III. THE ENGLISH CONSTITUTION (part 2 of 2)…

III. THE ENGLISH CONSTITUTION (part 2 of 2)

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

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

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

NOTE VII. Page 35.

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

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

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

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

NOTE VIII. Page 42.

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

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

NOTE IX. Page 124.

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

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

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

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

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

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

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

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

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

NOTE X. Page 142.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTE XI. Page 145.

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

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

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

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

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

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

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

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

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

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

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

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

NOTE XII. Page 156.

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

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

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

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

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

NOTE XIII. Page 172.

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

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

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

NOTE XIV. Page 173.

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

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

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

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

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

NOTE XV. Page 179.

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

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

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

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

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

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

FOOTNOTES:

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

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

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

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

[464] See the ensuing part of this note.

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

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

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

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

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

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

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

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

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

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

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

[473] See Note in p. 145, for the statute 31 H. VI. c. 2.

[474] See Constitutional History of England, vol. i. p. 49. (1842.)

[475] It has been mentioned in a former note, on Mr. Allen's authority, that the folcland had acquired the appellation terra regis before the Conquest.

[476] A presumptive proof of this may be drawn from a chapter in the Laws of Henry I. c. 81, where the penalty payable by a villein for certain petty offences is set at thirty pence; that of a cotset at fifteen; and of a theow at six. The passage is extremely obscure; and this proportion of the three classes of men is almost the only part that appears evident. The cotset, who is often mentioned in Domesday, may thus have been an inferior villein, nearly similar to what Glanvil and later law-books call such.

[477] The following passage in the Chronicle of Brakelond does not mention any manumission of the ceorl on whom abbot Samson conferred a manor:--Unum solum manerium carta sua confirmavit cuidam Anglico natione, glebae adscripto, de cujus fidelitate plenius confidebat quia bonus agricola erat, et quia nesciebat loqui Gallice. p. 24.

[478] Mr. Wright has given a few specimens in Essays on the Literature and Popular Superstitions of England in the Middle Ages, vol. i. p. 257. In fact we may reckon Piers Plowman an instance of popular satire, though far superior to the rest.

Spotted a typo or a problem in this chapter? Tell us

IX. [479]

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

Spotted a typo or a problem in this chapter? Tell us

Part I

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

It has been the object of every preceding chapter of this work, either to trace the civil revolutions of states during the period of the middle ages, or to investigate, with rather more minute attention, their political institutions. There remains a large tract to be explored, if we would complete the circle of historical information, and give to our knowledge that copiousness and clear perception which arise from comprehending a subject under numerous relations. The philosophy of history embraces far more than the wars and treaties, the factions and cabals of common political narration; it extends to whatever illustrates the character of the human species in a particular period, to their reasonings and sentiments, their arts and industry. Nor is this comprehensive survey merely interesting to the speculative philosopher; without it the statesman would form very erroneous estimates of events, and find himself constantly misled in any analogical application of them to present circumstances. Nor is it an uncommon source of error to neglect the general signs of the times, and to deduce a prognostic from some partial coincidence with past events, where a more enlarged comparison of all the facts that ought to enter into the combination would destroy the whole parallel. The philosophical student, however, will not follow the antiquary into his minute details; and though it is hard to say what may not supply matter for a reflecting mind, there is always some danger of losing sight of grand objects in historical disquisition, by too laborious a research into trifles. I may possibly be thought to furnish, in some instances, an example of the error I condemn. But in the choice and disposition of topics to which the present chapter relates, some have been omitted oh account of their comparative insignificance, and others on account of their want of connexion with the leading subject. Even of those treated I can only undertake to give a transient view; and must bespeak the reader's candour to remember that passages which, separately taken, may often appear superficial, are but parts of the context of a single chapter, as the chapter itself is of an entire work.

The Middle Ages, according to the division I have adopted, comprise about one thousand years, from the invasion of France by Clovis to that of Naples by Charles VIII. This period, considered as to the state of society, has been esteemed dark through ignorance, and barbarous through poverty and want of refinement. And although this character is much less applicable to the last two centuries of the period than to those which preceded its commencement, yet we cannot expect to feel, in respect of ages at best imperfectly civilized and slowly progressive, that interest which attends a more perfect development of human capacities, and more brilliant advances in improvement. The first moiety indeed of these ten ages is almost absolutely barren, and presents little but a catalogue of evils. The subversion of the Roman empire, and devastation of its provinces, by barbarous nations, either immediately preceded, or were coincident with the commencement of the middle period. We begin in darkness and calamity; and though the shadows grow fainter as we advance, yet we are to break off our pursuit as the morning breathes upon us, and the twilight reddens into the lustre of day.

[Sidenote: Decline of learning in Roman empire.]

No circumstance is so prominent on the first survey of society during the earlier centuries of this period as the depth of ignorance in which it was immersed; and as from this, more than any single cause, the moral and social evils which those ages experienced appear to have been derived and perpetuated, it deserves to occupy the first place in the arrangement of our present subject. We must not altogether ascribe the ruin of literature to the barbarian destroyers of the Roman empire. So gradual, and, apparently, so irretrievable a decay had long before spread over all liberal studies, that it is impossible to pronounce whether they would not have been almost equally extinguished if the august throne of the Caesars had been left to moulder by its intrinsic weakness. Under the paternal sovereignty of Marcus Aurelius the approaching declension of learning might be scarcely perceptible to an incurious observer. There was much indeed to distinguish his times from those of Augustus; much lost in originality of genius, in correctness of taste, in the masterly conception and consummate finish of art, in purity of the Latin, and even of the Greek language. But there were men who made the age famous, grave lawyers, judicious historians, wise philosophers; the name of learning was honourable, its professors were encouraged; and along the vast surface of the Roman empire there was perhaps a greater number whose minds were cultivated by intellectual discipline than under the more brilliant reign of the first emperor.

[Sidenote: Its causes.]

It is not, I think, very easy to give a perfectly satisfactory solution of the rapid downfall of literature between the ages of Antonine and of Diocletian. Perhaps the prosperous condition of the empire from Trajan to Marcus Aurelius, and the patron age which those good princes bestowed on letters, gave an artificial health to them for a moment, and suspended the operation of a disease which had already begun to undermine their vigour. Perhaps the intellectual energies of mankind can never remain stationary; and a nation that ceases to produce original and inventive minds, born to advance the landmarks of knowledge or skill, will recede from step to step, till it loses even the secondary merits of imitation and industry. During the third century, not only there were no great writers, but even few names of indifferent writers have been recovered by the diligence of modern inquiry.[480] Law neglected, philosophy perverted till it became contemptible, history nearly silent, the Latin tongue growing rapidly barbarous, poetry rarely and feebly attempted, art more and more vitiated; such were the symptoms by which the age previous to Constantine announced the decline of human intellect. If we cannot fully account for this unhappy change, as I have observed, we must, however, assign much weight to the degradation of Rome and Italy in the system of Severus and his successors, to the admission of barbarians into the military and even civil dignities of the empire, to the discouraging influence of provincial and illiterate sovereigns, and to the calamities which followed for half a century the first invasion of the Goths and the defeat of Decius. To this sickly condition of literature the fourth century supplied no permanent remedy. If under the house of Constantine the Roman world suffered rather less from civil warfare or barbarous invasions than in the preceding age, yet every other cause of decline just enumerated prevailed with aggravated force; and the fourth century set in storms, sufficiently destructive in themselves, and ominous of those calamities which humbled the majesty of Rome at the commencement of the ensuing period, and overwhelmed the Western Empire in absolute and final ruin before its termination.

The diffusion of literature is perfectly distinguishable from its advancement; and whatever obscurity we may find in explaining the variations of the one, there are a few simple causes which seem to account for the other. Knowledge will be spread over the surface of a nation in proportion to the facilities of education; to the free circulation of books; to the emoluments and distinctions which literary attainments are found to produce; and still more to the reward which they meet in the general respect and applause of society. This cheering incitement, the genial sunshine of approbation, has at all times promoted the cultivation of literature in small republics rather than large empires, and in cities compared with the country. If these are the sources which nourish literature, we should naturally expect that they must have become scanty or dry when learning languishes or expires. Accordingly, in the later ages of the Roman empire a general indifference towards the cultivation of letters became the characteristic of its inhabitants. Laws were indeed enacted by Constantine, Julian, Theodosius, and other emperors, for the encouragement of learned men and the promotion of liberal education. But these laws, which would not perhaps have been thought necessary in better times, were unavailing to counteract the lethargy of ignorance in which even the native citizens of the empire were contented to repose. This alienation of men from their national literature may doubtless be imputed in some measure to its own demerits. A jargon of mystical philosophy, half fanaticism and half imposture, a barren and inflated eloquence, a frivolous philology, were not among those charms of wisdom by which man is to be diverted from pleasure or aroused from indolence.

In this temper of the public mind there was little probability that new compositions of excellence would be produced, and much doubt whether the old would be preserved. Since the invention of printing, the absolute extinction of any considerable work seems a danger too improbable for apprehension. The press pours forth in a few days a thousand volumes, which, scattered like seeds in the air over the republic of Europe, could hardly be destroyed without the extirpation of its inhabitants. But in the times of antiquity manuscripts were copied with cost, labour, and delay; and if the diffusion of knowledge be measured by the multiplication of books, no unfair standard, the most golden ages of ancient learning could never bear the least comparison with the three last centuries. The destruction of a few libraries by accidental fire, the desolation of a few provinces by unsparing and illiterate barbarians, might annihilate every vestige of an author, or leave a few scattered copies, which, from the public indifference, there was no inducement to multiply, exposed to similar casualties in succeeding times.

We are warranted by good authorities to assign, as a collateral cause of this irretrievable revolution the neglect of heathen literature by the Christian church. I am not versed enough in ecclesiastical writers to estimate the degree of this neglect; nor am I disposed to deny that the mischief was beyond recovery before the accession of Constantine. From the primitive ages, however, it seems that a dislike of pagan learning was pretty general among Christians. Many of the fathers undoubtedly were accomplished in liberal studies, and we are indebted to them for valuable fragments of authors whom we have lost. But the literary character of the church is not to be measured by that of its more illustrious leaders. Proscribed and persecuted, the early Christians had not perhaps access to the public schools, nor inclination to studies which seemed, very excusably, uncongenial to the character of their profession. Their prejudices, however, survived the establishment of Christianity. The fourth council of Carthage in 398 prohibited the reading of secular books by bishops. Jerome plainly condemns the study of them except for pious ends. All physical science especially was held in avowed contempt, as inconsistent with revealed truths. Nor do there appear to have been any canons made in favour of learning, or any restriction on the ordination of persons absolutely illiterate.[481] There was indeed abundance of what is called theological learning displayed in the controversies of the fourth and fifth centuries; and those who admire such disputations may consider the principal champions in them as contributing to the glory, or at least retarding the decline, of literature. But I believe rather that polemical disputes will be found not only to corrupt the genuine spirit of religion, but to degrade and contract the faculties. What keenness and subtlety these may sometimes acquire by such exercise is more like that worldly shrewdness we see in men whose trade it is to outwit their neighbours than the clear and calm discrimination of philosophy. However this may be, it cannot be doubted that the controversies agitated in the church during these two centuries must have diverted studious minds from profane literature, and narrowed more and more the circle of that knowledge which they were desirous to attain.

The torrent of irrational superstitions which carried all before it in the fifth century, and the progress of ascetic enthusiasm, had an influence still more decidedly inimical to learning. I cannot indeed conceive any state of society more adverse to the intellectual improvement of mankind than one which admitted of no middle line between gross dissoluteness and fanatical mortification. An equable tone of public morals, social and humane, verging neither to voluptuousness nor austerity, seems the most adapted to genius, or at least to letters, as it is to individual comfort and national prosperity. After the introduction of monkery and its unsocial theory of duties, the serious and reflecting part of mankind, on whom science most relies, were turned to habits which, in the most favourable view, could not quicken the intellectual energies; and it might be a difficult question whether the cultivators and admirers of useful literature were less likely to be found among the profligate citizens of Rome and their barbarian conquerors or the melancholy recluses of the wilderness.

Such therefore was the state of learning before the subversion of the Western Empire. And we may form some notion how little probability there was of its producing any excellent fruits, even if that revolution had never occurred, by considering what took place in Greece during the subsequent ages; where, although there was some attention shown to preserve the best monuments of antiquity, and diligence in compiling from them, yet no one original writer of any superior merit arose, and learning, though plunged but for a short period into mere darkness, may be said to have languished in a middle region of twilight for the greater part of a thousand years.

But not to delay ourselves in this speculation, the final settlement of barbarous nations in Gaul, Spain, and Italy consummated the ruin of literature. Their first irruptions were uniformly attended with devastation; and if some of the Gothic kings, after their establishment, proved humane and civilized sovereigns, yet the nation gloried in its original rudeness, and viewed with no unreasonable disdain arts which had neither preserved their cultivators from corruption nor raised them from servitude. Theodoric, the most famous of the Ostrogoth kings in Italy, could not write his name, and is said to have restrained his countrymen from attending those schools of learning by which he, or rather perhaps his minister Cassiodorus, endeavoured to revive the studies of his Italian subjects. Scarcely one of the barbarians, so long as they continued unconfused with the native inhabitants, acquired the slightest tincture of letters; and the praise of equal ignorance was soon aspired to and attained by the entire mass of the Roman laity. They, however, could hardly have divested themselves so completely of all acquaintance with even the elements of learning, if the language in which books were written had not ceased to be their natural dialect. This remarkable change in the speech of France, Spain, and Italy is most intimately connected with the extinction of learning; and there is enough of obscurity as well as of interest in the subject to deserve some discussion.

