
centuries. This however is rendered probable by other documents.
Ingulfus, abbot of Croyland under the Conqueror, supplies an early and
interesting evidence of improvement.[697] Richard de Rules, lord of
Deeping, he tells us, being fond of agriculture, obtained permission
from the abbey to inclose a large portion of marsh for the purpose of
separate pasture, excluding the Welland by a strong dike, upon which he
erected a town, and rendering those stagnant fens a garden of Eden.[698]
In imitation of this spirited cultivator, the inhabitants of Spalding
and some neighbouring villages by a common resolution divided their
marshes amongst them; when some converting them to tillage, some
reserving them for meadow, others leaving them in pasture, they found a
rich soil for every purpose. The abbey of Croyland and villages in that
neighbourhood followed this example.[699] This early instance of
parochial inclosure is not to be overlooked in the history of social
progress. By the statute of Merton, in the 20th of Henry III., the lord
is permitted to approve, that is, to inclose the waste lands of his
manor, provided he leave sufficient common of pasture for the
freeholders. Higden, a writer who lived about the time of Richard II.,
says, in reference to the number of hydes and vills of England at the
Conquest, that by clearing of woods, and ploughing up wastes, there were
many more of each in his age than formerly.[700] And it might be easily
presumed, independently of proof, that woods were cleared, marshes
drained, and wastes brought into tillage, during the long period that
the house of Plantagenet sat on the throne. From manerial surveys indeed
and similar instruments, it appears that in some places there was nearly
as much ground cultivated in the reign of Edward III. as at the present
day. The condition of different counties however was very far from being
alike, and in general the northern and western parts of England were the
most backward.[701]

The culture of arable land was very imperfect. Fleta remarks, in the
reign of Edward I. or II., that unless an acre yielded more than six
bushels of corn, the farmer would be a loser, and the land yield no
rent.[702] And Sir John Cullum, from very minute accounts, has
calculated that nine or ten bushels were a full average crop on an acre
of wheat. An amazing excess of tillage accompanied, and partly, I
suppose, produced this imperfect cultivation. In Hawsted, for example,
under Edward I., there were thirteen or fourteen hundred acres of
arable, and only forty-five of meadow ground. A similar disproportion
occurs almost invariably in every account we possess.[703] This seems
inconsistent with the low price of cattle. But we must recollect, that
the common pasture, often the most extensive part of a manor, is not
included, at least by any specific measurement, in these surveys. The
rent of land differed of course materially; sixpence an acre seems to
have been about the average for arable land in the thirteenth
century,[704] though meadow was at double or treble that sum. But the
landlords were naturally solicitous to augment a revenue that became
more and more inadequate to their luxuries. They grew attentive to
agricultural concerns, and perceived that a high rate of produce,
against which their less enlightened ancestors had been used to clamour,
would bring much more into their coffers than it took away. The
exportation of corn had been absolutely prohibited. But the statute of
the 15th Henry VI. c. 2, reciting that "on this account, farmers and
others who use husbandry, cannot sell their corn but at a low price, to
the great damage of the realm," permits it to be sent any where but to
the king's enemies, so long as the quarter of wheat shall not exceed
6_s._ 8_d._ in value, or that of barley 3_s._

The price of wool was fixed in the thirty-second year of the same reign
at a minimum, below which no person was suffered to buy it, though he
might give more;[705] a provision neither wise nor equitable, but
obviously suggested by the same motive. Whether the rents of land were
augmented in any degree through these measures, I have not perceived;
their great rise took place in the reign of Henry VIII., or rather
afterwards.[706] The usual price of land under Edward IV. seems to have
been ten years' purchase.[707]

[Sidenote: Its condition in France and Italy.]

It may easily be presumed that an English writer can furnish very little
information as to the state of agriculture in foreign countries. In such
works relating to France as have fallen within my reach, I have found
nothing satisfactory, and cannot pretend to determine, whether the
natural tendency of mankind to ameliorate their condition had a greater
influence in promoting agriculture, or the vices inherent in the actual
order of society, and those public misfortunes to which that kingdom was
exposed, in retarding it.[708] The state of Italy was far different; the
rich Lombard plains, still more fertilized by irrigation, became a
garden, and agriculture seems to have reached the excellence which it
still retains. The constant warfare indeed of neighbouring cities is not
very favourable to industry; and upon this account we might incline to
place the greatest territorial improvement of Lombardy at an era rather
posterior to that of her republican government; but from this it
primarily sprung; and without the subjugation of the feudal aristocracy,
and that perpetual demand upon the fertility of the earth which an
increasing population of citizens produced, the valley of the Po would
not have yielded more to human labour than it had done for several
preceding centuries.[709] Though Lombardy was extremely populous in the
thirteenth and fourteenth centuries, she exported large quantities of
corn.[710] The very curious treatise of Crescentius exhibits the full
details of Italian husbandry about 1300, and might afford an interesting
comparison to those who are acquainted with its present state. That
state indeed in many parts of Italy displays no symptoms of decline. But
whatever mysterious influence of soil or climate has scattered the seeds
of death on the western regions of Tuscany, had not manifested itself in
the middle ages. Among uninhabitable plains, the traveller is struck by
the ruins of innumerable castles and villages, monuments of a time when
pestilence was either unfelt, or had at least not forbad the residence
of mankind. Volterra, whose deserted walls look down upon that tainted
solitude, was once a small but free republic; Siena, round whom, though
less depopulated, the malignant influence hovers, was once almost the
rival of Florence. So melancholy and apparently irresistible a decline
of culture and population through physical causes, as seems to have
gradually overspread that portion of Italy, has not perhaps been
experienced in any other part of Europe, unless we except Iceland.

[Sidenote: Gardening.]

The Italians of the fourteenth century seem to have paid some attention
to an art, of which, both as related to cultivation and to architecture,
our own forefathers were almost entirely ignorant. Crescentius dilates
upon horticulture, and gives a pretty long list of herbs both esculent
and medicinal.[711] His notions about the ornamental department are
rather beyond what we should expect, and I do not know that his scheme
of a flower-garden could be much amended. His general arrangements,
which are minutely detailed with evident fondness for the subject, would
of course appear too formal at present; yet less so than those of
subsequent times; and though acquainted with what is called the topiary
art, that of training or cutting trees into regular figures, he does not
seem to run into its extravagance. Regular gardens, according to Paulmy,
were not made in France till the sixteenth or even seventeenth
century;[712] yet one is said to have existed at the Louvre, of much
older construction.[713] England, I believe, had nothing of the
ornamental kind, unless it were some trees regularly disposed in the
orchard of a monastery. Even the common horticultural art for culinary
purposes, though not entirely neglected, since the produce of gardens is
sometimes mentioned in ancient deeds, had not been cultivated with much
attention.[714] The esculent vegetables now most in use were introduced
in the reign of Elizabeth, and some sorts a great deal later.

[Sidenote: Changes in value of money.]

I should leave this slight survey of economical history still more
imperfect, were I to make no observation on the relative values of
money. Without something like precision in our notions upon this
subject, every statistical inquiry becomes a source of confusion and
error. But considerable difficulties attend the discussion. These arise
principally from two causes; the inaccuracy or partial representations
of historical writers, on whom we are accustomed too implicitly to rely,
and the change of manners, which renders a certain command over articles
of purchase less adequate to our wants than it was in former ages.

The first of these difficulties is capable of being removed by a
circumspect use of authorities. When this part of statistical history
began to excite attention, which was hardly perhaps before the
publication of Bishop Fleetwood's Chronicon Preciosum, so few authentic
documents had been published with respect to prices, that inquirers were
glad to have recourse to historians, even when not contemporary, for
such facts as they had thought fit to record. But these historians were
sometimes too distant from the times concerning which they wrote, and
too careless in their general character, to merit much regard; and even
when contemporary, were often credulous, remote from the concerns of the
world, and, at the best, more apt to register some extraordinary
phenomenon of scarcity or cheapness, than the average rate of pecuniary
dealings. The one ought, in my opinion, to be absolutely rejected as
testimonies, the other to be sparingly and diffidently admitted.[715]
For it is no longer necessary to lean upon such uncertain witnesses.
During the last century a very laudable industry has been shown by
antiquaries in the publication of account-books belonging to private
persons, registers of expenses in convents, returns of markets,
valuations of goods, tavern-bills, and in short every document, however
trifling in itself, by which this important subject can be illustrated.
A sufficient number of such authorities, proving the ordinary tenor of
prices rather than any remarkable deviations from it, are the true basis
of a table, by which all changes in the value of money should be
measured. I have little doubt but that such a table might be constructed
from the data we possess with tolerable exactness, sufficient at least
to supersede one often quoted by political economists, but which appears
to be founded upon very superficial and erroneous inquiries.[716]

It is by no means required that I should here offer such a table of
values, which, as to every country except England, I have no means of
constructing, and which, even as to England, would be subject to many
difficulties.[717] But a reader unaccustomed to these investigations
ought to have some assistance in comparing the prices of ancient times
with those of his own. I will therefore, without attempting to ascend
very high, for we have really no sufficient data as to the period
immediately subsequent to the Conquest, much less that which preceded,
endeavour at a sort of approximation for the thirteenth and fifteenth
centuries. In the reigns of Henry III. and Edward I., previously to the
first debasement of the coin by the latter in 1301, the ordinary price
of a quarter of wheat appears to have been about four shillings, and
that of barley and oats in proportion. A sheep was rather sold high at a
shilling, and an ox might be reckoned at ten or twelve.[718] The value
of cattle is, of course, dependent upon their breed and condition, and
we have unluckily no early account of butcher's meat; but we can hardly
take a less multiple than about thirty for animal food and eighteen or
twenty for corn, in order to bring the prices of the thirteenth century
to a level with those of the present day.[719] Combining the two, and
setting the comparative dearness of cloth against the cheapness of fuel
and many other articles, we may perhaps consider any given sum under
Henry III. and Edward I. as equivalent in general command over
commodities to about twenty-four or twenty-five times their nominal
value at present. Under Henry VI. the coin had lost one-third of its
weight in silver, which caused a proportional increase of money
prices;[720] but, so far as I can perceive, there had been no diminution
in the value of that metal. We have not much information as to the
fertility of the mines which supplied Europe during the middle ages; but
it is probable that the drain of silver towards the East, joined to the
ostentatious splendour of courts, might fully absorb the usual produce.
By the statute 15 H. VI., c. 2, the price up to which wheat might be
exported is fixed at 6_s._ 8_d._, a point no doubt above the average;
and the private documents of that period, which are sufficiently
numerous, lead to a similar result.[721] Sixteen will be a proper
multiple when we would bring the general value of money in this reign to
our present standard.[722] [1816.]

But after ascertaining the proportional values of money at different
periods by a comparison of the prices in several of the chief articles
of expenditure, which is the only fair process, we shall sometimes be
surprised at incidental facts of this class which seem irreducible to
any rule. These difficulties arise not so much from the relative
scarcity of particular commodities, which it is for the most part easy
to explain, as from the change in manners and in the usual mode of
living. We have reached in this age so high a pitch of luxury that we
can hardly believe or comprehend the frugality of ancient times; and
have in general formed mistaken notions as to the habits of expenditure
which then prevailed. Accustomed to judge of feudal and chivalrous ages
by works of fiction, or by historians who embellished their writings
with accounts of occasional festivals and tournaments, and sometimes
inattentive enough to transfer the manners of the seventeenth to the
fourteenth century, we are not at all aware of the usual simplicity with
which the gentry lived under Edward I. or even Henry VI. They drank
little wine; they had no foreign luxuries; they rarely or never kept
male servants except for husbandry; their horses, as we may guess by the
price, were indifferent; they seldom travelled beyond their county. And
even their hospitality must have been greatly limited, if the value of
manors were really no greater than we find it in many surveys.
Twenty-four seems a sufficient multiple when we would raise a sum
mentioned by a writer under Edward I. to the same real value expressed
in our present money, but an income of 10_l._ or 20_l._ was reckoned a
competent estate for a gentleman; at least the lord of a single manor
would seldom have enjoyed more. A knight who possessed 150_l._ per annum
passed for extremely rich.[723] Yet this was not equal in command over
commodities to 4000_l._ at present. But this income was comparatively
free from taxation, and its expenditure lightened by the services of his
villeins. Such a person, however, must have been among the most opulent
of country gentlemen. Sir John Fortescue speaks of five pounds a year as
"a fair living for a yeoman," a class of whom he is not at all inclined
to diminish the importance.[724] So, when Sir William Drury, one of the
richest men in Suffolk, bequeaths in 1493 fifty marks to each of his
daughters, we must not imagine that this was of greater value than four
or five hundred pounds at this day, but remark the family pride and want
of ready money which induced country gentlemen to leave their younger
children in poverty.[725] Or, if we read that the expense of a scholar
at the university in 1514 was but five pounds annually, we should err in
supposing that he had the liberal accommodation which the present age
deems indispensable, but consider how much could be afforded for about
sixty pounds, which will be not far from the proportion. And what would
a modern lawyer say to the following entry in the churchwarden's
accounts of St. Margaret, Westminster, for 1476: "Also paid to Roger
Fylpott, learned in the law, for his counsel giving, 3_s._ 8_d._, _with
four-pence for his dinner_"?[726] Though fifteen times the fee might
not seem altogether inadequate at present, five shillings would hardly
furnish the table of a barrister, even if the fastidiousness of our
manners would admit of his accepting such a dole. But this
fastidiousness, which considers certain kinds of remuneration degrading
to a man of liberal condition, did not prevail in those simple ages. It
would seem rather strange that a young lady should learn needlework and
good breeding in a family of superior rank, paying for her board; yet
such was the laudable custom of the fifteenth and even sixteenth
centuries, as we perceive by the Paston Letters, and even later
authorities.[727]

[Sidenote: Labourers better paid than at present.]

