The history of the reign of Charles the Fifth, Emperor of Germany; and of all the kingdoms and states in Europe, during his age. : To which is prefixed, a view of the progress of society in Europe, from the subversion of the Roman Empire, to the beginning of the sixteenth century. : Confirmed by historical proofs and illustrations. : In three volumes. / By William Robertson, D.D. Principal of the University of Edinburgh, and historiographer to His Majesty for Scotland. Author of the late elegant History of Scotland. ; Volume the first[-third].

HISTORICAL PROOFS AND ILLUSTRATIONS, CONCERNING The Progress of Society in Europe.

NOTE I. [A]. SECT. I.

THE consternation of the Britons, when in∣vaded by the Picts and Caledonians after the Roman legions were called out of the island, may give some idea of the degree of debasement to which the human mind was reduced by long servitude under the Romans. In their supplicatory letter to Aetius, which they call the groans of Britain, "We know not (say they) which way to turn us. The bar∣barians drive us to the sea; and the sea forces us back on the barbarians; between which we have only the choice of two deaths, either to be swallowed up by the waves, or to be butchered by the sword." Histor. Gildae, ap. Gale. Hist. Britan. Script. p. 6.—One can scarce believe this dastardly race, to be the descendants of that gallant people, who repulsed Caesar, and de∣fended their liberty so long against the Roman arms.

NOTE II. [B]. SECT. I.

THE barbarous nations were not only illiterate, but regarded literature with contempt. They found the inhabitants of all the provinces of the Empire sunk in effeminacy, and averse to war. Such a character was the object of scorn to an high-spirited and gallant race of men. "When we would brand an enemy," says Liutprandus, "with disgraceful and contumelious ap∣pellations, we call him a Roman; hoc solo, id est Ro∣mani nomine, quicquid ignobilitatis, quicquid timi∣ditatis, quicquid avaritiae, quicquid luxuriae, quic∣quid

mendacii, immo quicquid vitiorum est compre∣hendentes." Liutprandi Legatio apud Murat. Scrip∣tor. Italic. vol. ii. pars. 1. p. 481. This degeneracy of manners, illiterate barbarians imputed to their love of learning. Even after they settled in the countries which they had conquered, they would not permit their children to be instructed in any science; "for, (said they,) instruction in the sciences tends to corrupt, enervate, and depress the mind; and he who has been accustomed to tremble under the rod of a pedagogue, will never look on a sword or spear with an undaunt∣ed eye." Procop. de bello Gothor. lib. i. p. 4. ap Script. Byz. vol. i. A considerable number of years elapsed, before nations so rude, and so unwilling to learn, could produce historians capable of recording their transactions, or of describing their manners and institutions. By that time, all memory of their anci∣ent condition was lost, and no monument remained to guide their first writers to any certain knowledge of it. If one expects to receive any satisfactory account of the manners and laws of the Goths, Lombards, or Franks, during their residence in those countries where they were originally seated, from Jornandes, Paulus Warnefridus, or Gregory of Tours the earliest and most authentick historians of these people, he will be miserably disappointed. Whatever imperfect view has been conveyed to us of their ancient state, we owe not to their own writers, but to the Greek and Ro∣man historians.

NOTE III. [C]. SECT. I.

A CIRCUMSTANCE related by Priscus in his history of the embassy to Attila, King of the Huns, gives a striking view of the enthusiastick passion for war, which prevailed among the barbarous nations. When the entertainment to which that fierce conqueror ad∣mitted the Roman ambassadors was ended, two Scy∣thians advanced towards Attila, and recited a poem in which they celebrated his victories, and military vir∣tues. All the Huns fixed their eyes with attention on the bards, some seemed to be delighted with the ver∣ses;

others, remembering their own battles and ex∣ploits, exulted with joy; while those who were be∣come feeble through age, burst out into tears, bewail∣ing the decay of their vigour, and the state of inacti∣vity in which they were now obliged to remain. Ex∣cerpta ex historia Prisci Rhetoris ap. Byzant. Histor. Script. edit. Venet. v. i. p. 45.

NOTE IV. [D]. SECT. I.

A REMARKABLE confirmation of both parts of this reasoning occurs in the history of England. The Sax∣ons carried on the conquest of that country with the same destructive spirit, which distinguished the other barbarous nations. The ancient inhabitants of Bri∣tain were either exterminated; or forced to take shel∣ter among the mountains of Wales; or reduced into servitude. The Saxon government, laws, manners and language were of consequence introduced into Britain? and were so perfectly established, that all memory of the institutions previous to their conquest was abolished. The very reverse of this happened in a subsequent revolution. A single victory placed Wil∣liam the Norman on the throne of England. The Sax∣on inhabitants though oppressed, were not exterminat∣ed. William employed the utmost efforts of his pow∣er and policy to make his new subjects conform in every thing to the Norman standard; but without suc∣cess. The Saxons, though vanquished, were far more numerous than their conquerors; when they began to incorporate, their laws and manners gradually gained ground. The Norman institutions were unpopular and odious; many of them fell into disuse; and in the English constitution and language, at this day, many essential parts are manifestly of Saxon, not of Norman extract.

NOTE V. [E]. SECT. I.

PROCOPIUS, the historian, declines, from a princi∣ple of benevolence, to give any particular detail of the cruelties of the Goths; "Lest, says he, I should

transmit a monument and example of inhumanity to succeeding ages." Proc. de bello Goth. lib. iii. cap. 10. ap. Byz. Script. vol. i. 126. But as the change, which I have pointed out as a consequence of the set∣tlement of the barbarous nations in the countries for∣merly subject to the Roman Empire, could not have taken place, if the greater part of the ancient inhabi∣tants had not been extirpated, an event of such impor∣tance and influence merits a more particular illustrati∣on. This will justify me for exhibiting some part of that melancholy spectacle, over which humanity prompted Procopius to draw a veil. I shall not, how∣ever, disgust my readers by a long detail; but rest sa∣tisfied with collecting some instances of the devastati∣ons made by two of the many nations, which settled in the Empire. The Vandals were the first of the bar∣barians who invaded Spain. It was one of the richest and most populous of the Roman Provinces; the in∣habitants had been distinguished for courage, and had defended their liberty against the arms of Rome, with greater obstinacy, and during a longer course of years, than any nation in Europe. But so entirely were they enervated by their subjection to the Romans, that the Vandals who entered the kingdom A. D. 409. com∣pleated the conquest of it with such rapidity, that in the year 411, these barbarians divided it among them by casting lots. The desolation occasioned by their invasion is thus described by Idatius an eye witness. "The barbarians wasted every thing with hostile cru∣elty. The pestilence was no less destructive. A dread∣ful famine raged, to such a degree, that the living were constrained to feed on the dead bodies of their fellow citizens; and all these terrible plagues desolated at once the unhappy kingdoms." Idatii Chron. ap. Biblioth. Patrum. vol. vii. p. 1233. edit. Lugd. 1677 The Goths having attacked the Vandals in their new settlements, a fierce war ensued; the country was plundered by both parties; the cities which at first e∣scaped were laid in ashes, and the inhabitants exposed to suffer every thing that the wanton cruelty of barba∣rians could inflict. Idatius describes these, ibid. p. 1235. b. 1236. c. f. A similar account of their devas∣tations

is given by Isidorus Hispalensis, and the con∣temporary writers. Isid. Chron. ap. Grot. hist. Goth. 732. From Spain the Vandals passed over to Africa, A. D, 428. Africa was, next to Egypt, the most fer∣tile of the Roman provinces. It was one of the grana∣ries of the Empire, and is called by an ancient writer, the soul of the commonwealth. Though the army with which they invaded it, did not exceed 30,000 fight∣ing men they became absolute masters of the province in less than two years. A contemporary author gives a dreadful account of the havock which they made: "They found a province well cultivated, and enjoying plenty, the beauty of the whole earth. They carried their destructive arms into every corner of it; they dispeopled it by their devastations; exterminating e∣very thing with fire and sword. They did not even spare the vines, and fruit trees, that those to whom caves and inaccessible mountains had afforded a retreat, might find no nourishment of any kind. Their hostile rage could not be satiated, and there was no place ex∣empted from the effects of it. They tortured their prisoners with the most exquisite cruelty, that they might force from them a discovery of their hidden treasures. The more they discovered, the more they expected, and the more implacable they became. Nei∣ther the infirmities of age nor of sex; neither the dignity of nobility, nor the sanctity of the sacerdotal office, could mitigate their fury; but the more illustri∣ous their prisoners were, the more barbarously they insulted them. The publick buildings which resisted the violence of the flames, they levelled with the ground. They left many cities without an inhabitant. When they approached any fortified place, which their undisciplined army could not reduce, they gathered together a multitude of prisoners, and putting them to the sword, left their bodies unburied, that the stench of the carcasses might oblige the garrison to a∣bandon it." Victor Vitensis de persecutione Africana. ap. Bibl. Patrum. vol. viii. p. 666. St. Augustin an African, and a contemporary author gives a similar de∣scription of their cruelties, opera v. x. p. 372. edit. 1616.—About an hundred years after the settlement

of the Vandals in Africa, Belisarius attacked and dis∣possessed them. Procopius, a contemporary historian, describes the devastation which that war occasioned. "Africa, says he, was so entirely dispeopled, that one might travel several days in it without meeting one man; and it is no exaggeration to say, that in the course of the war five millions of persons perished." Proc. hist. Arcana cap. 18. ap. Byz. Script. vol. i. 315. I have dwelt longer upon the calamities of this pro∣vince, because they are described not only by contem∣porary authors, but by eye-witnesses. The present state of Africa confirms their testimony. Many of the most flourishing and populous cities with which it was filled, were so entirely ruined, that no vestiges remain to point out where they were situated. That fertile territory which sustained the Roman Empire lies in a great measure uncultivated; and that province, which Victor in his barbarous Latin called Speciositas totius ter∣rae florentis, is now the retreat of pirates and banditti.

WHILE the Vandals laid waste one part of the Em∣pire, the Huns desolated the rest of it. Of all the bar∣barous tribes they were the fiercest and most formida∣ble. Ammianus Marcellinus a contemporary author, and one of the best of the later historians, gives an account of their policy and manners. They nearly resemble those of the Scythians described by the anci∣ents, and of the Tartars known to the moderns. In some parts of their character, and in several of their customs, they resemble the savages in North America. Their passion for war and action was extreme. "As in polished societies (says Ammianus) ease and tranquil∣lity are courted, they delight in war and dangers. He who falls in battle is reckoned happy. They who die of old age or of disease are deemed infamous. They boast, with the utmost exultation, of the number of enemies whom they have slain, and as the most glori∣ous of all ornaments, they fasten the scalps of those who have fallen by their hand to the trappings of their horses." Ammian. Marc. lib. xxxi. p. 477. edit. Gro∣nov. Lugd. 1693.—Their incursions into the Em∣pire began in the fourth century; and the Romans, though no strangers, by that time, to the effects of

barbarous rage, were astonished at the cruelty of their devastations. Thrace, Pannonia, and Illyricum were the countries which they first laid desolate. As they had no thoughts of settling in Europe, their inroads were frequent, and Procopius computes that in each of these, at a medium, two hundred thousand persons perished or were carried off as slaves. Procop. hist. Arcan. ap. Byz. script. vol. i. 316. Thrace the best cultivated province in that quarter of the Empire, was converted into a desart, and when Priscus accompa∣nied the ambassadors sent to Attila, there were no in∣habitants in some of the cities, but a few miserable people who had taken shelter among the ruins of the churches; and the fields were covered with the bones of those who had fallen by the sword. Priscus ap. Byz. Script. vol. i. 34. Attila became King of the Huns, A. D. 434. He is one of the greatest and most enterpriz∣ing conquerors mentioned in history. He extended his Empire over all the vast countries, comprehended un∣der the general names of Scythia and Germany in the ancient division of the world. While he was carrying on his wars against the barbarous nations, he kept the Roman Empire under perpetual apprehensions, and extorted vast subsidies from the timid and effeminate monarchs who governed it. In the year 451, he en∣tered Gaul, at the head of an army composed of all the various nations which he had subdued. It was more numerous than any with which the barbarians had hitherto invaded the Empire. The devastations which he commited were horrible; not only the open country, but the most flourishing cities were de∣solated. The extent and cruelty of his devastations are described by Salvianus de Gubernat. Dei. edit. Baluz. Par. 1669. p. 139, &c. and by Idatius ubi su∣pra p. 1235. Aetius put a stop to his progress in that country by the famous battle of Chalons, in which (if we may believe the historians of that age) three hun∣dred thousand persons perished. Idat. ibid. Jornandes de rebus Geticis ap. Grot. hist. Gotnor. p. 671. Amst. 1665. But next year he resolved to attack the centre of the Empire, and marching into Italy, wasted it with rage, inflamed by the sense of his late disgrace. What

Italy suffered by the Huns exceeded all the calamities which the preceding incursions of the barbarians had brought upon it. Conringius has collected several passag∣es from the ancient historians, which prove that the devastations committed by the Vandals and Huns in the countries situated on the banks of the Rhine, were no less cruel and fatal to the human race. Exercitatio de urbibus Germaniae. Opera, vol. i. 489. But it is endless, it is shocking to follow these destroyers of mankind through so many scenes of horror, and to contemplate the havock which they made of the hu∣man species.

BUT the state in which Italy appears to have been, during several ages, after the barbarous nations settled in it, is the most decisive proof of the cruelty as well as extent of their devastations. Whenever any coun∣try is thinly inhabited, trees and shrubs spring up in the uncultivated fields, and spreading by degrees form large forests; by the overflowing of rivers, and the stagnating of waters, other parts of it are converted into lakes and marshes. Ancient Italy, the seat of the Roman elegance and luxury, was cultivated to the highest pitch. But so effectually did the devastations of the barbarians destroy all the effects of their industry and cultivation, that in the eight century Italy appears to have been covered with forests and marshes of vast extent. Muratori enters into a long detail concerning the situation and limits of these; and proves by the most authentick evidence, that great tracts of territo∣ry, in all the different provinces of Italy, were either overrun with, wood, or laid under water. Nor did these occupy parts of the country naturally barren or of little value, but were spread over districts, which ancient writers represent as extremely fertile, and which at present are highly cultivated. Muratori an∣tiquitates Italicae medii aevi dissert. xxi. v. ii. p. 149, 153, &c. A strong proof of this occurs in a descripti∣on of the city of Modena, by an author of the tenth century. Murat. script. Rerum Italic. vol. ii. pars. ii. p. 691. The state of desolation in other countries of Europe seems to have been the same. In many of the most early charters now extant, the lands granted to

monasteries or to private persons, are distinguished in∣to such as are cultivated or inhabited, and such as were eremi, desolate. In many instances, lands are granted to persons because they had taken them from the desert, ab eremo, and had cultivated and planted them with inhabitants. This appears from a charter of Charlemagne, published by Eckhart de rebus Fran∣ciae Orientalis. vol. ii. p. 864, and from many charters of his successors quoted by Du Cange voc, Eremus.

MURATORI adds, that during the eighth and ninth centuries, Italy was greatly infested by wolves and o∣ther wild beasts; another mark of its being destitute of inhabitants. Murat. Antiq. vol. ii. p. 163. Thus Italy, the pride of the ancient world for its fertility and cultivation, was reduced to the state of a country new∣ly peopled, and rendered habitable.

I AM sensible, not only that some of the descriptions of the devastations which I have quoted, may be ex∣aggerated, but that the barbarous tribes proceeded in different manners, in making their new settlements. Some of them seemed to be bent on exterminating the ancient inhabitants; others were more disposed to in∣corporate with them. It is not my province either to enquire into the causes which occasioned this variety in the conduct of the conquerors, or to describe the state of those countries where the ancient inhabitants were treated most mildly. The facts which I have produc∣ed are sufficient to prove that the destruction of the human species, occasioned by their hostile invasions of the nothern nations, and their subsequent settlements, was much greater than the generality of writers seem to imagine.

NOTE VI. [F]. SECT. 1.

I HAVE observed, Note II. that our only certain in∣formation concerning the ancient state of the barba∣rous nations must be derived from the Greek and Ro∣man writers. Happily an account of the institutions and customs of one people, to which those of all the rest seem to have been in a great measure similar has been transmitted to us by two authors, the most capa∣ble,

perhaps, that ever wrote, of observing them with profound discernment, and of describing them with propriety and force. The reader must perceive that I have Caesar and Tacitus in my eye. The former gives a short account of the ancient Germans in a few chap∣ters of the sixth book of his commentaries: The latter wrote a treatise expressly on that subject. These are the most precious and instructive monuments of anti∣quity to the present inhabitants of Europe. From them we learn,

1. THAT the state of Society among the ancient Ger∣mans, was of the rudest and most simple form. They subsisted entirely by hunting or by pasturage. Caes. lib. vi. c. 21. They neglected agriculture, and lived chiefly on milk, cheese, and flesh. Ibid. c. 22. Taci∣tus agrees with him in most of these points; de morib. Germ. c. 14, 15, 23. The Goths were equally negli∣gent of agriculture. Pris. Rhet. ap. Byz. Script. v. i. p. 31. B. Society was in the same state among the Huns, who disdained to cultivate the earth, or to touch a plough, Amm. Marcel. lib. xxxi. p. 475. The same manners took place among the Alans; ibid. p. 477. While society remains in this simple state, men by uni∣ting together scarce relinquish any portion of their na∣tural independance, Accordinly we are informed, 2. That the authority of civil goverment was extremely limited among the Germans. During times of peace they had no common or fixed magistrate, but the chief men of every district dispensed justice, and ac∣commodated differences. Caes. ibid. c. 23. Their kings had not absolute or unbounded power; their authori∣ty consisted rather in the privilege of advising, than in the power of commanding. Matters of small con∣sequence were determined by the chief men; affairs of importance by the whole community. Tacit. c. 7., 11. The Huns, in like manner, deliberated in common con∣cerning every business of moment to the society; and were not subject to the rigour of regal authority. Amm. Marcel. lib. xxxi. p. 474. 3. Every individual among the ancient Germans was left at liberty to chuse whe∣ther he would take part in any military enterprize which was proposed; there s••ems to have been no ob∣ligation

to engage in it imposed on him by publick au∣thority. "When any of the chief men proposes any expedition, such as approve of the cause and of the leader rise up, and declare their intention of following him; and those who do not fulfil this engagement, are considered as deserters and traitors, and are look∣ed upon as infamous." Caes. ibid. c. 23. Tacitus plainly points at the same custom, though in terms more ob∣scure. Tacit. c. 11. 4. As every individual was so independant, and master in so great a degree of his own actions, it became, of consequence, the great ob∣ject of every person among the Germans who aimed at being a leader, to gain adherents, and attach them to his person and interest. These adherents Caesar calls Ambacti and Clientes, i. e. retainers or clients; Tacitus, Comites, or companions. The chief distinction and power of the leaders, consisted in being attended by a numerous band of chosen youth. This was their pride as well as ornament during peace, and their defence in war. The favour of these retainers the leaders gain∣ed or preserved by presents of armour, and of horses; or by the profuse, though inelegant hospitality, with which they entertained them. Tacit. c. 14, 15. 5. An∣other consequence of the personal liberty and indepen∣dance which the Germans retained, even after they united in society, was their circumscribing the crimi∣nal jurisdiction of the magistrate within very narrow limits, and their not only claiming but exercising al∣most all the rights of private resentment and revenge. Their magistrates had not the power either of impri∣soning, or of inflicting any corporal punishment on a free man. Tacit. c. 7. Every person was obliged to avenge the wrongs which his parents or friends had sustained. Their enmities were hereditary, but not irreconcileable. Even murder was compensated by paying a certain number of cattle. Tac. c. 21. A part of the fine went to the King, or state, a part to the person who had been injured, or to his kindred. Ibid. c. 12.

THESE particulars concerning the institutions and manners of the Germans, though well known to every person conversant in ancient literature I have thought,

proper to arrange in this order, and to lay before such of my readers as may be less acquainted with these facts, both because they confirm the account which I have given of the state of the barbarous nations, and ••nd to illustrate all the observations that I shall have occasi∣on to make concerning the various changes in their government and customs. The laws and customs in∣troduced by the barbarous nations into their new set∣tlements, are the best commentary on the writings of Caesar and Tacitus; and their observations are the best key to a perfect knowledge of these laws and customs.