[Sidenote: Corruption of the Latin language.]

It is obvious, on the most cursory view of the French and Spanish languages, that they, as well as the Italian, are derived from one common source, the Latin. That must therefore have been at some period, and certainly not since the establishment of the barbarous nations in Spain and Gaul, substituted in ordinary use for the original dialects of those countries which are generally supposed to have been Celtic, not essentially differing from those which are spoken in Wales and Ireland. Rome, says Augustin, imposed not only her yoke, but her language, upon conquered nations. The success of such an attempt is indeed very remarkable. Though it is the natural effect of conquest, or even of commercial intercourse, to ingraft fresh words and foreign idioms on the stock of the original language, yet the entire disuse of the latter, and adoption of one radically different, scarcely takes place in the lapse of a far longer period than that of the Roman dominion in Gaul. Thus, in part of Britany the people speak a language which has perhaps sustained no essential alteration from the revolution of two thousand years; and we know how steadily another Celtic dialect has kept its ground in Wales, notwithstanding English, laws and government, and the long line of contiguous frontier which brings the natives of that principality into contact with Englishmen. Nor did the Romans ever establish their language (I know not whether they wished to do so) in this island, as we perceive by that stubborn British tongue which has survived two conquests.[482]

In Gaul and in Spain, however, they did succeed, as the present state of the French and peninsular languages renders undeniable, though by gradual changes, and not, as the Benedictine authors of the Histoire Litteraire de la France seem to imagine, by a sudden and arbitrary innovation.[483] This is neither possible in itself, nor agreeable to the testimony of Irenaeus, bishop of Lyons at the end of the second century, who laments the necessity of learning Celtic.[484] But although the inhabitants of these provinces came at length to make use of Latin so completely as their mother tongue that few vestiges of their original Celtic could perhaps be discovered in their common speech, it does not follow that they spoke with the pure pronunciation of Italians, far less with that conformity to the written sounds which we assume to be essential to the expression of Latin words.

[Sidenote: Ancient Latin pronunciation.]

It appears to be taken for granted that the Romans pronounced their language as we do at present, so far at least as the enunciation of all the consonants, however we may admit our deviations from the classical standard in propriety of sounds and in measure of time. Yet the example of our own language, and of French, might show us that orthography may become a very inadequate representative of pronunciation. It is indeed capable of proof that in the purest ages of Latinity some variation existed between these two. Those numerous changes in spelling which distinguish the same words in the poetry of Ennius and of Virgil are best explained by the supposition of their being accommodated, to the current pronunciation. Harsh combinations of letters, softened down through delicacy of ear or rapidity of utterance, gradually lost their place in the written language. Thus exfregit and adrogavit assumed a form representing their more liquid sound; and auctor was latterly spelled autor, which has been followed in French and Italian. Autor was probably so pronounced at all times; and the orthography was afterwards corrected or corrupted, whichever we please to say, according to the sound. We have the best authority to assert that the final m was very faintly pronounced, rather it seems as a rest and short interval between two syllables than an articulate letter; nor indeed can we conceive upon what other ground it was subject to elision before a vowel in verse, since we cannot suppose that the nice ears of Rome would have submitted to a capricious rule of poetry for which Greece presented no analogy.[485]

A decisive proof, in my opinion, of the deviation which took place, through the rapidity of ordinary elocution, from the strict laws of enunciation, may be found in the metre of Terence. His verses, which are absolutely refractory to the common laws of prosody, may be readily scanned by the application of this principle. Thus, in the first act of the Heautontimorumenos, a part selected at random, I have found, I. Vowels contracted or dropped so as to shorten the word by a syllable; in rei, via, diutius, ei, solius, eam, unius, suam, divitias, senex, voluptatem, illius, semel; II. The proceleusmatic foot, or four short syllables, instead of the dactyl; scen. i. v. 59, 73, 76, 88, 109; scen. ii. v. 36; III. The elision of s in words ending with us or is short, and sometimes even of the whole syllable, before the next word beginning with a vowel; in scen. i. v. 30, 81, 98, 101, 116, 119; scen. ii. v. 28. IV. The first syllable of ille is repeatedly shortened, and indeed nothing is more usual in Terence than this licence; whence we may collect how ready this word was for abbreviation into the French and Italian articles. V. The last letter of apud is cut off, scen. i. v. 120; and scen. ii. v. 8. VI. Hodie is used as a pyrrhichius, in scen. ii. v. 11. VII. Lastly, there is a clear instance of a short syllable, the antepenultimate of impulerim, lengthened on account of the accent at the 113th verse of the first scene.

[Sidenote: Its corruption by the populace,]

[Sidenote: and the provincials.]

These licences are in all probability chiefly colloquial, and would not have been adopted in public harangues, to which the precepts of rhetorical writers commonly relate. But if the more elegant language of the Romans, since such we must suppose to have been copied by Terence for his higher characters, differed so much in ordinary discourse from their orthography, it is probable that the vulgar went into much greater deviations. The popular pronunciation errs generally, we might say perhaps invariably, by abbreviation of words, and by liquefying consonants, as is natural to the rapidity of colloquial speech.[486] It is by their knowledge of orthography and etymology that the more educated part of the community is preserved from these corrupt modes of pronunciation. There is always therefore a standard by which common speech may be rectified; and in proportion to the diffusion of knowledge and politeness the deviations from it will be more slight and gradual. But in distant provinces, and especially where the language itself is but of recent introduction, many more changes may be expected to occur. Even in France and England there are provincial dialects, which, if written with all their anomalies of pronunciation as well as idiom, would seem strangely out of unison with the regular language; and in Italy, as is well known, the varieties of dialect are still more striking. Now, in an advancing state of society, and especially with such a vigorous political circulation as we experience in England, language will constantly approximate to uniformity, as provincial expressions are more and more rejected for incorrectness or inelegance. But, where literature is on the decline, and public misfortunes contract the circle of those who are solicitous about refinement, as in the last ages of the Roman empire, there will be no longer any definite standard of living speech, nor any general desire to conform to it if one could be found; and thus the vicious corruptions of the vulgar will entirely predominate. The niceties of ancient idiom will be totally lost, while new idioms will be formed out of violations of grammar sanctioned by usage, which, among a civilized people, would have been proscribed at their appearance.

Such appears to have been the progress of corruption in the Latin language. The adoption of words from the Teutonic dialects of the barbarians, which took place very freely, would not of itself have destroyed the character of that language, though it sullied its purity. The worst law Latin of the middle ages is still Latin, if its barbarous terms have been bent to the regular inflections. It is possible, on the other hand, to write whole pages of Italian, wherein every word shall be of unequivocal Latin derivation, though the character and personality, if I may so say, of the language be entirely dissimilar. But, as I conceive, the loss of literature took away the only check upon arbitrary pronunciation and upon erroneous grammar. Each people innovated through caprice, imitation of their neighbours, or some of those indescribable causes which dispose the organs of different nations to different sounds. The French melted down the middle consonants; the Italians omitted the final. Corruptions arising out of ignorance were mingled with those of pronunciation. It would have been marvellous if illiterate and semi-barbarous provincials had preserved that delicate precision in using the inflections of tenses which our best scholars do not clearly attain. The common speech of any people whose language is highly complicated will be full of solecisms. The French inflections are not comparable in number or delicacy to the Latin, and yet the vulgar confuse their most ordinary forms.

But, in all probability, the variation of these derivative languages from popular Latin has been considerably less than it appears. In the purest ages of Latinity the citizens of Rome itself made use of many terms which we deem barbarous, and of many idioms which we should reject as modern. That highly complicated grammar, which the best writers employed, was too elliptical and obscure, too deficient in the connecting parts of speech, for general use. We cannot indeed ascertain in what degree the vulgar Latin differed from that of Cicero or Seneca. It would be highly absurd to imagine, as some are said to have done, that modern Italian was spoken at Rome under Augustus.[487] But I believe it may be asserted not only that much the greater part of those words in the present language of Italy which strike us as incapable of a Latin etymology are in fact derived from those current in the Augustan age, but that very many phrases which offended nicer ears prevailed in the same vernacular speech, and have passed from thence into the modern French and Italian. Such, for example, was the frequent use of prepositions to indicate a relation between two parts of a sentence which a classical writer would have made to depend on mere inflection.[488]

From the difficulty of retaining a right discrimination of tense seems to have proceeded the active auxiliary verb. It is possible that this was borrowed from the Teutonic languages of the barbarians, and accommodated both by them and by the natives to words of Latin origin. The passive auxiliary is obtained by a very ready resolution of any tense in that mood, and has not been altogether dispensed with even in Greek, while in Latin it is used much more frequently. It is not quite so easy to perceive the propriety of the active habeo or teneo, one or both of which all modern languages have adopted as their auxiliaries in conjugating the verb. But in some instances this analysis is not improper; and it may be supposed that nations, careless of etymology or correctness, applied the same verb by a rude analogy to cases where it ought not strictly to have been employed.[489]

Next to the changes founded on pronunciation and to the substitution of auxiliary verbs for inflections, the usage of the definite and indefinite articles in nouns appears the most considerable step in the transmutation of Latin into its derivative languages. None but Latin, I believe, has ever wanted this part of speech; and the defect to which custom reconciled the Romans would be an insuperable stumbling-block to nations who were to translate their original idiom into that language. A coarse expedient of applying unus, ipse, or ille to the purposes of an article might perhaps be no unfrequent vulgarism of the provincials; and after the Teutonic tribes brought in their own grammar, it was natural that a corruption should become universal, which in fact supplied a real and essential deficiency.

[Sidenote: Pronunciation no longer regulated by quantity.]

That the quantity of Latin syllables is neglected, or rather lost, in modern pronunciation, seems to be generally admitted. Whether, indeed, the ancient Romans, in their ordinary speaking, distinguished the measure of syllables with such uniform musical accuracy as we imagine, giving a certain time to those termed long, and exactly half that duration to the short, might very reasonably be questioned; though this was probably done, or attempted to be done, by every reader of poetry. Certainly, however, the laws of quantity were forgotten, and an accentual pronunciation came to predominate, before Latin had ceased to be a living language. A Christian writer named Commodianus, who lived before the end of the third century according to some, or, as others think, in the reign of Constantine, has left us a philological curiosity, in a series of attacks on the pagan superstitions, composed in what are meant to be verses, regulated by accent instead of quantity, exactly as we read Virgil at present.[490]

It is not improbable that Commodianus may have written in Africa, the province in which more than any the purity of Latin was debased. At the end of the fourth century St. Augustin assailed his old enemies, the Donatists, with nearly the same arms that Commodianus had wielded against heathenism. But as the refined and various music of hexameters was unlikely to be relished by the vulgar, he prudently adopted a different measure.[491] All the nations of Europe seem to love the trochaic verse; it was frequent on the Greek and Roman stage; it is more common than any other in the popular poetry of modern languages. This proceeds from its simplicity, its liveliness, and its ready accommodation to dancing and music. In St. Austin's poem he united to a trochaic measure the novel attraction of rhyme.

As Africa must have lost all regard to the rules of measure in the fourth century, so it appears that Gaul was not more correct in the next two ages. A poem addressed by Auspicius bishop of Toul to count Arbogastes, of earlier date probably than the invasion of Clovis, is written with no regard to quantity.[492] The bishop by whom this was composed is mentioned by his contemporaries as a man of learning. Probably he did not choose to perplex the barbarian to whom he was writing (for Arbogastes is plainly a barbarous name) by legitimate Roman metre. In the next century Gregory of Tours informs us that Chilperic attempted to write Latin verses; but the lines could not be reconciled to any division of feet; his ignorance having confounded long and short syllables together.[493] Now Chilperic must have learned to speak Latin like other kings of the Franks, and was a smatterer in several kinds of literature. If Chilperic therefore was not master of these distinctions, we may conclude that the bishops and other Romans with whom he conversed did not observe them; and that his blunders in versification arose from ignorance of rules, which, however fit to be preserved in poetry, were entirely obsolete in the living Latin of his age. Indeed the frequency of false quantities in the poets even of the fifth, but much more of the sixth century, is palpable. Fortunatus is quite full of them. This seems a decisive proof that the ancient pronunciation was lost. Avitus tells us that few preserved the proper measure of syllables in singing. Yet he was bishop of Vienne, where a purer pronunciation might be expected than in the remoter parts of Gaul.[494]

[Sidenote: Change of Latin into Romance.]

Defective, however, as it had become in respect of pronunciation, Latin was still spoken in France during the sixth and seventh centuries. We have compositions of that time, intended for the people, in grammatical language. A song is still extant in rhyme and loose accentual measure, written upon a victory of Clotaire II. over the Saxons in 622, and obviously intended for circulation among the people.[495] Fortunatus says, in his Life of St. Aubin of Angers, that he should take care not to use any expression unintelligible to the people.[496] Baudemind, in the middle of the seventh century, declares, in his Life of St. Amand, that he writes in a rustic and vulgar style, that the reader may be excited to imitation.[497] Not that these legends were actually perused by the populace, for the very art of reading was confined to a few. But they were read publicly in the churches, and probably with a pronunciation accommodated to the corruptions of ordinary language. Still the Latin syntax must have been tolerably understood; and we may therefore say that Latin had not ceased to be a living language, in Gaul at least, before the latter part of the seventh century. Faults indeed against the rules of grammar, as well as unusual idioms, perpetually occur in the best writers of the Merovingian period, such as Gregory of Tours; while charters drawn up by less expert scholars deviate much further from purity.[498]

The corrupt provincial idiom became gradually more and more dissimilar to grammatical Latin; and the lingua Romana rustica, as the vulgar patois (to borrow a word that I cannot well translate) had been called, acquired a distinct character as a new language in the eighth century.[499] Latin orthography, which had been hitherto pretty well maintained in books, though not always in charters, gave way to a new spelling, conformably to the current pronunciation. Thus we find lui, for illius, in the Formularies of Marculfus; and Tu lo juva in a liturgy of Charlemagne's age, for Tu illum juva. When this barrier was once broken down, such a deluge of innovation poured in that all the characteristics of Latin were effaced in writing as well as speaking, and the existence of a new language became undeniable. In a council held at Tours in 813 the bishops are ordered to have certain homilies of the fathers translated into the rustic Roman, as well as the German tongue.[500] After this it is unnecessary to multiply proofs of the change which Latin had undergone.