There is one very unpleasing remark which every one who attends to the
subject of prices will be induced to make, that the labouring classes,
especially those engaged in agriculture, were better provided with the
means of subsistence in the reign of Edward III. or of Henry VI. than
they are at present. In the fourteenth century Sir John Cullum observes
a harvest man had fourpence a day, which enabled him in a week to buy a
comb of wheat; but to buy a comb of wheat a man must now (1784) work ten
or twelve days.[728] So, under Henry VI., if meat was at a farthing and
a half the pound, which I suppose was about the truth, a labourer
earning threepence a day, or eighteen pence in the week, could buy a
bushel of wheat at six shillings the quarter, and twenty-four pounds of
meat for his family. A labourer at present, earning twelve shillings a
week, can only buy half a bushel of wheat at eighty shillings the
quarter, and twelve pounds of meat at seven-pence.[729] Several acts of
parliament regulate the wages that might be paid to labourers of
different kinds. Thus the statute of labourers in 1350 fixed the wages
of reapers during harvest at threepence a-day without diet, equal to
five shillings at present; that of 23 H. VI., c. 12, in 1444, fixed the
reapers' wages at five-pence and those of common workmen in building at
3-1/2_d._, equal to 6_s._ 8_d._ and 4_s._ 8_d._; that of 11 H. VII., c.
22, in 1496, leaves the wages of labourers in harvest as before, but
rather increases those of ordinary workmen. The yearly wages of a chief
hind or shepherd by the act of 1444 were 1_l._ 4_s._, equivalent to
about 20_l._, those of a common servant in husbandry 18_s._ 4_d._, with
meat and drink; they were somewhat augmented by the statute of
1496.[730] Yet, although these wages are regulated as a maximum by acts
of parliament, which may naturally be supposed to have had a view rather
towards diminishing than enhancing the current rate, I am not fully
convinced that they were not rather beyond it; private accounts at least
do not always correspond with these statutable prices.[731] And it is
necessary to remember that the uncertainty of employment, natural to so
imperfect a state of husbandry, must have diminished the labourers'
means of subsistence. Extreme dearth, not more owing to adverse seasons
than to improvident consumption, was frequently endured.[732] But after
every allowance of this kind I should find it difficult to resist the
conclusion that, however the labourer has derived benefit from the
cheapness of manufactured commodities and from many inventions of common
utility, he is much inferior in ability to support a family to his
ancestors three or four centuries ago. I know not why some have supposed
that meat was a luxury seldom obtained by the labourer. Doubtless he
could not have procured as much as he pleased. But, from the greater
cheapness of cattle, as compared with corn, it seems to follow that a
more considerable portion of his ordinary diet consisted of animal food
than at present. It was remarked by Sir John Fortescue that the English
lived far more upon animal diet than their rivals the French; and it was
natural to ascribe their superior strength and courage to this
cause.[733] I should feel much satisfaction in being convinced that no
deterioration in the state of the labouring classes has really taken
place; yet it cannot, I think, appear extraordinary to those who
reflect, that the whole population of England in the year 1377 did not
much exceed 2,300,000 souls, about one-fifth of the results upon the
last enumeration, an increase with which that of the fruits of the earth
cannot be supposed to have kept an even pace.[734]

[Sidenote: Improvement in the moral character of Europe.]

The second head to which I referred, the improvements of European
society in the latter period of the middle ages, comprehends several
changes, not always connected, with each other, which contributed to
inspire a more elevated tone of moral sentiment, or at least to restrain
the commission of crimes. But the general effect of these upon the human
character is neither so distinctly to be traced, nor can it be arranged
with so much attention to chronology, as the progress of commercial
wealth or of the arts that depend upon it. We cannot from any past
experience indulge the pleasing vision of a constant and parallel
relation between the moral and intellectual energies, the virtues and
the civilization of mankind. Nor is any problem connected with
philosophical history more difficult than to compare the relative
characters of different generations, especially if we include a large
geographical surface in our estimate. Refinement has its evils as well
as barbarism; the virtues that elevate a nation in one century pass in
the next to a different region; vice changes its form without losing its
essence; the marked features of individual character stand out in relief
from the surface of history, and mislead our judgment as to the general
course of manners; while political revolutions and a bad constitution of
government may always undermine or subvert the improvements to which
more favourable circumstances have contributed. In comparing, therefore,
the fifteenth with the twelfth century, no one would deny the vast
increase of navigation and manufactures, the superior refinement of
manners, the greater diffusion of literature. But should I assert that
man had raised himself in the latter period above the moral degradation
of a more barbarous age, I might be met by the question whether history
bears witness to any greater excesses of rapine and inhumanity than in
the wars of France and England under Charles VII., or whether the rough
patriotism and fervid passions of the Lombards in the twelfth century
were not better than the systematic treachery of their servile
descendants three hundred years afterwards. The proposition must
therefore be greatly limited; yet we can scarcely hesitate to admit,
upon a comprehensive view, that there were several changes during the
last four of the middle ages, which must naturally have tended to
produce, and some of which did unequivocally produce, a meliorating
effect, within the sphere of their operation, upon the moral character
of society.

[Sidenote: Elevation of the lower ranks.]

The first and perhaps the most important of these, was the gradual
elevation of those whom unjust systems of polity had long depressed; of
the people itself, as opposed to the small number of rich and noble, by
the abolition or desuetude of domestic and predial servitude, and by the
privileges extended to corporate towns. The condition of slavery is
indeed perfectly consistent with the observance of moral obligations;
yet reason and experience will justify the sentence of Homer, that he
who loses his liberty loses half his virtue. Those who have acquired, or
may hope to acquire, property of their own, are most likely to respect
that of others; those whom law protects as a parent are most willing to
yield her a filial obedience; those who have much to gain by the
good-will of their fellow citizens are most interested in the
preservation of an honourable character. I have been led, in different
parts of the present work, to consider these great revolutions in the
order of society under other relations than that of their moral
efficacy; and it will therefore be unnecessary to dwell upon them;
especially as this efficacy is indeterminate, though I think
unquestionable, and rather to be inferred from general reflections than
capable of much illustration by specific facts.

[Sidenote: Police.]

We may reckon in the next place among the causes of moral improvement, a
more regular administration of justice according to fixed laws, and a
more effectual police. Whether the courts of judicature were guided by
the feudal customs or the Roman law, it was necessary for them to
resolve litigated questions with precision and uniformity. Hence a more
distinct theory of justice and good faith was gradually apprehended; and
the moral sentiments of mankind were corrected, as on such subjects they
often require to be, by clearer and better grounded inferences of
reasoning. Again, though it cannot be said that lawless rapine was
perfectly restrained even at the end of the fifteenth century, a
sensible amendment had been every where experienced. Private warfare,
the licensed robbery of feudal manners, had been subjected to so many
mortifications by the kings of France, and especially by St. Louis, that
it can hardly be traced beyond the fourteenth century. In Germany and
Spain it lasted longer; but the various associations for maintaining
tranquillity in the former country had considerably diminished its
violence before the great national measure of public peace adopted
under Maximilian.[735] Acts of outrage committed by powerful men became
less frequent as the executive government acquired more strength to
chastise them. We read that St. Louis, the best of French kings, imposed
a fine upon the lord of Vernon for permitting a merchant to be robbed in
his territory between sunrise and sunset. For by the customary law,
though in general ill observed, the lord was bound to keep the roads
free from depredators in the day-time, in consideration of the toll he
received from passengers.[736] The same prince was with difficulty
prevented from passing a capital sentence on Enguerrand de Coucy, a
baron of France, for a murder.[737] Charles the Fair actually put to
death a nobleman of Languedoc for a series of robberies, notwithstanding
the intercession of the provincial nobility.[738] The towns established
a police of their own for internal security, and rendered themselves
formidable to neighbouring plunderers. Finally, though not before the
reign of Louis XI., an armed force was established for the preservation
of police.[739] Various means were adopted in England to prevent
robberies, which indeed were not so frequently perpetrated as they were
on the continent, by men of high condition. None of these perhaps had so
much efficacy as the frequent sessions of judges under commissions of
gaol delivery. But the spirit of this country has never brooked that
coercive police which cannot exist without breaking in upon personal
liberty by irksome regulations, and discretionary exercise of power;
the sure instrument of tyranny, which renders civil privileges at once
nugatory and insecure, and by which we should dearly purchase some real
benefits connected with its slavish discipline.

[Sidenote: Religious sects.]

I have some difficulty in adverting to another source of moral
improvement during this period, the growth of religious opinions adverse
to those of the established church, both on account of its great
obscurity, and because many of these heresies were mixed up with an
excessive fanaticism. But they fixed themselves so deeply in the hearts
of the inferior and more numerous classes, they bore, generally
speaking, so immediate a relation to the state of manners, and they
illustrate so much that more visible and eminent revolution which
ultimately rose out of them in the sixteenth century, that I must reckon
these among the most interesting phenomena in the progress of European
society.

Many ages elapsed, during which no remarkable instance occurs of a
popular deviation from the prescribed line of belief; and pious
Catholics console themselves by reflecting that their forefathers, in
those times of ignorance, slept at least the sleep of orthodoxy, and
that their darkness was interrupted by no false lights of human
reasoning.[740] But from the twelfth century this can no longer be their
boast. An inundation of heresy broke in that age upon the church, which
no persecution was able thoroughly to repress, till it finally
overspread half the surface of Europe. Of this religious innovation we
must seek the commencement in a different part of the globe. The
Manicheans afford an eminent example of that durable attachment to a
traditional creed, which so many ancient sects, especially in the East,
have cherished through the vicissitudes of ages, in spite of persecution
and contempt. Their plausible and widely extended system had been in
early times connected with the name of Christianity, however
incompatible with its doctrines and its history. After a pretty long
obscurity, the Manichean theory revived with some modification in the
western parts of Armenia, and was propagated in the eighth and ninth
centuries by a sect denominated Paulicians. Their tenets are not to be
collected with absolute certainty from the mouths of their adversaries,
and no apology of their own survives. There seems however to be
sufficient evidence that the Paulicians, though professing to
acknowledge and even to study the apostolical writings, ascribed the
creation of the world to an evil deity, whom they supposed also to be
the author of the Jewish law, and consequently rejected all the Old
Testament. Believing, with the ancient Gnostics, that our Saviour was
clothed on earth with an impassive celestial body, they denied the
reality of his death and resurrection.[741] These errors exposed them to
a long and cruel persecution, during which a colony of exiles was
planted by one of the Greek emperors in Bulgaria.[742] From this
settlement they silently promulgated their Manichean creed over the
western regions of Christendom. A large part of the commerce of those
countries with Constantinople was carried on for several centuries by
the channel of the Danube. This opened an immediate intercourse with
the Paulicians, who may be traced up that river through Hungary and
Bavaria, or sometimes taking the route of Lombardy into Switzerland and
France.[743] In the last country, and especially in its southern and
eastern provinces, they became conspicuous under a variety of names;
such as Catharists, Picards, Paterins, but above all, Albigenses. It is
beyond a doubt that many of these sectaries owed their origin to the
Paulicians; the appellation of Bulgarians was distinctively bestowed
upon them; and, according to some writers, they acknowledged a primate
or patriarch resident in that country.[744] The tenets ascribed to them
by all contemporary authorities coincide so remarkably with those held
by the Paulicians, and in earlier times by the Manicheans, that I do not
see how we can reasonably deny what is confirmed by separate and
uncontradicted testimonies, and contains no intrinsic want of
probability.[745]

[Sidenote: Waldenses.]

But though, the derivation of these heretics called Albigenses from
Bulgaria is sufficiently proved, it is by no means to be concluded that
all who incurred the same imputation either derived their faith from the
same country, or had adopted the Manichean theory of the Paulicians.
From the very invectives of their enemies, and the acts of the
Inquisition, it is manifest that almost every shade of heterodoxy was
found among these dissidents, till it vanished in a simple protestation
against the wealth and tyranny of the clergy. Those who were absolutely
free from any taint of Manicheism are properly called Waldenses; a name
perpetually confounded in later times with that of Albigenses, but
distinguishing a sect probably of separate origin, and at least of
different tenets. These, according to the majority of writers, took
their appellation from Peter Waldo, a merchant of Lyons, the parent,
about the year 1160, of a congregation of seceders from the church, who
spread very rapidly over France and Germany.[746] According to others,
the original Waldenses were a race of uncorrupted shepherds, who in the
valleys of the Alps had shaken off, or perhaps never learned, the system
of superstition on which the Catholic church depended for its ascendency.
I am not certain whether their existence can be distinctly traced beyond
the preaching of Waldo, but it is well known that the proper seat of the
Waldenses or Vaudois has long continued to be in certain valleys of
Piedmont. These pious and innocent sectaries, of whom the very monkish
historians speak well, appear to have nearly resembled the modern
Moravians. They had ministers of their own appointment, and denied the
lawfulness of oaths and of capital punishment. In other respects their
opinions probably were not far removed from those usually called
Protestant. A simplicity of dress, and especially the use of wooden
sandals, was affected by this people.[747]

I have already had occasion to relate the severe persecution which
nearly exterminated the Albigenses of Languedoc at the close of the
twelfth century, and involved the counts of Toulouse in their ruin. The
Catharists, a fraternity of the same Paulician origin, more dispersed
than the Albigenses, had previously sustained a similar trial. Their
belief was certainly a compound of strange errors with truth; but it was
attended by qualities of a far superior lustre to orthodoxy, by a
sincerity, a piety, and a self-devotion that almost purified the age in
which they lived.[748] It is always important to perceive that these
high moral excellences have no necessary connexion with speculative
truths; and upon this account I have been more disposed to state
explicitly the real Manicheism of the Albigenses; especially as
Protestant writers, considering all the enemies of Rome as their
friends, have been apt to place the opinions of these sectaries in a
very false light. In the course of time, undoubtedly, the system of
their Paulician teachers would have yielded, if the inquisitors had
admitted the experiment, to a more accurate study of the Scriptures, and
to the knowledge which they would have imbibed from the church itself.
And, in fact, we find that the peculiar tenets of Manicheism died away
after the middle of the thirteenth century, although a spirit of dissent
from the established creed broke out in abundant instances during the
two subsequent ages.