ONE circumstance with respect to the testimonies of Caesar and Tacitus concerning the Germans, merits at∣tention. Caesar wrote his brief account of their man∣ners more than an hundred years before Tacitus com∣posed his treatise de moribus Germanorum. An hun∣dred years make a considerable period in the progress of national manners, especially if, during that time, those people who are rude and unpolished have had much communication with more civilized states. This was the case with the Germans. Their intercourse with the Romans began when Caesar crossed the Rhine, and increased prodigiously during the interval between that event and the time when Tacitus flourished. Besides this, there was a considerable difference between the state of society among the different tribes of Germans. The Suiones were so much improved, that they began to be corrupted. Tac. cap. 44. The Fenni were so barbarous, that it is wonderful how they were able to subsist. Ibid. cap. 46. Whoever undertakes to describe the manners of the Germans, or to found any politi∣cal theory upon the state of society among them, ought carefully to attend to both these circumstances.

BEFORE I quit this subject, it may not be impro∣per to observe, that though successive alterations in their institutions, together with the gradual progress of refinement, have made an entire change in the manners of the various people, who conquered the Roman Empire, there is still one race of men nearly in the same political situation with that in which they were when they first settled in their new conquests: I mean the various tribes and nations of Savages in

North-America. It cannot then be considered either as a digression, or as an improper indulgence of curio∣sity to enquire, whether this similarity in their politi∣cal state has occasioned any resemblance between their character and manners. If the likeness turns out to be striking, it is a stronger proof, that a just account has been given of the ancient inhabitants of Europe, than the testimony even of Caesar or of Tacitus.

1. The Americans subsist chiefly by hunting and fishing. Some tribes neglect agriculture entirely. Among those who cultivate some small spot near their huts, that, together with all works of labour, is performed by the women. P. Charlevoix Journal Historique d'un Voyage de L'Amerique 49. Par. 1744. p. 334. In such a state of society, the common wants of men being few, and their mutual dependence upon each other small, their union is ex∣tremely imperfect and feeble, and they continue to enjoy their natural liberty almost unimpaired. It is the first idea of an American, that every man is born free and independent, and that no power on earth hath any right to diminish or circumscribe his natural liberty. There is scarce any appearance of subordina∣tion either in civil or domestic government. Every one does what he pleases. A father and mother with their children, live like persons whom chance has brought together, and whom no common bond unites, Their manner of educating their children is suitable to this principle. They never chastise or punish them, even during their infancy. As they advance in years, they allow them to be entirely masters of their own actions, and responsable to no body. Id. p. 272, 273—2. The power of their civil magistrates is extremely limited. Among most of their tribes, the Sachem or chief is elective. A council of old men is chosen to assist him, without whose advice he determines no af∣fair of importance. The Sachems neither possess nor claim any great degree of authority. They propose and intreat rather than command, The obedience of their people is altogether voluntary. Id. p. 266, 268—3. They engage in any military enterprizes, not from constraint, but choice. When war is resolved a chief

arises, and offers himself to be the leader. They who are willing (for they compel no person) stand up one after another, and sing their war song. But if after this, any of these should refuse to follow the leader, to whom they have engaged, his life would be in danger, and he would be considered as the most infamous of all men. Id. p. 217, 218.—4. Such as engage to follow any leader, expect to be treated by him with great attention and respect; and he is obliged to make them presents of considerable value. Id. p. 218.—5. Among the Americans, the magistrate has scarce any criminal jurisdiction. Id. p. 272. Upon receiving any injury, the person or family offended may inflict what punishment they please on the person who was the author of it. Id. p. 274. Their resentment and desire of vengeance are excessive and implacable. Time can neither extinguish or abate it. It is the chief in∣heritance parents leave to their children; it is trans∣mitted from generation to generation, until an occasi∣on be found of satisfying it. Id. p. 309. Sometimes, however, the offended party is appeased, A compen∣sation is paid for a murder that has been committed. The relations of the deceased receive it; and it consists most commonly of a captive taken in war, who being substituted in the place of the person who was murder∣ed, assumes his name and is adopted into his family. Id. p. 274. The resemblance holds in many other par∣ticulars. It is sufficient for my purpose to have point∣ed out the similarity of those great features which dis∣tinguish and characterize both people. Bochart, and other philologists of the last century, who, with more erudition than science, endeavoured to trace the mi∣grations of various nations, and who were apt, upon the slightest appearance of resemblance, to find an affinity between nations far removed from each other, and to conclude that they were descended from the same an∣cestors, would hardly have failed, on viewing such an amazing similarity, to pronounce with confidence "That the Germans and the Americans must be the, same people" But a philosoper will satisfy himself with observing, "That the characters of nations depends on the state of society in which they live, and on the

political institutions established among them; and that the human mind, whenever it is placed in the same situation, will, in ages the most distant, and in coun∣tries the most remote, assume the same form, and be distinguished by the same manners.

I HAVE pushed the comparison between the Ger∣mans and Americans no farther than was necessary for the i••••stration of my subject. I do not pretend that the state of society in the two countries was perfectly similar. Many of the German tribes were more civi∣lized than the Americans. Some of them were not unacquainted with agriculture; almost all of them had flocks of tame cattle, and depended for the chief part of their subsistance upon these. Most of the Ame∣rican tribes subsist by hunting, and are in a ruder and more simple state than the ancient Germans. The re∣semblance, however, between their condition is great∣er perhaps than any that we know between two races of men, and this has produced a surprizing similarity of manners.

NOTE VII. [G.] SECT. I.

THE booty gained by an army belonged to an army. The King himself had no part of it but what he acquir∣ed by lot. A remarkable instance of this occurs in the history of the Franks, the army of Clovis, the foun∣der of the French monarchy, having plundered a church, carried off, among other sacred utensils, a vase of extraordinary size and beauty. The bishop sent deputies to Clovis, beseeching him to restore the vase, that it might be again employed in the sacred services to which it had been consecrated. Clovis de∣sired the deputies to follow him to Soissons, as their booty was to be divided in that place, and promised that if the lot should give him the disposal of the vase, he would grant what the bishop desired. When he came to Soissons, and all the booty was placed in one great heap in the middle of the army, Clovis intreated, that before making the division, they would give him that vase over and above his share. All appeared willing to gratify the King, and to comply with his request,

when a fierce and haughty soldier lifted up his battle-axe, and striking the vase with the utmost violence, cried out with a loud voice, "You shall receive no∣thing here but that to which the lot gives you a right." Gregor. Turon. Histor. Francorum. lib. ii. c. 27. p. 70. Par. 1610.

NOTE VIII. [H]. SECT. I.

THE history of the establishment and progress of the feudal system, is an interesting object to all the nations of Europe. In some countries their jurisprudence and laws are still in a great measure feudal. In others, many forms and practices established by custom, or founded on statutes, took their rise from the feudal law, and cannot be understood without attending to the ideas peculiar to it. Several authors of the high∣est reputation for genius and erudition, have endea∣voured to illustrate this subject, but they have left ma∣ny parts of it obscure. I shall endeavour to trace, with precision, the progress and variation of ideas concern∣ing property in land among the barbarous nations; and shall attempt to point out the causes which intro∣duced these changes, as well as the effects which fol∣lowed upon them. Property in land seems to have gone through four successive changes among the peo∣ple who settled in the various provinces of the Roman Empire.

I. WHILE the barbarous nations remained in their original countries, they had no fixed property in land, and no certain limits to their possessions. After feeding their flocks in one district, they removed with them, their wives and families, to another; and a∣bandoned that likewise in a short time. They were not, in consequence of this imperfect species of pro∣perty, brought under any positive or formal obligati∣on to serve the community; all their services were purely voluntary. Every individual was at liberty to chuse how far he would contribute towards carrying on any military enterprize. If he followed a lead∣er in any expedition, it was from attachment, not from a sense of obligation. The clearest proof of this

has been produced in note VI. While property continued in this state, we can discover nothing that bears any re∣semblance to a feudal tenure, or to the subordination and military service which the feudal system introduced.

II. UPON settling in the countries which they sub∣dued, the victorious army divided the conquered lands. That portion which fell to every soldier, he seized as a recompence due to his valour, as a settlement acquir∣ed by his own sword. He took possession of it as a freeman in full property. He enjoyed it during his own life, and could dispose of it at pleasure, or trans∣mit it as an inheritance to his children. Thus pro∣perty in land became fixed. It was at the same time allodial, i. e. the possessor had the entire right of pro∣perty and dominion; he held of no sovereign or supe∣rior lord, to whom he was bound to do homage, and perform service▪ But as these new proprietors were in some danger (as has been observed in the text) of be∣ing disturbed by the remainder of the ancient inhabi∣tants, and in still greater danger of being attacked by barbarians as fierce and rapacious as themselves, they saw the necessity of coming under obligations to de∣fend the community, more explicit than those to which they had been subject in their original habitati∣ons. On this account, immediately upon their fixing in their new settlements, every freeman became bound to take arms in defence of the community, and if he re∣fused or neglected so to do, was liable to a considera∣ble penalty. I do not mean that any contract of this kind was formally concluded, or mutually ratified by any legal solemnity. It was, like the other compacts which hold society together, established by tacit con∣sent; and their mutual security and preservation made it the interest of all to recognize its authority, and to enforce the observation of it. We can trace back this new obligation on the proprietors of land to a very early period in the history of the Franks. Chilperic, who began his reign A. D. 562, exacted a fine, bannos jusset exigi, from certain persons who had refused to accompany him in an expedition. Gregor. Turon. lib. v. c. 26. p. 211. Childibert, who began his reign A. D. ••76, proceeded in the same manner

against others 〈…〉〈…〉 guilty of a like crime. Id. lib. vii. c. 42. p. 342. Charlemagne ordained, that every freeman who possessed sive mansi, i. e. sixty acres of land, in property, should march in person a∣gainst the enemy. Capitul. A. D. 807. Louis le Debonnaire, A. D. 815, granted lands to certain Spaniards who fled from the Saracens, and allowed them to settle in his territories, on condition that they should serve in the army like other free men. Capitul. vol. i. p. 500. By land possessed in property, which is mentioned in the law of Charlemagne, we are to un∣derstand, according to the stile of that age, allodial land; allodes and proprietas, alodum and proprium be∣ing words perfectly synonimous. Du Cange voce Alodis. The clearest proof of the distinction between allodial and beneficiary possession, is contained in two charters published by Muratori, by which it appears that a person might possess one part of his estate as al∣lodial which he could dispose of at pleasure, the other as a beneficium, of which he had only the usufruct, the property returning to the superior lord on his de∣mise. Antiq. Ital. medii aevi, vol. i. p. 559, 505. The same distinction is pointed out in a Capitulare of Charlemagne, A. D. 812. edit. Baluz. vol. i. p. 491. In the curious testament of count Everard, who mar∣ried a daughter of Louis le Debonnaire, by which he disposes of his vast estate among his children, he dis∣tinguishes between what he possessed proprietate, and what he held beneficio, and it appears that the greater part was allodial. A. D. 837. Aub. Miraei Opera Diplomatica Lovan. 1723.

IN the same manner Liber homo is commonly op∣posed to Vassus or Vassallus; the former denotes an al∣lodial proprietor, the latter one who held of a superior. These free men were under an obligation to serve the state; and this duty was considered as so sacred, that free men were prohibited from entering into holy or∣ders unless they had obtained the consent of the sove∣reign. The reason given for this in the statute is re∣markable, "for we are informed that some do so, not so much out of devotion, as in order to avoid that military service which they are bound to perform.

Capitul. lib. i. §. 114. If upon being summoned into the field any free man refuses to obey, a full Here∣bannum, i. e. a fine of sixty crown, was to be exact∣ed from him according to the law of the Franks." Capit. Car. magn. ap. Leg. Longob. lib. i. tit. 14 §. 13. p. 539. This expression, according to the law of the Franks, seems to imply that both the obligation to serve, and the penalty on those who disregarded it, were coeval with the laws made by the Franks at their first settlement in Gaul. This fine was levied with such rigour, "That if any person was insolvent, he was reduced to servitude, and continued in that state until such time as his labour should amount to the value of the herebannum." Ibid. The Emperor Lo∣tharius rendered the penalty still more severe; and if any person possessing such an extent of property as made it incumbent on him to take the field in person refused to obey the summons, all his goods were de∣clared to be forfeited, and he himself might be punish∣ed with banishment. Murat. Script. Ital. vol. i. pars ii. p. 153.

III. PROPERTY in land having thus become fixed and subject to military service, another change was introduced, though slowly, and step by step. We learn from Tacitus that the chief men among the Ger∣mans endeavoured to attach to their persons and in∣terests certain adherents, whom he calls Comites. These fought under their standard, and followed them in all their enterprizes. The same custom continued among them in their new settlements, and those attached or devoted followers were called fideles antrustiones, ho∣mines in truste Domin••••a & leudes. Tacitus informs us, that the rank of a ••omites was deemed honourable; De morib. Germ. c. 13. The composition, which is the standard by which we must judge of the rank and condition of persons in the middle ages, paid for the murder of one in truste Dominica, was triple to that paid for the murder of a freeman. Leg. Salicor. Tit. 44. §. 1. & 2. While the Germans remained in their own country they courted the favour of these Comites by presents of arms and horses, and by hospitality. See note VI. While they had no fixed property in

land, these were the only gifts that they could bestow, and the only reward which their followers de••ed. But upon their settling in the countries which they conquered, and when the value of property came to be understood among them, instead of these slight presents, the Kings and chieftains bestowed a more substantial recompence in land on their adherents. These grants were called beneficia, because they were gratuitous donations; and honores, because they were regarded as marks of distinction. What were the services originally exacted in return for these beneficia cannot be determined with absolute precision; because there are no records so ancient. When allodial possessi∣ons were first rendered feudal, they were not, at once, subjected to the feudal services. The transition here, as in all other changes of importance, was gradual. As the great object of a feudal vassal was to obtain protection, when allodial proprietors first consented to become vassals of any powerful leader, they conti∣nued to retain as much of their ancient independance as was consistent with that new relation. The homage which they did to the superior of whom they chose to hold, was called homagium planum, and bound them to nothing more than fidelity, but without any obli∣gation either of military service, or attendance in the courts of their superior. Of this homagium planum some traces, though obscure, may still be discovered. Brus∣sel, tom. i. p. 97. Among the ancient writs pub∣lished by D. D. De Vic & Vaisette hist. de Lan∣gued. are a great many which they call homagia. They seem to be an intermediate step between the ho∣magium planum mentioned by Brussel, and the en∣gagement to perform compleat feudal service. The one party promises protection, and grants certain cas∣tles or lands, the other engages to defend the person of the granter, and to assist him likewise in defending his property as often as he shall be summoned to do so. But these engagements are accompanied with none of the feudal formalities, and no mention is made of any of the feudal services. They appear ra∣ther to be a mutual contract between equals, than the engagement of a vassal to perform services to a superi∣or

Lord. Preuves de l'hist. de Lang. tom. ii. 173. ••••passim. As soon as men were accustomed to these, the other feudal services were gradually introduc∣ed. M. de Montesquieu considers these beneficia as fiefs, which originally subjected those who held them to military service. L'espr. des Loix. l. xxx. c. 3. & 16. M. L'abbé de Mably contends that such as held these were at first subjected to no other service than what was incumbent on every free man. Obser∣vations sur l'histoi•• de France. But upon com∣paring their proofs and reasonings and conjectures, it seems to be evident, that as every free man, in conse∣quence of his allodial property, was bound to serve the community under a severe penalty, no good reason can be assigned for conferring these beneficia, if they did not subject such as received them, to some new ob∣ligation. Why should a King have stripped himself of his domain, if he had not expected, that, by parcel∣ling it out, he might acquire a right to services to which he had formerly no title? We may then warrantably conclude, "That as allodial property subjected those who possessed it to serve the community, so beneficia subjected such as held them, to personal service and fi∣delity to him from whom they received these lands. These beneficia were granted originally only during pleasure. No circumstance relating to the customs of the middle ages is better ascertained than this; and innumerable proofs of it might be added to these pro∣duced in L'esprit des Loix, l. xxx. c. 16. and by Du Cange voc. beneficium & feudum.

IV. BUT the possession of benefices did not continue long in this state. A precarious tenure during pleasure was not sufficient to satisfy and attach those who held it to their superior Lord, they soon obtained the confirmation of their benefices during life. Feudor. lib. tit. i. Du Cange produces several quotations from ancient charters and chronicles in proof of this; Gloss. voc. Beneficium. After this it was easy to obtain or extort charters rendering beneficia hereditary, first in the direct line, then in the collateral, and at last in the female line. Leg. Longob. lib. iii. tit. 8. Du Cange, voc. Beneficium.

IT is no easy matter to fix the precise time when each of these changes took place. M. l'Ab. Mably conjec∣tures with some probability, that Charles Martel first introduced the practice of granting beneficia for life: Observat. tom. i. p. 103, 160; and that Louis le De∣bonnaire was among the first who rendered them here∣ditary, is evident from the authorities to which he re∣fers; Id. 429. Mabillon however has published a pla∣citum of Louis le Debonnaire, A. D. 860. by which it appears that he still continued to grant some benefi∣cia only during life. De re Diplomatica, lib. vi. p. 353. In the year 889, Odo King of France granted lands to Ricabodo fideli suo jure beneficiario & fructu∣ario during his own life; and if he should die, and a son were born to him, that right was to continue dur∣ing the life of his son. Mabillon ut supra. p. 556. This was an intermediate step between fiefs merely during life, and fiefs hereditary to perpetuity. While benefi∣cia continued under their first form, and were held on∣ly during pleasure, he who granted them not only ex∣ercised the Dominium or prerogative of superior Lord; but he retained the property, giving his vassal only the usufruct. But under the latter form, when they became hereditary, although feudal lawyers continu∣ed to define a beneficium agreeable to its original na∣ture, the property was in effect taken out of the hands of the superior Lord, and lodged in those of the vassal. As soon as the reciprocal advantages of the feudal mode of tenure came to be understood by superiors as well as vassals, that species of holding became so a∣greeable to both, that not only lands, but casual rents, such as the profits of a toll, the fare paid at ferries, &c. the salaries or perquisites of offices, and even pensions themselves, were granted and held as fiefs; and mili∣tary service was promised and exacted on account of these. Morice Mem. pour servir de preuves a l'hist. de Bretagne. tom. ii. p. 78, 690. Brussel, tom. i. p. 41. How absurd soever it may seem to grant or to hold such precarious and casual property as a fief; there are instances of feudal tenures still more singular. The profits arising from the masses said at an altar were properly an ecclesiastical revenue, belonging to the

clergy of the church or monastery which performed that duty, but these were sometimes seized by the powerful barons. In order to ascertain their right to them, they held them as fiefs of the church, and par∣celled them out in the same manner as other property to their sub-vassals. Bouquet. recueil des hist. vol. x. p. 238, 480. The same spirit of encroachment which rendered fiefs hereditary, led the nobles to ex∣tort from their sovereigns hereditary grants of offices. Many of the great offices of the crown became heredi∣tary in most of the kingdoms in Europe, and so con∣scious were monarchs of this spirit of usurpation among the nobility, and so solicitous to guard against it, that, on some occasions, they obliged the persons whom they promoted to any office of dignity, to grant an obligation that neither they, nor their heirs, should claim it as belonging to them by hereditary right. A remarkable instance of this is produced, Mem. de l'Acad. des Inscript. tom. xxx. p. 595. Another occurs in the Thesaur. annecdot. published by Mar∣tene & Durand, vol. i. p. 873.—This revolution in property occasioned a change corresponding to it in political government; the great vassals of the crown, as they acquired such extensive possessions, usurped a a proportional degree of power, depressed the jurisdic∣tion of the crown, and trampled on the privileges of the people. It is on account of this connection, that the tracing the progress of feudal property becomes an object of attention in history; for upon discovering in what state property was at any particular period, we may determine with precision what was the degree of power possessed by the King or by the nobility at that juncture.