[Sidenote: Its corruption in Italy.]

In Italy the progressive corruptions of the Latin language were analogous to those which occurred in France, though we do not find in writings any unequivocal specimens of a new formation at so early a period. But the old inscriptions, even of the fourth and fifth centuries, are full of solecisms and corrupt orthography. In legal instruments under the Lombard kings the Latin inflections are indeed used, but with so little regard to propriety that it is obvious the writers had not the slightest tincture of grammatical knowledge. This observation extends to a very large proportion of such documents down to the twelfth century, and is as applicable to France and Spain as it is to Italy. In these charters the peculiar characteristics of Italian orthography and grammar frequently appear. Thus we find, in the eighth century, diveatis for debeatis, da for de in the ablative, avendi for habendi, dava for dabat, cedo a deo, and ad ecclesia, among many similar corruptions.[501] Latin was so changed, it is said by a writer of Charlemagne's age, that scarcely any part of it was popularly known. Italy indeed had suffered more than France itself by invasion, and was reduced to a lower state of barbarism, though probably, from the greater distinctness of pronunciation habitual to the Italians, they lost less of their original language than the French. I do not find, however, in the writers who have treated this subject, any express evidence of a vulgar language distinct from Latin earlier than the close of the tenth century, when it is said in the epitaph of Pope Gregory V., who died in 999, that he instructed the people in three dialects--the Frankish or German, the vulgar, and the Latin.[502]

[Sidenote: Ignorance consequent on the disuse of Latin.]

When Latin had thus ceased to be a living language, the whole treasury of knowledge was locked up from the eyes of the people. The few who might have imbibed a taste for literature, if books had been accessible to them, were reduced to abandon pursuits that could only be cultivated through a kind of education not easily within their reach. Schools, confined to cathedrals and monasteries, and exclusively designed for the purposes of religion, afforded no encouragement or opportunities to the laity.[503] The worst effect was, that, as the newly-formed languages were hardly made use of in writing, Latin being still preserved in all legal instruments and public correspondence, the very use of letters, as well as of books, was forgotten. For many centuries, to sum up the account of ignorance in a word, it was rare for a layman, of whatever rank, to know how to sign his name.[504] Their charters, till the use of seals became general, were subscribed with the mark of the cross. Still more extraordinary it was to find one who had any tincture of learning. Even admitting every indistinct commendation of a monkish biographer (with whom a knowledge of church-music would pass for literature[505]), we could make out a very short list of scholars. None certainly were more distinguished as such than Charlemagne and Alfred. But the former, unless we reject a very plain testimony, was incapable of writing;[506] and Alfred found difficulty in making a translation from the pastoral instruction of St. Gregory, on account of his imperfect knowledge of Latin.[507]

Whatever mention, therefore, we find of learning and the learned during these dark ages, must be understood to relate only to such as were within the pale of clergy, which indeed was pretty extensive, and comprehended many who did not exercise the offices of religious ministry. But even the clergy were, for a long period, not very materially superior, as a body, to the uninstructed laity. A cloud of ignorance overspread the whole face of the church, hardly broken by a few glimmering lights, who owe much of their distinction to the surrounding darkness. In the sixth century the best writers in Latin were scarcely read;[508] and perhaps from the middle of this age to the eleventh there was, in a general view of literature, little difference to be discerned. If we look more accurately, there will appear certain gradual shades of twilight on each side of the greatest obscurity. France reached her lowest point about the beginning of the eighth century; but England was at that time more respectable, and did not fall into complete degradation till the middle of the ninth. There could be nothing more deplorable than the state of letters in Italy and in England during the succeeding century; but France cannot be denied to have been uniformly, though very slowly, progressive from the time of Charlemagne.[509]

Of this prevailing ignorance it is easy to produce abundant testimony. Contracts were made verbally, for want of notaries capable of drawing up charters; and these, when written, were frequently barbarous and ungrammatical to an incredible degree. For some considerable intervals scarcely any monument of literature has been preserved, except a few jejune chronicles, the vilest legends of saints, or verses equally destitute of spirit and metre. In almost every council the ignorance of the clergy forms a subject for reproach. It is asserted by one held in 992 that scarcely a single person was to be found in Rome itself who knew the first elements of letters.[510] Not one priest of a thousand in Spain, about the age of Charlemagne, could address a common letter of salutation to another.[511] In England, Alfred declares that he could not recollect a single priest south of the Thames (the most civilized part of England), at the time of his accession, who understood the ordinary prayers, or could translate Latin into his mother tongue.[512] Nor was this better in the time of Dunstan, when, it is said, none of the clergy knew how to write or translate a Latin letter.[513] The homilies which they preached were compiled for their use by some bishops, from former works of the same kind, or the writings of the fathers.

[Sidenote: Scarcity of books.]

This universal ignorance was rendered unavoidable, among other causes, by the scarcity of books, which could only be procured at an immense price. From the conquest of Alexandria by the Saracens at the beginning of the seventh century, when the Egyptian papyrus almost ceased to be imported into Europe, to the close of the eleventh, about which time the art of making paper from cotton rags seems to have been introduced, there were no materials for writing except parchment, a substance too expensive to be readily spared for mere purposes of literature.[514] Hence an unfortunate practice gained ground, of erasing a manuscript in order to substitute another on the same skin. This occasioned the loss of many ancient authors, who have made way for the legends of saints, or other ecclesiastical rubbish.

[Sidenote: Want of eminent men in literature.]

If we would listen to some literary historians, we should believe that the darkest ages contained many individuals, not only distinguished among their contemporaries, but positively eminent for abilities and knowledge. A proneness to extol every monk of whose production a few letters or a devotional treatise survives, every bishop of whom it is related that he composed homilies, runs through the laborious work of the Benedictines of St. Maur, the Literary History of France, and, in a less degree, is observable even in Tiraboschi, and in most books of this class. Bede, Alcuin, Hincmar, Raban, and a number of inferior names, become real giants of learning in their uncritical panegyrics. But one might justly say that ignorance is the smallest defect of the writers of these dark ages. Several of them were tolerably acquainted with books; but that wherein they are uniformly deficient is original argument or expression. Almost every one is a compiler of scraps from the fathers, or from such semi-classical authors as Boethius, Cassiodorus, or Martianus Capella.[515] Indeed I am not aware that there appeared more than two really considerable men in the republic of letters from the sixth to the middle of the eleventh century--John, surnamed Scotus or Erigena, a native of Ireland; and Gerbert, who became pope by the name of Silvester II.: the first endowed with a bold and acute metaphysical genius; the second excellent, for the time when he lived, in mathematical science and mechanical inventions.[516]

[Sidenote: Causes of the preservation of learning--religion.]

If it be demanded by what cause it happened that a few sparks of ancient learning survived throughout this long winter, we can only ascribe their preservation to the establishment of Christianity. Religion alone made a bridge, as it were, across the chaos, and has linked the two periods of ancient and modern civilization. Without this connecting principle, Europe might indeed have awakened to intellectual pursuits, and the genius of recent times needed not to be invigorated by the imitation of antiquity. But the memory of Greece and Rome would have been feebly preserved by tradition, and the monuments of those nations might have excited, on the return of civilization, that vague sentiment of speculation and wonder with which men now contemplate Persepolis or the Pyramids. It is not, however, from religion simply that we have derived this advantage, but from religion as it was modified in the dark ages. Such is the complex reciprocation of good and evil in the dispensations of Providence, that we may assert, with only an apparent paradox, that, had religion been more pure, it would have been less permanent, and that Christianity has been preserved by means of its corruptions. The sole hope for literature depended on the Latin language; and I do not see why that should not have been lost, if three circumstances in the prevailing religious system, all of which we are justly accustomed to disapprove, had not conspired to maintain it--the papal supremacy, the monastic institutions, and the use of a Latin liturgy. 1. A continual intercourse was kept up, in consequence of the first, between Rome and the several nations of Europe; her laws were received by the bishops, her legates presided in councils; so that a common language was as necessary in the church as it is at present in the diplomatic relations of kingdoms. 2. Throughout the whole course of the middle ages there was no learning, and very little regularity of manners, among the parochial clergy. Almost every distinguished man was either the member of a chapter or of a convent. The monasteries were subjected to strict rules of discipline, and held out, at the worst, more opportunities for study than the secular clergy possessed, and fewer for worldly dissipations. But their most important service was as secure repositories for books. All our manuscripts have been preserved in this manner, and could hardly have descended to us by any other channel; at least there were intervals when I do not conceive that any royal or private libraries existed.[517] 3. Monasteries, however, would probably have contributed very little towards the preservation of learning, if the Scriptures and the liturgy had been translated out of Latin when that language ceased to be intelligible. Every rational principle of religious worship called for such a change; but it would have been made at the expense of posterity. One might presume, if such refined conjectures were consistent with historical caution, that the more learned and sagacious ecclesiastics of those times, deploring the gradual corruption of the Latin tongue, and the danger of its absolute extinction, were induced to maintain it as a sacred language, and the depository, as it were, of that truth and that science which would be lost in the barbarous dialects of the vulgar. But a simpler explanation is found in the radical dislike of innovation which is natural to an established clergy. Nor did they want as good pretexts, on the ground of convenience, as are commonly alleged by the opponents of reform. They were habituated to the Latin words of the church-service, which had become, by this association, the readiest instruments of devotion, and with the majesty of which the Romance jargon could bear no comparison. Their musical chants were adapted to these sounds, and their hymns depended, for metrical effect, on the marked accents and powerful rhymes which the Latin language affords. The vulgate Latin of the Bible was still more venerable. It was like a copy of a lost original; and a copy attested by one of the most eminent fathers, and by the general consent of the church. These are certainly no adequate excuses for keeping the people in ignorance; and the gross corruption of the middle ages is in a great degree assignable to this policy. But learning, and consequently religion, have eventually derived from it the utmost advantage.

[Sidenote: Superstitions.]

In the shadows of this universal ignorance a thousand superstitions, like foul animals of night, were propagated and nourished. It would be very unsatisfactory to exhibit a few specimens of this odious brood, when the real character of those times is only to be judged by their accumulated multitude. In every age it would be easy to select proofs of irrational superstition, which, separately considered, seem to degrade mankind from its level in the creation; and perhaps the contemporaries of Swedenborg and Southcote have no right to look very contemptuously upon the fanaticism of their ancestors. There are many books from which a sufficient number of instances may be collected to show the absurdity and ignorance of the middle ages in this respect. I shall only mention two, as affording more general evidence than any local or obscure superstition. In the tenth century an opinion prevailed everywhere that the end of the world was approaching. Many charters begin with these words, "As the world is now drawing to its close." An army marching under the emperor Otho I. was so terrified by an eclipse of the sun, which it conceived to announce this consummation, as to disperse hastily on all sides. As this notion seems to have been founded on some confused theory of the millennium, it naturally died away when the seasons proceeded in the eleventh century with their usual regularity.[518] A far more remarkable and permanent superstition was the appeal to Heaven in judicial controversies, whether through the means of combat or of ordeal. The principle of these was the same; but in the former it was mingled with feelings independent of religion--the natural dictates of resentment in a brave man unjustly accused, and the sympathy of a warlike people with the display of skill and intrepidity. These, in course of time, almost obliterated the primary character of judicial combat, and ultimately changed it into the modern duel, in which assuredly there is no mixture of superstition.[519] But, in the various tests of innocence which were called ordeals, this stood undisguised and unqualified. It is not necessary to describe what is so well known--the ceremonies of trial by handling hot iron, by plunging the arm into boiling fluids, by floating or sinking in cold water, or by swallowing a piece of consecrated bread. It is observable that, as the interference of Heaven was relied upon as a matter of course, it seems to have been reckoned nearly indifferent whether such a test was adopted as must, humanly considered, absolve all the guilty, or one that must convict all the innocent. The ordeals of hot iron or water were, however, more commonly used; and it has been a perplexing question by what dexterity these tremendous proofs were eluded. They seem at least to have placed the decision of all judicial controversies in the hands of the clergy, who must have known the secret, whatever that might be, of satisfying the spectators that an accused person had held a mass of burning iron with impunity. For several centuries this mode of investigation was in great repute, though not without opposition from some eminent bishops. It does discredit to the memory of Charlemagne that he was one of its warmest advocates.[520] But the judicial combat, which indeed might be reckoned one species of ordeal, gradually put an end to the rest; and as the church acquired better notions of law, and a code of her own, she strenuously exerted herself against all these barbarous superstitions.[521]

[Sidenote: Enthusiastic risings.]