We are in general deprived of explicit testimonies in tracing the
revolutions of popular opinion. Much must therefore be left to
conjecture; but I am inclined to attribute a very extensive effect to
the preaching of these heretics. They appear in various countries nearly
during the same period, in Spain, Lombardy, Germany, Flanders, and
England, as well as France. Thirty unhappy persons, convicted of denying
the sacraments, are said to have perished at Oxford by cold and famine
in the reign of Henry II. In every country the new sects appear to have
spread chiefly among the lower people, which, while it accounts for the
imperfect notice of historians, indicates a more substantial influence
upon the moral condition of society than the conversion of a few nobles
or ecclesiastics.[749]

But even where men did not absolutely enlist under the banners of any
new sect, they were stimulated by the temper of their age to a more
zealous and independent discussion of their religious system. A curious
illustration of this is furnished by one of the letters of Innocent III.
He had been informed by the bishop of Metz, as he states to the clergy
of the diocese, that no small multitude of laymen and women, having
procured a translation of the gospels, epistles of St. Paul, the
psalter, Job, and other books of Scripture, to be made for them into
French, meet in secret conventicles to hear them read, and preach to
each other, avoiding the company of those who do not join in their
devotion, and having been reprimanded for this by some of their parish
priests, have withstood them, alleging reasons from the Scriptures, why
they should not be so forbidden. Some of them too deride the ignorance
of their ministers, and maintain that their own books teach them more
than they can learn from the pulpit, and that they can express it
better. Although the desire of reading the Scriptures, Innocent
proceeds, is rather praiseworthy than reprehensible, yet they are to be
blamed for frequenting secret assemblies, for usurping the office of
preaching, deriding their own ministers, and scorning the company of
such as do not concur in their novelties. He presses the bishop and
chapter to discover the author of this translation, which could not have
been made without a knowledge of letters, and what were his intentions,
and what degree of orthodoxy and respect for the Holy See those who used
it possessed. This letter of Innocent III., however, considering the
nature of the man, is sufficiently temperate and conciliatory. It seems
not to have answered its end; for in another letter he complains that
some members of this little association continued refractory and refused
to obey either the bishop or the pope.[750]

In the eighth and ninth centuries, when the Vulgate had ceased to be
generally intelligible, there is no reason to suspect any intention in
the church to deprive the laity of the Scriptures. Translations were
freely made into the vernacular languages, and perhaps read in churches,
although the acts of saints were generally deemed more instructive.
Louis the Debonair is said to have caused a German version of the New
Testament to be made. Otfrid, in the same century, rendered the gospels,
or rather abridged them, into German verse. This work is still extant,
and is in several respects an object of curiosity.[751] In the eleventh
or twelfth century we find translations of the Psalms, Job, Kings, and
the Maccabees into French.[752] But after the diffusion of heretical
opinions, or, what was much the same thing, of free inquiry, it became
expedient to secure the orthodox faith from lawless interpretation.
Accordingly, the council of Toulouse in 1229 prohibited the laity from
possessing the Scriptures; and this precaution was frequently repeated
upon subsequent occasions.[753]

The ecclesiastical history of the thirteenth or fourteenth centuries
teems with new sectaries and schismatics, various in their aberrations
of opinion, but all concurring in detestation of the established
church.[754] They endured severe persecutions with a sincerity and
firmness which in any cause ought to command respect. But in general we
find an extravagant fanaticism among them; and I do not know how to look
for any amelioration of society from the Franciscan seceders, who
quibbled about the property of things consumed by use, or from the
mystical visionaries of different appellations, whose moral practice was
sometimes more than equivocal. Those who feel any curiosity about such
subjects, which are by no means unimportant, as they illustrate the
history of the human mind, will find them treated very fully by Mosheim.
But the original sources of information are not always accessible in
this country, and the research would perhaps be more fatiguing than
profitable.

[Sidenote: Lollards of England.]

I shall, for an opposite reason, pass lightly over the great revolution
in religious opinion wrought in England by Wicliffe, which will
generally be familiar to the reader from our common historians. Nor am I
concerned to treat of theological inquiries, or to write a history of
the church. Considered in its effects upon manners, the sole point which
these pages have in view, the preaching of this new sect certainly
produced an extensive reformation. But their virtues were by no means
free from some unsocial qualities, in which, as well as in their
superior attributes, the Lollards bear a very close resemblance to the
Puritans of Elizabeth's reign; a moroseness that proscribed all cheerful
amusements, an uncharitable malignity that made no distinction in
condemning the established clergy, and a narrow prejudice that applied
the rules of the Jewish law to modern institutions.[755] Some of their
principles were far more dangerous to the good order of society, and
cannot justly be ascribed to the Puritans, though they grew afterwards
out of the same soil. Such was the notion, which is imputed also to the
Albigenses, that civil magistrates lose their right to govern by
committing sin, or, as it was quaintly expressed in the seventeenth
century, that dominion is founded in grace. These extravagances,
however, do not belong to the learned and politic Wicliffe, however they
might be adopted by some of his enthusiastic disciples.[756] Fostered by
the general ill-will towards the church, his principles made vast
progress in England, and, unlike those of earlier sectaries, were
embraced by men of rank and civil influence. Notwithstanding the check
they sustained by the sanguinary law of Henry IV., it is highly probable
that multitudes secretly cherished them down to the era of the
Reformation.

[Sidenote: Hussites of Bohemia.]

From England the spirit of religious innovation was propagated into
Bohemia; for though John Huss was very far from embracing all the
doctrinal system of Wicliffe, it is manifest that his zeal had been
quickened by the writings of that reformer.[757] Inferior to the
Englishman in ability, but exciting greater attention by his constancy
and sufferings, as well as by the memorable war which his ashes kindled,
the Bohemian martyr was even more eminently the precursor of the
Reformation. But still regarding these dissensions merely in a temporal
light, I cannot assign any beneficial effect to the schism of the
Hussites, at least in its immediate results, and in the country where it
appeared. Though some degree of sympathy with their cause is inspired by
resentment at the ill faith of their adversaries, and by the
associations of civil and religious liberty, we cannot estimate the
Taborites and other sectaries of that description but as ferocious and
desperate fanatics.[758] Perhaps beyond the confines of Bohemia more
substantial good may have been produced by the influence of its
reformation, and a better tone of morals inspired into Germany. But I
must again repeat that upon this obscure and ambiguous subject I assert
nothing definitely, and little with confidence. The tendencies of
religious dissent in the four ages before the Reformation appear to have
generally conduced towards the moral improvement of mankind; and facts
of this nature occupy a far greater space in a philosophical view of
society during that period, than we might at first imagine; but every
one who is disposed to prosecute this inquiry will assign their
character according to the result of his own investigations.

[Sidenote: Institution of chivalry.]

But the best school of moral discipline which the middle ages afforded
was the institution of chivalry. There is something perhaps to allow for
the partiality of modern writers upon this interesting subject; yet our
most sceptical criticism must assign a decisive influence to this great
source of human improvement. The more deeply it is considered, the more
we shall become sensible of its importance.

There are, if I may so say, three powerful spirits which have from time
to time moved over the face of the waters, and given a predominant
impulse to the moral sentiments and energies of mankind. These are the
spirits of liberty, of religion, and of honour. It was the principal
business of chivalry to animate and cherish the last of these three. And
whatever high magnanimous energy the love of liberty or religious zeal
has ever imparted was equalled by the exquisite sense of honour which
this institution preserved.

[Sidenote: Its origin.]

It appears probable that the custom of receiving arms at the age of
manhood with some solemnity was of immemorial antiquity among the
nations that overthrew the Roman empire. For it is mentioned by Tacitus
to have prevailed among their German ancestors; and his expressions
might have been used with no great variation to describe the actual
ceremonies of knighthood.[759] There was even in that remote age a sort
of public trial as to the fitness of the candidate, which, though
perhaps confined to his bodily strength and activity, might be the germ
of that refined investigation which was thought necessary in the perfect
stage of chivalry. Proofs, though rare and incidental, might be adduced
to show that in the time of Charlemagne, and even earlier, the sons of
monarchs at least did not assume manly arms without a regular
investiture. And in the eleventh century it is evident that this was a
general practice.[760]

This ceremony, however, would perhaps of itself have done little towards
forming that intrinsic principle which characterized the genuine
chivalry. But in the reign of Charlemagne we find a military distinction
that appears, in fact as well as in name, to have given birth to that
institution. Certain feudal tenants, and I suppose also alodial
proprietors, were bound to serve on horseback, equipped with the coat
of mail. These were called Caballarii, from which the word chevaliers is
an obvious corruption.[761] But he who fought on horseback, and had been
invested with peculiar arms in a solemn manner, wanted nothing more to
render him a knight. Chivalry therefore may, in a general sense, be
referred to the age of Charlemagne. We may, however, go further, and
observe that these distinctive advantages above ordinary combatants were
probably the sources of that remarkable valour and that keen thirst for
glory, which became the essential attributes of a knightly character.
For confidence in our skill and strength is the usual foundation of
courage; it is by feeling ourselves able to surmount common dangers,
that we become adventurous enough to encounter those of a more
extraordinary nature, and to which more glory is attached. The
reputation of superior personal prowess, so difficult to be attained in
the course of modern warfare, and so liable to erroneous
representations, was always within the reach of the stoutest knight, and
was founded on claims which could be measured with much accuracy. Such
is the subordination and mutual dependence in a modern army, that every
man must be content to divide his glory with his comrades, his general,
or his soldiers. But the soul of chivalry was individual honour, coveted
in so entire and absolute a perfection that it must not be shared with
an army or a nation. Most of the virtues it inspired were what we may
call independent, as opposed to those which are founded upon social
relations. The knights-errant of romance perform their best exploits
from the love of renown, or from a sort of abstract sense of justice,
rather than from any solicitude to promote the happiness of mankind. If
these springs of action are less generally beneficial, they are,
however, more connected with elevation of character than the
systematical prudence of men accustomed to social life. This solitary
and independent spirit of chivalry, dwelling, as it were, upon a rock,
and disdaining injustice or falsehood from a consciousness of internal
dignity, without any calculation of their consequences, is not unlike
what we sometimes read of Arabian chiefs or the North American
Indians.[762] These nations, so widely remote from each other, seem to
partake of that moral energy, which, among European nations far remote
from both of them, was excited by the spirit of chivalry. But the most
beautiful picture that was ever portrayed of this character is the
Achilles of Homer, the representative of chivalry in its most general
form, with all its sincerity and unyielding rectitude, all its
courtesies and munificence. Calmly indifferent to the cause in which he
is engaged, and contemplating with a serious and unshaken look the
premature death that awaits him, his heart only beats for glory and
friendship. To this sublime character, bating that imaginary completion
by which the creations of the poet, like those of the sculptor,
transcend all single works of nature, there were probably many parallels
in the ages of chivalry; especially before a set education and the
refinements of society had altered a little the natural unadulterated
warrior of a ruder period. One illustrious example from this earlier age
is the Cid Ruy Diaz, whose history has fortunately been preserved much
at length in several chronicles of ancient date and in one valuable
poem; and though I will not say that the Spanish hero is altogether a
counterpart of Achilles in gracefulness and urbanity, yet was he
inferior to none that ever lived in frankness, honour, and
magnanimity.[763]

[Sidenote: Its connexion with feudal service.]

[Sidenote: This connexion broken.]

In the first state of chivalry, it was closely connected with the
military service of fiefs. The Caballarii in the Capitularies, the
Milites of the eleventh and twelfth centuries, were landholders who
followed their lord or sovereign into the field. A certain value of land
was termed in England a knight's fee, or in Normandy feudum loricæ, fief
de haubert, from the coat of mail which it entitled and required the
tenant to wear; a military tenure was said to be by service in chivalry.
To serve as knights, mounted and equipped, was the common duty of
vassals; it implied no personal merit, it gave of itself a claim to no
civil privileges. But this knight-service founded upon a feudal
obligation is to be carefully distinguished from that superior chivalry,
in which all was independent and voluntary. The latter, in fact, could
hardly flourish in its full perfection till the military service of
feudal tenure began to decline; namely, in the thirteenth century. The
origin of this personal chivalry I should incline to refer to the
ancient usage of voluntary commendation, which I have mentioned in a
former chapter. Men commended themselves, that is, did homage and
professed attachment to a prince or lord; generally indeed for
protection or the hope of reward, but sometimes probably for the sake of
distinguishing themselves in his quarrels. When they received pay, which
must have been the usual case, they were literally his soldiers, or
stipendiary troops. Those who could afford to exert their valour without
recompense were like the knights of whom we read in romance, who served
a foreign master through love, or thirst of glory, or gratitude. The
extreme poverty of the lower nobility, arising from the subdivision of
fiefs, and the politic generosity of rich lords, made this connexion as
strong as that of territorial dependence. A younger brother, leaving the
paternal estate, in which he took a slender share, might look to wealth
and dignity in the service of a powerful count. Knighthood, which he
could not claim as his legal right, became the object of his chief
ambition. It raised him in the scale of society, equalling him in dress,
in arms, and in title, to the rich landholders. As it was due to his
merit, it did much more than equal him to those who had no pretensions
but from wealth; and the territorial knights became by degrees ashamed
of assuming the title till they could challenge it by real desert.