ONE circumstance more, with respect to the changes which property underwent, deserves attention. I have shewn that when the various tribes of barbarians divided their conquests in the fifth and sixth centuries, the property which they acquired was allodial; but in several parts of Europe property had become almost entirely feudal by the beginning of tenth century. The former species of property seems to be so much better and more desirable than the latter, that such a

change appears surprising, especially when we are in∣formed that allodial property was frequently convert∣ed into feudal, by a voluntary deed of the possessor. The motives which determined them to a choice so re∣pugnant to the ideas of modern times concerning pro∣perty, have been investigated and explained by M. de Montesquieu with his usual discernment and accuracy, lib. xxx. c. 8. The most considerable is that of which we have an hint in Lambertus Ardensis, an∣cient writer quoted by Du Cange, voce Alodis. In those times of anarchy and disorder which became ge∣neral in Europe after the death of Charlemagne; when there was scarce any union among the different mem∣bers of the community; and individuals were exposed, single and undefended by government, to rapine and oppression, it became necessary for every man to have a powerful protector; under whose banner he might range himself, and obtain security against ene∣mies, whom he could not singly oppose. For this rea∣son he relinquished his allodial independance, and sub∣jected himself to the feudal services, that he might find safety under the patronage of some respectable su∣perior. In some parts of Europe, this change from allodial to feudal property became so general, that he who possessed land had no longer any liberty of choice left. He was obliged to recognize some liege Lord, and to hold of him. Thus Beaumanoir informs us, that in the counties of Clermont and Beauvois, if the Lord or Count discovered any lands within his juris∣diction, for which no service was performed, and which paid to him no tax or custom, he might instantly seize it as his own; for, says he, according to our custom no man can hold allodial property. Coust. ch. 24. p. 123. Upon the same principle is founded a maxim, which has at length become general in the law of France, Nulle terre sans Seigneur. In other pro∣vinces of France allodial property seems to have re∣mained longer unalienated, and to have been more highly valued. A vast number of charters containing grants, or sales, or exchanges of allodial lands in the province of Languedoc are published Hist. gener. de Langued. par D. D. De Vic & Vaisette, tom. ii.

During the ninth, tenth, and greater part of the ele∣venth century, the property in that province seems to have been entirely allodial; and scarce any mention of feudal tenures occurs in the deeds of that country. The state of property, during these centuries, seems to have been perfectly similar in Catalonia, and the country of Roussillon, as appears from the original charters published in the appendix to Petr. de la Mar∣ca's treatise de Marca sive limite Hispanico. Allodial property seems to have continued in the Low-Coun∣tries, to a period still later. During the eleventh, twelfth, and thirteenth centuries, this species appears to have been of considerable extent. Mirae opera Di∣plom. vol. i. p. 34, 74, 75, 83, 296, 817, 842, 847, 578. Some vestiges of allodial property appear there as late as the fourteenth century. Ibid. 218. The notions of men with respect to property, vary ac∣cording to the diversity of their understandings, and the caprice of their passions. At the same time that some persons were fond of relinquishing allodial property, in order to hold it by feudal tenure, others seem to have been solicitous to convert their fiefs into allodial property. An instance of this occurs in a charter of Louis le Debonnaire, published by Eckhard, commen∣tarii de rebus Franciae Orientalis, vol. ii. p. 885. Another occurs in the year 1299. Reliquiae MSS. om∣nis aevi, by Ludwig, vol. i. p. 209. and even one as late as the year 1337. ibid. vol. vii. p. 40. The same thing took place in the Low-Countries. Meraei oper. 1. 52.

IN tracing these various revolutions of property, I have hitherto chiefly confined myself to what happen∣ed in France, because the ancient monuments of that nation have either been more carefully preserved, or have been more clearly illustrated than those of any people in Europe.

IN Italy, the same revolutions happened in property, and succeeded each other in the same order. There is some ground, however, for conjecturing that allodial property continued longer in estimation among the Italians, than among the French. It appears that ma∣ny of the charters granted by the Emperors in the

ninth century conveyed an allodial right to land. Mu∣rat. antiq. med. aevi. v. i. p. 575, &c. But in the ele∣venth century, we find some examples of persons who resigned their allodial property, and received it back as a feudal tenure. Ib. p. 610, &c. Muratori observes that the word feudum, which came to be substituted in place of beneficium, does not occur in any authentic charter previous to the eleventh century. Id. 594. A charter of King Robert of France, A. D. 1008, is the earliest deed in which I have met with the word feudum. Bouquet recueil des historiens de Gaule & de la France, tom. x. p. 593. b. This word occurs indeed in an e∣dict, A. D. 790, published by Brussel, vol. i. p. 77. But the authenticity of that deed has been called in question, and perhaps the frequent use of the word feudum in it, is an additional reason for doing so. The account which I have given of the nature both of allo∣dial and feudal possessions receives some confirmation from the etymology of the words themselves. Alode or allodium is compounded of the German particle an and lot, i. e. land obtained by lot. Wachteri Glossar. Germanicum, voc. Allodium. p. 35. It appears from the authorities produced by him and by Du Cange, voc. sors, that the nothern nations divided the lands which they had conquered in this manner. Feodum is compounded of od possession or estate, and feo wages pay; intimating that it was stipendary and granted as a recompence for service, Wachterus ibid. voc. feo∣dum, p. 441.

THE progress of the feudal system among the Ger∣mans was perfectly similiar to that which we have tra∣ced in France. But as the Emperors of Germany, es∣pecially after the Imperial crown passed from the de∣scendants of Charlemagne to the house of Saxony, were far superior to the contemporary Monarchs of France, in abilities, the Imperial vassals did not aspire so early to independance, nor did they so soon obtain the privilege of possessing their benefices by heredita∣ry right. Conrad II. on the Salic, was the first Empe∣ror, according to the compilers of the Libri Feudo∣rum, who rendered fiefs hereditary. Lib. i. tit. i. Conrad began his reign A. D. 1024. Ludovicus Pi∣us,

under whose reign, grants of hereditary fiefs were frequent in France, succeeded his father, A. D. 814. Not only was this innovation so much later in being introduced among the vassals of the German Emperors but even after Conrad had established it, the law con∣tinued favourable to the ancient practice, and unless the charter of the vassal bore expresly that the fief de∣scended to his heirs, it was presumed to be granted only during life. Lib. feud. ibid. Even after the al∣teration made by Conrad, it was not uncommon in Germany to grant fiefs only for life; a charter of this kind occurs as late as the year 1376. Charta ap. Boeh∣mer. Princip. Jur. feud. p. 361. The transmission of fiefs to collateral and female heirs, took place very slowly among the Germans. There is extant a char∣ter, A. D. 1201. conveying the right of succession to females, but it is granted as an extraordinary mark of favour, and in reward of uncommon services. Boeh∣mer. ibid. p. 365. In Germany, as well as in France and Italy, a considerable part of the lands continued to be allodial long after the feudal mode of tenure was introduced. It appears from the Codex Diplomaticus Monasterii Buch, that a great part of the lands in the marquisate of Misnia was still allodial as late as the thirteenth century. N^o 31, 36, 37, 46, &c. ap. Scriptores hist. German. cura Schoetgenii & Kreysigii. Altenb. 1755. vol. ii. 183, &c. Allodial property seems to have been common in another district of the same province during the same period. Reliquiae Di∣plomaticae Sanctimonial. Beutiz. N^o 17, 36, 58. ibid. 374, &c.

NOTE IX. [I]. SECT. I.

AS I shall, in another note, have occasion to repre∣sent the condition of that part of the people who dwelt in cities, I will confine myself in this to consider the state of the inhabitants of the country. The persons employed in cultivating the ground during the ages under review may be divided into three classes: I. Servi or slaves. This seems to have been the most nu∣merous class, and consisted either of captives taken in

war, or of persons, the property in whom was acquir∣ed in some one of the various methods enumerated by Du Cange, voc. servus. v. 6. p. 447. The wretched condition of this numerous race of men will appear from several circumstances. 1. Their masters had ab∣solute dominion over their persons. They had the power of punishing their slaves capitally, without the intervention of any judge. This dangerous right they possessed not only in the more early periods, when their manners were fierce, but it continued as late as the twelfth century. Joach. Potgiesserus de statu ser∣vorum. Lemgov. 1736. 4to. lib. ii. cap. i. §. 4, 10, 13, 24. Even after this jurisdiction of masters came to be restrained, the life of a slave was deemed to be of so little value, that a very slight compensation attoned for taking it away. Idem, lib. iii. c. 6. If masters had power over the lives of their slaves, it is evident that almost no bounds would be set to the rigour of the punishments which they might inflict upon them. The Codes of ancient laws prescribed punishments for the crimes of slaves different from those which were inflict∣ed on free men. The latter paid only a fine or com∣pensation, the former were subjected to corporal pu∣nishments. The cruelty of these was in many instan∣ces excessive. Slaves, on very slight occasions, might be put to the rack on question. The laws with res∣pect to these points are to be found in Potgiesserus, lib. iii. cap. 7. ••2. If the dominion of masters over the the lives and persons of their slaves was thus extensive, it was no less so over their actions and property. They were not originally permitted to marry. Male and fe∣male slaves were allowed and even encouraged to co∣habit together. But this union was not considered as a marriage, it was called contubernium, not nuptiae or matrimonium. Potgiess. lib. ii. c. 2. §. 1. This notion was so much established, that during several centuries after the barbarous nations embraced the Christian re∣ligion, slaves who lived as husband and wife, were not joined together by any religious ceremony, and did not receive the nuptial benediction from a priest. Ibid. §. 10, 11. When this conjunction between slaves came to be considered as a lawful marriage, they were

not permitted to marry without consent of their ma∣ster, and such as ventured to do so without obtaining that, were punished with great severity, and some∣times were put to death. Potgiess. ibid. §. 12, &c. Gregor. Turon. histor. lib. v. c. 3. When the man∣ners of the European nations became more gentle, and their ideas more liberal, slaves who married without their master's consent, were subjected only to a fine. Potgiess. ibid. §. 20. Du Cange Gloss. voc. Forisma∣ritagium. 3. All the children of slaves, were in the same condition with their parents, and became the pro∣perty of the master. Du Cange Gloss. voc. servus, vol. 6. p. 450. Murat. antiq. Ital. vol. i. p. 766. 4. Slaves were so entirely the property of their masters, that they could sell them at pleasure. While domestick slavery continued, the property in a slave was sold in the manner with that which a person had in any other moveable. Afterwards slaves became adscripti glebae, and were conveyed by sale together with the farm or estate to which they belonged. Potgiesserus has col∣lected the laws and charters which illustrate this well known circumstance in the condition of slaves. Lib. ii. c. 4. 5. Slaves had a title to nothing but subsistance and cloaths from their master; all the profits of their labour accrued to him. If a master, from indulgence, gave his slaves any peculium or fixed allowance for their subsistance, they had no right of property in what they saved out of that. All that they accumulated belonged to their master. Potgiess. lib. ii. c. 10. Mu∣rat. antiq. Ital. vol. 768. Du Cange, voc. servus, vol. vi. p. 451. Conformable to the same principle, all the ef∣fects of slaves belonged to their master at their death, and they could not dispose of them by testament. Pot∣giess lib. ii. c. 11. 6. Slaves were distinguished from free men by a peculiar dress. Among all the barba∣rous nations, long hair was a mark of dignity and of freedom, slaves were for that reason obliged to shave their heads; and by this distinction, how indifferent so∣ever it may be in its own nature, they were reminded every moment of the inferiority of their condition. Potgiess. lib. iii. c. 4. For the same reason it was en∣acted in the laws of almost all the nations of Europe

that no slave should be admitted to give evidence against a free man in a court of justice. Du Cange, voc. ser∣vus, vol. vi. p. 451. Potgiess. lib. iii. c. 3.

2. Villani. They were likewise adscripti glebae or vil∣lae, from which they derived their name, and were transferable along with it. Du Cange, voc. villan••s. But in this they differed from slaves, that they paid a fixed rent to their master for the land which they cul∣tivated, and after paying that, all the fruits of their labour and industry belonged to themselves in proper∣ty. This distinction is marked by Piere de Fontaine's Conseil. Vie de St. Louis par Joinville, p. 119. edit. de Du Cange. Several cases decided agreeable to this principle are mentioned by Murat. Ibid. p. 773.

3. THE last class of persons employed in agriculture were free men. These are distinguished by various names among the writers of the middle ages, Ariman∣ni, conditionales, originarii, tributales, &c. These seem to have been persons who possessed some small allodial property of their own, and besides that, cultivated some farm belonging to their more wealthy neighbours, for which they paid a fixed rent; and bound them∣selves likewise to perform several small services in prato vel in messe, in aratura vel in vinea, such as ploughing a cer∣tain quantity of their landlord's ground, assisting him in harvest and vintage work, &c. The clearest proof of this may be found in Muratori, v. i. p. 712▪ and in Du Cange under the respective words abovemention∣ed. I have not been able to discover whether these arimanni, &c. were removeable at pleasure, or held their farms by lease for a certain number of years. The former, if we may judge from the genius and maxims of the age, seems to be most probable. These persons, however, were considered as free men in the most honourable sense of the word; they enjoyed all the privileges of that condition, and were even called to serve in war; an honour to which no slave was ad∣mitted. Murat. Antiq. vol. i. p. 743. vol. ii. p. 446. This account of the condition of these three different classes of persons, will enable the reader to apprehend the full force of an argument which I shall produce in confirmation of what I have said in the text concern∣ing

the wretched state of the people. Notwithstand∣ing the immense difference between the first of these classes and the third, such was the spirit of tyranny which prevailed among the great proprietors of land, and so various their opportunities of oppressing those who were settled on their estates, and of rendering their condition intolerable, that many freemen, in des∣pair, renounced their liberty, and voluntarily surren∣dered themselves as slaves to their powerful masters. This they did, in order that their masters might become more immediately interested to afford them protection, to∣gether with the means of subsisting themselves and their families. The forms of such a surrender, or ob∣noxiatio, as it was then called, are preserved by Mar∣culfus, lib. ii. c. 28; and by the anonymous collector of formulae published by Bignon, c. 16. together with Marculfus. In both, the reason for the obnoxiatio, is the wretched and indigent condition of the person who gives up his liberty. It was still more common for freemen to surrender their liberty to bishops or abbots, that they might partake of the security which the vas∣sals and slaves of churches and monasteries enjoyed, in consequence of the superstitious veneration paid to the saint under whose immediate protection they were supposed to be taken. Du Cange, voc. oblatus, vol. iv. p. 1286. That condition must have been mise∣rable indeed, which could induce a freeman volunta∣rily to renounce his liberty, and to give himself up as a slave to the disposal of another. The number of slaves in all the nations of Europe was prodigious. The greater part of the inferior class of people in France were reduced to this state, at the commencement of the third race of Kings. L'espr. des Loix, liv. xxx. c. 11. The same was the case in England. Brady Pref. to Gen. Hist. Many curious facts with re∣spect to the ancient state of villains or slaves in England, are published in observations on the statutes, chiefly the more ancient 2d edit. p. 244.

NOTE X. [K]. SECT. I.

INNUMERABLE proofs of this might be produced.

Many charters granted by persons of the highest rank are preserved, from which it appears that they could not subscribe their names. It was usual for persons who could not write, to make the sign of the cross in confirmation of a charter. Several of these remain, where Kings and persons of great eminence affix sig∣num crucis manu propria pro ignoratione literarum. Du Cange, voc. Crux, vol. iii. p. 1191. From this is derived the phrase of signing instead of subscribing a paper. In the ninth century, Herbaud Comes Palatii, though supreme judge of the Empire by virtue of his office, could not subscribe his name. Nouveau Traité de Diplomatique par deux Benedictins, 4to. tom. ii. p. 422. So late as the fourteenth century, Du Gues∣clin, constable of France, the greatest man in the state, and one of the greatest men of his age, could neither read nor write. St. Palaye Memoires sur l'ancienne Chevalerie, t. ii. p. 82. Nor was this ignorance confined to laymen; the greater part of the clergy was not many degrees superior to them in science. Many dignified ecclesiasticks could not subscribe the canons of those councils in which they sat as members. Nouv. Traité de diplom. tom. ii. p. 424. One of the questions appointed by the canons to be put to persons who were candidates for orders was this, "Whether they could read the gospels and epistles, and explain the sense of them, at least literally?" Regino Prumiensis ap. Bruck. Hist. Philos. v. iii. p. 631. Alfred the Great complained, that from the Humber to the Thames there was not a priest who understood the liturgy in his mother tongue, or who could translate the easiest piece of Latin; and that from the Thames to the sea, the ecclesiasticks were still more ignorant. Asserus de rebus gestis Alfredi, ap. Camdeni. Anglica, &c. p. 25. The ignorance of the clergy is quaintly described by an author of the dark ages. "Potius dediti gulae quam Glossae; potius colligunt libras quam legunt libros; libentius intuen∣tur Martham quam Marcum; malunt legere in Sal∣mone quam in Solomone. Alanus de art. Predicat. ap. Lebeuf. Dissert. tom. ii. p. 21. To the obvious causes of such universal ignorance arising from the

state of government and manners, from the seventh to the eleventh century, we may add the scarcity of books, and the difficulty of rendering them more common during that period. The Romans wrote their books either on parchment or on paper made of the Egyptian papyrus. The latter being the cheapest, was of course the most commonly used. But after the Saracens conquered Egypt in the seventh century, the communication between that country and the people settled in Italy or in other parts of Europe, was almost entirely broke off, and the papyrus was no longer in use among them. They were obliged, on that ac∣count, to write all their books upon parchment, and as the price of that was high, books became extreme∣ly rare and of great value. We may judge of the scarcity of the materials for writing them from one circum∣stance. There still remains several manuscripts of the eighth, ninth, and following centuries, wrote on parchment, from which some former writing had been erased, in order to substitute a new composition in its place. In this manner, it is probable, that se∣veral works of the ancients perished. A book of Li∣vy or of Tacitus might be erased, to make room for the legendary tale of a saint, or the superstitious prayers of a missal. Murat. Anti. Ital. v. iii. p. 833. P. de Montfaucon affirms, that the greater part of the munuscripts on parchment which he has seen, those of an ancient date excepted, are written on parchment from which some former treatise had been erased. Mem. de L'Acad. des inscript. tom. ix. p. 325. As the want of materials for writing, is one reason why so many of the works of the ancients have perished, it accounts likewise for the small number of manuscripts of any kind, previous to the eleventh century, when they began to multiply from a cause which shall be mentioned. Hist. Liter. de France, tom. vi. p. 6. Many circumstances prove the scarci∣ty of books during these ages. Private persons sel∣dom possessed any books whatever. Even monasteries of considerable note had only one missal. Murat. An∣tiq. v. ix. p. 789. Lupus, abbot of Ferrieres, in a letter to the Pope, A. D. 855, beseeches him to lend

him a copy of Cicero de Oratore and Quintilian's In∣stitutions, "for," says he, "although we have parts of those books, there is no compleat copy of them in all France." Murat. Ant. v. iii. p. 835. The price of books became so high, that persons of a moderate fortune could not afford to purchase them. The coun∣tess of Anjou paid for a copy of the Homilies of Hai∣mon, bishop of Halberstadt, two hundred sheep, five quarters of wheat, and the same quantity of rye and millet. Histoire Literaire de France par des Religieux Benedictins, tom. vii. p. 3. Even so late as the year 1471, when Louis XI. borrowed the works of Rasis, the Arabian physician, from the faculty of me∣dicine in Paris, he not only deposited as a pledge a considerable quantity of plate, but was obliged to pro∣cure a nobleman to join with him as surety in a deed, binding himself under a great forfeiture to restore it. Gabr. Naudè Addit. à l'histoire de Louys XI. par Comines edit. de Fresnoy, tom. iv. p. 281. Many curious circumstances with respect to the extravagant price of books in the middle ages, are collected by that industrious compiler, to whom I refer such of my readers as deem this small branch of literary history an object of curiosity. When any person made a present of a book to a church or a monastery, in which were the only libraries during these ages, it was deemed a donative of such value, that he offered it on the altar pro remedio animae suae, in order to obtain the forgive∣ness of his sins. Murat. vol. iii. p. 836. Hist. Li∣ter. de France, t. vi. p. 6. Nouv. Trait. du Di∣plomat. par deux Benedictins, 4to. tom. i. p. 481.