But the religious ignorance of the middle ages sometimes burst out in ebullitions of epidemical enthusiasm, more remarkable than these superstitious usages, though proceeding in fact from similar causes. For enthusiasm is little else than superstition put in motion, and is equally founded on a strong conviction of supernatural agency without any just conceptions of its nature. Nor has any denomination of Christians produced, or even sanctioned, more fanaticism than the church of Rome. These epidemical frenzies, however, to which I am alluding, were merely tumultuous, though certainly fostered by the creed of perpetual miracles which the clergy inculcated, and drawing a legitimate precedent for religious insurrection from the crusades. For these, among other evil consequences, seem to have principally excited a wild fanaticism that did not sleep for several centuries.[522]

The first conspicuous appearance of it was in the reign of Philip Augustus, when the mercenary troops, dismissed from the pay of that prince and of Henry II., committed the greatest outrages in the south of France. One Durand, a carpenter, deluded it is said by a contrived appearance of the Virgin, put himself at the head of an army of the populace, in order to destroy these marauders. His followers were styled Brethren of the White Caps, from the linen coverings of their heads. They bound themselves not to play at dice nor frequent taverns, to wear no affected clothing, to avoid perjury and vain swearing. After some successes over the plunderers, they went so far as to forbid the lords to take any dues from their vassals, on pain of incurring the indignation of the brotherhood. It may easily be imagined that they were soon entirely discomfited, so that no one dared to own that he had belonged to them.[523]

During the captivity of St. Louis in Egypt, a more extensive and terrible ferment broke out in Flanders, and spread from thence over great part of France. An impostor declared himself commissioned by the Virgin to preach a crusade, not to the rich and noble, who for their pride had been rejected of God, but the poor. His disciples were called Pastoureaux, the simplicity of shepherds having exposed them more readily to this delusion. In a short time they were swelled by the confluence of abundant streams to a moving mass of a hundred thousand men, divided into companies, with banners bearing a cross and a lamb, and commanded by the impostor's lieutenants. He assumed a priestly character, preaching, absolving, annulling marriages. At Amiens, Bourges, Orleans, and Paris itself, he was received as a divine prophet. Even the regent Blanche, for a time, was led away by the popular tide. His main topic was reproach of the clergy for their idleness and corruption--a theme well adapted to the ears of the people, who had long been uttering similar strains of complaint. In some towns his followers massacred the priests and plundered the monasteries. The government at length began to exert itself; and the public sentiment turning against the authors of so much confusion, this rabble was put to the sword or dissipated.[524] Seventy years afterwards an insurrection, almost exactly parallel to this, burst out under the same pretence of a crusade. These insurgents, too, bore the name of Pastoureaux, and their short career was distinguished by a general massacre of the Jews.[525]

But though the contagion of fanaticism spreads much more rapidly among the populace, and in modern times is almost entirely confined to it, there were examples, in the middle ages, of an epidemical religious lunacy, from which no class was exempt. One of these occurred about the year 1260, when a multitude of every rank, age, and sex, marching two by two in procession along the streets and public roads, mingled groans and dolorous hymns with the sound of leathern scourges which they exercised upon their naked backs. From this mark of penitence, which, as it bears at least all the appearance of sincerity, is not uncommon in the church of Rome, they acquired the name of Flagellants. Their career began, it is said, at Perugia, whence they spread over the rest of Italy, and into Germany and Poland. As this spontaneous fanaticism met with no encouragement from the church, and was prudently discountenanced by the civil magistrate, it died away in a very short time.[526] But it is more surprising that, after almost a century and a half of continual improvement and illumination, another irruption of popular extravagance burst out under circumstances exceedingly similar.[527] "In the month of August 1399," says a contemporary historian, "there appeared all over Italy a description of persons, called Bianchi, from the white linen vestment that they wore. They passed from province to province, and from city to city, crying out Misericordia! with their faces covered and bent towards the ground, and bearing before them a great crucifix. Their constant song was Stabat Mater dolorosa. This lasted three months; and whoever did not attend their procession was reputed a heretic."[528] Almost every Italian writer of the time takes notice of these Bianchi; and Muratori ascribes a remarkable reformation of manners (though certainly a very transient one) to their influence.[529] Nor were they confined to Italy, though no such meritorious exertions are imputed to them in other countries. In France their practice of covering the face gave such opportunity to crimes as to be prohibited by the government;[530] and we have an act on the rolls of the first parliament of Henry IV., forbidding any one, "under pain of forfeiting all his worth, to receive the new sect in white clothes, pretending to great sanctity," which had recently appeared in foreign parts.[531]

[Sidenote: Pretended miracles.]

The devotion of the multitude was wrought to this feverish height by the prevailing system of the clergy. In that singular polytheism, which had been grafted on Christianity, nothing was so conspicuous as the belief of perpetual miracles--if indeed those could properly be termed miracles which, by their constant recurrence, even upon trifling occasions, might seem within the ordinary dispensations of Providence. These superstitions arose in what are called primitive times, and are certainly no part of popery, if in that word we include any especial reference to the Roman see. But successive ages of ignorance swelled the delusion to such an enormous pitch, that it was as difficult to trace, we may say without exaggeration, the real religion of the Gospel in the popular belief of the laity, as the real history of Charlemagne in the romance of Turpin. It must not be supposed that these absurdities were produced, as well as nourished, by ignorance. In most cases they were the work of deliberate imposture. Every cathedral or monastery had its tutelar saint, and every saint his legend, fabricated in order to enrich the churches under his protection, by exaggerating his virtues, his miracles, and consequently his power of serving those who paid liberally for his patronage.[532] Many of those saints were imaginary persons; sometimes a blundered inscription added a name to the calendar, and sometimes, it is said, a heathen god was surprised at the company to which he was introduced, and the rites with which he was honoured.[533]

[Sidenote: Mischiefs arising from this superstition.]

It would not be consonant to the nature of the present work to dwell upon the erroneousness of this religion; but its effect upon the moral and intellectual character of mankind was so prominent, that no one can take a philosophical view of the middle ages without attending more than is at present fashionable to their ecclesiastical history. That the exclusive worship of saints, under the guidance of an artful though illiterate priesthood, degraded the understanding and begot a stupid credulity and fanaticism, is sufficiently evident. But it was also so managed as to loosen the bonds of religion and pervert the standard of morality. If these inhabitants of heaven had been represented as stern avengers, accepting no slight atonement for heavy offences, and prompt to interpose their control over natural events for the detection and punishment of guilt, the creed, however impossible to be reconciled with experience, might have proved a salutary check upon a rude people, and would at least have had the only palliation that can be offered for a religious imposture, its political expediency. In the legends of those times, on the contrary, they appeared only as perpetual intercessors, so good-natured and so powerful, that a sinner was more emphatically foolish than he is usually represented if he failed to secure himself against any bad consequences. For a little attention to the saints, and especially to the Virgin, with due liberality to their servants, had saved, he would be told, so many of the most atrocious delinquents, that he might equitably presume upon similar luck in his own case.

This monstrous superstition grew to its height in the twelfth century. For the advance that learning then made was by no means sufficient to counteract the vast increase of monasteries, and the opportunities which the greater cultivation of modern languages afforded for the diffusion of legendary tales. It was now, too, that the veneration paid to the Virgin, in early times very great, rose to an almost exclusive idolatry. It is difficult to conceive the stupid absurdity and the disgusting profaneness of those stories which were invented by the monks to do her honour. A few examples have been thrown into a note.[534]

[Sidenote: Not altogether unmixed with good.]

Whether the superstition of these dark ages had actually passed that point when it becomes more injurious to public morals and the welfare of society than the entire absence of all religious notions is a very complex question, upon which I would by no means pronounce an affirmative decision.[535] A salutary influence, breathed from the spirit of a more genuine religion, often displayed itself among the corruptions of a degenerate superstition. In the original principles of monastic orders, and the rules by which they ought at least to have been governed, there was a character of meekness, self-denial, and charity that could not wholly be effaced. These virtues, rather than justice and veracity, were inculcated by the religious ethics of the middle ages; and in the relief of indigence it may, upon the whole, be asserted that the monks did not fall short of their profession.[536] This eleemosynary spirit indeed remarkably distinguishes both Christianity and Mohammedism from the moral systems of Greece and Rome, which were very deficient in general humanity and sympathy with suffering. Nor do we find in any single instance during ancient times, if I mistake not, those public institutions for the alleviation of human miseries which have long been scattered over every part of Europe. The virtues of the monks assumed a still higher character when they stood forward as protectors of the oppressed. By an established law, founded on very ancient superstition, the precincts of a church afforded sanctuary to accused persons. Under a due administration of justice this privilege would have been simply and constantly mischievous, as we properly consider it to be in those countries where it still subsists. But in the rapine and tumult of the middle ages the right of sanctuary might as often be a shield to innocence as an immunity to crime. We can hardly regret, in reflecting on the desolating violence which prevailed, that there should have been some green spots in the wilderness where the feeble and the persecuted could find refuge. How must this right have enhanced the veneration for religious institutions! How gladly must the victims of internal warfare have turned their eyes from the baronial castle, the dread and scourge of the neighbourhood, to those venerable walls within which not even the clamour of arms could be heard to disturb the chant of holy men and the sacred service of the altar! The protection of the sanctuary was never withheld. A son of Chilperic king of France having fled to that of Tours, his father threatened to ravage all the lands of the church unless they gave him up. Gregory the historian, bishop of the city, replied in the name of his clergy that Christians could not be guilty of an act unheard of among pagans. The king was as good as his word, and did not spare the estate of the church, but dared not infringe its privileges. He had indeed previously addressed a letter to St. Martin, which was laid on his tomb in the church, requesting permission to take away his son by force; but the honest saint returned no answer.[537]

[Sidenote: Vices of the monks and clergy.]

The virtues indeed, or supposed virtues, which had induced a credulous generation to enrich so many of the monastic orders, were not long preserved. We must reject, in the excess of our candour, all testimonies that the middle ages present, from the solemn declaration of councils and reports of judicial inquiry to the casual evidence of common fame in the ballad or romance, if we would extenuate the general corruption of those institutions. In vain new rules of discipline were devised, or the old corrected by reforms. Many of their worst vices grew so naturally out of their mode of life, that a stricter discipline could have no tendency to extirpate them. Such were the frauds I have already noticed, and the whole scheme of hypocritical austerities. Their extreme licentiousness was sometimes hardly concealed by the cowl of sanctity. I know not by what right we should disbelieve the reports of the visitation under Henry VIII., entering as they do into a multitude of specific charges both probable in their nature and consonant to the unanimous opinion of the world.[538] Doubtless there were many communities, as well as individuals, to whom none of these reproaches would apply. In the very best view, however, that can be taken of monasteries, their existence is deeply injurious to the general morals of a nation. They withdraw men of pure conduct and conscientious principles from the exercise of social duties, and leave the common mass of human vice more unmixed. Such men are always inclined to form schemes of ascetic perfection, which can only be fulfilled in retirement; but in the strict rules of monastic life, and under the influence of a grovelling superstition, their virtue lost all its usefulness. They fell implicitly into the snares of crafty priests, who made submission to the church not only the condition but the measure of all praise. "He is a good Christian," says Eligius, a saint of the seventh century, "who comes frequently to church; who presents an oblation that it may be offered to God on the altar; who does not taste the fruits of his land till he has consecrated a part of them to God; who can repeat the Creed or the Lord's Prayer. Redeem your souls from punishment while it is in your power; offer presents and tithes to churches, light candles in holy places, as much as you can afford, come more frequently to church, implore the protection of the saints; for, if you observe these things, you may come with security at the day of judgment to say, Give unto us, Lord, for we have given unto thee."[539]

With such a definition of the Christian character, it is not surprising that any fraud and injustice became honourable when it contributed to the riches of the clergy and glory of their order. Their frauds, however, were less atrocious than the savage bigotry with which they maintained their own system and infected the laity. In Saxony, Poland, Lithuania, and the countries on the Baltic Sea, a sanguinary persecution extirpated the original idolatry. The Jews were everywhere the objects of popular insult and oppression, frequently of a general massacre, though protected, it must be confessed, by the laws of the church, as well as in general by temporal princes.[540] Of the crusades it is only necessary to repeat that they began in a tremendous eruption of fanaticism, and ceased only because that spirit could not be constantly kept alive. A similar influence produced the devastation of Languedoc, the stakes and scaffolds of the Inquisition, and rooted in the religious theory of Europe those maxims of intolerance which it has so slowly, and still perhaps so imperfectly, renounced.

From no other cause are the dictates of sound reason and the moral sense of mankind more confused than by this narrow theological bigotry. For as it must often happen that men to whom the arrogance of a prevailing faction imputes religious error are exemplary for their performance of moral duties, these virtues gradually cease to make their proper impression, and are depreciated by the rigidly orthodox as of little value in comparison with just opinions in speculative points. On the other hand, vices are forgiven to those who are zealous in the faith. I speak too gently, and with a view to later times; in treating of the dark ages it would be more correct to say that crimes were commended. Thus Gregory of Tours, a saint of the church, after relating a most atrocious story of Clovis--the murder of a prince whom he had previously instigated to parricide--continues the sentence: "For God daily subdued his enemies to his hand, and increased his kingdom; because he walked before him in uprightness, and did what was pleasing in his eyes."[541]

[Sidenote: Commutation of penances.]