[Sidenote: Effect of the crusades on chivalry.]

This class of noble and gallant cavaliers serving commonly for pay, but
on the most honourable footing, became far more numerous through the
crusades; a great epoch in the history of European society. In these
wars, as all feudal service was out of the question, it was necessary
for the richer barons to take into their pay as many knights as they
could afford to maintain; speculating, so far as such motives operated,
on an influence with the leaders of the expedition, and on a share of
plunder, proportioned to the number of their followers. During the
period of the crusades, we find the institution of chivalry acquire its
full vigour as an order of personal nobility; and its original connexion
with feudal tenure, if not altogether effaced, became in a great measure
forgotten in the splendour and dignity of the new form which it wore.

[Sidenote: Chivalry connected with religion.]

The crusaders, however, changed in more than one respect the character
of chivalry. Before that epoch it appears to have had no particular
reference to religion. Ingulfus indeed tells us that the Anglo-Saxons
preceded the ceremony of investiture by a confession of their sins, and
other pious rites, and they received the order at the hands of a priest,
instead of a knight. But this was derided by the Normans as effeminacy,
and seems to have proceeded from the extreme devotion of the English
before the Conquest.[764] We can hardly perceive indeed why the
assumption of arms to be used in butchering mankind should be treated as
a religious ceremony. The clergy, to do them justice, constantly opposed
the private wars in which the courage of those ages wasted itself; and
all bloodshed was subject in strictness to a canonical penance. But the
purposes for which men bore arms in a crusade so sanctified their use,
that chivalry acquired the character as much of a religious as a
military institution. For many centuries, the recovery of the Holy Land
was constantly at the heart of a brave and superstitious nobility; and
every knight was supposed at his creation to pledge himself, as occasion
should arise, to that cause. Meanwhile, the defence of God's law against
infidels was his primary and standing duty. A knight, whenever present
at mass, held the point of his sword before him while the gospel was
read, to signify his readiness to support it. Writers of the middle ages
compare the knightly to the priestly character in an elaborate parallel,
and the investiture of the one was supposed analogous to the ordination
of the other. The ceremonies upon this occasion were almost wholly
religious. The candidate passed nights in prayer among priests in a
church; he received the sacraments; he entered into a bath, and was clad
with a white robe, in allusion to the presumed purification of his life;
his sword was solemnly blessed; every thing, in short, was contrived to
identify his new condition with the defence of religion, or at least of
the church.[765]

[Sidenote: And with gallantry.]

To this strong tincture of religion which entered into the composition
of chivalry from the twelfth century, was added another ingredient
equally distinguishing. A great respect for the female sex had always
been a remarkable characteristic of the Northern nations. The German
women were high-spirited and virtuous; qualities which might be causes
or consequences of the veneration with which they were regarded. I am
not sure that we could trace very minutely the condition of women for
the period between the subversion of the Roman empire and the first
crusade; but apparently man did not grossly abuse his superiority; and
in point of civil rights, and even as to the inheritance of property,
the two sexes were placed perhaps as nearly on a level as the nature of
such warlike societies would admit. There seems, however, to have been
more roughness in the social intercourse between the sexes than we find
in later periods. The spirit of gallantry which became so animating a
principle of chivalry, must be ascribed to the progressive refinement of
society during the twelfth and two succeeding centuries. In a rude state
of manners, as among the lower people in all ages, woman has not full
scope to display those fascinating graces, by which nature has designed
to counterbalance the strength and energy of mankind. Even where those
jealous customs that degrade alike the two sexes have not prevailed, her
lot is domestic seclusion; nor is she fit to share in the boisterous
pastimes of drunken merriment to which the intercourse of an unpolished
people is confined. But as a taste for the more elegant enjoyments of
wealth arises, a taste which it is always her policy and her delight to
nourish, she obtains an ascendency at first in the lighter hour, and
from thence in the serious occupations of life. She chases, or brings
into subjection, the god of wine, a victory which might seem more
ignoble were it less difficult, and calls in the aid of divinities more
propitious to her ambition. The love of becoming ornament is not perhaps
to be regarded in the light of vanity; it is rather an instinct which
woman has received from nature to give effect to those charms that are
her defence; and when commerce began to minister more effectually to the
wants of luxury, the rich furs of the North, the gay silks of Asia, the
wrought gold of domestic manufacture, illumined the halls of chivalry,
and cast, as if by the spell of enchantment, that ineffable grace over
beauty which the choice and arrangement of dress is calculated to
bestow. Courtesy had always been the proper attribute of knighthood;
protection of the weak its legitimate duty; but these were heightened to
a pitch of enthusiasm when woman became their object. There was little
jealousy shown in the treatment of that sex, at least in France, the
fountain of chivalry; they were present at festivals, at tournaments,
and sat promiscuously in the halls of their castle. The romance of
Perceforest (and romances have always been deemed good witnesses as to
manners) tells of a feast where eight hundred knights had each of them
a lady eating off his plate.[766] For to eat off the same plate was an
usual mark of gallantry or friendship.

Next therefore, or even equal to devotion, stood gallantry among the
principles of knighthood. But all comparison between the two was saved
by blending them together. The love of God and the ladies was enjoined
as a single duty. He who was faithful and true to his mistress was held
sure of salvation in the theology of castles though not of
cloisters.[767] Froissart announces that he had undertaken a collection
of amorous poetry with the help of God and of love; and Boccace returns
thanks to each for their assistance in the Decameron. The laws sometimes
united in this general homage to the fair. "We will," says James II. of
Aragon, "that every man, whether knight or no, who shall be in company
with a lady, pass safe and unmolested, unless he be guilty of
murder."[768] Louis II., duke of Bourbon, instituting the order of the
Golden Shield, enjoins his knights to honour above all the ladies, and
not to permit any one to slander them, "because from them after God
comes all the honour that men can acquire."[769]

The gallantry of those ages, which was very often adulterous, had
certainly no right to profane the name of religion; but its union with
valour was at least more natural, and became so intimate, that the same
word has served to express both qualities. In the French and English
wars especially, the knights of each country brought to that serious
conflict the spirit of romantic attachment which had been cherished in
the hours of peace. They fought at Poitiers or Verneuil as they had
fought at tournaments, bearing over their armour scarves and devices as
the livery of their mistresses, and asserting the paramount beauty of
her they served in vaunting challenges towards the enemy. Thus in the
middle of a keen skirmish at Cherbourg, the squadrons remained
motionless, while one knight challenged to a single combat the most
amorous of the adversaries. Such a defiance was soon accepted, and the
battle only recommenced when one of the champions had lost his life for
his love.[770] In the first campaign of Edward's war some young English
knights wore a covering over one eye, vowing, for the sake of their
ladies, never to see with both till they should have signalized their
prowess in the field.[771] These extravagances of chivalry are so common
that they form part of its general character, and prove how far a course
of action which depends upon the impulses of sentiment may come to
deviate from common sense.

It cannot be presumed that this enthusiastic veneration, this
devotedness in life and death, were wasted upon ungrateful natures. The
goddesses of that idolatry knew too well the value of their worshippers.
There has seldom been such adamant about the female heart, as can resist
the highest renown for valour and courtesy, united with the steadiest
fidelity. "He loved," says Froissart of Eustace d'Auberthicourt, "and
afterwards married lady Isabel, daughter of the count of Juliers. This
lady too loved lord Eustace for the great exploits in arms which she
heard told of him, and she sent him horses and loving letters, which
made the said lord Eustace more bold than before, and he wrought such
feats of chivalry, that all in his company were gainers."[772] It were
to be wished that the sympathy of love and valour had always been as
honourable. But the morals of chivalry, we cannot deny, were not pure.
In the amusing fictions which seem to have been the only popular reading
of the middle ages, there reigns a licentious spirit, not of that
slighter kind which is usual in such compositions, but indicating a
general dissoluteness in the intercourse of the sexes. This has often
been noticed of Boccaccio and the early Italian novelists; but it
equally characterized the tales and romances of France, whether metrical
or in prose, and all the poetry of the Troubadours.[773] The violation
of marriage vows passes in them for an incontestable privilege of the
brave and the fair; and an accomplished knight seems to have enjoyed as
undoubted prerogatives, by general consent of opinion, as were claimed
by the brilliant courtiers of Louis XV.

[Sidenote: Virtues deemed essential to chivalry.]

But neither that emulous valour which chivalry excited, nor the religion
and gallantry which were its animating principles, alloyed as the latter
were by the corruption of those ages, could have rendered its
institution materially conducive to the moral improvement of society.
There were, however, excellences of a very high class which it equally
encouraged. In the books professedly written to lay down the duties of
knighthood, they appear to spread over the whole compass of human
obligations. But these, like other books of morality, strain their
schemes of perfection far beyond the actual practice of mankind. A
juster estimate of chivalrous manners is to be deduced from romances.
Yet in these, as in all similar fictions, there must be a few ideal
touches beyond the simple truth of character; and the picture can only
be interesting when it ceases to present images of mediocrity or
striking imperfection. But they referred their models of fictitious
heroism to the existing standard of moral approbation; a rule, which, if
it generally falls short of what reason and religion prescribe, is
always beyond the average tenor of human conduct. From these and from
history itself we may infer the tendency of chivalry to elevate and
purify the moral feelings. Three virtues may particularly be noticed as
essential in the estimation of mankind to the character of a knight;
loyalty, courtesy, and munificence.

[Sidenote: Loyalty.]

The first of these in its original sense may be defined, fidelity to
engagements; whether actual promises, or such tacit obligations as bound
a vassal to his lord and a subject to his prince. It was applied also,
and in the utmost strictness, to the fidelity of a lover towards the
lady he served. Breach of faith, and especially of an express promise,
was held a disgrace that no valour could redeem. False, perjured,
disloyal, recreant, were the epithets which he must be compelled to
endure who had swerved from a plighted engagement even towards an
enemy. This is one of the most striking changes produced by chivalry.
Treachery, the usual vice of savage as well as corrupt nations, became
infamous during the vigour of that discipline. As personal rather than
national feelings actuated its heroes, they never felt that hatred, much
less that fear of their enemies, which blind men to the heinousness of
ill faith. In the wars of Edward III., originating in no real animosity,
the spirit of honourable as well as courteous behaviour towards the foe
seems to have arrived at its highest point. Though avarice may have been
the primary motive of ransoming prisoners instead of putting them to
death, their permission to return home on the word of honour in order to
procure the stipulated sum--an indulgence never refused--could only be
founded on experienced confidence in the principles of chivalry.[774]

[Sidenote: Courtesy.]

[Sidenote: Liberality.]

A knight was unfit to remain a member of the order if he violated his
faith; he was ill acquainted with its duties if he proved wanting in
courtesy. This word expressed the most highly refined good breeding,
founded less upon a knowledge of ceremonious politeness, though this was
not to be omitted, than on the spontaneous modesty, self-denial, and
respect for others, which ought to spring from his heart. Besides the
grace which this beautiful virtue threw over the habits of social life,
it softened down the natural roughness of war, and gradually introduced
that indulgent treatment of prisoners which was almost unknown to
antiquity. Instances of this kind are continual in the later period of
the middle ages. An Italian writer blames the soldier who wounded
Eccelin, the famous tyrant of Padua, after he was taken. "He deserved,"
says he, "no praise, but rather the greatest infamy for his baseness;
since it is as vile an act to wound a prisoner, whether noble or
otherwise, as to strike a dead body."[775] Considering the crimes of
Eccelin, this sentiment is a remarkable proof of generosity. The
behaviour of Edward III. to Eustace de Ribaumont, after the capture of
Calais, and that, still more exquisitely beautiful, of the Black Prince
to his royal prisoner at Poitiers, are such eminent instances of
chivalrous virtue, that I omit to repeat them only because they are so
well known. Those great princes too might be imagined to have soared far
above the ordinary track of mankind. But in truth, the knights who
surrounded them and imitated their excellences, were only inferior in
opportunities of displaying the same virtue. After the battle of
Poitiers, "the English and Gascon knights," says Froissart, "having
entertained their prisoners, went home each of them with the knights or
squires he had taken, whom he then questioned upon their honour what
ransom they could pay without inconvenience, and easily gave them
credit; and it was common for men to say, that they would not straiten
any knight or squire so that he should not live well and keep up his
honour."[776] Liberality, indeed, and disdain of money, might be
reckoned, as I have said, among the essential virtues of chivalry. All
the romances inculcate the duty of scattering their wealth with
profusion, especially towards minstrels, pilgrims, and the poorer
members of their own order. The last, who were pretty numerous, had a
constant right to succour from the opulent; the castle of every lord,
who respected the ties of knighthood, was open with more than usual
hospitality to the traveller whose armour announced his dignity, though
it might also conceal his poverty.[777]

[Sidenote: Justice.]

Valour, loyalty, courtesy, munificence, formed collectively the
character of an accomplished knight, so far as was displayed in the
ordinary tenor of his life, reflecting these virtues as an unsullied
mirror. Yet something more was required for the perfect idea of
chivalry, and enjoined by its principles; an active sense of justice, an
ardent indignation against wrong, a determination of courage to its
best end, the prevention or redress of injury. It grew up as a salutary
antidote in the midst of poisons, while scarce any law but that of the
strongest obtained regard, and the rights of territorial property, which
are only rights as they conduce to general good, became the means of
general oppression. The real condition of society, it has sometimes been
thought, might suggest stories of knight-errantry, which were wrought up
into the popular romances of the middle ages. A baron, abusing the
advantage of an inaccessible castle in the fastnesses of the Black
Forest or the Alps, to pillage the neighbourhood and confine travellers
in his dungeon, though neither a giant nor a Saracen, was a monster not
less formidable, and could perhaps as little be destroyed without the
aid of disinterested bravery. Knight-errantry, indeed, as a profession,
cannot rationally be conceived to have had any existence beyond the
precincts of romance. Yet there seems no improbability in supposing that
a knight, journeying through uncivilized regions in his way to the Holy
Land, or to the court of a foreign sovereign, might find himself engaged
in adventures not very dissimilar to those which are the theme of
romance. We cannot indeed expect to find any historical evidence of such
incidents.