In the eleventh century, the art of making paper in the manner now become universal, was invented; by means of that not only the number of manuscripts increased, but the study of the sciences was wonder∣fully facilitated. Murat. ib. p. 871. The invention of the art of making paper, and the invention of the art of printing, are two considerable events in literary history. It is remarkable that the former preceded the first dawning of letters and improvement in know∣ledge towards the close of the eleventh century; the latter ushered in the light which spread over Europe at the aera of the Reformation.

NOTE XI. [L]. SECT. I.

All the religious maxims and practices of the dark ages are a proof of this. I shall produce one remark∣able testimony in confirmation of it, from an author canonized by the church of Rome, St. Eloy or Egidi∣us, bishop of Noyne, in the seventh century. "He is a good christian who comes frequently to church; who presents the oblation which is offered to God up∣on the altar; who doth not taste of the fruits of his own industry until he has consecrated a part of them to God; who, when the holy festivals shall approach, lives chastely even with his own wife during several days, that with a safe conscience he may draw near to the altar of God; and who, in the last place, can repeat the Creed and the Lord's Prayer. Redeem then your souls from destruction while you have the means in your power; offer presents and tythes to churchmen; come more frequently to church; hum∣bly implore the patronage of the saints; for if you observe these things, you may come with security in the day to the tribunal of the eternal Judge, and say, "Give to us, O Lord, for we have given unto thee." Dacherii Specilegium Veter. Script. v. ii. p. 94. The learned and judicious translator of Dr. Mosheim's Ecclesiastical History, from one of whose additional notes I have borrowed this passage, subjoins a very proper reflection; "We see here a large and ample description of a good Christian, in which there is not the least mention of the love of God, resignation to his will, obedience to his laws, or of justice, benevo∣lence, and charity towards men." Mosh. Eccles: Hist. v. i. p. 324.

NOTE XII [M]. SECT. I.

IT is no inconsiderable misfortune to the church of Rome, whose doctrine of infallibility renders all such instituitons and ceremonies as have been once univer∣sally received, immutable and everlasting, that she must continue to observe in enlightened times, those rites which were introduced during the ages of dark∣ness

and credulity. What delighted and edified the latter, must digust and shock the former. Many of these rites appear manifestly to have been introduced by a superstition of the lowest and most illiberal species. Many of them were borrowed, with little variation, from the religious ceremonies established among the ancient Heathens. Some were so ridiculous, that if every age did not furnish instances of the fascinating influence of superstition, as well as of the whimsical forms which it assumes, it must appear incredible that they should ever be received or tolerated. In several churches of France, they celebrated a festival in com∣memoration of the Virgin Mary's flight into Egypt. It was called the feast of the Ass. A young girl richly dressed, with a child in her arms, was set upon an ass superbly caparisoned. The ass was led to the altar in solemn procession. High Mass was said with great pomp. The ass was taught to kneel at proper places; a hymn no less childish than impious was sung in his praise: And when the ceremony was ended, the priest, instead of the usual words with which he dismissed the people, brayed three times like an ass; and the people instead of their usual response, We bless the Lord, brayed three times in the same manner. Du Cange, voc. Festum. v. iii. p. 424. This ridiculous cere∣mony was not, like the festival of fools, and some other pageants of those ages, a mere farcical enter∣tainment exhibited in a church and mingled, as was then the custom, with an imitation of some religious rites; it was an act of devotion, performed by the ministers of religion, and by the authority of the church. However, as this practice did not prevail universally in the Catholick church, its absurdity con∣tributed at last to abolish it.

NOTE XIII. [N]. SECT. I.

AS there is no event in the history of mankind more singular than that of the Crusades, every circum∣stance that tends to explain or to give any rational account of this extraordinary frenzy of the human mind is interesting. I have asserted in the text, that

the minds of men were prepared gradually for the amazing effort which they made in consequence of the exhortations of Peter the hermit, by several occur∣rences previous to his time. A more particular detail of this curious and obscure part of history, may per∣haps appear to some of my readers to be of importance. That the end of the world was expected about the close of the tenth and beginning of the eleventh cen∣tury; and that this occasioned a general alarm, is evi∣dent from the authors to whom I refer in the text. This belief was so universal and so strong, that it min∣gled itself with their civil transactions. Many char∣ters in the latter part of the tenth century began in this manner: "Apropinquante mundi termino," &c. As the end of the world is now at hand, and by various calamities and judgments the signs of its approach are now manifest. Hist. de Langued. par. D. D. de Vic Vaisette, tom. ii. Preuves, p. 86, 89, 90, 117, 158, &c. One effect of this was, that a great number of pilgrims resorted to Jerusalem, with a resolution to die there, or to wait the coming of the Lord; Kings, Earls, Marquisses, Bishops, and even a great number of women, besides persons of inferior rank, flocked to the Holy Land. Glaber. Rodulph. Hist. chez Bou∣quet Recueil, tom. x. p. 50, 52. Another historian mentions a vast cavalcade of pilgrims who accompa∣nied the count of Angouleme to Jerusalem in the year 1026. Chronic. Ademari, ibid. p. 162. These pil∣grims filled Europ•• with lamentable accounts accounts of the state of Christians in the Holy Land. Willerm. Tyr. Hist. ap. Gest. Dei per Franc. vol. ii. p. 636. Guibert. Abbat. Hist. ibid. vol. i. p. 476. Besides this it was usual for many of the Christian inhabitants of Jerusalem, as well as of the other cities in the East, to travel as mendicants through Europe; and by de∣scribing the wretched condition of the professors of the Christian faith under the dominion of Infidels, to ex∣tort charity, and to excite zealous persons to make some attempt in order to deliver them from oppression. Baldrici. Archiepiscopi Histor. ap. Gesta Dei, &c. vol. i. p. 86. In the year 986, Gerbet, archbishop of Ravenna, afterwards Pope Silvester II. addressed

a letter to all Christians in the name of the church of Jerusalem. It is eloquent and pathetic, and contains a formal exhortation to take arms against the Pagan oppressors, in order to rescue the holy city from their yoke. Gerberti Epistolae ap. Bouquet, Recueil, tom▪ x. p. 426. In conseqence of this spirited call, some subjects of the republic of Pisa equipped a fleet, and invaded the territories of the Mahometans in Syria. Murat. Script. Rer. Italic. vol, iii. p. 400. The alarm was taken in the East, and an opinion prevailed, A. D. 1010, that all the forces of Christendom were to unite, in order to drive the Mahometans out of Palestine. Chron. Ademari ap. Bouquet, tom. x. p. 152. It is evident from all these particulars, that the ideas which led the Crusaders to undertake their wild enterprize were gradually formed; so that the universal concourse to the standard of the cross when erected by Urban II. will appear less surprising.

If the various circumstances which I have enume∣rated in this note, as well as in the history, are suffici∣ent to account for the ardour with which such vast numbers engaged in such a dangerous undertaking, the extensive privileges and immunities granted to those who assumed the cross, serve to account for the long continuance of this spirit in Europe. 1. They were exempted from prosecutions on account of debt during the time of their being engaged in this holy service. Du Cange, voc. Crucis privilegium, v. ii. p. 1194.—2. They were exempted from paying inte∣rest for the money which they had borrowed. Ibid.

They were exempted either entirely, or at least during a certain time, from the payment of taxes. Ibid▪ Ordonances des Rois de France, tom. i. p. 33. 4•• They might alienate their lands without the con∣sent of the superior Lord of whom they held. Ib. 5. Their persons and effects were taken under the protec∣tion of St. Peter, and the anathemas of the church were denounced against all who should molest them, or carry on any quarrel or hostility against them, dur∣ing their absence, on account of the holy war. Du Cange, Ib. Guibertus Abbas ap. Bongars. i. p. 480, 482.—6. They enjoyed all the privileges of Ecclesias∣ticks,

and were not bound to plead in any civil court, but were declared subject to the spiritual jurisdiction alone. Du Cange, Ib. Ordon. des Rois, tom. i. p. 34, 174.—7. They obtained a plenary remission of all their sins, and the gates of heaven were set open to them, without requiring any proof of their penitence, but their engaging in this expedition, and thus grati∣fying their favourite passion, the love of war. Gui∣bert. Abbas, p. 480. When we behold the civil and ecclesiastical powers vying with each other, and strain∣ing their invention in order to devise expedients for encouraging and adding strength to the spirit of super∣stition, can we be surprized that it should become so general as to render it infamous, and a mark of cow∣ardice to decline engaging in the holy war? Willierm Tyriensis ap. Bongars. vol. ii. p. 641. The histo∣ries of the Crusades written by modern authors, who are apt to substitute the ideas and maxims of their own age in the place of those which influenced the persons whose actions they attempt to relate, convey a very imperfect notion of the spirit at that time predominant in Europe. The original historians, who were ani∣mated themselves with the same passions which posses∣sed their contemporaries, exhibit to us a more strik∣ing picture of the times and manners which they de∣scribe. The enthusiatic rapture with which they ac∣count for the effects of the Pope's discourse in the coun∣cil of Clermont; the exultation with which they men∣tion the numbers who devoted themselves to this holy warfare; the confidence with which they rely on the divine protection; the extacy of joy with which they describe their taking possession of the holy city, will enable us to conceive in some degree the extravagance of that zeal which agitated the minds of men with such violence, and will suggest as many singular ••••¦flections to a philosopher, as any occurrence in the history of mankind.—It is unnecessary to select the particular passages in the several historians which con∣firm this observation. But left these authors may be suspected of adorning their narrative with any exag∣gerated description, I shall appeal to one of the lead∣ers who conducted the enterprize. There is extant a

from Stephen, the Earl of Chartres and Blois, to Adela his wife, in which he gives her an account of the progress of the Crusaders. He describes the Cru∣saders as the chosen army of Christ, as the servants and soldiers of God, as men who marched under the immediate protection of the Almighty, being conduct∣ed by his hand to the victory and conquest. He speaks of the Turks as accursed, sacrilegious, and de∣voted by Heaven to destruction; and when he men∣tions the soldiers in the Christian army who had died, or were killed, he is confident that their souls were admitted directly into the joys of Paradise. Dacherii Specilegium, vol. iv. p. 257.

THE expence of conducting numerous bodies of men from Europe to Asia, must have been excessive, and the difficulty of raising the necessary sums must have been proportionally great, during ages when the public revenues in every nation of Europe were ex∣tremely small. Some account is preserved of the ex∣pedients employed by Humbert II. Dauphin of Vien∣ne, in order to levy the money requisite towards equipping him for the Crusade, A. D. 1346. These I shall mention, as they tend to shew the considerable influence which the Crusades had, both on the state of property and of civil government. 1. He exposed to sale part of his domains; and as the price was destined for such a sacred service, he obtained the consent of the French King, of whom these lands were held, ratifying the alienation. Hist. de Dauphinè tom. i. p. 332. 335.—2. He issued a proclamation, in which he promised to grant new privileges to the nobles, as well as new immunities to the cities and towns, in his territories, in consideration of certain sums which they were instantly to pay on that account. Ibid. tom. ii. p. 512. Many of the charters of communi∣ty, which I shall mention in another note, were ob∣tained in this manner.—3. He exacted a contribu∣tion towards defraying the charges of the expedition from all his subjects, whether ecclesiasticks or laymen, who did not accompany him in person to the East. Ibid. tom. i. p. 335.—4. He appropriated a consi∣derable part of his usual revenues for the support of the

troops to be employed in this service; ibid. tom. ii. p. 518.—5. He exacted considerable sums not only of the Jews settled in his dominions, but also of the Lombards and other bankers who had fixed their resi∣dence there. Ibid. tom. i. p. 338, tom. ii. 528, Notwithstanding the variety of these resources, the Dauphin was involved in such expence by this expedi∣tion, that on his return he was obliged to make new demands on his subjects, and to pillage the Jews by fresh exactions. Ibid. tom. i. p. 344, 347. When the count de Foix engaged in the first Crusade, he raised the money necessary for defraying the expences of that expedition, by alienating part of his territo∣ries. Hist. de Langued. par D. D. de Vic & Vai∣sette, tom. ii. p. 287. In like manner Baldwin, count of Hainaut, mortgaged or sold part of his do∣minions to the bishop of Liege. A. D. 1096. Du Mont Corps Diplomatique, tom. i. p. 59. At a later period, Baldwin Count of Namur sold part of his estate to a monastery, when he intended to assume the cross. A. D. 1239. Miraei oper. i. 313.

NOTE XIV. [O]. SECT. I.

THE usual method of forming an opinion concern∣ing the comparative state of manners in two different nations, is by attending to the facts which histo∣rians relate concerning each of them. Various passages might be selected from the Byzantin histori∣ans, describing the splendor and magnificence of the Greek empire. P. de Montfaucon has produced from the writings of St. Chrysostom a very full account of the elegance and luxury of the Greeks in his age. That father in his sermons enters into such details concern∣ing the manners and customs of his contemporaries, as appear strange in discourses from the pulpit. P. de Montfaucon has collected these descriptions, and ranged them under different heads. The court of the more early Greek Emperors seems to have resembled those of Eastern monarchs, both in magnificence and in corruption of manners. The Emperors in the ele∣venth century, though inferior in power, did not

yield to them in ostentation and splendor. Memoires de l'Acad. des Inscript. tom. xx. p. 197.—But we may decide concerning the comparative state of man∣ners in the Eastern Empire, and among the nations in the west of Europe by another method, which if not more certain, is at least more striking. As Constan∣tinople was the place of rendezvous for all the armies of the crusaders, this brought together the people, of the east and west as to one great interview. There are extant several contemporary authors, both among the Greeks and Latins, who were witnesses of this sin∣gular congress of people formerly strangers, in a great measure, to each other. They describe with simpli∣city and candour, the impression which that new spec∣tacle made upon their own minds. This may be considered as the most lively and just picture of the real character and manners of each people. When the Greeks speak of the Franks, they describe them as barbarians, fierce, illiterate, impetuous and savage. They assume a tone of superiority, as a more polished people, acquainted with the arts both of government and of elegance, of which the others were ignorant. It is thus Anna Comnena describes the manners of the Latins, Alexias, p. 224, 231, 237. ap. Byz. Script. vol. xi. She always treats them with contempt as a rude people, the very mention of whose names was sufficient to contaminate the beauty and elegance of history, p. 229. Nicetas Choniatas inveighs against them with still more violence, and gives an account of their ferocity and devastations, in terms not unlike those which preceding historians had employed in de∣scribing the incursions of the Goths and Vandals. Ni∣cet. Chon. ap. Byz. Script. vol. iii. p. 302, &c. But, on the other hand, the Latin historians were struck with astonishment at the magnificence, wealth. and elegance which they discovered in the Eastern em∣pire. "O what a vast city is Constantinople (ex∣claims Fulcherius Carnotensis, when he first beheld it) and how beautiful! How many monasteries are there in it, and how many palaces built with wonder∣ful art! How many manufactures are there in the ci∣ty, amazing to behold! It would be astonishing to

relate how it abounds with all good things, with gold, silver, and stuffs of various kinds; for every hour ships arrive in its port laden with all things necessary for the use of man. Fulcher. ap. Bongars, vol. i. p. 386. Willermus Archbishop of Tyre, the most intelligent historian of the crusades, takes frequent oc∣casion to describe the elegance and splendour of the court of Constantinople, and adds, that what they observed there exceeded any idea which they could have formed of it, nostrarum enim rerum modum & dignitatem excedunt, Willerm. Tyr. ap. Bong. vol. ii. p. 657. 664. Guntherus, a French monk who wrote a history of the conquest of Constantinople by the crusaders in the thirteenth century, speaks of the magnificence of that city in the same tone of admirati∣on, "Structurum autem Aedificiorum in corpore ci∣vitatis, in ecclesiis videlicit, & turibus, & in domibus magnatorum, vix ullus vel describere potest, vel cre∣dere describenti, nisi qui ea oculata fide cognoverit." Hist. Constantinop. ap. Canisii Lectiones Antiquas. fol. Antw. 1725. vol. iv. p. 14. Geoffrey de Ville∣hardouin, a nobleman of high rank, and accustomed to all the magnificence then known in the west, de∣scribes, in similar terms, the astonishment and admi∣ration of such of his fellow soldiers who beheld Con∣stantinople for the first time: "They could not have believed, says he, that there was a city so beautiful and rich in the whole world. When they viewed its high walls, its lofty towers, its rich palaces, its su∣perb churches, all appeared so great that they could have formed no conception of this sovereign city, unless they had seen it with their own eyes." His∣toire de la Conquete de Constant p. 49. From these undisguised representations of their own feelings, it is evident, that to the Greeks, the Latins appeared to be a race of rude, unpolished barbarians; whereas the latter, how much soever they might contemn the un∣warlike character of the former, could not help re∣garding them as far superior themselves in elegance and arts—That the state of government and manners was much more improved in Italy than in the other countries of Europe is evident not only from the facts

recorded in history, but it appears that the more in∣telligent leaders of the crusaders were struck with the difference. Jacobus de Vitriaco, a French historian of the holy war, makes an elaborate panegyrick on the character and manners of the Italians. He views them as a more polished people, and particularly ce∣lebrates them for their love of liberty and civil wis∣dom; in consiliis circumspecti, in re sua publica pro∣curanda diligentes & studiosi; sibi in posterum provi∣dentes; aliis subjici renuentes; ante omnia libertatem sibi defendentes; sub uno quem eligunt capitaneo, communitate suae jura & instituta dictantes, & simili∣ter observantes. Histor. Hierosol. ap. Gesta Dei per Francos, vol. ii. p. 1085.

NOTE XV. [P]. SECT. I.