It is a frequent complaint of ecclesiastical writers that the rigorous penances imposed by the primitive canons upon delinquents were commuted in a laxer state of discipline for less severe atonements, and ultimately indeed for money.[542] We must not, however, regret that the clergy should have lost the power of compelling men to abstain fifteen years from eating meat, or to stand exposed to public derision at the gates of a church. Such implicit submissiveness could only have produced superstition and hypocrisy among the laity, and prepared the road for a tyranny not less oppressive than that of India or ancient Egypt. Indeed the two earliest instances of ecclesiastical interference with the rights of sovereigns--namely, the deposition of Wamba in Spain and that of Louis the Debonair--were founded upon this austere system of penitence. But it is true that a repentance redeemed by money or performed by a substitute could have no salutary effect on the sinner; and some of the modes of atonement which the church most approved were particularly hostile to public morals. None was so usual as pilgrimage, whether to Jerusalem or Rome, which were the great objects of devotion; or to the shrine of some national saint--a James of Compostella, a David, or a Thomas a Becket. This licensed vagrancy was naturally productive of dissoluteness, especially among the women. Our English ladies, in their zeal to obtain the spiritual treasures of Rome, are said to have relaxed the necessary caution about one that was in their own custody.[543] There is a capitulary of Charlemagne directed against itinerant penitents, who probably considered the iron chain around their necks an expiation of future as well as past offences.[544]

The crusades may be considered as martial pilgrimages on an enormous scale, and their influence upon general morality seems to have been altogether pernicious. Those who served under the cross would not indeed have lived very virtuously at home; but the confidence in their own merits, which the principle of such expeditions inspired, must have aggravated the ferocity and dissoluteness of their ancient habits. Several historians attest the depravation of morals which existed both among the crusaders and in the states formed out of their conquests.[545]

[Sidenote: Want of law.]

While religion had thus lost almost every quality that renders it conducive to the good order of society, the control of human law was still less efficacious. But this part of my subject has been anticipated in other passages of the present work; and I shall only glance at the want of regular subordination, which rendered legislative and judicial edicts a dead letter, and at the incessant private warfare, rendered legitimate by the usages of most continental nations. Such hostilities, conducted as they must usually have been with injustice and cruelty, could not fail to produce a degree of rapacious ferocity in the general disposition of a people. And this certainly was among the characteristics of every nation for many centuries.

[Sidenote: Degradation of morals.]

It is easy to infer the degradation of society during the dark ages from the state of religion and police. Certainly there are a few great landmarks of moral distinctions so deeply fixed in human nature, that no degree of rudeness can destroy, nor even any superstition remove them. Wherever an extreme corruption has in any particular society defaced these sacred archetypes that are given to guide and correct the sentiments of mankind, it is in the course of Providence that the society itself should perish by internal discord or the sword of a conqueror. In the worst ages of Europe there must have existed the seeds of social virtues, of fidelity, gratitude, and disinterestedness, sufficient at least to preserve the public approbation of more elevated principles than the public conduct displayed. Without these imperishable elements there could have been no restoration of the moral energies; nothing upon which reformed faith, revived knowledge, renewed law, could exercise their nourishing influences. But history, which reflects only the more prominent features of society, cannot exhibit the virtues that were scarcely able to struggle through the general depravation. I am aware that a tone of exaggerated declamation is at all times usual with those who lament the vices of their own time; and writers of the middle ages are in abundant need of allowance on this score. Nor is it reasonable to found any inferences as to the general condition of society on single instances of crimes, however atrocious, especially when committed under the influence of violent passion. Such enormities are the fruit of every age, and none is to be measured by them. They make, however, a strong impression at the moment, and thus find a place in contemporary annals, from which modern writers are commonly glad to extract whatever may seem to throw light upon manners. I shall, therefore, abstain from producing any particular cases of dissoluteness or cruelty from the records of the middle ages, lest I should weaken a general proposition by offering an imperfect induction to support it, and shall content myself with observing that times to which men sometimes appeal, as to a golden period, were far inferior in every moral comparison to those in which we are thrown.[546] One crime, as more universal and characteristic than others, may be particularly noticed. All writers agree in the prevalence of judicial perjury. It seems to have almost invariably escaped human punishment; and the barriers of superstition were in this, as in every other instance, too feeble to prevent the commission of crimes. Many of the proofs by ordeal were applied to witnesses as well as those whom they accused; and undoubtedly trial by combat was preserved in a considerable degree on account of the difficulty experienced in securing a just cause against the perjury of witnesses. Robert king of France, perceiving how frequently men forswore themselves upon the relics of saints, and less shocked apparently at the crime than at the sacrilege, caused an empty reliquary of crystal to be used, that those who touched it might incur less guilt in fact, though not in intention. Such an anecdote characterizes both the man and the times.[547]

[Sidenote: Love of field sports.]

The favourite diversions of the middle ages, in the intervals of war, were those of hunting and hawking. The former must in all countries be a source of pleasure; but it seems to have been enjoyed in moderation by the Greeks and the Romans. With the northern invaders, however, it was rather a predominant appetite than an amusement; it was their pride and their ornament, the theme of their songs, the object of their laws, and the business of their lives. Falconry, unknown as a diversion to the ancients, became from the fourth century an equally delightful occupation.[548] From the Salic and other barbarous codes of the fifth century to the close of the period under our review, every age would furnish testimony to the ruling passion for these two species of chace, or, as they were sometimes called, the mysteries of woods and rivers. A knight seldom stirred from his house without a falcon on his wrist or a greyhound that followed him. Thus are Harold and his attendants represented, in the famous tapestry of Bayeux. And in the monuments of those who died anywhere but on the field of battle, it is usual to find the greyhound lying at their feet, or the bird upon their wrists. Nor are the tombs of ladies without their falcon; for this diversion, being of less danger and fatigue than the chace, was shared by the delicate sex.[549]

It was impossible to repress the eagerness with which the clergy, especially after the barbarians were tempted by rich bishoprics to take upon them the sacred functions, rushed into these secular amusements. Prohibitions of councils, however frequently repeated, produced little effect. In some instances a particular monastery obtained a dispensation. Thus that of St. Denis, in 774, represented to Charlemagne that the flesh of hunted animals was salutary for sick monks, and that their skins would serve to bind the books in the library.[550] Reasons equally cogent, we may presume, could not be wanting in every other case. As the bishops and abbots were perfectly feudal lords, and often did not scruple to lead their vassals into the field, it was not to be expected that they should debar themselves of an innocent pastime. It was hardly such indeed, when practised at the expense of others. Alexander III., by a letter to the clergy of Berkshire, dispenses with their keeping the archdeacon in dogs and hawks during his visitation.[551] This season gave jovial ecclesiastics an opportunity of trying different countries. An archbishop of York, in 1321, seems to have carried a train of two hundred persons, who were maintained at the expense of the abbeys on his road, and to have hunted with a pack of hounds from parish to parish.[552] The third council of Lateran, in 1180, had prohibited this amusement on such journeys, and restricted bishops to a train of forty or fifty horses.[553]

Though hunting had ceased to be a necessary means of procuring food, it was a very convenient resource, on which the wholesomeness and comfort, as well as the luxury, of the table depended. Before the natural pastures were improved, and new kinds of fodder for cattle discovered, it was impossible to maintain the summer stock during the cold season. Hence a portion of it was regularly slaughtered and salted for winter provision. We may suppose that, when no alternative was offered but these salted meats, even the leanest venison was devoured with relish. There was somewhat more excuse therefore for the severity with which the lords of forests and manors preserved the beasts of chace than if they had been considered as merely objects of sport. The laws relating to preservation of game were in every country uncommonly rigorous. They formed in England that odious system of forest laws which distinguished the tyranny of our Norman kings. Capital punishment for killing a stag or wild boar was frequent, and perhaps warranted by law, until the charter of John.[554] The French code was less severe, but even Henry IV. enacted the pain of death against the repeated offence of chasing deer in the royal forests. The privilege of hunting was reserved to the nobility till the reign of Louis IX., who extended it in some degree to persons of lower birth.[555]

This excessive passion for the sports of the field produced those evils which are apt to result from it--a strenuous idleness which disdained all useful occupations, and an oppressive spirit towards the peasantry. The devastation committed under the pretence of destroying wild animals, which had been already protected in their depredations, is noticed in serious authors, and has also been the topic of popular ballads.[556] What effect this must have had on agriculture it is easy to conjecture. The levelling of forests, the draining of morasses, and the extirpation of mischievous animals which inhabit them, are the first objects of man's labour in reclaiming the earth to his use; and these were forbidden by a landed aristocracy, whose control over the progress of agricultural improvement was unlimited, and who had not yet learned to sacrifice their pleasures to their avarice.

[Sidenote: Bad state of agriculture;]

These habits of the rich, and the miserable servitude of those who cultivated the land, rendered its fertility unavailing. Predial servitude indeed, in some of its modifications, has always been the great bar to improvement. In the agricultural economy of Rome the labouring husbandman, a menial slave of some wealthy senator, had not even that qualified interest in the soil which the tenure of villenage afforded to the peasant of feudal ages. Italy, therefore, a country presenting many natural impediments, was but imperfectly reduced into cultivation before the irruption of the barbarians.[557] That revolution destroyed agriculture with every other art, and succeeding calamities during five or six centuries left the finest regions of Europe unfruitful and desolate. There are but two possible modes in which the produce of the earth can be increased; one by rendering fresh land serviceable, the other by improving the fertility of that which is already cultivated. The last is only attainable by the application of capital and of skill to agriculture, neither of which could be expected in the ruder ages of society. The former is, to a certain extent, always practicable while waste lands remain; but it was checked by laws hostile to improvement, such as the manerial and commonable rights in England, and by the general tone of manners.

Till the reign of Charlemagne there were no towns in Germany, except a few that had been erected on the Rhine and Danube by the Romans. A house with its stables and farm-buildings, surrounded by a hedge or enclosure, was called a court, or, as we find it in our law-books, a curtilage; the toft or homestead of a more genuine English dialect. One of these, with the adjacent domain of arable fields and woods, had the name of a villa or manse. Several manses composed a march; and several marches formed a pagus or district.[558] From these elements in the progress of population arose villages and towns. In France undoubtedly there were always cities of some importance. Country parishes contained several manses or farms of arable land, around a common pasture, where every one was bound by custom to feed his cattle.[559]

[Sidenote: of internal trade;]

The condition even of internal trade was hardly preferable to that of agriculture. There is not a vestige perhaps to be discovered for several centuries of any considerable manufacture; I mean, of working up articles of common utility to an extent beyond what the necessities of an adjacent district required.[560] Rich men kept domestic artisans among their servants; even kings, in the ninth century, had their clothes made by the women upon their farms;[561] but the peasantry must have been supplied with garments and implements of labour by purchase; and every town, it cannot be doubted, had its weaver, its smith, and its currier. But there were almost insuperable impediments to any extended traffic--the insecurity of moveable wealth, and difficulty of accumulating it; the ignorance of mutual wants; the peril of robbery in conveying merchandise, and the certainty of extortion. In the domains of every lord a toll was to be paid in passing his bridge, or along his highway, or at his market.[562] These customs, equitable and necessary in their principle, became in practice oppressive, because they were arbitrary, and renewed in every petty territory which the road might intersect. Several of Charlemagne's capitularies repeat complaints of these exactions, and endeavour to abolish such tolls as were not founded on prescription.[563] One of them rather amusingly illustrates the modesty and moderation of the landholders. It is enacted that no one shall be compelled to go out of his way in order to pay toll at a particular bridge, when he can cross the river more conveniently at another place.[564] These provisions, like most others of that age, were unlikely to produce much amendment. It was only the milder species, however, of feudal lords who were content with the tribute of merchants. The more ravenous descended from their fortresses to pillage the wealthy traveller, or shared in the spoil of inferior plunderers, whom they both protected and instigated. Proofs occur, even in the later periods of the middle ages, when government had regained its energy, and civilization had made considerable progress, of public robberies systematically perpetrated by men of noble rank. In the more savage times, before the twelfth century, they were probably too frequent to excite much attention. It was a custom in some places to waylay travellers, and not only to plunder, but to sell them as slaves, or compel them to pay a ransom. Harold son of Godwin, having been wrecked on the coast of Ponthieu, was imprisoned by the lord, says an historian, according to the custom of that territory.[565] Germany appears to have been, upon the whole, the country where downright robbery was most unscrupulously practised by the great. Their castles, erected on almost inaccessible heights among the woods, became the secure receptacles of predatory bands, who spread terror over the country. From these barbarian lords of the dark ages, as from a living model, the romances are said to have drawn their giants and other disloyal enemies of true chivalry. Robbery, indeed, is the constant theme both of the Capitularies and of the Anglo-Saxon laws; one has more reason to wonder at the intrepid thirst of lucre, which induced a very few merchants to exchange the products of different regions, than to ask why no general spirit of commercial activity prevailed.

[Sidenote: and of foreign commerce.]