[Sidenote: Resemblance of chivalrous to eastern manners.]

The characteristic virtues of chivalry bear so much resemblance to those
which eastern writers of the same period extol, that I am a little
disposed to suspect Europe of having derived some improvement from
imitation of Asia. Though the crusades began in abhorrence of infidels,
this sentiment wore off in some degree before their cessation; and the
regular intercourse of commerce, sometimes of alliance, between the
Christians of Palestine and the Saracens, must have removed part of the
prejudice, while experience of their enemy's courage and generosity in
war would with those gallant knights serve to lighten the remainder. The
romancers expatiate with pleasure on the merits of Saladin, who actually
received the honour of knighthood from Hugh of Tabaria, his prisoner. An
ancient poem, entitled the Order of Chivalry, is founded upon this
story, and contains a circumstantial account of the ceremonies, as well
as duties, which the institution required.[778] One or two other
instances of a similar kind bear witness to the veneration in which the
name of knight was held among the eastern nations. And certainly the
Mohammedan chieftains were for the most part abundantly qualified to
fulfil the duties of European chivalry. Their manners had been polished
and courteous, while the western kingdoms were comparatively barbarous.

[Sidenote: Evils produced by the spirit of chivalry.]

The principles of chivalry were not, I think, naturally productive of
many evils. For it is unjust to class those acts of oppression or
disorder among the abuses of knighthood, which were committed in spite
of its regulations, and were only prevented by them from becoming more
extensive. The licence of times so imperfectly civilized could not be
expected to yield to institutions, which, like those of religion, fell
prodigiously short in their practical result of the reformation which
they were designed to work. Man's guilt and frailty have never admitted
more than a partial corrective. But some bad consequences may be more
fairly ascribed to the very nature of chivalry. I have already mentioned
the dissoluteness which almost unavoidably resulted from the prevailing
tone of gallantry. And yet we sometimes find in the writings of those
times a spirit of pure but exaggerated sentiment; and the most fanciful
refinements of passion are mingled by the same poets with the coarsest
immorality. An undue thirst for military renown was another fault that
chivalry must have nourished; and the love of war, sufficiently
pernicious in any shape, was more founded, as I have observed, on
personal feelings of honour, and less on public spirit, than in the
citizens of free states. A third reproach may be made to the character
of knighthood, that it widened the separation between the different
classes of society, and confirmed that aristocratical spirit of high
birth, by which the large mass of mankind were kept in unjust
degradation. Compare the generosity of Edward III. towards Eustace de
Ribaumont at the siege of Calais with the harshness of his conduct
towards the citizens. This may be illustrated by a story from
Joinville, who was himself imbued with the full spirit of chivalry, and
felt like the best and bravest of his age. He is speaking of Henry count
of Champagne, who acquired, says he, very deservedly, the surname of
Liberal, and adduces the following proof of it. A poor knight implored
of him on his knees one day as much money as would serve to marry his
two daughters. One Arthault de Nogent, a rich burgess, willing to rid
the count of this importunity, but rather awkward, we must own, in the
turn of his argument, said to the petitioner; My lord has already given
away so much that he has nothing left. Sir Villain, replied Henry,
turning round to him, you do not speak truth in saying that I have
nothing left to give, when I have got yourself. Here, Sir Knight, I give
you this man and warrant your possession of him. Then, says Joinville,
the poor knight was not at all confounded, but seized hold of the
burgess fast by the collar, and told him he should not go till he had
ransomed himself. And in the end he was forced to pay a ransom of five
hundred pounds. The simple-minded writer who brings this evidence of the
count of Champagne's liberality is not at all struck with the facility
of a virtue that is exercised at the cost of others.[779]

[Sidenote: Circumstances tending to promote it.]

There is perhaps enough in the nature of this institution and its
congeniality to the habits of a warlike generation to account for the
respect in which it was held throughout Europe. But several collateral
circumstances served to invigorate its spirit. Besides the powerful
efficacy with which the poetry and romance of the middle ages stimulated
those susceptible minds which were alive to no other literature, we may
enumerate four distinct causes tending to the promotion of chivalry.

[Sidenote: Regular education for knighthood.]

The first of these was the regular scheme of education, according to
which the sons of gentlemen from the age of seven years, were brought up
in the castles of superior lords, where they at once learned the whole
discipline of their future profession, and imbibed its emulous and
enthusiastic spirit. This was an inestimable advantage to the poorer
nobility, who could hardly otherwise have given their children the
accomplishments of their station. From seven to fourteen these boys were
called pages or varlets; at fourteen they bore the name of esquire. They
were instructed in the management of arms, in the art of horsemanship,
in exercises of strength and activity. They became accustomed to
obedience and courteous demeanour, serving their lord or lady in offices
which had not yet become derogatory to honourable birth, and striving to
please visitors, and especially ladies, at the ball or banquet. Thus
placed in the centre of all that could awaken their imaginations, the
creed of chivalrous gallantry, superstition, or honour must have made
indelible impressions. Panting for the glory which neither their
strength nor the established rules permitted them to anticipate, the
young scions of chivalry attended their masters to the tournament, and
even to the battle, and riveted with a sigh the armour they were
forbidden to wear.[780]

[Sidenote: Encouragement of princes. Tournaments.]

It was the constant policy of sovereigns to encourage this institution,
which furnished them with faithful supports, and counteracted the
independent spirit of feudal tenure. Hence they displayed a lavish
magnificence in festivals and tournaments, which may be reckoned a
second means of keeping up the tone of chivalrous feeling. The kings of
France and England held solemn or plenary courts at the great festivals,
or at other times, where the name of knight was always a title to
admittance; and the masque of chivalry, if I may use the expression, was
acted in pageants and ceremonies fantastical enough in our apprehension,
but well calculated for those heated understandings. Here the peacock
and the pheasant, birds of high fame in romance, received the homage of
all true knights.[781] The most singular festival of this kind was that
celebrated by Philip duke of Burgundy, in 1453. In the midst of the
banquet a pageant was introduced, representing the calamitous state of
religion in consequence of the recent capture of Constantinople. This
was followed by the appearance of a pheasant, which was laid before the
duke, and to which the knights present addressed their vows to undertake
a crusade, in the following very characteristic preamble: I swear
before God my Creator in the first place, and the glorious Virgin his
mother, and next before the ladies and the pheasant.[782] Tournaments
were a still more powerful incentive to emulation. These may be
considered to have arisen about the middle of the eleventh century; for
though every martial people have found diversion in representing the
image of war, yet the name of tournaments, and the laws that regulated
them, cannot be traced any higher.[783] Every scenic performance of
modern times must be tame in comparison of these animating combats. At a
tournament, the space enclosed within the lists was surrounded by
sovereign princes and their noblest barons, by knights of established
renown, and all that rank and beauty had most distinguished among the
fair. Covered with steel, and known only by their emblazoned shield or
by the favours of their mistresses, a still prouder bearing, the
combatants rushed forward to a strife without enmity, but not without
danger. Though their weapons were pointless, and sometimes only of wood,
though they were bound by the laws of tournaments to strike only upon
the strong armour of the trunk, or, as it was called, between the four
limbs, those impetuous conflicts often terminated in wounds and death.
The church uttered her excommunications in vain against so wanton an
exposure to peril; but it was more easy for her to excite than to
restrain that martial enthusiasm. Victory in a tournament was little
less glorious, and perhaps at the moment more exquisitely felt, than in
the field; since no battle could assemble such witnesses of valour.
"Honour to the sons of the brave," resounded amidst the din of martial
music from the lips of the minstrels, as the conqueror advanced to
receive the prize from his queen or his mistress; while the surrounding
multitude acknowledged in his prowess of that day an augury of triumphs
that might in more serious contests be blended with those of his
country.[784]

[Sidenote: Privileges of knighthood.]

Both honorary and substantial privileges belonged to the condition of
knighthood, and had of course a material tendency to preserve its
credit. A knight was distinguished abroad by his crested helmet, his
weighty armour, whether of mail or plate, bearing his heraldic coat, by
his gilded spurs, his horse barded with iron, or clothed in housing of
gold; at home, by richer silks and more costly furs than were permitted
to squires, and by the appropriated colour of scarlet. He was addressed
by titles of more respect.[785] Many civil offices, by rule or usage,
were confined to his order. But perhaps its chief privilege was to form
one distinct class of nobility extending itself throughout great part of
Europe, and almost independent, as to its rights and dignities, of any
particular sovereign. Whoever had been legitimately dubbed a knight in
one country became, as it were, a citizen of universal chivalry, and
might assume most of its privileges in any other. Nor did he require the
act of a sovereign to be thus distinguished. It was a fundamental
principle that any knight might confer the order; responsible only in
his own reputation if he used lightly so high a prerogative. But as all
the distinctions of rank might have been confounded, if this right had
been without limit, it was an equally fundamental rule, that it could
only be exercised in favour of gentlemen.[786]

The privileges annexed to chivalry were of peculiar advantage to the
vavassors, or inferior gentry, as they tended to counterbalance the
influence which territorial wealth threw into the scale of their feudal
suzerains. Knighthood brought these two classes nearly to a level; and
it is owing perhaps in no small degree to this institution that the
lower nobility saved themselves, notwithstanding their poverty, from
being confounded with the common people.

[Sidenote: Connexion of chivalry with military service.]

[Sidenote: Knights-bannerets and bachelors.]

Lastly, the customs of chivalry were maintained by their connexion with
military service. After armies, which we may call comparatively regular,
had superseded in a great degree the feudal militia, princes were
anxious to bid high for the service of knights, the best-equipped and
bravest warriors of the time, on whose prowess the fate of battles was
for a long period justly supposed to depend. War brought into relief the
generous virtues of chivalry, and gave lustre to its distinctive
privileges. The rank was sought with enthusiastic emulation through
heroic achievements, to which, rather than to mere wealth and station,
it was considered to belong. In the wars of France and England, by far
the most splendid period of this institution, a promotion of knights
followed every success, besides the innumerable cases where the same
honour rewarded individual bravery.[787] It may here be mentioned that
an honorary distinction was made between knights-bannerets and
bachelors.[788] The former were the richest and best accompanied. No man
could properly be a banneret unless he possessed a certain estate, and
could bring a certain number of lances into the field.[789] His
distinguishing mark was the square banner, carried by a squire at the
point of his lance; while the knight-bachelor had only the coronet or
pointed pendant. When a banneret was created, the general cut off this
pendant to render the banner square.[790] But this distinction, however
it elevated the banneret, gave him no claim to military command, except
over his own dependents or men at arms. Chandos was still a
knight-bachelor when he led part of the prince of Wales's army into
Spain. He first raised his banner at the battle of Navarette; and the
narration that Froissart gives of the ceremony will illustrate the
manners of chivalry and the character of that admirable hero, the
conqueror of Du Guesclin and pride of English chivalry, whose fame with
posterity has been a little overshadowed by his master's laurels.[791]
What seems more extraordinary is, that mere squires had frequently the
command over knights. Proofs of this are almost continual in Froissart.
But the vast estimation in which men held the dignity of knighthood led
them sometimes to defer it for great part of their lives, in hope of
signalizing their investiture by some eminent exploit.

[Sidenote: Decline of chivalry.]

These appear to have been the chief means of nourishing the principles
of chivalry among the nobility of Europe. But notwithstanding all
encouragement, it underwent the usual destiny of human institutions. St.
Palaye, to whom we are indebted for so vivid a picture of ancient
manners, ascribes the decline of chivalry in France to the profusion
with which the order was lavished under Charles VI., to the
establishment of the companies of ordonnance by Charles VII., and to the
extension of knightly honours to lawyers, and other men of civil
occupation, by Francis I.[792] But the real principle of decay was
something different from these three subordinate circumstances, unless
so far as it may bear some relation to the second. It was the invention
of gunpowder that eventually overthrew chivalry. From the time when the
use of fire-arms became tolerably perfect the weapons of former warfare
lost their efficacy, and physical force was reduced to a very
subordinate place in the accomplishments of a soldier. The advantages of
a disciplined infantry became more sensible; and the lancers, who
continued till almost the end of the sixteenth century to charge in a
long line, felt the punishment of their presumption and indiscipline.
Even in the wars of Edward III., the disadvantageous tactics of chivalry
must have been perceptible; but the military art had not been
sufficiently studied to overcome the prejudices of men eager for
individual distinction. Tournaments became less frequent; and, after the
fatal accident of Henry II., were entirely discontinued in France.
Notwithstanding the convulsions of the religious wars, the sixteenth
century was more tranquil than any that had preceded; and thus a large
part of the nobility passed their lives in pacific habits, and if they
assumed the honours of chivalry, forgot their natural connexion with
military prowess. This is far more applicable to England, where, except
from the reign of Edward III. to that of Henry VI., chivalry, as a
military institution, seems not to have found a very congenial
soil.[793] To these circumstances, immediately affecting the military
condition of nations, we must add the progress of reason and literature,
which made ignorance discreditable even in a soldier, and exposed the
follies of romance to a ridicule which they were very ill calculated to
endure.