The different steps taken by the cities of Italy in or∣der to extend their power and dominion are remarka∣ble. As soon as their liberties were established, and they began to feel their own importance, they endea∣voured to render themselves masters of the territory round their walls. Under the Romans, when cities enjoyed municipal privileges and jurisdiction, the cir∣cumjacent lands belonged to each town, and were the property of the community. But as it was not the ge∣nius of the feudal policy to encourage cities, or to shew any regard for their possessions and immunities, these lands had been seized, and shared among the conquerors. The barons to whom they were grant∣ed, erected their castles almost at the gates of the city, and exercised their jurisdiction there. Under pretence of covering their ancient property, many of the cities in Italy attacked these troublesome neighbours, and dispossessing them, annexed their territories to the communities, and made thereby a considerable additi∣on to their power. Several instances of this occur in the eleventh, and beginning of the twelfth centuries. Murat. antiq. Ital. vol. iv. p. 159, &c. Their am∣bition increasing together with their power, they af∣terwards attacked several barons situated at a great dis∣tance from them, and obliged these to engage that

they should become members of their community; that they should take the oath of fidelity to their ma∣gistrates; that they should subject their lands to all burthens and taxes imposed by common consent; that they should defend the community against all its ene∣mies; and that they should reside within the city dur∣ing a certain specified time in each year. Murat. ibid. 163. This subjection of the nobility to the munici∣pal government established in cities, became almost universal, and was often extremely grevious to per∣sons accustomed to consider themselves as independ∣ant. Otto Frisingensis thus describes the state of Italy under Frederick I. "The cities so much affect liber∣ty, and are so solicitous to avoid the insolence of power, that almost all of them have thrown off every other authority, and are governed by their own ma∣gistrates. Insomuch that all that country is now fil∣led with free cities, each of which have compelled their bishops to reside within their walls, and there is scarce any nobleman, how great soever his power may be, who is not subject to the laws and govern∣ment of some city. De Gestis Frider. I. Imp. lib. ii. c. 13. p. 453. In another place he observes of the Marquis of Montserrat that he was almost the only Italian baron, who had preserved his independance, and had not become subject to the laws of any city. See also Muratori Antichita Estensi, vol. i. p. 411, 412. That state into which some of the nobles were compelled to enter, others embraced from choice. They observed that high degree of security as well as of credit and estimation which the growing wealth and dominion of the great communities procured to all the members of them. They were desirous to par∣take of these, and to put themselves under such pow∣erful protection. With this view they voluntarily became citizens of the towns in which their lands were most contiguous, and abandoning their ancient castles, took up their residence in the cities at least during part of the year. Several deeds are still extant, by which some of the most illustrious families in Italy are associated as citizens of different cities. Murat. ib. p. 165, &c. A charter by which Atto de Macerata is

admitted as a citizen of Osimo, A. D. 1198. in the Marcha di Ancona is still extant. In this he stipulates, that he will acknowledge himself to be a burgess of that community; that he will to the utmost of his power, promote its honour and welfare; that he will obey his magistrates; that he will enter into no league with its enemies; that he will reside in the town dur∣ing two months in every year, or for a longer time if required by the magistrates. The community, on the other hand, take him, his family, and friends, under their protection, and engage to defend him against every enemy. Fr. Ant. Zacharias Anecdota medii aevi. Aug. Taurm. 1755. fol. p. 66. This privi∣lege was deemed so important, that not only laymen, but ecclesiasticks of the highest rank condescended to be adopted as members of the great communities, in hopes of enjoying the safety and dignity which that conferred. Murat. ib. 179. Before the institution of communities, persons of noble birth had no other residence but their castles. They kept their petty courts there; and the cities were deserted, having hardly any inhabitants, but slaves or persons of low condition. But in consequence of the practice which I have mentioned, cities not only became more popu∣lous, but were filled with inhabitants of better rank; and a custom, which still subsists in Italy, was then introduced, that all families of distinction reside more constantly in the great towns, than is usual in other parts of Europe. As cities acquired new considerati∣on and dignity by the accession of such citizens, they became more solicitous to preserve their liberty and in∣dependance. The Emperors, as sovereigns, had an∣ciently a palace in almost every great city of Italy; when they visited that country they were accustomed to reside in these, and the troops which accompanied them were quartered in the houses of the citizens. This the citizens considered both as ignominious and dangerous. They could not help considering it as receiving a master and an enemy within their walls. They laboured therefore to get free of this subjection. Some cities prevailed on the Emperors to engage that they should never enter their gates, but take up

their residence without the walls, Chart. Hen. IV. Murat. ib. p. 24. Others obtained the imperial li∣cence to pull down the palace situated within their li∣berties, on condition that they built another in the suburbs for the reception of the Emperor. Chart. Hen. IV. Murat. ib. p. 25. These various encroach∣ments of the Italian cities alarmed the Emperors, and put them on schemes for re-establishing the imperial jurisdiction over them on its ancient footing. Frede∣rick Barbarossa engaged in this enterprize with great ardour. The free cities of Italy joined together in a general league, and stood on their defence; and after a long contest, carried on with alternate success, a solemn treaty of peace was concluded at Constance, A. D. 1183, by which all the privileges and immu∣nities granted by former Emperors to the principal cities in Italy were confirmed and ratified. Murat. dissert. XLVIII. This treaty of Constance was consi∣dered as such an important article in the jurisprudence of the middle ages, that it is usually published toge∣ther with the Libri Feudorum at the end of the Cor∣pus Juris Civilis. The treaty secured privileges of great importance to the confederate cities, and though it reserved a considerable degree of authority and ju∣risdiction to the Empire, yet the cities persevered with such vigour in their efforts in order to extend their immunities, and the conjunctures in which they made them were so favourable, that, before the conclusion of the thirteenth century, most of the great cities in Italy had shaken off all marks of subjection to the Em∣pire, and were become independant sovereign repub∣lics. It is not requisite that I should trace the various steps by which they advanced to this high degree of power so fatal to the Empire, and so beneficial to the cause of liberty in Italy. Muratori with his usual in∣dustry has collected many original papers which illus∣trate this curious and little known part of history. Murat. Antiq. Ital. Dissert. L. See also Jo. Bapt. Villanovae hist. Laudis Pompeii sive Lodi in Graev. Thes: Antiquit. Ital. vol. iii. p. 888.

NOTE XVI. [Q]. SECT. I.

LONG before the institution of communities in France, charters of immunity or Franchise were grant∣ed to some towns and villages by the lords on whom they depended. But these are very different from such as became common in the twelfth and thirteenth cen∣turies. They did not erect these towns into corpora∣tions; they did not not establish a municipal govern∣ment; they did not grant them the privilege of bear∣ing arms. They contained nothing more than a ma∣numision of the inhabitants from the yoke of servi∣tude; an exemption from certain services which were oppressive and ignominious; and the establishment of a fixed tax or rent which they were to pay to their Lord in place of impositions which he could formerly lay upon them at pleasure. Two charters of this kind to two villages in the county of Rousillan, one A. D. 974. the other A. D. 1025, are still extant. Petr. de Marca Marca, sive limes Hispanicus. app. p. 909. 1038. Such concessions, it is probable, were not unknown in other parts of Europe, and may be considered as a step towards the more extensive privileges conferred by Louis the Gross on the towns within his domains. The communities in France never aspired to the same independance with those in Italy. They acquired new privileges, and immunities, but the right of sovereign∣ty remained entire to the King or baron within whose territories the respective cities were situated, and from whom they received the charter of their freedom. A great number of these charters granted both by the Kings of France, and by their great vassals are pub∣lished by M. D'Achery in his Specilegium, and many are found in the collection of the Ordinances des Rois de France. These convey a very striking representa∣tion of the wretched condition of cities previous to the institution of communities, when they were subject to the judges appointed by 〈◊〉〈◊〉 superior lords of whom they held, and had scarce any other law but their will. Each concession in these charters must be considered as a grant of some new privilege which the people did not formerly enjoy, and each regulation as a method

of redressing some grievance under which they former∣ly laboured. The charters of communities contain likewise the first expedients employed for the intro∣duction of equal laws, and regular government. On both these accounts they merit particular attention, and therefore instead of referring my readers to the many bulky volumes in which they are scattered, I shall give them a view of some of the most important articles in these charters ranged under two general heads. I. Such as respect personal safety. II. Such as respect the security of property.

I. DURING that state of turbulence and disorder which the corruption of the feudal government intro∣duced into Europe, personal safety was the chief object of every individual; and as the great military barons alone were able to give sufficient protection to their vassals, this was one great source of their power and authority. But, by the institution of communities, effectual provision was made for the safety of individu∣als independant of the nobles. For, 1. the fundamen∣tal article in every charter was, that all the members of it bound themselves by oath to assist, defend, and stand by each other against all aggressors, and that they should not suffer any person to injure, distress, or mo∣lest, any of their fellow citizens. D'Acher. Specil. x. 642. xi. 341, &c.—2. Whoever resided in any town which was made free, was obliged under a severe pe∣nalty to accede to the community, and to take part in the mutual defence of its members. D'Acher. Spec. xi. 344.—3. The communities had the privilege of carrying arms; of making war on their private ene∣mies; and of executing by military force any sentence which their magistrates pronounced. D'Ach. Specil. x. 643, 644. xi. 343.—4. The practice of making sa∣tisfaction by a pecuniary compensation for murder, assault, or other acts of violence, most inconsistent with the order of society, and the safety of individu∣als, was abolished, and such as committed these crimes were punished capitally, or with rigour adequate to their guilt. D'Ach. xi. 362. Miraei opera Diplomati∣ca, i. 292.—5. No member of a community was bound to justify or defend himself by battle, or combat, but

if he was charged with any crime, he could be convic∣ted only by the evidence of witnesses, and the regular course of legal proceedings. Miraeus, ibid. D'Ach. xi. 375, 349. Ordon. tom. iii. 265.—6. If any man suspected himself to be in danger from the malice or enmity of another, upon his making oath to that ef∣fect before a magistrate, the person suspected was bound under a severe penalty to give security for his peaceable behaviour. D'Ach. xi. 346. This is the same species of security which is still known in Scotland under the name of Lawburrows. In France it was first introdu∣ced among the inhabitants of communities, and hav∣ing been found to contribute considerably towards per∣sonal safety, it was extended to all the other members of society. Establissemens de St. Louis, liv. i. cap. 28. ap. Du Cange vie de St. Louis, p. 15.

II. THE provisions in the charters of communities concerning the security of property are not less consi∣derable than those respecting personal safety. By the ancient law of France no person could be arrested or confined in prison on account of any private debt. Ordon. des Rois de France, tom. i. p. 72, 80. If any person was arrested upon any pretext, but his having been guilty of a capital crime, it was lawful to rescue him out of the hands of the officers who had seized him. Ordon. iii. p. 17. Freedom from arrest on ac∣count of debt seems likewise to have been enjoyed in other countries. Gudenus Sylloge Diplom. 473. In society, while it remained in its rudest and most simple form, debt seems to have been considered as an obligation merely personal. Men had made some progress to∣wards refinement before creditors acquired a right of seizing the property of their debtors in order to reco∣ver payment. The expedients for this purpose were all introduced originally in communities, and we can trace the gradual progress of them. 1. The simplest and most obvious species of security was, that the per∣son who sold any commodity should receive a pledge from him who bought it, which he restored upon re∣ceiving payment. Of this custom there are vestiges in several charters of community. D'Ach. ix. 185. xi. 377.—2. When no pledge was given, and the debtor

became refractory or insolvent, the creditor was al∣lowed to seize his effects with a strong hand, and by his private authority; the citizens of Paris are war∣ranted by the royal mandate, "ut ubicumque, et quo∣cumque modo potuerunt, tantum capiant, unde pe∣cuniam sibi debitam integrè & plenariè habeant, & in∣de sibi invicem adjutores existant." Ordon. &c. tom. i. p. 6. This rude practice, suitable only to the vio∣lence of a state of nature, was tolerated longer than one can conceive to be possible in any society, where laws and order were at all known. The ordonance authorizing it was issued, A. D. 1134. and that which corrects the law, and prohibits creditors from seizing the effects of their debtors, unless by a warrrnt from a magistrate, and under his inspection, was not pub∣lished until the year 1351. Ordon. tom. ii. 438. It is probable, however, that men were taught, by ob∣serving the disorders which the former mode of pro∣ceeding occasioned, to correct it in practice long be∣fore a remedy was provided by a law to that effect. Every discerning reader will apply this observation to many other customs and practices which I have menti∣oned. New customs are not always to be ascribed to the laws which authorize them. These statutes only give a le∣gal sanction to such things, as the experience of man∣kind has previously found to be proper and beneficial. 3. As soon as the interposition of the magistrate became requisite, regular provision was made for attaching or distraining the moveable effects of a debtor; and if his moveable were not sufficient to discharge the debt, his immoveable property, or estate in land, was liable to the same distress, and was sold for the benefit of his creditor. D'Ach. ix. p. 184, 185. xi. p. 348. 380. As this regulation afforded the most compleat security to the creditor, it was considered as so severe, that humanity pointed out several limitations in the exe∣cution of it. Creditors were prohibited from seizing the wearing apparel of their debtors, their beds, the door of their house, their instruments of husbandry, &c. D'Ach. ix. 184. xi. 377. Upon the same princi∣ples, when the power of distraining effects became more general, the horse and arms of a gentleman

could not be seized. D'Ach. ix. 185. As hunting was the favourite amusement of martial nobles, the Emperor Ludovicus Pius prohibited the seizing of a hawk, on account of any composition or debt. Capi∣tul. lib. iv. §. 21. But if the debtor had no other move∣ables, even these privileged articles might be seized. 4. In order to render the security of property compleat within a community, every person who was admitted a member of it, was obliged to buy or build a house, or to purchase lands, within its precincts, or at least to bring into town a considerable portion of his move∣ables per quae justitiari possit, si quid forté in eum querel•• evenerit. D'Ach. xi. 326. Ordon. i. 367. Libertates S. Georgii. de Esperanchia. Hist. de Dauphine, tom. i. p. 26.—5. That security might be as perfect as pos∣sible; in some towns, the members of the community seem to to have been bound for each other. D'Ach. x. 644.—6. All questions with respect to property, were tried within the community by magistrates and judges, which the citizens elected or appointed. Their decisions were more equal and fixed, than the senten∣ces which depended on the capricious and arbitrary will of a baron, who thought himself superior to all laws. D'Ach. x. 644, 646. xi. 344. & passim. Ordon. iii. 204. 7. No member of a community could be burdened by any arbitrary tax; for the superior lord who granted the charter of community, accepted of a fixed census or duty in lieu of all demands, Ordon. t. iii. 204. Li∣bertates de Calma. Hist. de Dauphine, tom. i. p. 19. Libert. St. Georgii de Esperanchia, ibid. p. 26. Nor could the members of a community be distressed by an unequal imposition of the sum to be levied on the com∣munity. Regulations are inserted in the charters of some communities concerning the method of determi∣ning the quota of any tax to be levied on each inhabi∣tant. D'Ach. xi. 350, 365. St. Louis published an ordonance concerning this matter, which extended to all the communities. Ordon. t. i. 186. These regula∣tions are extremely favourable to liberty, as they vest the power of proportioning the taxes in a certain num∣ber of citizens chosen out of each parish, who were bound by solemn oath to decide according to justice.

That the more perfect security of property was one great object of those who instituted communities, we learn, not only from the nature of the thing, but from the express words of several charters, of which I shall only mention that granted by Alienor, Queen of En∣gland and Dutchess of Guienne, to the community of Poitiers, "ut sua propria melius defendre possint, & magis integrè custodire." Du Cange voc. Communia, v. ii. p. 863.—Such are some of the capital regulations established in communities during the twelfth and thir∣teenth centuries. These may be considered as the first rudiments of law and order, and contributed greatly to introduce regular government among all the mem∣bers of society. As soon as communities were institu∣ted, high sentiments of liberty began to appear. When Humbert, lord of Beaujeu, upon granting a charter of community to the town of Belleville, exacted of the inhabitants an oath of fidelity to himself and succes∣sors, they stipulated, on their part, that he should swear to maintain their franchises and liberties; and for their greater security, they obliged him to bring twenty gentlemen to take the same oath, and to be bound together with him. D'Ach. ix. 183. In the same manner, the lord of Moirens in Dauphinè pro∣duced a certain number of persons as his sureties for the observation of the articles, contained in the char∣ter of community to that town. These were bound to surrender themselves prisoners to the inhabitants of Moirens, if their liege lord should violate any of their franchises, and they promised to remain in custody until he should grant them redress. Hist. de Dau∣phinè, tom. i. p. 17. If the mayor or chief magi∣strate of a town did any injury to a citizen, he was obliged to give security for his appearance in judg∣ment, in the same manner as a private person; and if cast, was liable to the same penalty. D'Ach. ix. 183. These are ideas of equality uncommon in the feudal times. Communities were so favourable to freedom, that they were distinguished by the name of Libertates. Du Cange, v. ii. p. 863. They were, at first ex∣tremely odious to the nobles, who foresaw what a check they must prove to their power and dominati∣on

Guibert Abbot of Nogent calls them execrable inventions, by which, contrary to law and justice, slaves withdrew themselves from that obedience which they owed to their masters. Du Cange, ib. 862. The zeal with which some of the nobles and powerful ecclesiasticks opposed the establishment of communi∣ties, and endeavoured to circumscribe their privileges, was extraordinary. A striking instance of this oc∣curs in the contests between the archbishop of Reims, and the inhabitants of that community. It was the chief business of every archbishop, during a conside∣rable time, to abridge the rights and jurisdiction of the community; and the great object of the citizens, especially when the see was vacant, to maintain, to recover, and to extend their jurisdiction. Histoire civile & politique de la ville de Reims par M. Anque∣til, tom. i. p. 287, &c.

THE observations which I have made concerning the state of cities, and the condition of their inhabi∣tants, are confirmed by innumerable passages in the historians and laws of the middle ages. It is not im∣probable, however, that some cities of the first order were in a better state, and enjoyed a superior degree of liberty. Under the Roman government, the mu∣nicipal government established in cities was extremely favourable to liberty. The jurisdiction of the senate in each corporation, and the privileges of the ci∣tizens, were both extensive. There is reason to be∣lieve, that some of the greater cities which escaped the destructive rage of the barbarous nations, still retain∣ed their ancient form of government, at least in a great measure. They were governed by a council of citizens, and by magistrates whom they themselves elected. Very strong presumptions in favour of this opinion; are produced by M. l' Abbé De Bos. Hist. Crit. de la Mon. Franc. tom. i. p. 18, &c. tom. ii. p. 524. edit. 1742. It appears from some of the charters of communities to cities, granted in the twelfth and thirteenth centuries, that they only confirm the privileges possessed by the inhabitants, previous to the establishment of the community. D'Acher. er. Specileg. vol. xi. p. 345. Other cities claimed

their privileges as having possessed them without inter∣ruption from the times of the Romans. Hist. Crit. de la. Mon. Franc. tom. ii. p. 333. But the number of cities which enjoyed such immunities was so small, as in no degree to diminish the force of my conclusi∣on in the text.

NOTE XVII. [R]. SECT. I.

HAVING given a full account of the establishment, as well as effects of communities in Italy and France, it will be necessary to enquire with some attention, in∣to the progress of cities and of municipal government in Germany. The ancient Germans had no cities. Even in their hamlets or villages, they did not build their houses contiguous to each other. Tac. de Mor. Germ. cap. 16. They considered it as a badge of servitude, to be obliged to dwell in a city surrounded with walls. When one of their tribes had shaken off the Roman yoke, their countrymen required of them, as an evidence of their having recovered liberty, to demolish the walls of a town which the Romans had built in their country. Even the fiercest animals, said they, lose their spirit and courage when they are con∣fined. Tacit. Histor. lib. iv. c. 64. The Romans built several cities of note on the banks of the Rhine. But in all the vast countries from that river to the coasts of the Baltic, there was hardly one city previ∣ous to the ninth century of the Christian aera. Con∣ringius Exercitatio de Urbibus Germaniae Open. vol. i. § 25, 27, 31, &c. Heineccius differs from Con∣ringius with respect to this. But even after allowing to his arguments and authorities their utmost force, they prove only, that there were a few places in those extensive regions, on which some historians have be∣stowed the name of towns Elem. Jur. German. lib. i. § 102. Under Charlemagne, and the Emperors of his family, as the political state of Germany began to improve, several cities were founded, and men became accustomed to associate and to live together in one place. Charlemagne founded two archbishop∣ricks and nine bishopricks in the most considerable

towns of Germany. Aub. Miraei Opera Diplomatica, vol. i. p. 16. His successors increased the number of these; and as the bishops fixed their residence in these cities and performed religious functions there, that induced many people to settle in them. Conring. ibid. § 48. But Henry, sirnamed the Fowler, who began his reign A. D. 920, must be considered as the great founder of the cities in Germany. The Empire was at that time infested by the incursions of the hungarians and other barbarous people. In order to oppose them, Henry encouraged his subjects to set∣tle in cities which he surrounded with walls and tow∣ers. He enjoined or persuaded a certain propor∣tion of the nobility to fix their residence in the towns, and thus rendered the condition of citizens more ho∣nourable than it had been formerly. Wittikindus An∣nal. lib. i. ap. Conring. §. 82. From this period the number of cities continued to encrease, and they be∣came more populous and more wealthy. But cities were still destitute of municipal liberty or jurisdiction. Such of them as were situated in the Imperial demesnes, were subject to the Emperors, and their Comites, Missi, and other judges presided in them, and dispensed jus∣tice. Towns situated on the estate of a baron, were part of his fief, and he or his officers exercised a similiar jurisdiction in them. Conring. ibid. §. 73, 74. Heinec. Elem. Jur. Germ. lib. i. §. 104. The Germans borrow∣ed the institution of communities from the Italians. Knipschildius Tractatus Politico. Hist. Jurid. de Ci∣vitatum Imperialum Juribus, vol. i. lib. i. cap. 5. N^o. 23. Frederick Barbarossa was the first Emperor who, from the same political consideration that influenced Lewis the Gross, multiplied communities in order to abridge the power of the nobles. Pfeffel Abregè de l'Histoire & du Droit Publique d'Allemagne, 4to. 297. From the reign of Henry the Fowler, to the time when the German cities acquired full possession of their immunities, various circumstances contributed to their increase. The establishment of bishopricks (al∣ready mentioned) and the building of cathedrals, na∣turally induced many people to settle there. It became the custom to hold councils and courts of judicature

of every kind, ecclesiastical as well as civil▪ in cities. In the eleventh century, many slaves were enfranchis∣ed, the greater part of which settled in cities. Seve∣ral mines were discovered and wrought in different provinces, which drew together such a concourse of people, as gave rise to several cities. Conring. §. 105. The cities began in the thirteenth century to form leagues for their mutual defence, and for repressing the disorders occasioned by the private wars among the barons, as well as by their exactions. This rendered the condition of the inhabitants of cities more secure than that of any order of men, and allured many to become members of their communities. Conring. §. 94. There were inhabitants of three different ranks in the towns of Germany. The nobles, or familiae, the citizens, or liberi, and the artisans who were slaves, or homines proprii. Knipschild. lib. ii. cap. 29. N^o. 13. Henry V. who began his reign A. D. 1106, infran∣chised the slaves who were artisans or inhabitants in several towns, and gave them the rank of citizens, or liberi. Pfeffel, p. 254. Knipsch. lib. ii. c. 29. N^o. 113, 119. Though the cities in Germany did not acquire liberty so early as those in France, they extended their privileges much farther. All the Imperial and free ci∣ties, the number of which is considerable, acquired the full right of being immediate; by which term in the German jurisprudence, we are to understand, that they are subject to the Empire alone, and possess with∣in their own precincts all the rights of compleat and independant sovereignty. The various privileges of the Imperial cities, the great guardians of the Germa∣nic liberties, are innumerated by Knipschild, lib. ii. The great articles are generally known, and it would be improper to enter into any disquisition concerning minute particulars.