Under all these circumstances it is obvious that very little oriental commerce could have existed in these western countries of Europe. Destitute as they have been created, speaking comparatively, of natural productions fit for exportation, their invention and industry are the great resources from which they can supply the demands of the East. Before any manufactures were established in Europe, her commercial intercourse with Egypt and Asia must of necessity have been very trifling; because, whatever inclination she might feel to enjoy the luxuries of those genial regions, she wanted the means of obtaining them. It is not therefore necessary to rest the miserable condition of oriental commerce upon the Saracen conquests, because the poverty of Europe is an adequate cause; and, in fact, what little traffic remained was carried on with no material inconvenience through the channel of Constantinople. Venice took the lead in trading with Greece and more eastern countries.[566] Amalfi had the second place in the commerce of those dark ages. These cities imported, besides natural productions, the fine clothes of Constantinople; yet as this traffic seems to have been illicit, it was not probably extensive.[567] Their exports were gold and silver, by which, as none was likely to return, the circulating money of Europe was probably less in the eleventh century than at the subversion of the Roman empire; furs, which were obtained from the Sclavonian countries; and arms, the sale of which to pagans or Saracens was vainly prohibited by Charlemagne and by the Holy See.[568] A more scandalous traffic, and one that still more fitly called for prohibitory laws, was carried on in slaves. It is an humiliating proof of the degradation of Christendom, that the Venetians were reduced to purchase the luxuries of Asia by supplying the slave-market of the Saracens.[569] Their apology would perhaps have been, that these were purchased from their heathen neighbours; but a slave-dealer was probably not very inquisitive as to the faith or origin of his victim. This trade was not peculiar to Venice. In England it was very common, even after the Conquest, to export slaves to Ireland, till, in the reign of Henry II., the Irish came to a non-importation agreement, which put a stop to the practice.[570]

From this state of degradation and poverty all the countries of Europe have recovered, with a progression in some respects tolerably uniform, in others more unequal; and the course of their improvement, more gradual and less dependent upon conspicuous civil revolutions than their decline, affords one of the most interesting subjects into which a philosophical mind can inquire. The commencement of this restoration has usually been dated from about the close of the eleventh century; though it is unnecessary to observe that the subject does not admit of anything approximating to chronological accuracy. It may, therefore, be sometimes not improper to distinguish the first six of the ten centuries which the present work embraces under the appellation of the dark ages; an epithet which I do not extend to the twelfth and three following. In tracing the decline of society from the subversion of the Roman empire, we have been led, not without connexion, from ignorance to superstition, from superstition to vice and lawlessness, and from thence to general rudeness and poverty. I shall pursue an inverted order in passing along the ascending scale, and class the various improvements which took place between the twelfth and fifteenth centuries under three principal heads, as they relate to the wealth, the manners, or the taste and learning of Europe. Different arrangements might probably be suggested, equally natural and convenient; but in the disposition of topics that have not always an unbroken connexion with each other, no method can be prescribed as absolutely more scientific than the rest. That which I have adopted appears to me as philosophical and as little liable to transitions as any other.

FOOTNOTES:

[479] The subject of the present chapter, so far as it relates to the condition of literature in the middle ages, has been again treated by me in the first and second chapters of a work, published in 1836, the Introduction to the History of Literature in the Fifteenth, Sixteenth, and Seventeenth Centuries. Some things will be found in it more exactly stated, others newly supplied from recent sources.

[480] The authors of Histoire Litteraire de la France, t. i., can only find three writers of Gaul, no inconsiderable part of the Roman Empire, mentioned upon any authority; two of whom are now lost. In the preceding century the number was considerably greater.

[481] Mosheim, Cent. 4. Tiraboschi endeavours to elevate higher the learning of the early Christians, t. ii. p. 328. Jortin, however, asserts that many of the bishops in the general councils of Ephesus and Chalcedon could not write their names. Remarks on Ecclesiast. Hist. vol. ii. p. 417.

[482] Gibbon roundly asserts that "the language of Virgil and Cicero, though with some inevitable mixture of corruption, was so universally adopted in Africa, Spain, Gaul, Great Britain, and Pannonia, that the faint traces of the Punic or Celtic idioms were preserved only in the mountains or among the peasants." Decline and Fall, vol. i. p. 60 (8vo. edit.). For Britain he quotes Tacitus's Life of Agricola as his voucher. But the only passage in this work that gives the least colour to Gibbon's assertion is one in which Agricola is said to have encouraged the children of British chieftains to acquire a taste for liberal studies, and to have succeeded so much by judicious commendation of their abilities, ut qui modo linguam Romanam abnuebant, eloquentiam concupiscerent. (c. 21.) This, it is sufficiently obvious, is very different from the national adoption of Latin as a mother tongue.

[483] t. vii. preface.

[484] It appears, by a passage quoted from the digest by M. Bonamy, Mem. de l'Acad. des Inscriptions, t. xxiv. p. 589, that Celtic was spoken in Gaul, or at least parts of it, as well as Punic in Africa.

[485] Atque eadem illa litera, quoties ultima est, et vocalem verbi sequentis ita contingit, ut in eam transire possit, etiam si scribitur, tamen parum exprimitur, ut Multum ille, et Quantum erat: adeo ut pene cujusdam novae literae sonum reddat. Neque enim eximitur, sed obscuratur, et tantum aliqua inter duos vocales velut nota est, ne ipsae coeant. Quintilian, Institut. 1. ix. c. 4, p. 585, edit. Capperonier.

[486] The following passage of Quintilian is an evidence both of the omission of harsh or superfluous letters by the best speakers, and of the corrupt abbreviations usual with the worst. Dilucida vero erit pronunciatio primum, si verba tota exegerit, quorum pars devorari, pars destitui solet, plerisque extremas syllabas non proferentibus, dum priorum sono indulgent. Ut est autem necessaria verborum explanatio, ita omnes computare et velut adnumerare literas, molestum et odiosum.--Nam et vocales frequentissime coeunt, et consonantium quaedam insequente vocali dissimulantur; utriusque exemplum posuimus; Multum ille et terris. Vitatur etiam duriorum inter se congressus, unde pellexit et collegit, et quae alio loco dicta sunt. 1. ii. c. 3, p. 696.

[487] Tiraboschi (Storia dell. Lett. Ital. t. iii. preface, p. v.) imputes this paradox to Bembo and Quadrio; but I can hardly believe that either of them could maintain it in a literal sense.

[488] M. Bonamy, in an essay printed in Mem. de l'Academie des Inscriptions, t. xxiv., has produced several proofs of this from the classical writers on agriculture and other arts, though some of his instances are not in point, as any schoolboy would have told him. This essay, which by some accident had escaped my notice till I had nearly finished the observations in my text, contains, I think, the best view that I have seen of the process of transition by which Latin was changed into French and Italian. Add however, the preface to Tiraboschi's third volume and the thirty-second dissertation of Muratori.

[489] See Lanzi, Saggio della Lingua Etrusca, t. i. c. 431; Mem. de l'Acad. des Inscrip. t. xxiv. p. 632.

[490] No description can give so adequate a notion of this extraordinary performance as a short specimen. Take the introductory lines; which really, prejudices of education apart, are by no means inharmonious:--

Praefatio nostra viam erranti demonstrat, Respectumque bonum, cum venerit saeculi meta, AEternum fieri, quod discredunt inscia corda. Ego similiter erravi tempore multo, Fana prosequendo, parentibus insciis ipsis. Abstuli me tandem inde, legendo de lege. Testificor Dominum, doleo, proh! civica turba Inscia quod perdit, pergens deos quaerere vanos. Ob ea perdoctus ignoros instruo verum.

Commodianus however did not keep up this excellence in every part. Some of his lines are not reducible to any pronunciation, without the summary rules of Procrustes; as for instance:--

Paratus ad epulas, et refugiscere praecepta; or, Capillos inficitis, oculos fuligine relinitis.

It must be owned that this text is exceedingly corrupt, and I should not despair of seeing a truly critical editor, unscrupulous as his fraternity are apt to be, improve his lines into unblemished hexameters. Till this time arrives, however, we must consider him either as utterly ignorant of metrical distinctions, or at least as aware that the populace whom he addressed did not observe them in speaking. Commodianus is published by Dawes at the end of his edition of Minucius Felix. Some specimens are quoted in Harris's Philological Inquiries.

[491] Archaeologia, vol. xiv. p. 188. The following are the first lines:--

Abundantia peccatorum solet fratres conturbare; Propter hoc Dominus noster voluit nos praemonere, Comparans regnum coelorum reticulo misso in mare, Congreganti multos pisces, omne genus hinc et inde, Quos cum traxissent ad littus, tunc coeperunt separare, Bonos in vasa miserunt, reliquos malos in mare.

This trash is much below the level of Augustin; but it could not have been later than his age.

[492] Recueil des Historiens, t. i. p. 814; it begins in the following manner:--

Praecelso expectabili bis Arbogasto comiti Auspicius, qui diligo, salutem dico plurimam. Magnas coelesti Domino rependo corde gratias Quod te Tullensi proxime magnum in urbe vidimus. Multis me tuis artibus laetificabas antea, Sed nunc fecisti maximo me exultare gaudio.

[493] Chilpericus rex ... confecit duos libros, quorum versiculi debiles nullis pedibus subsistere possunt: in quibus, dum non intelligebat, pro longis syllabas breves posuit, et pro brevibus longas statuebat. 1. vi. c. 46.

[494] Mem. de l'Academie des Inscriptions, t. xvii. Hist. Litteraire de la France, t. ii. p. 28. It seems rather probable that the poetry of Avitus belongs to the fifth century, though not very far from its termination. He was the correspondent of Sidonius Apollinaris, who died in 489, and we may presume his poetry to have been written rather early in life.

[495] One stanza of this song will suffice to show that the Latin language was yet unchanged:--

De Clotario est canere rege Francorum, Qui ivi pugnare cum gente Saxonum, Quam graviter provenisset missis Saxonum, Si non fuisset inclitus Faro de gente Burgundionum.

[496] Praecavendum est, ne ad aures populi minus aliquid intelligibile proferatur. Mem. de l'Acad. t. xvii. p. 712.

[497] Rustico et plebeio sermone propter exemplum et imitationem. Id. ibid.

[498] Hist. Litteraire de la France, t. iii. p. 5. Mem. de l'Academie, t. xxiv. p. 617. Nouveau Traite de Diplomatique, t. iv. p. 485.

[499] Hist. Litteraire de la France, t. vii. p. 12. The editors say that it is mentioned by name even in the seventh century, which is very natural, as the corruption of Latin had then become striking. It is familiarly known that illiterate persons understand a more correct language than they use themselves; so that the corruption of Latin might have gone to a considerable length among the people, while sermons were preached, and tolerably comprehended, in a purer grammar.

[500] Mem. de l'Acad. des Insc. t. xvii. See two memoirs in this volume by du Clos and le Boeuf, especially the latter, as well as that already mentioned in t. xxiv. p. 582, by M. Bonamy.

[501] Muratori, Dissert. i. and xliii.

[502] Usus Francisca, vulgari, et voce Latina. Instituit populos eloquio tripici.

Fontanini dell'Eloquenza Italiana, p. 15. Muratori, Dissert. xxxii.

[503] Histoire Litteraire de la France, t. vi. p. 20. Muratori, Dissert. xliii.

[504] Nouveau Traite de Diplomatique, t. ii. p. 419. This became, the editors say, much less unusual about the end of the thirteenth century; a pretty late period! A few signatures to deeds appear in the fourteenth century; in the next they are more frequent. Ibid. The emperor Frederic Barbarossa could not read (Struvius, Corpus Hist. German. t. i. p. 377), nor John king of Bohemia in the middle of the fourteenth century (Sismondi, t. v. p. 205), nor Philip the Hardy, king of France, although the son of St. Louis. (Velly, t. vi. p. 426.)

[505] Louis IV., king of France, laughing at Fulk count of Anjou, who sang anthems among the choristers of Tours, received the following pithy epistle from his learned vassal: Noveritis, domines quod rex illiteratus est asinus coronatus. Gesta Comitum Andegavensium. In the same book, Geoffrey, father of our Henry II., is said to be optime literatus; which perhaps imports little more learning than his ancestor Fulk possessed.

[506] The passage in Eginhard, which has occasioned so much dispute, speaks for itself: Tentabat et scribere, tabulasque et codicillos ad hoc in lecticula sub cervicalibus circumferre solebat, ut, cum vacuum tempus esset, manum effigiandis literis assuefaceret; sed parum prospere successit labor praeposterus ac sero inchoatus.

Many are still unwilling to believe that Charlemagne could not write. M. Ampere observes that the emperor asserts himself to have been the author of the Libri Carolini, and is said by some to have composed verses. Hist. Litt. de la France, iii. 37. But did not Henry VIII. claim a book against Luther, which was not written by himself? Qui facit per alium, facit per se, is in all cases a royal prerogative. Even if the book were Charlemagne's own, might he not have dictated it? I have been informed that there is a manuscript at Vienna with autograph notes of Charlemagne in the margin. But is there sufficient evidence of their genuineness? The great difficulty is to get over the words which I have quoted from Eginhard. M. Ampere ingeniously conjectures that the passage does not relate to simple common writing, but to calligraphy; the art of delineating characters in a beautiful manner, practised by the copyists, and of which a contemporaneous specimen may be seen in the well-known Bible of the British Museum. Yet it must be remembered that Charlemagne's early life passed in the depths of ignorance; and Eginhard gives a fair reason why he failed in acquiring the art of writing, that he began too late. Fingers of fifty are not made for a new skill. It is not, of course, implied by the words, that he could not write his own name; but that he did not acquire such a facility as he desired. [1848.]

[507] Spelman, Vit. Alfred. Append.

[508] Hist. Litteraire de la France, t. iii. p. 5.

[509] These four dark centuries, the eighth, ninth, tenth, and eleventh, occupy five large quarto volumes of the Literary History of France, by the fathers of St. Maur. But the most useful part will be found in the general view at the commencement of each volume; the remainder is taken up with biographies, into which a reader may dive at random, and sometimes bring up a curious fact. I may refer also to the 14th volume of Leber, Collections Relatives a l'Histoire de France, where some learned dissertations by the Abbes Lebeuf and Goujet, a little before the middle of the last century, are reprinted. [Note I.]

Tiraboschi, Storia della Letteratura, t. iii., and Muratori's forty-third Dissertation, are good authorities for the condition of letters in Italy; but I cannot easily give references to all the books which I have consulted.

[510] Tiraboschi, t. iii. p. 198.

[511] Mabillon, De Re Diplomatica, p. 55. The reason alleged, indeed, is that they were wholly occupied with studying Arabic, in order to carry on a controversy with the Saracens. But, as this is not very credible, we may rest with the main fact that they could write no Latin.