The spirit of chivalry left behind it a more valuable successor. The
character of knight gradually subsided in that of gentleman; and the one
distinguishes European society in the sixteenth and seventeenth
centuries, as much as the other did in the preceding ages. A jealous
sense of honour, less romantic, but equally elevated, a ceremonious
gallantry and politeness, a strictness in devotional observances, a high
pride of birth and feeling of independence upon any sovereign for the
dignity it gave, a sympathy for martial honour, though more subdued by
civil habits, are the lineaments which prove an indisputable descent.
The cavaliers of Charles I. were genuine successors of Edward's knights;
and the resemblance is much more striking, if we ascend to the civil
wars of the League. Time has effaced much also of this gentlemanly, as
it did before of the chivalrous character. From the latter part of the
seventeenth century its vigour and purity have undergone a tacit decay,
and yielded, perhaps in every country, to increasing commercial wealth,
more diffused instruction, the spirit of general liberty in some, and of
servile obsequiousness in others, the modes of life in great cities, and
the levelling customs of social intercourse.[794]

[Sidenote: Literature.]

It is now time to pass to a very different subject. The third head under
which I classed the improvements of society during the four last
centuries of the middle ages was that of literature. But I must apprise
the reader not to expect any general view of literary history, even in
the most abbreviated manner. Such an epitome would not only be
necessarily superficial, but foreign in many of its details to the
purposes of this chapter, which, attempting to develop the circumstances
that gave a new complexion to society, considers literature only so far
as it exercised a general and powerful influence. The private
researches, therefore, of a single scholar, unproductive of any material
effect in his generation, ought not to arrest us, nor indeed would a
series of biographical notices, into which literary history is apt to
fall, be very instructive to a philosophical inquirer. But I have still
a more decisive reason against taking a large range of literary history
into the compass of this work, founded on the many contributions which
have been made within the last forty years in that department, some of
them even since the commencement of my own labour.[795] These have
diffused so general an acquaintance with the literature of the middle
ages, that I must, in treating the subject, either compile secondary
information from well-known books, or enter upon a vast field of
reading, with little hope of improving upon what has been already said,
or even acquiring credit for original research. I shall, therefore,
confine myself to four points: the study of civil law; the institution
of universities; the application of modern languages to literature, and
especially to poetry; and the revival of ancient learning.

[Sidenote: Civil law.]

The Roman law had been nominally preserved ever since the destruction of
the empire; and a great portion of the inhabitants of France and Spain,
as well as Italy, were governed by its provisions. But this was a mere
compilation from the Theodosian code; which itself contained only the
more recent laws promulgated after the establishment of Christianity,
with some fragments from earlier collections. It was made by order of
Alaric king of the Visigoths about the year 500, and it is frequently
confounded, with the Theodosian code by writers of the dark ages.[796]
The code of Justinian, reduced into system after the separation of the
two former countries from the Greek empire, never obtained any authority
in them; nor was it received in the part of Italy subject to the
Lombards. But that this body of laws was absolutely unknown in the West
during any period seems to have been too hastily supposed. Some of the
more eminent ecclesiastics, as Hincmar and Ivon of Chartres,
occasionally refer to it, and bear witness to the regard which the Roman
church had uniformly paid to its decisions.[797]

The revival of the study of jurisprudence, as derived from the laws of
Justinian, has generally been ascribed to the discovery made of a copy
of the Pandects at Amalfi, in 1135, when that city was taken by the
Pisans. This fact, though not improbable, seems not to rest upon
sufficient evidence.[798] But its truth is the less material, as it
appears to be unequivocally proved that the study of Justinian's system
had recommenced before that era. Early in the twelfth century a
professor named Irnerius[799] opened a school of civil law at Bologna,
where he commented, if not on the Pandects, yet on the other books, the
Institutes and Code, which were sufficient to teach the principles and
inspire the love of that comprehensive jurisprudence. The study of law,
having thus revived, made a surprising progress; within fifty years
Lombardy was full of lawyers, on whom Frederic Barbarossa and Alexander
III., so hostile in every other respect, conspired to shower honours and
privileges. The schools of Bologna were pre-eminent throughout this
century for legal learning. There seem also to have been seminaries at
Modena and Mantua; nor was any considerable city without distinguished
civilians. In the next age they became still more numerous, and their
professors more conspicuous, and universities arose at Naples, Padua,
and other places, where the Roman law was the object of peculiar
regard.[800]

There is apparently great justice in the opinion of Tiraboschi, that by
acquiring internal freedom and the right of determining controversies by
magistrates of their own election, the Italian cities were led to
require a more extensive and accurate code of written laws than they had
hitherto possessed. These municipal judges were chosen from among the
citizens, and the succession to offices was usually so rapid, that
almost every freeman might expect in his turn to partake in the public
government, and consequently in the administration of justice. The
latter had always indeed been exercised in the sight of the people by
the count and his assessors under the Lombard and Carlovingian
sovereigns; but the laws were rude, the proceedings tumultuary, and the
decisions perverted by violence. The spirit of liberty begot a stronger
sense of right; and right, it was soon perceived, could only be secured
by a common standard. Magistrates holding temporary offices, and little
elevated in those simple times above the citizens among whom they were
to return, could only satisfy the suitors, and those who surrounded
their tribunal, by proving the conformity of their sentences to
acknowledged authorities. And the practice of alleging reasons in giving
judgment would of itself introduce some uniformity of decision and some
adherence to great rules of justice in the most arbitrary tribunals;
while, on the other hand, those of a free country lose part of their
title to respect, and of their tendency to maintain right, whenever,
either in civil or criminal questions, the mere sentence of a judge is
pronounced without explanation of its motives.

The fame of this renovated jurisprudence spread very rapidly from Italy
over other parts of Europe. Students flocked from all parts of Bologna;
and some eminent masters of that school repeated its lessons in distant
countries. One of these, Placentinus, explained the Digest at Montpelier
before the end of the twelfth century; and the collection of Justinian
soon came to supersede the Theodosian code in the dominions of
Toulouse.[801] Its study continued to flourish in the universities of
both these cities; and hence the Roman law, as it is exhibited in the
system of Justinian, became the rule of all tribunals in the southern
provinces of France. Its authority in Spain is equally great, or at
least is only disputed by that of the canonists;[802] and it forms the
acknowledged basis of decision in all the Germanic tribunals, sparingly
modified by the ancient feudal customaries, which the jurists of the
empire reduce within narrow bounds.[803] In the northern parts of
France, where the legal standard was sought in local customs, the civil
law met naturally with less regard. But the code of St. Louis borrows
from that treasury many of its provisions, and it was constantly cited
in pleadings before the parliament of Paris, either as obligatory by way
of authority, or at least as written wisdom, to which great deference
was shown.[804] Yet its study was long prohibited in the university of
Paris, front a disposition of the popes to establish exclusively their
decretals, though the prohibition was silently disregarded.[805]

[Sidenote: Its introduction into England.]

As early as the reign of Stephen, Vacarius, a lawyer of Bologna, taught
at Oxford with great success; but the students of scholastic theology
opposed themselves, from some unexplained reason, to this new
jurisprudence, and his lectures were interdicted.[806] About the time of
Henry III. and Edward I. the civil law acquired some credit in England;
but a system entirely incompatible with it had established itself in our
courts of justice; and the Roman jurisprudence was not only soon
rejected, but became obnoxious.[807] Every where, however, the clergy
combined its study with that of their own canons; it was a maxim that
every canonist must be a civilian, and that no one could be a good
civilian unless he were also a canonist. In all universities, degrees
are granted in both laws conjointly; and in all courts of ecclesiastical
jurisdiction, the authority of Justinian is cited, when that of Gregory
or Clement is wanting.[808]

[Sidenote: The elder civilians little regarded.]

I should earn little gratitude for my obscure diligence, were I to dwell
on the forgotten teachers of a science that attracts so few. These elder
professors of Roman jurisprudence are infected, as we are told, with the
faults and ignorance of their time; failing in the exposition of ancient
law through incorrectness of manuscripts and want of subsidiary
learning, or perverting their sense through the verbal subtleties of
scholastic philosophy. It appears that, even a hundred years since,
neither Azzo and Accursius, the principal civilians of the thirteenth
century, nor Bartolus and Baldus, the more conspicuous luminaries of the
next age, nor the later writings of Accolti, Fulgosius, and
Panormitanus, were greatly regarded as authorities; unless it were in
Spain, where improvement is always odious, and the name of Bartolus
inspired absolute deference.[809] In the sixteenth century, Alciatus and
the greater Cujacius became, as it were, the founders of a new and more
enlightened academy of civil law, from which the latter jurists derived
their lessons. The laws of Justinian, stripped of their impurer alloy,
and of the tedious glosses of their commentators, will form the basis of
other systems, and mingling, as we may hope, with the new institutions
of philosophical legislators, continue to influence the social relations
of mankind, long after their direct authority shall have been abrogated.
The ruins of ancient Rome supplied the materials of a new city; and the
fragments of her law, which have already been wrought into the recent
codes of France and Prussia, will probably, under other names, guide far
distant generations by the sagacity of Modestinus and Ulpian.[810]

[Sidenote: Public schools established by Charlemagne.]

The establishment of public schools in France is owing to Charlemagne.
At his accession, we are assured that no means of obtaining a learned
education existed in his dominions;[811] and in order to restore in some
degree the spirit of letters, he was compelled to invite strangers from
countries where learning was not so thoroughly extinguished. Alcuin of
England, Clement of Ireland, Theodulf of Germany, were the true Paladins
who repaired to his court. With the help of these he revived a few
sparks of diligence, and established schools in different cities of his
empire; nor was he ashamed to be the disciple of that in his own palace
under the care of Alcuin.[812] His two next successors, Louis the
Debonair and Charles the Bald, were also encouragers of letters; and
the schools of Lyons, Fulda, Corvey, Rheims, and some other cities,
might be said to flourish in the ninth century.[813] In these were
taught the trivium and quadrivium, a long-established division of
sciences: the first comprehending grammar, or what we now call
philology, logic, and rhetoric; the second, music, arithmetic, geometry,
and astronomy.[814] But in those ages scarcely anybody mastered the
latter four; and to be perfect in the three former was exceedingly rare.
All those studies, however, were referred to theology, and that in the
narrowest manner; music, for example, being reduced to church chanting,
and astronomy to the calculation of Easter.[815] Alcuin was, in his old
age, against reading the poets;[816] and this discouragement of secular
learning was very general; though some, as for instance Raban, permitted
a slight tincture of it, as subsidiary to religious instruction.[817]

[Sidenote: University of Paris.]

[Sidenote: Abelard.]

About the latter part of the eleventh century a greater ardour for
intellectual pursuits began to show itself in Europe, which in the
twelfth broke out into a flame. This was manifested in the numbers who
repaired to the public academies or schools of philosophy. None of these
grew so early into reputation as that of Paris. This cannot indeed, as
has been vainly pretended, trace its pedigree to Charlemagne. The first
who is said to have read lectures at Paris was Remigius of Auxerre,
about the year 900.[818] For the two next centuries the history of this
school is very obscure; and it would be hard to prove an unbroken
continuity, or at least a dependence and connexion of its professors. In
the year 1100 we find William of Champeaux teaching logic, and
apparently some higher parts of philosophy, with much credit. But this
preceptor was eclipsed by his disciple, afterwards his rival and
adversary, Peter Abelard, to whose brilliant and hardy genius the
university of Paris appears to be indebted for its rapid advancement.
Abelard was almost the first who awakened mankind in the ages of
darkness to a sympathy with intellectual excellence. His bold theories,
not the less attractive perhaps for treading upon the bounds of heresy,
his imprudent vanity, that scorned the regularly acquired reputation of
older men, allured a multitude of disciples, who would never have
listened to an ordinary teacher. It is said that twenty cardinals and
fifty bishops had been among his hearers.[819] Even in the wilderness,
where he had erected the monastery of Paraclete, he was surrounded by
enthusiastic admirers, relinquishing the luxuries, if so they might be
called, of Paris, for the coarse living and imperfect accommodation
which that retirement could afford.[820] But the whole of Abelard's life
was the shipwreck of genius; and of genius, both the source of his own
calamities and unserviceable to posterity. There are few lives of
literary men more interesting or more diversified by success and
adversity, by glory and humiliation, by the admiration of mankind and
the persecution of enemies; nor from which, I may add, more impressive
lessons of moral prudence may be derived.[821] One of Abelard's pupils
was Peter Lombard, afterwards archbishop of Paris, and author of a work
called the Book of Sentences, which obtained the highest authority among
the scholastic disputants. The resort of students to Paris became
continually greater; they appear, before the year 1169, to have been
divided into nations;[822] and probably they had an elected rector and
voluntary rules of discipline about the same time. This, however, is not
decisively proved; but in the last year of the twelfth century they
obtained their earliest charter from Philip Augustus.[823]

[Sidenote: University of Oxford.]

The opinion which ascribes the foundation of the university of Oxford to
Alfred, if it cannot be maintained as a truth, contains no intrinsic
marks of error. Ingulfus, abbot of Croyland, in the earliest authentic
passage that can be adduced to this point,[824] declares that he was
sent from Westminster to the school at Oxford, where he learned
Aristotle, with the first and second books of Tully's Rhetoric.[825]
Since a school for dialectics and rhetoric subsisted at Oxford, a town
of but middling size and not the seat of a bishop, we are naturally led
to refer its foundation to one of our kings, and none who had reigned
after Alfred appears likely to have manifested such zeal for learning.
However, it is evident that the school of Oxford was frequented under
Edward the Confessor. There follows an interval of above a century,
during which we have, I believe, no contemporary evidence of its
continuance. But in the reign of Stephen, Vacarius read lectures there
upon civil law; and it is reasonable to suppose that a foreigner would
not have chosen that city, if he had not found a seminary of learning
already established. It was probably inconsiderable, and might have been
interrupted during some part of the preceding century.[826] In the
reign of Henry II., or at least of Richard I., Oxford became a very
flourishing university, and in 1201, according to Wood, contained 3000
scholars.[827] The earliest charters were granted by John.