NOTE XVIII. [S]. SECT. I.

THE Spanish historians are almost entirely silent con∣cerning the origin and progress of communities in that kingdom; so that I cannot fix with any degree of cer∣tainty the time and manner of their first introduction

there. It appears, however, from Mariana, vol. ii. p. 221, fol. Hagae 1736, that in the year 1350, eigh∣teen cities had obtained a seat in the Cortes of Castile. From the account which shall be given of their consti∣tution and pretensions, Sect. III. of this volume, it is evident that their privileges and form of government were the same with those of the other feudal corpora∣tions; and this, aswell as the pefect similarity of political institutions and transactions in all the feudal kingdoms, may lead us to conclude, that communities were in∣troduced there in the same manner, and probably about the same time, as in the other nations of Europe. In Aragon, as I shall have occasion to observe in a sub∣sequent note, cities seem early to have acquired exten∣sive immunities, together with a share in the legisla∣ture. In the year 1118, the citizens of Saragossa had not only attained political liberty, but they were de∣clared to be of equal rank with the nobles of the second class; and many other immunities, unknown to per∣sons in their rank of life in other parts of Europe, were conferred upon them. Zurita Anales de Aragon, tom. i. p. 44. In England, the establishment of communi∣ties or corporations was posterior to the Conquest. The practice was borrowed from France, and the privileges granted by the crown were perfectly similar to those which I have enumerated. But as this part of history is well known to most of my readers, I shall, without entering into any critical or minute discussion, refer them to authors who have fully illustrated this interesting point in the English history. Brady's Treatise of Bo∣roughs. Madox Firma Burgi, chap. i. sect. ix. Hume's History of England, vol. i. append. i. and ii. It is not improbable that some of the towns in England were formed into corporations, under the Saxon Kings, and that the charters granted by the Kings of the Nor∣man race were not charters of enfranchisement from a state of slavery, but a confirmation of privileges which they already enjoyed. See Lord Lyttleton's History of Henry II. vol. ii. p. 317. The English cities, how∣ever, were very inconsiderable in the twelfth century. A clear proof of this occurs in the history to which I last referred. Fitzstephen, a contemporary author,

gives a description of the city of London in the reign of Henry II. and the terms in which he speaks of its trade, its wealth, and the splendour of its inhabitants, would suggest no inadequate idea of its state at present, when it is the greatest and most opulent city of Europe. But all ideas of grandeur and magnificence are merely comparative. It appears from a contemporary author, Peter of Blois, archdeacon of London, who had good opportunity of being informed, that this city, of which Fitzstephen gives such a pompous account, contained no more than forty thousand inhabitants. Ibid. 315, 316. The other cities were small in proportion, and in no condition to extort any extensive privileges. That the constitution of the boroughs in Scotland, in many circumstances, resembled that of the towns in France and England, is manifest from the Leges Burgorum annexed to the Regiam Majestatem.

NOTE XIX. [T]. SECT. I.

SOON after the introduction of the third estate into the national council, the spirit of liberty which that excited in France began to produce conspicuous effects. in several provinces of France, the nobility and com∣munities formed associations, whereby they bound themselves to defend their rights and privileges against the formidable and arbitrary proceedings of the King. The count de Boulainvilliers has preserved a copy of one of these associations, dated in the year 1314, twelve years after the admission of the deputies from towns into the States General. Histoire de L'ancien gouvernement de la France, tom. ii. p. 94. The vigour with which the people asserted and prepared to maintain their rights, obliged their sovereigns to re∣spect them. Six years after this association, Philip the Long issued a writ of summons, to the Communi∣ty of Narbonne, in the following terms: "Philip, by the Grace, &c. to our well-beloved, &c. As we de∣sire with all our heart, and above all other things, to govern our kingdoms and people in peace and tran∣quillity, by the help of God: and to reform our said kingdom in so far as it stands in need thereof, for the

public good, and for the benefit of our subjects, who in times past have been aggrieved and oppressed in diverse manners by the malice of sundry persons, as we have learned by common report as well as by the information of good men worthy of credit, and we having determined in our council which we have called to meet in our good city, &c. to give redress to the utmost of our power, by all ways and means possible, according to reason and justice, and willing that this should be done with solemnity and deliberation by the advice of the prelates, barons, and good towns of our realm, and particularly of you, and that it should be transacted agreeable to the will of God, and for the good of our people, therefore we command," &c. Mably, observat. ii. App. p. 386. I shall allow these to be only the formal words of a public and legal stile, but the ideas are singular, and much more liberal and enlarged than one could expect in that age. A popular monarch of Great-Bri∣tain could hardly address himself to the parliament, in terms more favourable to public liberty. There occurs in the history of France a striking instance of the progress which the principles of liberty had made in that kingdom, and of the influence which the de∣puties of towns had acquired in the States-General. During the calamities in which the war with England, and the captivity of King John, had involved France, the States-General made abold effort to extend their own privileges and jurisdiction. The regulations established by the States held A. D. 1355, concerning the mode of levying taxes, the administration of which they vested not in the crown, but in commissioners appointed by the States; concerning the coining of money; concerning the redress of the grievance of purveyance; concerning the regular administration of justice; are much more suitable to the genius of a republican go∣vernment than that of a feudal monarchy. This cu∣rious statute is published, Ordon. t. iii. p. 19. Such as have not an opportunity to consult that large collection will find an abridgment of it, Hist. de France par Vil∣laret, tom. ix. p. 130, or in histoire de Boulainv. tom. ii. 213. The French historians represent the

bishop of Laon, and Marcel Provost of the merchants of Paris, who had the chief direction of this assembly, as seditious tribunes, violent, interested, ambitious, and aiming at innovations subversive of the constitu∣tion and government of their country. That may have been the case, but these men possessed the confi∣dence of the people; and the measures which they proposed as the most popular and acceptable, plainly prove that the spirit of liberty had spread wonderfully, and that the ideas which then prevailed in France con∣cerning government were extremely liberal. The States general held at Paris A. D. 1355, consisted of about eight hundred members, and above one half of these were deputies from towns. M. Secoursse Pref. a Ordon. tom. iii. p. 48. It appears that in all the different assemblies of the States, held during the reign of John, the representatives of towns had great influence, and in every respect the third State was considered as co-ordinate and equal to either of the other two. Ibid. passim. These spirited efforts were made in France long before the House of Commons in England acquired any considerable influence in the legislature. As the feudal system was carried to its utmost height in France sooner than in England, so it began to decline sooner in the former than in the latter kingdom. In England, almost all attempts to establish or to extend the liberty of the people have been successful; in France they have proved unfortu∣nate. What were the accidental events, or political causes which occasioned this difference, is it not my present business to enquire.

NOTE XX. [U]. SECT. I.

IN a former note, No. VIII. I have enquired into the condition of that part of the people who were employed in agriculture, and have represented the va∣rious hardships and calamities of their situation. When charters of liberty and manumission were grant∣ed to such persons, they contained four concessions corresponding to the four capital grievances to which men in a state of servitude are subject. 1. The right

of disposing of their persons by sale or grant was re∣linquished. 2. Power was given to them of convey∣ing their property and effects by will or any other le∣gal deed. Or if they happened to die intestate, it was provided that their property should go to their lawful heirs in the same manner as the property of other per∣sons. 3. The services and taxes which they owed to their superior or liege Lord, which were formerly ar∣bitrary and imposed at pleasure, are precisely ascer∣tained. 4. They are allowed the privilege of marry∣ing whatever person they chose, as formerly they could contract no marriage without their Lord's permission, and with no person but one of his slaves. All these particulars are found united in the charter granted Habitatoribus Montis-Britonis. A. D. 1376. Hist. de Dauphinè, tom. i. p. 81. Many circumstances concurred with those which I have mentioned in the text in procuring them deliverance from that wretch∣ed state. The gentle spirit of the Christian religion, to∣gether with the doctrines which it teaches, concern∣ing the original equality of mankind, as well as the impartial eye with which the Almighty regards men of every condition, and admits them to a participati∣on of his benefits, are inconsistent with servitude. But in this, as in many other instances, considerations of interest, and the maxims of false policy led men to a conduct inconsistent with their principles. They were so sensible, however, of the inconsistency, that to set their fellow Christians at liberty from servitude was deemed an act of piety highly meritorious and accept∣able to heaven. The humane spirit of the Christian religion struggled with the maxims and manners of the world, and contributed more than any other cir∣cumstance to introduce the practice of manumission. When pope Gregory the Great, who flourished to¦wards the end of the sixth century, granted liberty to some of his slaves, he gives this reason for it, "Cum redempter noster, totius conditor naturae, ad hoc pro∣pitiatus humanam carnem voluerit assumere, ut ••ivi∣nitaxis suae gratia, dirempto (quo tenebamur captivi) vinculo, pristinae nos restituerat libertati; salubriter agitur, si homines, quos ab initio liberos natura pro∣tulit,

& jus gentium jugo substituit servitutis, in ea, quâ nati fuerant, manumittentis beneficio libertate red∣dantur. Gregor Magn. ap. Potgiess. lib. 4. c. 1. § 3. Several laws or charters founded on reasons simi∣lar to this, are produced by the same author. Ac∣cordingly a great part of the charters of manumission previous to the reign of Louis X. are granted pro amore dei, pro remedio animae, & pro merced•• animae. Murat. Antiq. Ital. vol. i. p. 849, 850. Du Cange, voc. manumissio. The formality of manumission was executed in a church, as a religious solemnity. The person to be set free was led round the great altar with a torch in his hand, he took hold of the horns of the altar, and there the solemn words conferring li¦berty were pronounced. Du Cange, Ib. vol. iv. p. 467. I shall transcribe a part of a charter of manu∣mission granted A. D. 1056; both as it contains a full account of the ceremonies used in this form of manumission, and as a specimen of the imperfect know∣ledge of the Latin tongue in that barbarous age. It is granted by Willa the widow of Hugo the Duke and Marquis, in favour of Cleriza one of her slaves. Et ideo nos Domine Wille inclite cometisse—libera et absolvo te Cleriza filia Uberto—pro timore omnipo∣tentis dei, & remedio luminarie anime bone memorie quondam supra scripto Domini Ugo gloriossissimo, ut quando illum Dominius de hac vita migrare, jusserit, pars iniqua non abeat potestatum ullam, sed anguelus Domini nostri Jesu Christi colocare digniturillum inter sanctos dilectos suos; & beatus Petrus princips aposto∣lorum, qui habed potestatem omnium animarum li∣gandi et absolvendi, ut ipsi absolvat animae ejus depec∣catis sui, et aperiad illum janua paradisi; pro eadem vero rationi, in mano mite te Benzo presbiter, ut va∣dat tecum in ecclesia sancti Bartholomaei apostoli; traad te tribus vicibus circa altare ips••us ecclesiae cum caereo apprehensum in manibus tuis & manibus suis; deinde exite ambulate in via quadrubio, ubi quatuor vie se deviduntur. Statim{que} pro remedio luminarie anime bone memorie quondam supra scripto Domini ugo, et ipsi presbiter Benzo fecit omnia, & dixit, Ecce quatuor vie, ite et ambulate in quacun{que} partem tibi

placuerit, tam si supra scripta Cleriza, qua nosque tui heredes, qui ab ac hora in antea nati, vel procreati fuerit utrius{que} sexus, &c." Murat. ib. p. 853. Many other charters might have been selected, which in point of grammar or stile, are in no wise superior to this. Manumission was frequently granted on death-bed or by latter will. As the minds of men are at that time awakened to sentiments of humanity and piety, these deeds proceeded from religious motives, and are granted pro redemptione animae, in order to obtain acceptance with God. Du Cange ubi supra, p. 470. & voc. servus vol. vi. p. 451. Another method of obtaining liberty was by entering into holy orders, or taking the vow in a monastery. This was permit∣ted for some time; but so many slaves escaped, by this means out of the hands of their masters, that the practice was afterwards restrained, and at last prohi∣bited by the laws of almost all the nations of Europe. Murat. ib. p. 842. Conformably to the same prin∣ciples, Princes, on the birth of a son, or upon any other agreeable event, appointed a certain number of slaves to be enfranchised, as a testimony of their gra∣titude to God for that benefit. Marculfi Form. lib. i. cap. 39. There are several forms of manumission published by Marculfus, and all of them are founded on religious considerations, in order to procure the favour of God, or to obtain the forgiveness of their sins. Lib. ii. c. 23, 33, 34, edit. Baluz. The same observation holds with respect to the other col∣lections of Formulae annexed to Marculfus. As sen∣timents of religion induced some to grant liberty to their fellow-Christians who groaned under the yoke of servitude; so mistaken ideas concerning devotion led others to relinquish their liberty. When a person conceived an extraordinary respect for the saint who was the patron of any church or monastery in which he was accustomed to attend religious worship, it was not unusual among men possessed with an excess of superstitious reverence, to give up themselves and their posterity to be slaves of the saint. Mabillon. de re Diplomat, lib. vi. 632. The oblati or voluntary slaves of churches or monasteries were very nume∣rous, and may be divided into three different classes.

The first were such as put themselves and effects un∣der the protection of a particular church or monaste∣ry, binding themselves to defend its privileges and property against every aggressor. These were prompt∣ed to do so, not merely by devotion, but in order to obtain that security which arose from the protection of the church. They were rather vassals than slaves, and sometimes persons of noble birth found it prudent to secure the protection of the church in this manner. Per∣sons of the second class bound themselves to pay an annual 〈◊〉〈◊〉 or quit-rent out of their estates to a church or mo∣nastery. Besides this, they sometimes engaged to perform certain services. They were called censuales. The last class consisted of such as actually renounced their li∣berty, and became slaves in the strict and proper sense of the word. These were called ministeriales, and en∣slaved their bodies, as some of the charters bear, that they might procure the liberty of their souls. Potgi∣esserus de statu servorum, lib. i. cap. i. §. 6, 7. How zealous the clergy were to encourge the opini∣ons which led to this practice will appear from a clause in a charter by which one gives up himself as a slave to a monastery, "Cum sit omni carnali ingenuitate generosius extremum quodcum{que} Dei servitum, sci∣licet quod terrena nobilitas multos plerum{que} vitio∣rum servos facit, servitus vero Christi nobiles virtuti∣bus reddit, nemo autem sani capitis virtutibus vitia comparaverit, claret pro certo eum esse generosiorem, qui se Dei servitio praebu erit proniorem. Quod ego Ragnaldus intelligens, &c." Another author says, Eligens magis esse servus Dei quam libertus saeculi, firmiter credens & sciens, quod servire Deo, reg∣nare est, summaque ingenuitas sit in qua servitus comparabatur Christi, &c. Du Cange, voc. oblatus, vol. iv. p. 1286, 1287. It does not appear, that the enfranchisement of slaves was a frequent practice while the feudal system preserved its vigour. On the contrary, there were laws which set bounds to this practice as detrimental to society. Potgiess. lib. iv. c. 2. § 6. The inferior order of men owed the reco∣very of their liberty to the decline of that aristocrati∣cal policy, which lodged the most extensive power in

the hands of a few members of the society, and depres∣sed all the rest. When Louis X. issued his ordonance, several slaves had been so long accustomed to servi∣tude, and their minds were so much debased by that unhappy situation, that they refused to accept of their liberty which was offered them. D'Ach. Spicel. v. xi. p. 387. Long after the reign of Louis X. seve∣ral of the French nobility continued to assert their an∣cient dominion over their slaves. It appears from an ordonance of the famous Bertrand de Gusclin Consta∣ble of France, that the custom of enfranchising them was considered as a pernicious innovation. Mor•••••• Mem. pour servir des preuves á l'hist. de Bret. tom. ii. p. 100. In some instances when the praedial slaves were declared to be freemen, they were still bound to perform certain services to their ancient masters; and were kept in a state different from other subjects, be∣ing restricted either from purchasing land, or becom∣ing members of a community within the precincts of the manor to which they formerly belonged. Mar∣tene & Durand. Thesaur. Anecdot. vol. i. p. 914. This, however, seems not to have been common. There is no general law for the manumission of slaves in the Statute-book of England similar to that which has been quoted from the ordonances of the Kings of France. Though the genius of the English constitu∣tion seems early to have favoured personal liberty, personal servitude, nevertheless, continued long in England in some particular places. In the year 1514, we find a charter of Henry VIII. enfranchising two slaves belonging to one of his manors. Rym. Foeder. vol. xiii. p. 470. As late as the year 1574, there is a commission from Queen Elizabeth with respect to the manumission of certain bondmen belonging to her. Rymer. in Observat. on the statutes, &c. p. 251.

NOTE XXI. [X]. SECT. I.