[512] Spelman, Vit. Alfred. Append. The whole drift of Alfred's preface to this translation is to defend the expediency of rendering books into English, on account of the general ignorance of Latin. The zeal which this excellent prince shows for literature is delightful. Let us endeavour, he says, that all the English youth, especially the children of those who are free-born, and can educate them, may learn to read English before they take to any employment. Afterwards such as please may be instructed in Latin. Before the Danish invasion indeed, he tells us, churches were well furnished with books; but the priests got little good from them, being written in a foreign language which they could not understand.

[513] Mabillon, De Re Diplomatica, p. 55. Ordericus Vitalis, a more candid judge of our unfortunate ancestors than other contemporary annalists, says that the English were, at the Conquest, rude and almost illiterate, which he ascribes to the Danish invasion. Du Chesne, Hist. Norm. Script. p. 518. However, Ingulfus tells us that the library of Croyland contained above three hundred volumes, till the unfortunate fire that destroyed that abbey in 1091. Gale, XV Scriptores, t. i. 93. Such a library was very extraordinary in the eleventh century, and could not have been equalled for some ages afterwards. Ingulfus mentions at the same time a nadir, as he calls it, or planetarium, executed in various metals. This had been presented to abbot Turketul in the tenth century by a king of France, and was, I make no doubt, of Arabian or Greek manufacture.

[514] Parchment was so scarce that none could be procured about 1120 for an illuminated copy of the Bible. Warton's Hist. of English Poetry, Dissert. II. I suppose the deficiency was of skins beautiful enough for this purpose; it cannot be meant that there was no parchment for legal instruments.

Manuscripts written on papyrus, as may be supposed from the fragility of the material, as well as the difficulty of procuring it, are of extreme rarity. That in the British Museum, being a charter to a church at Ravenna in 572, is in every respect the most curious: and indeed both Mabillon and Muratori seem never to have seen anything written on papyrus, though they trace its occasional use down to the eleventh or twelfth centuries. Mabillon, De Re Diplomatica, 1. ii.; Muratori, Antichita Italiane, Dissert. xliii. p. 602. But the authors of the Nouveau Traite de Diplomatique speak of several manuscripts on this material as extant in France and Italy. t. i. p. 493.

As to the general scarcity and high price of books in the middle ages, Robertson (Introduction to Hist. Charles V. note x.), and Warton in the above-cited dissertation, not to quote authors less accessible, have collected some of the leading facts; to whom I refer the reader.

[515] Lest I should seem to have spoken too peremptorily, I wish it to be understood that I pretend to hardly any direct acquaintance with these writers, and found my censure on the authority of others, chiefly indeed on the admissions of those who are too disposed to fall into a strain of panegyric. See Histoire Litteraire de la France, t. iv. p. 281 et alibi.

[516] John Scotus, who, it is almost needless to say, must not be confounded with the still more famous metaphysician Duns Scotus, lived under Charles the Bald, in the middle of the ninth century. It admits of no doubt that John Scotus was, in a literary and philosophical sense, the most remarkable man of the dark ages; no one else had his boldness, his subtlety in threading the labyrinths of metaphysical speculations which, in the west of Europe, had been utterly disregarded. But it is another question whether he can be reckoned an original writer; those who have attended most to his treatise De Divisione Naturae, the most abstruse of his works, consider it as the development of an oriental philosophy, acquired during his residence in Greece, and nearly coinciding with some of the later Platonism of the Alexandrian school, but with a more unequivocal tendency to pantheism. This manifests itself in some extracts which have latterly been made from the treatise De Divisione Naturae; but though Scotus had not the reputation of unblemished orthodoxy, the drift of his philosophy was not understood in that barbarous period. He might, indeed, have excited censure by his intrepid preference of reason to authority. "Authority," he says, "springs from reason, not reason from authority--true reason needs not be confirmed by any authority." La veritable importance historique, says Ampere, de Scot Erigene n'est donc pas dans ses opinions; celles-ci n'ont d'autre interet que leur date et le lieu ou elles apparaissent. Sans doute, il est piquant et bizarre de voir ces opinions orientales et alexandrines surgir au IXe siecle, a Paris, a la cour de Charles le Chauve; mais ce qui n'est pas seulement piquant et bizarre, ce qui interesse le developpement de l'esprit humain, c'est que la question ait ete posee, des lors, si nettement entre l'autorite et la raison, et si energiquement resolue en faveur de la seconde. En un mot, par ses idees, Scot Erigene est encore un philosophe de l'antiquite Grecque; et par l'independance hautement accusee de son point de vue philosophique, il est deja un devancier de la philosophie moderne. Hist. Litt. iii. 146.

Silvester II. died in 1003. Whether he first brought the Arabic numeration into Europe, as has been commonly said, seems uncertain; it was at least not much practised for some centuries after his death.

[517] Charlemagne had a library at Aix-la-Chapelle, which he directed to be sold at his death for the benefit of the poor. His son Louis is said to have collected some books. But this rather confirms, on the whole, my supposition that, in some periods, no royal or private libraries existed, since there were not always princes or nobles with the spirit of Charlemagne, or even Louis the Debonair.

"We possess a catalogue," says M. Ampere (quoting d'Achery's Spicilegium, ii. 310), "of the library in the abbey of St. Riquier, written in 831; it consists of 256 volumes, some containing several works. Christian writers are in great majority; but we find also the Eclogues of Virgil, the Rhetoric of Cicero, the History of Homer, that is, the works ascribed to Dictys and Dares." Ampere, iii. 236. Can anything be lower than this, if nothing is omitted more valuable than what is mentioned? The Rhetoric of Cicero was probably the spurious books Ad Herennium. But other libraries must have been somewhat better furnished than this; else the Latin authors would have been still less known in the ninth century than they actually were.

In the gradual progress of learning, a very small number of princes thought it honourable to collect books. Perhaps no earlier instance can be mentioned than that of a most respectable man, William III., duke of Guienne, in the first part of the eleventh century. Fuit dux iste, says a contemporary writer, a pueritia doctus literis, et satis notitiam Scripturarum habuit; librorum copiam in palatio suo servavit; et si forte a frequentia causarum et tumultu vacaret, lectioni per seipsum operam dabat longioribus noctibus elucubrans in libris, donec somno vinceretur. Rec. des Hist. x. 155.

[518] Robertson, Introduction to Hist. Charles V. note 13; Schmidt, Hist. des Allemands, t. ii. p. 380; Hist. Litteraire de la France, t. vi.

[519] Duelling, in the modern sense of the word, exclusive of casual frays and single combat during war, was unknown before the sixteenth century. But we find one anecdote which seems to illustrate its derivation from the judicial combat. The dukes of Lancaster and Brunswick, having some differences, agreed to decide them by duel before John king of France. The lists were prepared with the solemnity of a real trial by battle; but the king interfered to prevent the engagement. Villaret, t. ix. p. 71. The barbarous practice of wearing swords as a part of domestic dress, which tended very much to the frequency of duelling, was not introduced till the latter part of the 15th century. I can only find one print in Montfaucon's Monuments of the French monarchy where a sword is worn without armour before the reign of Charles VIII.: though a few, as early as the reign of Charles VI., have short daggers in their girdles. The exception is a figure of Charles VII. t. iii. pl. 47.

[520] Baluzii Capitularia, p. 444. It was prohibited by Louis the Debonair; a man, as I have noticed in another place, not inferior, as a legislator, to his father. Ibid. p. 668. "The spirit of party," says a late writer, "has often accused the church of having devised these barbarous methods of discovering truth--the duel and the ordeal; nothing can be more unjust. Neither one nor the other is derived from Christianity; they existed long before in the Germanic usages." Ampere, Hist. Litt. de la France, iii. 180. Any one must have been very ignorant who attributed the invention of ordeals to the church. But during the dark ages they were always sanctioned. Agobard, from whom M. Ampere gives a quotation, in the reign of Louis the Debonair wrote strongly against them; but this was the remonstrance of a superior man in an age that was ill-inclined to hear him.

[521] Ordeals were not actually abolished in France, notwithstanding the law of Louis above-mentioned, so late as the eleventh century (Bouquet, t. xi. p. 430), nor in England till the reign of Henry III. Some of the stories we read, wherein accused persons have passed triumphantly through these severe proofs, are perplexing enough: and perhaps it is safer, as well as easier, to deny than to explain them. For example, a writer in the Archaeologia (vol. xv. p. 172) has shown that Emma, queen of Edward the Confessor, did not perform her trial by stepping between, as Blackstone imagines, but upon nine red-hot ploughshares. But he seems not aware that the whole story is unsupported by any contemporary or even respectable testimony. A similar anecdote is related of Cunegunda, wife of the emperor Henry II., which probably gave rise to that of Emma. There are, however, medicaments, as is well known, that protect the skin to a certain degree against the effect of fire. This phenomenon would pass for miraculous, and form the basis of those exaggerated stories in monkish books.

[522] The most singular effect of this crusading spirit was witnessed in 1211, when a multitude, amounting, as some say, to 90,000, chiefly composed of children, and commanded by a child, set out for the purpose of recovering the Holy Land. They came for the most part from Germany, and reached Genoa without harm. But, finding there an obstacle which their imperfect knowledge of geography had not anticipated, they soon dispersed in various directions. Thirty thousand arrived at Marseilles, where part were murdered, part probably starved, and the rest sold to the Saracens. Annali di Muratori, A.D. 1211; Velly, Hist. de France, t. iv. p. 206.

[523] Velly, t. iii. p. 295; Du Cange, v. Capuciati.

[524] Velly, Hist. de France, t. v. p. 7; Du Cange, v. Pastorelli.

[525] Velly, Hist. de France, t. viii. p. 99. The continuator of Nangis says, sicut fumus subito evanuit tota illa commotio. Spicilegium, t. iii. p. 77.

[526] Velly, t. v. p. 279; Du Cange, v. Verberatio.

[527] Something of a similar kind is mentioned by G. Villani, under the year 1310. 1. viii. c. 122.

[528] Annal. Mediolan. in Murat. Script. Rer. Ital. t. xvi. p. 832; G. Stella. Ann. Genuens. t. xvii. p. 1072; Chron. Foroliviense, t. xix. p. 874; Ann. Bonincontri, t. xxi. p. 79.

[529] Dissert. 75. Sudden transitions from profligate to austere manners were so common among individuals, that we cannot be surprised at their sometimes becoming in a manner national. Azarius, a chronicler of Milan, after describing the almost incredible dissoluteness of Pavia, gives an account of an instantaneous reformation wrought by the preaching of a certain friar. This was about 1350. Script. Rer. Ital. t. xvi. p. 375.

[530] Villaret, t. xii. p. 327.

[531] Rot. Parl. v. iii. p. 428.

[532] This is confessed by the authors of Histoire Litteraire de la France, t. ii. p. 4, and indeed by many catholic writers. I need not quote Mosheim, who more than confirms every word of my text.

[533] Middleton's Letter from Rome. If some of our eloquent countryman's positions should be disputed, there are still abundant catholic testimonies that imaginary saints have been canonized.

[534] Le Grand d'Aussy has given us, in the fifth volume of his Fabliaux, several of the religious tales by which the monks endeavoured to withdraw the people from romances of chivalry. The following specimens will abundantly confirm my assertions, which may perhaps appear harsh and extravagant to the reader.

There was a man whose occupation was highway robbery; but whenever he set out on any such expedition, he was careful to address a prayer to the Virgin. Taken at last, he was sentenced to be hanged. While the cord was round his neck he made his usual prayer, nor was it ineffectual. The Virgin supported his feet "with her white hands," and thus kept him alive two days, to the no small surprise of the executioner, who attempted to complete his work with strokes of a sword. But the same invisible hand turned aside the weapon, and the executioner was compelled to release his victim, acknowledging the miracle. The thief retired into a monastery, which is always the termination of these deliverances.

At the monastery of St. Peter, near Cologne, lived a monk perfectly dissolute and irreligious, but very devout towards the Apostle. Unluckily he died suddenly without confession. The fiends came as usual to seize his soul. St. Peter, vexed at losing so faithful a votary, besought God to admit the monk into Paradise. His prayer was refused; and though the whole body of saints, apostles, angels, and martyrs joined at his request to make interest, it was of no avail. In this extremity he had recourse to the Mother of God. "Fair lady," he said, "my monk is lost if you do not interfere for him; but what is impossible for us will be but sport to you, if you please to assist us. Your Son, if you but speak a word, must yield, since it is in your power to command him." The Queen Mother assented, and, followed by all the virgins, moved towards her Son. He who had himself given the precept, Honour thy father and thy mother, no sooner saw his own parent approach than he rose to receive her; and taking her by the hand inquired her wishes. The rest may be easily conjectured. Compare the gross stupidity, or rather the atrocious impiety of this tale, with the pure theism of the Arabian Nights, and judge whether the Deity was better worshipped at Cologne or at Bagdad.

It is unnecessary to multiply instances of this kind. In one tale the Virgin takes the shape of a nun, who had eloped from the convent, and performs her duties ten years, till, tired of a libertine life, she returns unsuspected. This was in consideration of her having never omitted to say an Ave as she passed the Virgin's image. In another, a gentleman, in love with a handsome widow, consents, at the instigation of a sorcerer, to renounce God and the saints, but cannot be persuaded to give up the Virgin, well knowing that if he kept her his friend he should obtain pardon through her means. Accordingly she inspired his mistress with so much passion that he married her within a few days.

These tales, it may be said, were the production of ignorant men, and circulated among the populace. Certainly they would have excited contempt and indignation in the more enlightened clergy. But I am concerned with the general character of religious notions among the people: and for this it is better to take such popular compositions, adapted to what the laity already believed, than the writings of comparatively learned and reflecting men. However, stories of the same cast are frequent in the monkish historians. Matthew Paris, one of the most respectable of that class, and no friend to the covetousness or relaxed lives of the priesthood, tells us of a knight who was on the point of being damned for frequenting tournaments, but saved by a donation he had formerly made to the Virgin. p. 290.