[Sidenote: University of Bologna.]

[Sidenote: Encouragement given to universities.]

If it were necessary to construe the word university in the strict sense
of a legal incorporation, Bologna might lay claim to a higher antiquity
than either Paris or Oxford. There are a few vestiges of studies pursued
in that city even in the eleventh century;[828] but early in the next
the revival of the Roman jurisprudence, as has been already noticed,
brought a throng of scholars round the chairs of its professors.
Frederic Barbarossa in 1158, by his authentic, or rescript, entitled
Habita, took these under his protection, and permitted them to be tried
in civil suits by their own judges. This exemption from the ordinary
tribunals, and even from those of the church, was naturally coveted by
other academies; it was granted to the university of Paris by its
earliest charter from Philip Augustus, and to Oxford by John. From this
time the golden age of universities commenced; and it is hard to say
whether they were favoured more by their sovereigns or by the see of
Rome. Their history indeed is full of struggles with the municipal
authorities, and with the bishops of their several cities, wherein they
were sometimes the aggressors, and generally the conquerors. From all
parts of Europe students resorted to these renowned seats of learning
with an eagerness for instruction which may astonish those who reflect
how little of what we now deem useful could be imparted. At Oxford,
under Henry III., it is said that there were 30,000 scholars; an
exaggeration which seems to imply that the real number was very
great.[829] A respectable contemporary writer asserts that there were
full 10,000 at Bologna about the same time.[830] I have not observed any
numerical statement as to Paris during this age; but there can be no
doubt that it was more frequented than any other. At the death of
Charles VII. in 1453, it is said to have contained 25,000 students.[831]
In the thirteenth century other universities sprang up in different
countries; Padua and Naples under the patronage of Frederic II., a
zealous and useful friend to letters,[832] Toulouse and Montpelier,
Cambridge and Salamanca.[833] Orleans, which had long been distinguished
as a school of civil law, received the privileges of incorporation early
in the fourteenth century, and Angers before the expiration of the same
age.[834] Prague, the earliest and most eminent of German universities,
was founded in 1350; a secession from thence of Saxon students, in
consequence of the nationality of the Bohemians and the Hussite schism,
gave rise to that of Leipsic.[835] The fifteenth century produced
several new academical foundations in France and Spain.

A large proportion of scholars in most of those institutions were drawn
by the love of science from foreign countries. The chief universities
had their own particular departments of excellence. Paris was unrivalled
for scholastic theology; Bologna and Orleans, and afterwards Bourges,
for jurisprudence; Montpelier for medicine. Though national prejudices,
as in the case of Prague, sometimes interfered with this free resort of
foreigners to places of education, it was in general a wise policy of
government, as well as of the universities themselves, to encourage it.
The thirty-fifth article of the peace of Bretigni provides for the
restoration of former privileges to students respectively in the French
and English universities.[836] Various letters patent will be found in
Rymer's collection, securing to Scottish as well as French natives a
safe passage to their place of education. The English nation, including
however the Flemings and Germans,[837] had a separate vote in the
faculty of arts at Paris. But foreign students were not, I believe, so
numerous in the English academies.

If endowments and privileges are the means of quickening a zeal for
letters, they were liberally bestowed in the last three of the middle
ages. Crevier enumerates fifteen colleges founded in the university of
Paris during the thirteenth century, besides one or two of a still
earlier date. Two only, or at most three, existed in that age at Oxford,
and but one at Cambridge. In the next two centuries these universities
could boast, as every one knows, of many splendid foundations, though
much exceeded in number by those of Paris. Considered as ecclesiastical
institutions it is not surprising that the universities obtained,
according to the spirit of their age, an exclusive cognizance of civil
or criminal suits affecting their members. This jurisdiction was,
however, local as well as personal, and in reality encroached on the
regular police of their cities. At Paris the privilege turned to a
flagrant abuse, and gave rise to many scandalous contentions.[838] Still
more valuable advantages were those relating to ecclesiastical
preferments, of which a large proportion was reserved in France to
academical graduates. Something of the same sort, though less extensive,
may still be traced in the rules respecting plurality of benefices in
our English church.

[Sidenote: Causes of their celebrity.]

[Sidenote: Scholastic philosophy.]

This remarkable and almost sudden transition from a total indifference
to all intellectual pursuits cannot be ascribed perhaps to any general
causes. The restoration of the civil, and the formation of the canon
law, were indeed eminently conducive to it, and a large proportion of
scholars in most universities confined themselves to jurisprudence. But
the chief attraction to the studious was the new scholastic philosophy.
The love of contention, especially with such arms as the art of
dialectics supplies to an acute understanding, is natural enough to
mankind. That of speculating upon the mysterious questions of
metaphysics and theology is not less so. These disputes and
speculations, however, appear to have excited little interest till,
after the middle of the eleventh century, Roscelin, a professor of
logic, revived the old question of the Grecian schools respecting
universal ideas, the reality of which he denied. This kindled a spirit
of metaphysical discussion, which Lanfranc and Anselm, successively
archbishops of Canterbury, kept alive; and in the next century Abelard
and Peter Lombard, especially the latter, completed the scholastic
system of philosophizing. The logic of Aristotle seems to have been
partly known in the eleventh century, although that of Augustin was
perhaps in higher estimation;[839] in the twelfth it obtained more
decisive influence. His metaphysics, to which the logic might be
considered as preparatory, were introduced through translations from the
Arabic, and perhaps also from the Greek, early in the ensuing
century.[840] This work, condemned at first by the decrees of popes and
councils on account of its supposed tendency to atheism, acquired by
degrees an influence, to which even popes and councils were obliged to
yield. The Mendicant Friars, established throughout Europe in the
thirteenth century, greatly contributed to promote the Aristotelian
philosophy; and its final reception into the orthodox system of the
church may chiefly be ascribed to Thomas Aquinas, the boast of the
Dominican order, and certainly the most distinguished metaphysician of
the middle ages. His authority silenced all scruple's as to that of
Aristotle, and the two philosophers were treated with equally implicit
deference by the later schoolmen.[841]

This scholastic philosophy, so famous for several ages, has since passed
away and been forgotten. The history of literature, like that of empire,
is full of revolutions. Our public libraries are cemeteries of departed
reputation, and the dust accumulating upon their untouched volumes speaks
as forcibly as the grass that waves over the ruins of Babylon. Few, very
few, for a hundred years past, have broken the repose of the immense works
of the schoolmen. None perhaps in our own country have acquainted
themselves particularly with their contents. Leibnitz, however, expressed
a wish that some one conversant with modern philosophy would undertake to
extract the scattered particles of gold which may be hidden in their
abandoned mines. This wish has been at length partially fulfilled by three
or four of those industrious students and keen metaphysicians, who do
honour to modern Germany. But most of their works are unknown to me except
by repute, and as they all appear to be formed on a very extensive plan, I
doubt whether even those laborious men could afford adequate time for this
ungrateful research. Yet we cannot pretend to deny that Roscelin, Anselm,
Abelard, Peter Lombard, Albertus Magnus, Thomas Aquinas, Duns Scotus, and
Ockham, were men of acute and even profound understandings, the giants of
their own generation. Even with the slight knowledge we possess of their
tenets, there appear through the cloud of repulsive technical barbarisms
rays of metaphysical genius which this age ought not to despise. Thus in
the works of Anselm is found the celebrated argument of Des Cartes for the
existence of a Deity, deduced from the idea of an infinitely perfect
being. One great object that most of the schoolmen had in view was, to
establish the principles of natural theology by abstract reasoning. This
reasoning was doubtless liable to great difficulties. But a modern writer,
who seems tolerably acquainted with the subject, assures us that it would
be difficult to mention any theoretical argument to prove the divine
attributes, or any objection capable of being raised against the proof,
which we do not find in some of the scholastic philosophers.[842] The most
celebrated subjects of discussion, and those on which this class of
reasoners were most divided, were the reality of universal ideas,
considered as extrinsic to the human mind and the freedom of will. These
have not ceased to occupy the thoughts of metaphysicians.[843]

But all discovery of truth by means of these controversies was rendered
hopeless by two insurmountable obstacles, the authority of Aristotle and
that of the church. Wherever obsequious reverence is substituted for
bold inquiry, truth, if she is not already at hand, will never be
attained. The scholastics did not understand Aristotle, whose original
writings they could not read;[844] but his name was received with
implicit faith. They learned his peculiar nomenclature, and fancied that
he had given them realities. The authority of the church did them still
more harm. It has been said, and probably with much truth, that their
metaphysics were injurious to their theology. But I must observe in
return that their theology was equally injurious to their metaphysics.
Their disputes continually turned upon questions either involving
absurdity and contradiction, or at best inscrutable by human
comprehension. Those who assert the greatest antiquity of the Roman
Catholic doctrine as to the real presence, allow that both the word and
the definition of transubstantiation are owing to the scholastic
writers. Their subtleties were not always so well received. They
reasoned at imminent peril of being charged with heresy, which Roscelin,
Abelard, Lombard, and Ockham did not escape. In the virulent factions
that arose out of their metaphysical quarrels, either party was eager to
expose its adversary to detraction and persecution. The Nominalists were
accused, one hardly sees why, with reducing, like Sabellius, the persons
of the Trinity to modal distinctions. The Realists, with more pretence,
incurred the imputation of holding a language that savoured of
atheism.[845] In the controversy which the Dominicans and Franciscans,
disciples respectively of Thomas Aquinas and Duns Scotus, maintained
about grace and freewill, it was of course still more easy to deal in
mutual reproaches of heterodoxy. But the schoolmen were in general
prudent enough not to defy the censures of the church; and the popes, in
return for the support they gave to all exorbitant pretensions of the
Holy See, connived at this factious wrangling, which threatened no
serious mischief, as it did not proceed from any independent spirit of
research. Yet with all their apparent conformity to the received creed,
there was, as might be expected from the circumstances, a great deal of
real deviation from orthodoxy, and even of infidelity. The scholastic
mode of dispute, admitting of no termination and producing no
conviction, was the sure cause of scepticism; and the system of
Aristotle, especially with the commentaries of Averroes, bore an aspect
very unfavourable to natural religion.[846] The Aristotelian philosophy,
even in the hands of the Master, was like a barren tree that conceals
its want of fruit by profusion of leaves. But the scholastic ontology
was much worse. What could be more trifling than disquisitions about the
nature of angels, their modes of operation, their means of conversing,
or (for these were distinguished) the morning and evening state of their
understandings?[847] Into such follies the schoolmen appear to have
launched, partly because there was less danger of running against a
heresy in a matter where the church had defined so little--partly from
their presumption, which disdained all inquiries into the human mind, as
merely a part of physics--and in no small degree through a spirit of
mystical fanaticism, derived from the oriental philosophy and the later
Platonists, which blended itself with the cold-blooded technicalities of
the Aristotelian school.[848] But this unproductive waste of the
faculties could not last for ever. Men discovered that they had given
their time for the promise of wisdom, and been cheated in the bargain.
What John of Salisbury observes of the Parisian dialecticians in his own
time, that, after several years' absence, he found them not a step
advanced and still employed in urging and parrying the same arguments,
was equally applicable to the period of centuries. After three or four
hundred years, the scholastics had not untied a single knot, nor added
one unequivocal truth to the domain of philosophy. As this became more
evident, the enthusiasm for that kind of learning declined; after the
middle of the fourteenth century few distinguished teachers arose among
the schoolmen, and at the revival of letters their pretended science had
no advocates left, but among the prejudiced or ignorant adherents of
established systems. How different is the state of genuine philosophy,
the zeal for which will never wear out by length of time or change of
fashion, because the inquirer, unrestrained by authority, is perpetually
cheered by the discovery of truth in researches, which the boundless
riches of nature seem to render indefinitely progressive![849]

Yet, upon a general consideration, the attention paid in the
universities to scholastic philosophy, may be deemed a source of
improvement in the intellectual character, when we compare it with the
perfect ignorance of some preceding ages. Whether the same industry
would not have been more profitably directed if the love of metaphysics
had not intervened, is another question. Philology, or the principles of
good taste, degenerated through the prevalence of school-logic. The
Latin compositions of the twelfth century are better than those of the
three that followed--at least on the northern side of the Alps. I do
not, however, conceive that any real correctness of taste or general
elegance of style was likely to subsist in so imperfect a condition of
society. These qualities seem to require a certain harmonious
correspondence in the tone of manners before they can establish a
prevalent influence over literature. A more real evil was the diverting
of studious men from mathematical science. Early in the twelfth century
several persons, chiefly English, had brought into Europe some of the
Arabian writings on geometry and physics. In the thirteenth the works of
Euclid were commented upon by Campano,[850] and Roger Bacon was fully
acquainted with them.[851] Algebra, as far as the Arabians knew it,
extending to quadratic equations, was actually in the hands of some
Italians at the commencement of the same age, and preserved for almost
three hundred years as a secret, though without any conception of its
importance. As abstract mathematics require no collateral aid, they may
reach the highest perfection in ages of general barbarism; and there
seems to be no reason why, if the course of study had been directed that
way, there should not have arisen a Newton or a La Place, instead of an
Aquinas or an Ockham. The knowledge displayed by Roger Bacon and by
Albertus Magnus, even in the mixed mathematics, under every disadvantage
from the imperfection of instruments and the want of recorded
experience, is sufficient to inspire us with regret that their
contemporaries were more inclined to astonishment than to emulation.
These inquiries indeed were subject to the ordeal of fire, the great
purifier of books and men; for if the metaphysician stood a chance of
being burned as a heretic, the natural philosopher was in not less
jeopardy as a magician.[852]

[Sidenote: Cultivation of the new languages.]