THERE is no custom in the middle ages more sin∣gular than that of private war. It is a right of so great importance, and prevailed so universally, that the regulations concerning it make a considerable figure

in the system of laws during the middle ages. M. de Montesquieu, who has unravelled so many intricate points in feudal jurisprudence, and thrown light on so many customs formerly obscure and unintelligible, was not led by his subject to consider this. I shall therefore give a more minute account of the customs and regulations which directed a practice so contrary to the present ideas of civilized nations concerning go∣vernment and order. 1. Among the ancient Ger∣mans, as well as other nations in a similar state of so∣ciety, the right of avenging injuries was a private and personal right, exercised by force of arms, without any reference to an umpire, or any appeal to a magi∣strate for decision. The clearest proofs of this were produced Note VI. 2. This practice subsisted among the barbarous nations after their settlement in the provinces of the Empire which they conquered; and as the causes of dissention among them multiplied, their family feuds and private wars became more frequent. Proo•• of this occur in their early historians. Greg. Turon. hist. lib. vii. c. 2. lib. viii. c. 18. lib. x. c. 27. and likewise in the codes of their laws. It was not only allowable for the relations to avenge the in∣juries of their family, but it was incumbent on them. Thus by the laws of the Angli and Werini, ad quem∣cunque hereditas terrae pervenerit, ad illum vestis bellica id est lorica & ultio proximi, & solatio leudis, debet pertinere. tit. vi. § 5. ap. Lindenbr. Leg. Sa∣lic. tit. 63. Legi Longob. lib. ii. tit. 14 § 10.—3. None but gentlemen, or persons of noble birth, had the right of private war. All disputes among slaves, vil∣lani, the inhabitants of towns, and freemen of infe∣rior condition, were decided in the courts of justice. All disputes between gentlemen and persons of inferi∣or rank were terminated in the same manner. The right of private war supposed nobility of birth, and equality of rank in the contending parties. Beauma∣noir Coustumes de Beauv. ch. lix. p. 300. Ordon. des Rois de France, tom. ii. 395. § xvii. 508. § xv. &c. The dignified ecclesiasticks likewise claimed and exercised the right of private war; but as it was not altogether decent for them to prosecute quarrels

in person, advocati or vidames were chosen by the se∣veral monasteries and bishopricks. These were com∣monly men of high rank and reputation, who became the protect•••• of the churches and convents by whom they were elected; espoused their quarrels, and fought their battles, armis omnia quae erant ecclesiae viriliter defendebant, et vigilanter protegebant. Brussel Usage des fiefs, tom. i. p. 144. Du Cange voc. advocatus. On many occasions, the martial ideas to which eccle∣siasticks of noble birth were accustomed, made them forget the pacifick spirit of their profession, and led them into the field in person at the head of their vassals, "flamma, ferro, caede, possessiones ecclesiarum praelati defendebant." Guido Abbas ap. Du Cange. Ib. p. 179.—4. It was not every injury or trespass that gave a gentleman a title to make war upon his adver∣sary. Atrocious acts of violence, insults and affronts publickly committed, were legal and permitted mo∣tives for taking arms against the authors of them. Such crimes as are now punished capitally in civilized nations, at that time justified private hostilities. Beau∣man. ch. lix. Du Cange Dissert. xxix. sur Joinville, p. 331. But though the avenging of injuries was the only motive that could legally authorize a private war, yet disputes concerning civil property, often gave rise to hostilities, and were terminated by the sword. Du Cange Dissert. p. 332.—5. All persons present when any quarrel arose, or any act of vio∣lence was committed, were included in the war which it occasioned, for it was supposed to be impossible for any man in such a situation, to remain neutral, with∣out taking side with one or other of the contend∣ing parties. Beauman. p. 300.—6. All the kin∣dred of the two principals in the war were included in it, and obliged to espouse the quarrel of the chieftain with whom they were connected. Du Cange, ib. 332. This was founded on the maxim of the ancient Germans, "suscipere tam inimicitias seu patris, seu propinqui, quam amicitias, necesse est;" a maxim natural to all rude and simple nations, among which the form of society, and political union strengthens such a sentiment. The method of ascertaining the

degree of affinity which obliged a person to take part in the quarrel of a kinsman was curious. While the church prohibited the marriage of persons within the seventh degree of affinity, the vengeance of private war extended as far as this absurd prohibition, and all wh•• 〈◊〉〈◊〉 such a remote connection with any of the principals were involved in the calamities of war. But when the church relaxed somewhat of its rigour, and did not extend its prohibition of marrying beyond the fourth degree of affinity, the same restriction took place in the conduct of private war. Beauman. 303. Du Cange Dissert. 333.—7. A private war could not be carried on between two full brothers, because both have the same common kindred, and consequent∣ly neither have any persons bound to stand by him against the other, in the contest; but two brothers of the half blood might wage war, because each of them has a distinct kindred. Beauman. p. 299—8. The vassals of each principal in any private war were in∣volved in the contest, because by the feudal maxims they were bound to take arms in defence of their chieftain of whom they held, and to assist him in every quarrel. As soon, therefore, as the feudal te∣nures were introduced, and this artificial connection was established between vassals and the baron of whom they held, vassals came to be considered as in the same state with relations. Beauman. 303—9. Private wars were very frequent for several centuries. Nothing contributed more to increase those disorders in government, and that ferocity of manners which reduced the nations of Europe to that wretched state which distinguished the period of history which I am reviewing. Nothing was such an obstacle to the intro∣duction of a regular administration of justice. No∣thing could more effectually discourage industry, or retard the prog••••ss and cultivation of the arts of peace. Private wars ••ere carried on with all the destructive rage, which is to be dreaded from violent resentment when armed with force, and authorised by law It appears from the laws prohibiting or restraining the exercise of private hostilities, that the invasion of the most barbarous enemy could not be more desolating

to a country, or more fatal to its inhabitants, than those intestine wars. Ordon. t. i. p. 701. tom. ii. 395, 408, 507, &c. The contemporary historians describe the excesses committed in prosecution of these quarrels, in such terms, as excite astonishment and horror. I shall mention only one passage from the history of the Holywar, by Guibert, Abbot of Nogent: "Erat eo tempore maximis ad invice•• hostilitatibus, totius Francorum regni facta turbatio; cebra ubi{que} latrocinia, viarum obsessio: andiebantur passim, im∣mo fiebant incendia infinita; nullis praeter sola & in∣domita cupiditate existentibus causis extruebantur praelia; & ut brevi totum claudam quicquid obtuti∣bus cupidorum subjacebat, nusqua•• attendendo cu∣jus esset, praedae patebat. Gesta Dei per Francos. vol. i. p. 482.

HAVING thus collected the chief regulations which custom had established concerning the right and exer∣cise of private war, I shall enumerate in chronological order the various expedients employed to abolish or restrain this fatal custom. 1. The first expedient em∣ployed by the civil magistrate in order to set some bounds to the violence of private revenge, was the fix∣ing by law the fine or composition to be paid for each different crime. The injured person was originally the sole judge concerning the nature of the wrong which he had suffered, the degree of vengeance which he should exact, as well as the species of attonement or reparation with which he should rest satisfied. Re∣sentment became of course as implacable as it was fierce. It was often a point of honour not to forgive, nor to be reconciled. This made it necessary to fix those compositions which make so great a figure in the laws of barbarous nations. The nature of crimes and offences was estimated by the magistrate, and the sum due to the person offended was ascertained with a minute, and often a whimsical accuracy. Rotharis, the legislator of the Lombards, who reigned about the middle of the seventh century, discovers his intention both in ascertaining the composition to be paid by the offender, and in increasing its value; it is, says he, that the enmity may be extinguished, the prosecution

may cease, and peace may be restored. Leg. Langob. lib. •• tit. 7. § 〈…〉〈…〉. About the beginning of the ninth century, Charlemagne struck at the root of the evil, and enacted, "That when any person had been guilty of a crime, or had committed an outrage, he should immediately submit to the penance which the church imposed, and offer to pay the composition which the law prescribed; and if the injured person or his kindred should refuse to accept of this, and pre∣sume to avenge themselves by force of arms, their lands and properties should be forfeited. Capitul. A. D. 802. edit. Baluz. vol. i. 371—3. But in this, as well as in other regulations, the genius of Charle∣magne advanced before the spirit of his age. The ideas of his contemporaries concerning regular government were too imperfect, and their manners too fierce to submit to this law. Private wars, with all the cala∣mities whcih they occasioned, became more frequent than ever after the death of that great monarch. His successors were unable to restrain them. The church found it necessary to interpose. The most early of these interpositions now extant, is towards the end of the tenth century. In the year 990, several Bishops in the south of France assembled, and published vari∣ous regulations, in order to set some bounds to the violence and frequency of private wars; if any person within their diocesses should venture to transgress, they ordained that he should be excluded from all Christian privileges during his life, and be denied Christian bu∣rial after his death, Du Mont Corps Diplomatique, tom. i. p. 41. These, however, were only partial remedies; and therefore a council was held at Limo∣ges, A. D. 994. The bodies of the saints, accord∣ing to the custom of those ages, were carried thither; and by these sacred relicks men were exhorted to lay down their arms, to extinguish their animosities, and to swear that they would not for the future violate the public peace by their private hostilites. Bouquet Recueil des Histor. vol. x. p. 49, 147. Several other councils issued decrees to the same effect. Du Cange Dissert. 343—4. But the authority of coun∣cils, how venerable soever in those ages, was not suf∣ficient

to abolish a custom which flattered the pride of the nobles, and gratified their favourite passions. The evil grew so intolerable, that it became necessary to employ supernatural means for surpressing it. A bishop of Aquitaine, A. D. 1032, pretended that an angel had appeared to him, and brought him a writ∣ing from heaven, enjoining men to cease from their hostilities, and to be reconciled to each other. It was during a season of public calamity that he published this revelation. The minds of men were disposed to receive such pious impressions; and willing to perform any thing in order to avert the wrath of heaven. A general peace and cessation from hostilities took place, and continued for seven years; and a resolution was formed that no man should in times to come attack or molest his adversaries during the seasons set apart for celebrating the great festivals of the church, or from the evening of Thursday in each week to the morning of Monday in the week ensuing, the inter∣vening days being considered as particularly holy, our Lord's passion having happened on one of these days, and his resurrection on another. A change in the disposition of men so sudden, and which produced a resolution so unexpected, was considered as miracu∣lous; and the respite from hostilities which followed upon it, was called The Truce of God. Glaber. Rodul∣phus Histor. lib. v. ap. Bouquet, vol. x. p. 59. This, from being a regulation or concert in one king∣dom, became a general law in Christendom, and was confirmed by the authority of the Pope, and the vio∣laters were subjected to the penalty of excommunica∣tion. Corpus Jur. Canon. Decretal, lib. i. tit. 34. c. 1. Du Cange Glossar. voc. Treuga. An act of the council of Toulujes in Roussillon, A. D. 1041, con∣taining all the stipulations required by the truce of God, is published by Dom de Vic & Dom Vaissette Hist. de Languedoc, tom. ii. Preuves, p. 206. A cessation from hostilities during three compleat days in every week, allowed such a considerable space for the passions of the antagonists to cool, and for the people to enjoy a respite from the calamities of war, as well as to take measures for their own security, that,

if this truce of God had been exactly observed, it must have gone far towards putting an end to private wars. This, however, seems not to have been the case; the nobles, disregarding the truce, prosecuted their quar∣rels without interruption as formerly. Qua nimirum tempestate, universae provinciae adeo devastationis con∣tinuae importunitate inquietantur, ut ne ipsa, pro ob∣servatione divinae pacis, professa sacramenta custodi∣antur. Abbas Uspergensis apud Datt de pace imperii publica, p. 13. No. 35. The violent spirit of the nobility could not be restrained by any engagements. The complaints of this were frequent; and bishops in order to compel them to renew their vows and pro∣mises of ceasing from their private wars, were obliged to enjoin their clergy to suspend the performance of di∣vine service, and the exercise of any religious function within the parishes of such as were refractory and ob∣stinate. Hist. de Langued. par. D. D. de Vic & Vaisette, tom. ii. Preuves, p. 118—5. The people, eager to obtain relief from their sufferings, called in a second time a pretended revelation to their aid. Towards the end of the twelfth century, a carpenter in Guienne gave out that Jesus Christ together with the blessed Virgin had appeared to him, and having commanded him to exhort mankind to peace, had given him, as a proof of his mission, an image of the Virgin holding her son in her arms, with this inscrip∣tion, Lamb of God, who takest away the sins of the world, give us peace. This low fanatic addressed himself to an ignorant age, prone to credit what was marvellous. He was received as an inspired messenger of God. Ma∣ny prelates and barons assembled at Puy, and took an oath, not only to make peace with all their own ene∣mies, but to attack such as refused to lay down their arms, and to be reconciled to their enemies. They formed an association for this purpose, and assumed the ho∣nourable name of the Brotherhood of God. Robertus de Monte Michaele ap. M. de Lauriere Pref. tom. i. Ordon. p. 29. But the influence of this superstitious terror or devotion was not of long continuance—6. The civil magistrate was obliged to exert his authori∣ty in order to check a custom which threatened the

dissolution of government. Philip Augustus, as some imagine, or St Louis as is more probable, published an ordonance, A. D. 1••45, prohibiting any person to commence hostilities against the friends and vassals of his adversary, until forty days after the commission of the crime or offence which gave rise to the quarrel; declaring, that if any man presumed to transgress this statute, he should be considered as guilty of a breach of public peace, and be tried and punished by the judge ordinary as a traitor, Ordon. tom. i. p. 56. This was called the Royal Truce, and afforded time for the violence of resentment to subside, as well as leisure for the good offices of such as were willing to compose the difference. The happy effects of this re∣gulation seem to have been considerable, if we may judge from the solicitude of succeeding monarchs to enforce it.—7. In order to restrain the exercise of pri∣vate war still farther, Philip the Fair, towards the close of the same century, A. D. 1296, published an ordonance commanding all private hostilities to cease, whilst he was engaged in war against the enemies of the state. Ordon. tom. i. p. 328, 390. This regu∣lation, which seems to be almost essential to the exist∣ence and preservation of society, was often renewed by his successors, and being enforced by the regal au∣thority, proved a considerable check to the destruc∣tive contests of the nobles. Both these regulations, introduced first in France, were adopted by the other nations in Europe.—8. The evil, however, was so inveterate, that it did not yield to all these remedies. No sooner was public peace established in any king∣dom, than the barons renewed their private hostilities. They not only struggled to maintain this pernicious right, but to secure the exercise of it without any re∣straint. Upon the death of Philip the Fair, the no∣bles of different provinces in France formed associati∣ons, and presented remonstrances to his successor, de∣manding the repeal of several laws, by which he had abridged the privileges of their order. Among these, the right of private war is always mentioned as one of the most valuable; and they claim, that the restraint imposed by the truce of God, the royal truce, as

well as that arising from the ordonance of the year 1296, should be taken off. In some instances, the two sons of Philip who mounted the throne successive∣ly eluded their demands; in others they were oblig∣ed to make concessions. Ordon. tom. i. p. 551, 557, 561, 573. The ordonances to which I here refer, are of such length that I cannot insert them, but they are extremely curious, and may be peculiarly instruc∣tive to an English reader, as they throw considerable light on that period of English history in which the attempts to circumscribe the regal prerogative were carried on, not by the people struggling for liberty, but by the nobles contending for power. It is not necessary to produce any evidence of the continu∣ance and frequency of private wars under the succes∣sors of Philip the Fair.—9. A practice somewhat simi∣lar to the royal truce was introduced, in order to strengthen and extend it. Bonds of assurance on mu∣tual security, were demanded from the parties at va∣riance, by which they obliged themselves to abstain from all hostilities, either during a time mentioned in the bond, or for ever: and became subject to hea∣vy penalties, if they violated this obligation. These bonds were sometimes granted voluntarily, but more frequently exacted by the authority of the civil magis∣trate. Upon a petition from the party who felt him∣self weakest, the magistrate summoned his adversary to appear in court, and obliged him to give a bond of assurance. If, after that, he committed any farther hostilities, he became subject to all the penalties of treason. This restraint on private war was known in the age of St. Louis. Establissemens, liv. i. c. 28. It was frequent in Bretagne, and what is very re∣markable, such bonds of assurance were given mutu∣ally between vassals and the lord of whom they held. Oliver de Clisson grants one to the Duke of Bretagne, his sovereign. Morace Mem. pour servir de preuves à l'hist. de Bret. tom. i. p. 846. ii. p. 371. Many examples of bonds of assurance in other provinces of France are collected by Brussel. tom. ii. p. 856. The nobles of Burgundy remonstrated against this practice, and obtained exemption from it as an en∣croachment

on the privileges of their order. Ordon. tom. i. p. 558. This mode of security was first in∣troduced in cities, and the good effects of it having been felt there, was extended to the nobles. See Note XVI—10. The calamities occasioned by private wars, became at some times so intolerable, that the nobles entered into voluntary associations; binding themselves to refer all matters in dispute, whether concerning ci∣vil property, or points of honour, to the determina∣tion of the majority of the associates. Morice Mem. pour servir de preuves à l'hist. de Bret. tom. ii. p. 728—11. But all these expedients proving ineffectu∣al, Charles VI. A. D. 1413, issued an ordonance ex∣presly prohibiting private wars on any pretext what∣soever, with power to the judge ordinary to compel all persons to comply with this injunction, and to punish such as should prove refractory or disobedient, by imprisoning their persons, seizing their goods, and appointing the officers of justice, Mangeurs & Gasteurs, to live at free quarters on their estate. If those who were disobedient to this edict could not be personally ••rested, he appointed their friends and vassals to be seized, and detained until they gave surety for keep∣ing the peace; and he abolished all laws, customs, or privileges which might be pleaded in opposition to this ordonance. Ordon. tom. x. p. 138. How slow is the progress of reason and of civil order! Re∣gulations which to us appear so equitable, obvious, and simple, required the efforts of civil and ecclesiasti∣cal authority, during several centuries, to introduce and establish them. Even posterior to this period. Louis XI. was obliged to abolish private wars in Dau∣phinè, by a particular edict, A. D. 1451. Du Cange dissert. p. 348.

THIS note would swell to a disproportional bulk, if I should attempt to enquire with the same minute attention into the progress of this pernicious custom in the other countries of Europe. In England, the ideas of the Saxons concerning personal revenge, the right of private wars, and the composition due to the party offended, seem to have been much the same with those which prevailed on the continent. The law of Ina de

Vindicantibus, in the eighth century, Lamb. p. 3; those of Edmund in the tenth century, de homicidio, Lamb. p. 72. &c. de inimicitiis, p. 76; and those of Edward the Confessor, in the eleventh century, de temporibus & diebus pacis, or Treuga Dei, Lamb. p. 126, are perfectly similar to the ordonances of the French Kings their contemporaries. The laws of Edward, de pace regis, are still more explicit than those of the French Monarchs, and by several provisions in them, disco∣ver that a more perfect police was established in Eng∣land at that period. Lambard. p. 128. fol. vers. Even after the conquest, private wars, and the regulations for preventing them, were not altogether unknown, as appears from Madox Formulare Anglicanum, N^o. CXLV. and from the extracts from Domesday Book, pub∣lished by Gale Scriptores hist. Britan. p. 759, 777. The well known clause in the form of an English indictment, which, as an aggravation of the criminal's guilt, men∣tions his having assaulted a person, who was in the peace of God and of the King, seems to be borrowed from the Treuga or Pax Dei and the Pax Regis which I have explained. But after the conquest, the me••¦tion of private wars among the nobility, occurs more rarely in the English history, than in that of any other European nations, and no laws concerning them are to be found in the body of their statutes. Such a change in their own manners, and such a variation from those of their neighbours is remarkable. Is it to be ascribed to the extraordinary power which Willi∣am the Norman acquired by right of conquest, and transmitted to his successors, which rendered the ex∣ecution of justice more vigorous and decisive, and the jurisdiction of the King's court more extensive than under the monarchs on the continent? Or, was it ow∣ing to the settlement of the Normans in England, who having never adopted the practice of private war in their own country, abolished it in the kingdom which they conquered? It is asserted in an Ordonance of John King of France, that in all times past, persons of every rank in Normandy have been probibited to wage war, and the practice has been deemed unlawful. Or∣don. tom. ii. p. 407. If this fact were certain, it would

go far towards explaining the peculiarity which I have mentioned. But as there are some English Acts of Parliament, which, according to the remark of the learned author of the Observations on the Statutes, chief∣ly the more ancient, which recite falshoods, it may be added, that this is not peculiar to the laws of that country. Notwithstanding the positive assertion con∣tained in this public law of France, there is good reason for considering it as a statute which recites a falshood. This, however, is not the place for discussing that point. It is an inquiry not unworthy the curiosity of an English antiquarian.

IN Castile, the pernicious practice of private war prevailed, and was authorised by the customs and law of the kingdom. Leges Tauri. tit. 76. cum commen∣tario Anton. Gomezii, p. 551. As the Castilian no∣bles were no less turbulent than powerful, their quar∣rels and hostilities involved their country in many ca∣lamities. Innumerable proofs of this occur in Maria∣na. In Aragon, the right of private revenge was likewise authorised by law; exercised in its full ex∣••ent, and accompanied with the same unhappy conse∣quences. Hieron. Blanca Comment. de rebus Arag. ap. Schotti. Hispan. illustrat. vol. iii. p. 733. Lex Jacobi I. A. D. 1247. Fueros & Observancias del Reyno de Aragon, lib. ix. p. 182. Several confe∣deracies between the Kings of Aragon and their no∣bles, for the restoring of peace, founded on the truce of God, are still extant, Petr. de Marca. Marca sivi Limes Hispanic. App. 1303, 1388, 1428. As early as the year 1165, we find a combination of the King and court of Aragon, in order to abolish the right of private war, and to punish those who presumed to claim that privilege. Anales de Aragon por Zurita, vol. i. p. 73. But the evil was so inveterate, that Charles V. A. D. 1519. was obliged to publish a law, enforcing all former regulations tending to sup∣press this practice. Fueros & Observanc. lib. ix. 183. b.

THE Lombards, and other northern nations who settled in Italy, introduced the same maxims con∣cerning the right of revenge in that country, and these

were followed by the same effects. As the progress of the evil was perfectly similar to what happened in France, the expedients employed to check its career, or to ex∣tirpate it finally, resembled those which I have enume∣rated. Murat. Ant. Ital. vol. ii. p. 306.