[535] This hesitation about so important a question is what I would by no means repeat. Beyond every doubt, the evils of superstition in the middle ages, though separately considered very serious, are not to be weighed against the benefits of the religion with which they were so mingled. The fashion of the eighteenth century, among protestants especially, was to exaggerate the crimes and follies of mediaeval ages--perhaps I have fallen into it a little too much; in the present we seem more in danger of extenuating them. We still want an inflexible impartiality in all that borders on ecclesiastical history, which, I believe, has never been displayed on an extensive scale. A more captivating book can hardly be named than the Mores Catholici of Mr. Digby; and it contains certainly a great deal of truth; but the general effect is that of a mirage, which confuses and deludes the sight. If those "ages of faith" were as noble, as pure, as full of human kindness, as he has delineated them, we have had a bad exchange in the centuries since the Reformation. And those who gaze at Mr. Digby's enchantments will do well to consider how they can better escape this consequence than he has done. Dr. Maitland's Letters on the Dark Ages, and a great deal more that comes from the pseudo-Anglican or Anglo-catholic press, converge to the same end; a strong sympathy with the mediaeval church, a great indulgence to its errors, and indeed a reluctance to admit them, with a corresponding estrangement from all that has passed in the last three centuries. [1848.]

[536] I am inclined to acquiesce in this general opinion; yet an account of expenses at Bolton Abbey, about the reign of Edward II., published in Whitaker's History of Craven, p. 51, makes a very scanty show of almsgiving in this opulent monastery. Much, however, was no doubt given in victuals. But it is a strange error to conceive that English monasteries before the dissolution fed the indigent part of the nation, and gave that general relief which the poor-laws are intended to afford.

Piers Plowman is indeed a satirist; but he plainly charges the monks with want of charity.

Little had lordes to do to give landes from their heires To religious that have no ruthe though it raine on their aultres; In many places there the parsons be themself at ease, Of the poor they have no pitie and that is their poor charitie.

[537] Schmidt, Hist. des Allemands, t. i. p. 374.

[538] See Fosbrooke's British Monachism (vol. i. p. 127, and vol. ii. p. 8) for a farrago of evidence against the monks. Clemangis, a French theologian of considerable eminence at the beginning of the fifteenth century, speaks of nunneries in the following terms:--Quid aliud sunt hoc tempore puellarum monasteria, nisi quaedam non dico Dei sanctuaria, sed Veneris execranda prostibula, sed lascivorum et impudicorum juvenum ad libidines explendas receptacula? ut idem sit hodie puellam velare, quod et publice ad scortandum exponere. William Prynne, from whose records (vol. ii. p. 229) I have taken this passage, quotes it on occasion of a charter of king John, banishing thirty nuns of Ambresbury into different convents, propter vitae suae turpitudinem.

[539] Mosheim, cent. vii. c. 3. Robertson has quoted this passage, to whom perhaps I am immediately indebted for it. Hist. Charles V., vol. i. note 11.

I leave this passage as it stood in former editions. But it is due to justice that this extract from Eligius should never be quoted in future, as the translator of Mosheim has induced Robertson and many others, as well as myself, to do. Dr. Lingard has pointed out that it is a very imperfect representation of what Eligius has written; for though he has dwelled on these devotional practices as parts of the definition of a good Christian, he certainly adds a great deal more to which no one could object. Yet no one is, in fact, to blame for this misrepresentation, which, being contained in popular books, has gone forth so widely. Mosheim, as will appear on referring to him, did not quote the passage as containing a complete definition of the Christian character. His translator, Maclaine, mistook this, and wrote, in consequence, the severe note which Robertson has copied. I have seen the whole passage in d'Achery's Spicilegium (vol. v. p. 213, 4to. edit.), and can testify that Dr. Lingard is perfectly correct. Upon the whole, this is a striking proof how dangerous it is to take any authorities at second-hand.--Note to Fourth Edition. Much clamour has been made about the mistake of Maclaine, which was innocent and not unnatural. It has been commented upon, particularly by Dr. Arnold, as a proof of the risk we run of misrepresenting authors by quoting them at second-hand. And this is perfectly true, and ought to be constantly remembered. But, so long as we acknowledge the immediate source of our quotation, no censure is due, since in works of considerable extent this use of secondary authorities is absolutely indispensable, not to mention the frequent difficulty of procuring access to original authors [1848.]

[540] Mr. Turner has collected many curious facts relative to the condition of the Jews, especially in England. Hist. of England, vol. ii. p. 95. Others may be found dispersed in Velly's History of France; and many in the Spanish writers, Mariana and Zurita. The following are from Vaissette's History of Languedoc. It was the custom at Toulouse to give a blow on the face to a Jew every Easter; this was commuted in the twelfth century for a tribute. t. ii. p. 151. At Beziers another usage prevailed, that of attacking the Jews' houses with stones from Palm Sunday to Easter. No other weapon was to be used; but it generally produced bloodshed. The populace were regularly instigated to the assault by a sermon from the bishop. At length a prelate wiser than the rest abolished this ancient practice, but not without receiving a good sum from the Jews. p. 485.

[541] Greg. Tur. 1. ii. c. 40. Of Theodebert, grandson of Clovis, the same historian says, Magnum se et in omni bonitate praecipuum reddidit. In the next paragraph we find a story of his having two wives, and looking so tenderly on the daughter of one of them, that her mother tossed her over a bridge into the river. 1. iii. c. 25. This indeed is a trifle to the passage in the text. There are continual proofs of immorality in the monkish historians. In the history of Ramsey Abbey, one of our best documents for Anglo-Saxon times, we have an anecdote of a bishop who made a Danish nobleman drunk, that he might cheat him of an estate, which is told with much approbation. Gale, Script. Anglic. t. i. p. 441. Walter de Hemingford recounts with excessive delight the well-known story of the Jews who were persuaded by the captain of their vessel to walk on the sands at low water, till the rising tide drowned them; and adds that the captain was both pardoned and rewarded for it by the king, gratiam promeruit et praemium. This is a mistake, inasmuch as he was hanged; but it exhibits the character of the historian, Hemingford, p. 21.

[542] Fleury, Troisieme Discours sur l'Histoire Ecclesiastique.

[543] Henry, Hist. of England, vol. ii. c. 7.

[544] Du Cange, v. Peregrinatio. Non sinantur vagari isti nudi cum ferro, qui dicunt se data poenitentia ire vagantes. Melius videtur, ut si aliquod inconsuetum et capitale crimen commiserint, in uno loco permaneant laborantes et servientes et poenitentiam agentes, secundum quod canonice iis impositum sit.

[545] I. de Vitriaco, in Gesta Dei per Francos, t. i.; Villani, 1. vii. c. 144.

[546] Henry has taken pains in drawing a picture, not very favourable, of Anglo-Saxon manners. Book II. chap. 7. This perhaps is the best chapter, as the volume is the best volume, of his unequal work. His account of the Anglo-Saxons is derived in a great degree from William of Malmsbury, who does not spare them. Their civil history, indeed, and their laws, speak sufficiently against the character of that people. But the Normans had little more to boast of in respect of moral correctness. Their luxurious and dissolute habits are as much noticed as their insolence. Vid. Ordericus Vitalis, p. 602; Johann. Sarisburiensis Policraticus, p. 194; Velly, Hist. de France, t. iii. p. 59. The state of manners in France under the first two races of kings, and in Italy both under the Lombards and the subsequent dynasties, may be collected from their histories, their laws, and those miscellaneous facts which books of every description contain. Neither Velly, nor Muratori, Dissert. 23, are so satisfactory as we might desire.

[547] Velly, Hist. de France, t. ii. p. 335. It has been observed, that Quid mores sine legibus? is as just a question as that of Horace; and that bad laws must produce bad morals. The strange practice of requiring numerous compurgators to prove the innocence of an accused person had a most obvious tendency to increase perjury.

[548] Muratori, Dissert. 23, t. i. p. 306 (Italian); Beckman's Hist. of Inventions, vol. i. p. 319; Vie privee des Francais, t. ii. p. 1.

[549] Vie privee des Francais, t. i. p. 320; t. ii. p. 11.

[550] Ibid. t. i. p. 324.

[551] Rymer, t. i. p. 61.

[552] Whitaker's Hist. of Craven, p. 340, and of Whalley, p. 171.

[553] Velly, Hist. de France, t. iii. p. 236.

[554] John of Salisbury inveighs against the game-laws of his age, with an odd transition from the Gospel to the Pandects. Nec veriti sunt hominem pro una bestiola perdere, quem unigentius Dei Filius sanguine redemit suo. Quae ferae naturae sunt, et de jure occupantium fiunt, sibi audet humana temeritas vindicare, &c. Polycraticon, p. 18.

[555] Le Grand, Vie privee des Francais, t. i. p. 325.

[556] For the injuries which this people sustained from the seigniorial rights of the chace, in the eleventh century, see the Recueil des Historiens, in the valuable preface to the eleventh volume, p. 181. This continued to be felt in France down to the revolution, to which it did not perhaps a little contribute. (See Young's Travels in France.) The monstrous privilege of free-warren (monstrous, I mean, when not originally founded upon the property of the soil) is recognised by our own laws; though, in this age, it is not often that a court and jury will sustain its exercise. Sir Walter Scott's ballad of the Wild Huntsman, from a German original, is well known; and, I believe, there are several others in that country not dissimilar in subject.

[557] Muratori, Dissert. 21. This dissertation contains ample evidence of the wretched state of culture in Italy, at least in the northern parts, both before the irruption of the barbarians, and, in a much greater degree, under the Lombard kings.

[558] Schmidt, Hist. des Allem. t. i. p. 408. The following passage seems to illustrate Schmidt's account of German villages in the ninth century, though relating to a different age and country. "A toft," says Dr. Whitaker, "is a homestead in a village, so called from the small tufts of maple, elm, ash, and other wood, with which dwelling-houses were anciently overhung. Even now it is impossible to enter Craven without being struck with the insulated homesteads, surrounded by their little garths, and overhung with tufts of trees. These are the genuine tofts and crofts of our ancestors, with the substitution only of stone for the wooden crocks and thatched roofs of antiquity." Hist. of Craven, p. 380.

[559] It is laid down in the Speculum Saxonicum, a collection of feudal customs which prevailed over most of Germany, that no one might have a separate pasture for his cattle unless he possessed three mansi. Du Cange, v. Mansus. There seems to have been a price paid, I suppose to the lord, for agistment in the common pasture.

[560] The only mention of a manufacture, as early as the ninth or tenth centuries, that I remember to have met with, is in Schmidt, t. ii. p. 146, who says that cloths were exported from Friesland to England and other parts. He quotes no authority, but I am satisfied that he has not advanced the fact gratuitously.

[561] Schmidt, t. i. p. 411; t. ii. p. 146.

[562] Du Cange, Pedagium, Pontaticum, Teloneum, Mercatum, Stallagium, Lastagium, &c.

[563] Baluz. Capit. p. 621 et alibi.

[564] Ut nullus cogatur ad pontem ire ad fluvium transeundum propter telonei causas quando ille in alio loco compendiosius illud flumen transire potest. p. 764 et alibi.

[565] Eadmer apud Recueil des Historiens des Gaules, t. xi. preface, p. 192. Pro ritu illius loci, a domino terrae captivitati addicitur.

[566] Heeren has frequently referred to a work published in 1789, by Marini, intitled, Storia civile e politica del Commerzio de' Veneziani, which casts a new light upon the early relations of Venice with the East. Of this book I know nothing; but a memoir by de Guignes, in the thirty-seventh volume of the Academy of Inscriptions, on the commerce of France with the East before the crusades, is singularly unproductive; the fault of the subject, not of the author.

[567] There is an odd passage in Luitprand's relation of his embassy from the Emperor Otho to Nicephorus Phocas. The Greeks making a display of their dress, he told them that in Lombardy the common people wore as good clothes as they. How, they said, can you procure them? Through the Venetian and Amalfitan dealers, he replied, who gain their subsistence by selling them to us. The foolish Greeks were very angry, and declared that any dealer presuming to export their fine clothes should be flogged, Luitprandi Opera, p. 155, edit. Antwerp. 1640.

[568] Baluz. Capitul. p. 775. One of the main advantages which the Christian nations possessed over the Saracens was the coat of mail, and other defensive armour; so that this prohibition was founded upon very good political reasons.

[569] Schmidt, Hist. des Allem, t. ii. p. 146; Heeren, sur l'Influence des Croisades, p. 316. In Baluze we find a law of Carloman, brother to Charlemagne: Ut mancipia Christiana paganis non vendantur. Capitularia, t. i. p. 150, vide quoque, p. 361.

[570] William of Malmsbury accuses the Anglo-Saxon nobility of selling their female servants, even when pregnant by them, as slaves to foreigners, p. 102. I hope there were not many of these Yaricoes; and should not perhaps have given credit to an historian rather prejudiced against the English, if I had not found too much authority for the general practice. In the canons of a council at London in 1102 we read, Let no one from henceforth presume to carry on that wicked traffic by which men of England have hitherto been sold like brute animals. Wilkins's Concilia, t. i. p. 383. And Giraldus Cambrensis says that the English before the Conquest were generally in the habit of selling their children and other relations to be slaves in Ireland, without having even the pretext of distress or famine, till the Irish, in a national synod, agreed to emancipate all the English slaves in the kingdom. Id. p. 471. This seems to have been designed to take away all pretext for the threatened invasion of Henry II. Lyttelton, vol. iii. p. 70.

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