[Sidenote: Division of the Romance tongue into two dialects.]

[Sidenote: Troubadours of Provence.]

A far more substantial cause of intellectual improvement was the
development of those new languages that sprang out of the corruption of
Latin. For three or four centuries after what was called the Romance
tongue was spoken in France, there remain but few vestiges of its
employment in writing; though we cannot draw an absolute inference from
our want of proof, and a critic of much authority supposes translations
to have been made into it for religious purposes from the time of
Charlemagne.[853] During this period the language was split into two
very separate dialects, the regions of which may be considered, though
by no means strictly, as divided by the Loire. These were called the
Langue d'Oil and the Langue d'Oc; or in more modern terms, the French
and Provençal dialects. In the latter of these I know of nothing which
can even by name be traced beyond the year 1100. About that time Gregory
de Bechada, a gentleman of Limousin, recorded the memorable events of
the first crusade, then recent, in a metrical history of great
length.[854] This poem has altogether perished; which, considering the
popularity of its subject, as M. Sismondi justly remarks, would probably
not have been the case if it had possessed any merit. But very soon
afterwards a multitude of poets, like a swarm of summer insects,
appeared in the southern provinces of France. These were the celebrated
Troubadours, whose fame depends far less on their positive excellence
than on the darkness of preceding ages, on the temporary sensation they
excited, and their permanent influence on the state of European poetry.
From William count of Poitou, the earliest troubadour on record, who
died in 1126, to their extinction, about the end of the next century,
there were probably several hundred of these versifiers in the language
of Provence, though not always natives of France. Millot has published
the lives of one hundred and forty-two, besides the names of many more
whose history is unknown; and a still greater number, it cannot be
doubted, are unknown by name. Among those poets are reckoned a king of
England (Richard I.), two of Aragon, one of Sicily, a dauphin of
Auvergne, a count of Foix, a prince of Orange, many noblemen and several
ladies. One can hardly pretend to account for this sudden and transitory
love of verse; but it is manifestly one symptom of the rapid impulse
which the human mind received in the twelfth century, and
contemporaneous with the severer studies that began to flourish in the
universities. It was encouraged by the prosperity of Languedoc and
Provence, undisturbed, comparatively with other countries, by internal
warfare, and disposed by the temper of their inhabitants to feel with
voluptuous sensibility the charm of music and amorous poetry. But the
tremendous storm that fell upon Languedoc in the crusade against the
Albigeois shook off the flowers of Provençal verse; and the final
extinction of the fief of Toulouse, with the removal of the counts of
Provence to Naples, deprived the troubadours of their most eminent
patrons. An attempt was made in the next century to revive them, by
distributing prizes for the best composition in the Floral Games of
Toulouse, which have sometimes been erroneously referred to a higher
antiquity.[855] This institution perhaps still remains; but even in its
earliest period it did not establish the name of any Provençal poet. Nor
can we deem these fantastical solemnities, styled Courts of Love, where
ridiculous questions of metaphysical gallantry were debated by poetical
advocates, under the presidency and arbitration of certain ladies, much
calculated to bring forward any genuine excellence. They illustrate,
however, what is more immediately my own object, the general ardour for
poetry and the manners of those chivalrous ages.[856]

[Sidenote: Their poetical character.]

The great reputation acquired by the troubadours, and panegyrics
lavished on some of them by Dante and Petrarch, excited a curiosity
among literary men, which has been a good deal disappointed by further
acquaintance. An excellent French antiquary of the last age, La Curne de
St. Palaye, spent great part of his life in accumulating manuscripts of
Provençal poetry, very little of which had ever been printed.
Translations from part of this collection, with memorials of the
writers, were published by Millot; and we certainly do not often meet
with passages in his three volumes which give us any poetical
pleasure.[857] Some of the original poems have since been published, and
the extracts made from them by the recent historians of southern
literature are rather superior. The troubadours chiefly confined
themselves to subjects of love, or rather gallantry, and to satires
(sirventes), which are sometimes keen and spirited. No romances of
chivalry, and hardly any tales, are found among their works. There seems
a general deficiency of imagination, and especially of that vivid
description which distinguishes works of genius in the rudest period of
society. In the poetry of sentiment, their favourite province, they
seldom attain any natural expression, and consequently produce no
interest. I speak, of course, on the presumption that the best specimens
have been exhibited by those who have undertaken the task. It must be
allowed, however, that we cannot judge of the troubadours at a greater
disadvantage than through the prose translations of Millot. Their poetry
was entirely of that class which is allied to music, and excites the
fancy or feelings rather by the power of sound than any stimulancy of
imagery and passion. Possessing a flexible and harmonious language, they
invented a variety of metrical arrangements, perfectly new to the
nations of Europe. The Latin hymns were striking, but monotonous, the
metre of the northern French unvaried; but in Provençal poetry, almost
every length of verse, from two syllables to twelve, and the most
intricate disposition of rhymes, were at the choice of the troubadour.
The canzoni, the sestine, all the lyric metres of Italy and Spain were
borrowed from his treasury. With such a command of poetical sounds, it
was natural that he should inspire delight into ears not yet rendered
familiar to the artifices of verse; and even now the fragments of these
ancient lays, quoted by M. Sismondi and M. Ginguené, seem to possess a
sort of charm that has evaporated in translation. Upon this harmony, and
upon the facility with which mankind are apt to be deluded into an
admiration of exaggerated sentiment in poetry, they depended for their
influence. And however vapid the songs of Provence may seem to our
apprehensions, they were undoubtedly the source from which poetry for
many centuries derived a great portion of its habitual language.[858]

[Sidenote: Northern French poetry and prose.]

It has been maintained by some antiquaries, that the northern Romance,
or what we properly call French, was not formed until the tenth century,
the common dialect of all France having previously resembled that of
Languedoc. This hypothesis may not be indisputable; but the question is
not likely to be settled, as scarcely any written specimens of Romance,
even of that age, have survived.[859] In the eleventh century, among
other more obscure productions, both in prose and metre, there appears
what, if unquestioned as to authenticity, would be a valuable monument
of this language; the laws of William the Conqueror. These are preserved
in a manuscript of Ingulfus's History of Croyland, a blank being left in
other copies where they should be inserted.[860] They are written in an
idiom so far removed from the Provençal, that one would be disposed to
think the separation between these two species of Romance of older
standing than is commonly allowed. But it has been thought probable that
these laws, which in fact were nearly a repetition of those of Edward
the Confessor, were originally published in Anglo-Saxon, the only
language intelligible to the people, and translated, at a subsequent
period, by some Norman monk into French.[861]

The use of a popular language became more common after the year 1100.
Translations of some books of Scripture and acts of saints were made
about that time, or even earlier, and there are French sermons of St.
Bernard, from which extracts have been published, in the royal library
at Paris.[862] In 1126, a charter was granted by Louis VI. to the city
of Beauvais in French.[863] Metrical compositions are in general the
first literature of a nation, and even if no distinct proof could be
adduced, we might assume their existence before the twelfth century.
There is however evidence, not to mention the fragments printed by Le
Boeuf, of certain lives of saints translated into French verse by
Thibault de Vernon, a canon of Rouen, before the middle of the preceding
age. And we are told that Taillefer, a Norman minstrel, recited a song
or romance on the deeds of Roland, before the army of his countrymen, at
the battle of Hastings in 1066. Philip de Than, a Norman subject of
Henry I., seems to be the earliest poet whose works as well as name have
reached us, unless we admit a French, translation of the work of one
Marbode upon precious stones to be more ancient.[864] This De Than wrote
a set of rules for computation of time and an account of different
calendars. A happy theme for inspiration without doubt! Another
performance of the same author is a treatise on birds and beasts,
dedicated to Adelaide, queen of Henry I.[865] But a more famous votary
of the muses was Wace, a native of Jersey, who about the beginning of
Henry II.'s reign turned Geoffrey of Monmouth's history into French
metre. Besides this poem, called le Brut d'Angleterre, he composed a
series of metrical histories, containing the transactions of the dukes
of Normandy, from Rollo, their great progenitor, who gave name to the
Roman de Rou, down to his own age. Other productions are ascribed to
Wace, who was at least a prolific versifier, and, if he seem to deserve
no higher title at present, has a claim to indulgence, and even to
esteem, as having far excelled his contemporaries, without any superior
advantages of knowledge. In emulation, however, of his fame, several
Norman writers addicted themselves to composing chronicles, or
devotional treatises in metre. The court of our Norman kings was to the
early poets in the Langue d'Oil, what those of Arles and Toulouse were
to the troubadours. Henry I. was fond enough of literature to obtain
the surname of Beauclerc; Henry II. was more indisputably an encourager
of poetry; and Richard I. has left compositions of his own in one or
other (for the point is doubtful) of the two dialects spoken in
France.[866]

[Sidenote: Norman romances and tales.]

If the poets of Normandy had never gone beyond historical and religious
subjects, they would probably have had less claim to our attention than
their brethren of Provence. But a different and far more interesting
species of composition began to be cultivated in the latter part of the
twelfth century. Without entering upon the controverted question as to
the origin of romantic fictions, referred by one party to the
Scandinavians, by a second to the Arabs, by others to the natives of
Britany, it is manifest that the actual stories upon which one early and
numerous class of romances was founded are related to the traditions of
the last people. These are such as turn upon the fable of Arthur; for
though we are not entitled to deny the existence of such a personage,
his story seems chiefly the creation of Celtic vanity. Traditions
current in Britany, though probably derived from this island, became the
basis of Geoffrey of Monmouth's Latin prose, which, as has been seen,
was transfused into French metre by Wace.[867] The vicinity of Normandy
enabled its poets to enrich their narratives with other Armorican
fictions, all relating to the heroes who had surrounded the table of the
son of Uther.[868] An equally imaginary history of Charlemagne gave
rise to a new family of romances. The authors of these fictions were
called Trouveurs, a name obviously identical with that of Troubadours.
But except in name there was no resemblance between the minstrels of the
northern and southern dialects. The invention of one class was turned to
description, that of the other to sentiment; the first were epic in
their form and style, the latter almost always lyric. We cannot perhaps
give a better notion of their dissimilitude, than by saying that one
school produced Chaucer, and the other Petrarch. Besides these romances
of chivalry, the trouveurs displayed their powers of lively narration in
comic tales or fabliaux, (a name sometimes extended to the higher
romance,) which have aided the imagination of Boccace and La Fontaine.
These compositions are certainly more entertaining than those of the
troubadours; but, contrary to what I have said of the latter, they often
gain by appearing in a modern dress. Their versification, which
doubtless had its charm when listened to around the hearth of an ancient
castle, is very languid and prosaic, and suitable enough to the tedious
prolixity into which the narrative is apt to fall; and though we find
many sallies of that arch and sprightly simplicity which characterizes
the old language of France as well as England, it requires, upon the
whole, a factitious taste to relish these Norman tales, considered as
poetry in the higher sense of the word, distinguished from metrical
fiction.

[Sidenote: Roman de la Rose.]

A manner very different from that of the fabliaux was adopted, in the
Roman de la Rose, begun by William de Loris about 1250, and completed by
John de Meun half a century later. This poem, which contains about
16,000 lines in the usual octo-syllable verse, from which the early
French writers seldom deviated, is an allegorical vision, wherein, love
and the other passions or qualities connected with it pass over the
stage, without the intervention, I believe, of any less abstract
personages. Though similar allegories were not unknown to the ancients,
and, which is more to the purpose, maybe found in other productions of
the thirteenth century, none had been constructed so elaborately as
that of the Roman de la Rose. Cold and tedious as we now consider this
species of poetry, it originated in the creative power of imagination,
and appealed to more refined feeling than the common metrical narratives
could excite. This poem was highly popular in the middle ages, and
became the source of those numerous allegories which had not ceased in
the seventeenth century.

[Sidenote: Works in French prose.]

The French language was employed in prose as well as in metre. Indeed it
seems to have had almost an exclusive privilege in this respect. "The
language of Oil," says Dante, in his treatise on vulgar speech, "prefers
its claim to be ranked above those of Oc and Si (Provençal and Italian),
on the ground that all translations or compositions in prose have been
written therein, from its greater facility and grace, such as the books
compiled from the Trojan and Roman stories, the delightful fables about
Arthur, and many other works of history and science."[869] I have
mentioned already the sermons of St. Bernard and translations from
Scripture. The laws of the kingdom of Jerusalem purport to have been
drawn up immediately after the first crusade, and though their language
has been materially altered, there seems no doubt that they were
originally compiled in French.[870] Besides some charters, there are
said to have been prose romances before the year 1200.[871] Early in the
next age Ville Hardouin, seneschal of Campagne, recorded the capture of
Constantinople in the fourth crusade, an expedition, the glory and
reward of which he had personally shared, and, as every original work
of prior date has either perished or is of small importance, may be
deemed the father of French prose. The Establishments of St. Louis, and
the law treatise of Beaumanoir, fill up the interval of the thirteenth
century, and before its conclusion we must suppose the excellent memoirs
of Joinville to have been composed, since they are dedicated to Louis X.
in 1315, when the author could hardly be less than ninety years of age.
Without prosecuting any further the history of French literature, I will
only mention the translations of Livy and Sallust, made in the reign and
by the order of John, with those of Cæsar, Suetonius, Ovid, and parts of
Cicero, which are, due to his successor Charles V.[872]

[Sidenote: Spanish language.]

I confess myself wholly uninformed as to the original formation of the
Spanish language, and as to the epoch of its separation into the two
principal dialects of Castile and Portugal, or Gallicia;[873] nor should
I perhaps have alluded to the literature of that peninsula, were it not
for a remarkable poem which shines out among the minor lights of those
times. This is a metrical life of the Cid Ruy Diaz, written in a
barbarous style