IN Germany, the disorders and calamities occasion∣ed by the right of private war, were greater and more intolerable than in any other country of Europe. The Imperial authority was so much shaken and enfeebled by the violence of the civil wars, excited by the contests between the Popes and the Emperors of the Franco∣nian and Suabian lines, that not only the nobility but the cities acquired almost independant power, and scorned all subordination and obedience to the laws. The frequency of these faidae or private wars, are of∣ten mentioned in the German annals, and the fatal effects of them are most pathetically described, Datt. de pace Imper. pub. lib. i. cap. v. n^o. 30. & passim. The Germans early adopted the Treuga Dei, which was first established in France. This, however, prov∣ed but a temporary and ineffectual remedy. The disor∣ders multiplied so fast, and grew so enormous, that they threatned the dissolution of society, and compel∣led the Germans to have recourse to the only remedy of the evil. viz. an absolute prohibition of private wars. The Emperor William published his edict to this purpose, A. D. 1255, an hundred and sixty years previous to the ordonance of Charles VI. in France. Datt. lib. i. cap. 4. n^o. 20. But neither honor his successors had authority to secure th•• observance of it. This gave rise to a practice in Germany, which con∣veys to us a striking idea both of the in••••lerable cala∣mities occasioned by private wars, and of the feeble∣ness of government during the twelfth and thirteenth centuries. The cities and nobles entered into allian∣ces and associations, by which they bound themselves to maintain the public peace, and to make war on such as should violate it. This was the origin of the league of the Rhine, of Suabia, and of many smaller confederacies distinguished by various names. The rise and beneficial effects of these associations are trac∣ed by Datt with great accuracy. Whatever degree of

public peace or of regular administration, was preserv∣ed in the Empire from the beginning of the twelfth century to the close of the fifteenth, Germany owes to these leagues. During that period, political order, respect for the laws, together with the equal admi∣nistration of justice made considerable progress in Ger∣many. But the final and perpetual abolition of the right of private war was not accomplished until A. D. 1495. The Imperial authority was by that time more firmly esta∣blished, the ideas of men with respect to government and subordination were become more just. That barbarous and pernicious privilege which the nobles had so long pos∣sessed, was declared to be incompatible with the happiness and existence of society. In order to terminate any dif∣ferences which might arise among the various num∣bers of the Germanick body, the Imperial chamber was instituted with supreme jurisdiction, to judge without appeal in every question brought before it. That court has subsisted since that period, forming a very respectable tribunal, of essential importance in the German constitution. Datt, lib. iii. iv. v. Pfeffel abregé de l'Histoire du Droit, &c. p. 556.

NOTE XXII. [Y] SECT. I.

IT would be tedious and of little use to enumerate the various modes of appealing to the justice of God, which superstition introduced during the ages of ignorance, I shall mention only one, because we have an account of it in a placitum or trial in the presence of Charlemagne, from which we may learn the imperfect manner in which justice was adminis∣tered even during his reign. In the year 775, a con∣test arose between the bishop of Paris and the abbot of St. Denys, concerning the property of a small abbey. Each of them exhibited deeds and records, in order to prove the right to be in them. Instead of trying the authenticity, or considering the import of these, the point was referred to the judicium crucis. Each produced a person, who, during the celebration of mass, stood before the cross with his arms expand∣ed; and he whose representative first became weary,

and altered his posture, lost the cause. The person employed by the bishop on this occasion, had strength or less spirit than his adversary, and the question was decided in favour of the abbot. Mabillon de re Dip∣lomat. lib. vi. p. 498. If a Prince so enlightened as Charlemagne countenanced such an absurd mode of decision, it is no wonder that other monarchs should tolerate it so long. M. de Montesquieu has treated of the trial by judicial combat at considerable length. The two talents which distinguish that illustrious author, industry in tracing all the circumstaces of ancient and obscure institutions, and sagacity in penetrating into the causes and principles which contributed to establish them, are equally conspicuous in his observations on this subject. To these I refer the reader, as they con∣tain most of the principles by which I have endeavour∣ed to explain this practice. De l'Esprit des Loix, lib. xxviii. It seems to be probable from the remarks of M. de Montesquieu, as well as from the facts produc∣ed by Muratori, tom. iii. Dissert. xxxviii. that the appeals to the justice of God by the experiments with fire and water, &c. were practised by the people who settled in the different provinces of the Roman Empire, before they had recourse to the judicial combat. The judicial combat, however, was the most ancient mode of terminating any controversy among the barbarous nations in their original settlements. This is evident from Velleius Paterculus, lib. ii. c. 118. who in∣forms us, that all Questions which were decided among the Romans by legal trial, were terminated among the Germans by arms. The same thing ap∣pears in the ancient laws and customs of the Swedes, quoted by Jo. O. Stiernhöök de Jure Sueonum & Go∣thorum vetusto. 4to. Holmiae, 1682. lib. i. c. 7. It is probable, that when the various tribes which invaded the Empire were converted to Christianity, the repug∣nance of the custom of allowing judicial combats to the precepts of religion, was so glaring, that, for some time, it was abolished, and by degrees, several cir∣cumstances which I have mentioned, led them to re∣sume it.

It seems likewise to be probable from a law quoted

by Stiernhöök in the treatise which I have mentioned, that the judicial combat was originally permitted, in order to determine points respecting the personal cha∣racter or reputation of individuals, and was afterwards extended not only to criminal cases, but to questions concerning property. The words of the law are, "if any man shall say to another these reproachful words. "you are not a man equal to other men," or, "you have not the heart of a man," and the other shall re∣ply, "I am a man as good as you." Let them meet on the highway. If he who first gave offence appear, and the person offended absent himself, let the latter be deemed worse than he was called; let him not be admitted to give evidence in judgment, either for man or woman, and let him not have the privilege of making a testament. If the person offended appear, and he who gave offence be absent, let him call upon the other thrice with a loud voice, and make a mark upon the earth, and then let him who absented himself, be deemed infamous, because he uttered words which he durst not support. If both shall appear properly arm∣ed, and the person offended shall fall in the combat, let a half compensation be paid for his death. But if the person who gave the offence shall fall, let it be im∣puted to his own rashness. The petulance of his tongue hath been fatal to him. Let him lie in the field without any compensation being demanded for his death." Lex Up••andica ap. Stiern. p. 76. Martial people were extremely delicate with respect to every thing that affected their reputation as soldiers. By the laws of the Salians, if any man called another a hare, or accused him of having left his shield in the field of battle, he was ordained to pay a large sine. Leg. Sal. tit. xxxii, § 4. 6. By the law of the Lombards, if any one called another arga, i. e. a good for nothing fellow, he might immediately challenge him to com∣bat. Leg. Longob. lib. i. tit. v. § 1. By the law of the Salians, if one called another cenitus, a term of reproach equivalent to arga, the fine which he was bound to pay was very high. Tit. xxxii. § 1. Paulus Diaconus relates the violent impression which this reproachful expression made upon one of his countrymen, and the

fatal effects with which it was attended. De Gestis Longobard. lib. vi. c. 24. Thus the ideas concerning the point of honour, which we are apt to consider as a modern refinement, as well as the practice of duel∣ling, to which it gave rise, are derived from the noti∣ons of our ancestors, while in a state of society very little improved.

AS M. de Montesquieu's view of this subject did not lead him to consider every circumstance relative to ju∣dicial combats, I shall mention some particular facts necessary for the illustration of what I have said with respect to them. A remarkable instance occurs of the decision of an abstract point of law by combat. A ques∣tion arose in the tenth century concerning the right of representation, which was not then fixed, though now universally established in every part of Europe. •• It was a matter of doubt and dispute (saith the historian) whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive. An assembly was called to de∣liberate on this point, and it was the general opinion, that it ought to be remitted to the examination and decision of judges. But the Emperor following a bet∣ter course, and desirous of dealing honourably with his people and nobles, appointed the matter to be de∣cided by battle between two champions. He who ap∣peared in behalf of the right of children to represent their deceased father, was victorious; and it was esta∣blished by a perpetual decree, that they should here∣after share in the inheritance together with their un∣cles. Wittickindus Corbeins, lib. Annal. ap. M. de Lauriere Pref. Ordon. vol. i. p. xxxiii. If we can suppose the caprice of folly to lead men to any action more extravagant than this, of settling a point in law by combat, it must be that of referring the truth or falshood of a religious opinion, to be decided in the same manner, To the disgrace of human reason, it has been capable even of this extravagance. A question was agitated in Spain in the eleventh century, whe∣ther the Musarabic Liturgy and ritual which had been used in the churches of Spain, or that approved of by

See of Rome, which differed in many particulars from the other, contained the form of worship most accept∣able to the Deity. The Spaniards contended zealously for the ritual of their ancestors. The Popes urged them to receive that to which they had given their in∣fallible sanction. A violent contest arose. The no∣bles proposed to decide the controversy by the sword. The King approved of this method of decision. Two knights in compleat armour entered the lists. John Ruys de Matanca, the champion of the Musarabic Li∣turgy, was victorious. But the Queen and Archbi∣shop of Toledo, who favoured the other form, insist∣ed on having the matter submitted to another trial, and had interest enough to prevail in a request, incon∣sistent with the laws of combat, which being consider∣ed as an appeal to God, the decision ought to have been acquiesced in as final. A great fire was kindled. A copy of each Liturgy was cast into the flames. It was agreed that the book which stood this proof, and remained untouched, should be received in all the churches of Spain. The Musarabic Liturgy triumph∣ed likewise in this trial, and if we may believe Rode∣rigo de Toledo, remained unhurt by the fire, when the other was reduced to ashes. The Queen and Archbishop had power or art sufficient to elude this decision also, and the use of the Musarabic form of devotion was permitted only in certain churches. A determination no less extraordinary than the whole transaction. Rodr. de Toledo, quoted by P. Orleans, Hist. de Revol. d'Espagne, tom. i. p. 217. Mariana, lib. i. c. 18. vol. i. p. 378.—A remarkable proof of the general use of trial by combat, and of the prae∣dilection for that mode of decision occurs in the laws of the Lombards. It was a custom in the middle ages, that any person might chuse the law to which he would be subjected; and by the prescriptions of that law he was obliged to regulate his transac∣tions, without being bound to comply with any prac∣tice authorized by other codes of law. Persons who had subjected themselves to the Roman law, and ad∣hered to the ancient jurisprudence, as far as any knowledge of it was retained in those ages of igno∣rance,

were exempted from paying any regard to the forms of proceedings established by the laws of the Burgundians, Lombards, and other barbarous people. But the Emperor Otho, in direct contradic∣tion to this received maxim, ordained, "That all per∣sons, under whatever law they lived, even although it were the Roman law, should be bound to conform to the edicts concerning the trial by combat." Leg. Longob. lib. ii. tit. 55. § 38. While the judicial com∣bat subsisted, proof by charters, contracts, or other deeds, became ineffectual; and even this species of evi∣dence, calculated to render the proceedings of courts certain and decisive, was eluded. When a charter or other instrument was produced by one of the parties, his opponent might challenge it, affirm that it was false and forged, and offer to prove this by combat. Leg. Longob. ib. § 34. It is true, that among the reasons enumerated by Beaumanoir, on account of which judges might refuse to permit a trial by combat, one is, "If the point in contest can be clearly proved or ascertained by other evidence." Coust. de Beauv. ch. 63. p. 323. But that regulation removed the evil only a single step. For the party who suspected that a witness was about to depose in a manner unfavour∣able to his cause, might accuse him of being suborned, give him the lie, and challenge him to combat; if the witness was vanquished in battle, no other evi∣dence was admitted, and the party by whom he was summoned to appear lost his cause. Leg. Baivar. tit. 16. § 2. Leg. Burgund. tit. 45. Beauman. ch. 61. p. 315. The reason given for obliging a witness to accept of a defiance, and to defend himself by combat, is remarkable, and contains the same idea which is still the foundation of what is called the point of honour; "for it is just, that if any one affirms that he per∣fectly knows the truth of any thing, and offers to give oath upon it, that he should not hesitate to main∣tain the veracity of his affirmation in combat." Leg. Burgund. tit. 45.

THAT the trial by judicial combat was established in every country of Europe, is a fact well known, and requires no proof. That this mode of decision was

frequent, appears not only from the codes of ancient laws which established it, but from the earliest writers concerning the practice of law in the different nations of Europe. They treat of this custom at great length; they enumerate the regulations concerning it with minute accuracy; and explain them with much soli∣citude. It made a capital and extensive article in ju∣risprudence. There is not any one subject in their system of law which Beaumanoir, Defontaines, or the compilers of the assises de Jerusalem seem to have con∣sidered as of greater importance; and none on which they have bestowed so much attention. The same ob∣servation will hold with respect to the early authors of other nations. It appears from Madox, that trials of this kind were so frequent in England, that fines, paid on these occasions, made no inconsiderable branch of the King's revenue. Hist. of the Excheq. vol. i. p. 349. A very curious account of a judicial combat between Mesire Robert de Beaumanoir, and Mesire Pierre Tournemine, in presence of the duke of Bre∣tagne, A. D. 1385, is published by Maurice Mem. pour servir de preuves à l'hist. de Bretagne, tom. ii. p. 498. All the formalities observed in such extraor∣dinary proceedings are there described more minutely, than in any ancient monument which I have had an opportunity of considering. Tournemine was accus∣ed by Beaumanoir of having murdered his brother. The former was vanquished, but was saved from be∣ing hanged upon the spot, by the generous intercessi∣on of his antagonist. A good account of the origin of the laws concerning judicial combat, is published in the history of Pavia, by Bernado Sacci, lib. ix. c. 8. in Graev. Thes. Antiquit. Ital. vol. iii. 743.

THIS mode of trial was so acceptable, that ecclesi∣asticks, notwithstanding the prohibitions of the church, were constrained not only to connive at the practice, but to authorize it. A remarkable instance of this is produced by Pasquier Recherches, lib. iv. ch. i. p. 350. The abbot Wittikindus, whose words I have produced in this note, considered the determination of a point in law by combat, as the best and most ho∣nourable mode of decision. In the year 978, a judi∣cial

combat was fought in the presence of the Emperor Henry. The archbishop Aldebert advised him to ter∣minate a contest which had arisen between two noble∣men of his court, by this mode of decision. The vanquished combatant, though a person of high rank, was beheaded on the spot. Chronic. Ditmari Episc. Mersb. chez Bouquet Recueil des Hist. tom. x. p. 121. Questions concerning the property of churches and monasteries, were decided by combat. In the year 961, a controversy concerning the church of St. Me∣dard, whether it belonged to the abbey of Beaulieu, was terminated by judicial combat. Bouquet Recueil des Hist. tom. ix. p. 729. Ibid. p. 612, &c. The Em∣peror Henry I. declares, that his law authorising the practice of judicial combats, was enacted with con∣sent and applause of many faithful bishops. Ibid p. 231. So remarkably did the martial ideas of those ages prevail over the genius and maxims of the canon law, which in other instances had such credit and authority with ecclesiasticks. A judicial combat was appointed in Spain, by Charles V. A. D. 1522. The combatants fought in the Emperor's presence, and the battle was conducted with all the rites prescribed by the ancient laws of chivalry. The whole transac∣tion is described at great length by Pontus Heuterus Rer. Austriac. lib. viii. c. 17. p. 205.

THE last instance which occurs in the history of France, of a judicial combat authorised by the ma∣gistrate, was the famous one between M. Jarnac and M. de la Chaistaignerie, A. D. 1547. A trial by com∣bat was appointed in England, A. D. 1571. under the inspection of the judges in the court of common pleas; and though it was not carried to the same extremity with the former, Queen Elizabeth having interposed her authority, and enjoined the parties to compound the matter, yet in order to preserve their honour, the lists were marked out, and all the forms previous to the combat were observed with much ceremony. Spelm. Gloss. voc. Campus, p. 103. In the year 1631. a judicial combat was appointed between Do∣nald Lord Rea, and David Ramsay, Esq by the autho∣rity of the Lord high Constable, and Earl Marshal of

England; but that quarrel likwise terminated without bloodshed, being accommodated by Charles I. Ano∣ther instance occurs seven years later. Rushworth in Observations on the Statutes, &c. p. 266.

NOTE XXIII. [Z]. SECT. I.

THE text contains the great outlines which mark the course of private and public jurisdiction in the several nations of Europe. I shall here follow more minutely the various steps of this progress, as the mat∣ter is curious and important enough to merit this at∣tention. The payment of a fine by way of satisfac∣tion to the person or family injured, was the first device of a rude people, in order to check the career of private resentment, and to extinguish those faidae, or deadly feuds which were prosecuted among them with the utmost violence. This custom may be traced back to the ancient Germans. Tacit. de Morib. Ger. c. 21. and prevailed among other uncivilized nations. Many examples of this are collected by the ingenious and learned author of Historical Law-Tracts, vol. i. p. 41. These fines were ascertained and levied in three different manners. At first they were settled by vo∣luntary agreement between the parties at variance. When their rage began to subside, and they felt the bad effects of their continuing in enmity, they came to terms of concord, and the satisfaction made was called a composition, implying that it was fixed by mu∣tual consent. De l'Esprit des Loix, lib. xxx. c. 19. It is apparent from some of the more ancient codes of laws, that when these were compiled matters still remained in that simple state. In certain cases, the person who had committed an offence was left ex∣posed to the resentment of those whom he had injured, until he should recover their favour, quoquo modo potuerit. Lex Frision. tit. 11. § 1. The next mode of levying these fines was by the sentence of arbiters. An arbiter is called in the Regiam majestatem amica∣bilis compositor. lib. 11. c. 4. § 10. He could estimate the degree of offence with more impartiality than the parties interested, and determine with greater equity

what satisfaction ought to be demanded. It is diffi∣cult to bring an authentic proof of a custom previous to the records preserved in any nation of Europe. But one of the Formulae Andegavenses compiled in the sixth century, seems to allude to a transaction car∣ried on not by the authority of a judge, but by the mediation of arbiters. Bouquet Recueil des Histor. tom. iv. p. 566. But as an arbiter wanted authority to enforce his decisions, judges were appointed with compulsive power to oblige both parties to acquiesce in their decisions. Previous to this last step, the ex∣pedient of paying compositions was an imperfect re∣medy against the pernicious effects of private resent∣ment. As soon as this important change was intro∣duced, the magistrate, putting himself in place of the person injured, ascertained the composition with which he ought to rest satisfied. Every possible injury that could occur in the course of human society, was considered and estimated, and the compositions due to the person aggrieved were fixed with such minute attention as discovers, in most cases, amazing discern∣ment and delicacy, in some instances, unaccountable caprice. Besides the composition payable to the pri∣vate party, a certain sum, called a fredum, was paid to the King or state, as Tacitus expresses it, or to the fiscus, in the language of the barbarous laws. Some authors, blending the refined ideas of modern policy with their reasonings concerning ancient transactions, have imagined that the fredum was a compensation due to the community, on account of the violation of the publick peace. But it is manifestly the price paid to the magistrate for the protection which he af∣forded against the violence of resentment. The en∣acting of this was a considerable step towards improve∣ment in criminal jurisprudence. In some of the more ancient codes of laws, the freda are altogether omit∣ted, or so seldom mentioned, that it is evident they were but little known. In the latter codes the fre∣dum is as precisely specified as the composition. In common cases it was equal to the third part of the composition. Capitul. vol. i. p. 52. In some ex∣traordinary cases, where it was more difficult to

protect the person who had committed violence, the fredum was augmented. Capitul. vol. i. p. 515. These freda made a considerable branch in the revenues of the barons; and wherever territorial jurisdiction was granted, the royal judges were prohibited from levy∣ing any freda. In explaining the nature of the fre∣dum, I have followed, in a great measure, the opinion of M. de Montesquieu, though I know that several learned antiquarians have taken the word in a different sense. De l'Esprit des Loix, lib. xxx. c. 20, &c. The great object of judges was to compel the one party to give, and the other to accept the satisfaction prescribed. They multiplied regulations to this pur∣pose, and enforced them by grievous penalties. Leg. Longob. lib. i. tit. 9. § 34. Ib. tit. 37. § 1, 2. Capitul. vol. i. p. 371. § 22. The person who received a com∣position was obliged to cease from all farther hostility, and to confirm his reconciliation with the adverse par∣ty by an oath. Leg. Longob. lib. i. tit. 9. § 8. As an additional and more permanent evidence of reconcili∣ation, he was required to grant a bond of security to the person from whom he received a composition, ab∣solving him from all farther prosecution. Marculfus and the other collectors of ancient writs have preserv∣ed several different forms of such bonds. Marc. lib. 11. § 18. append. § 23. Form. Sirmandicae, § 39. The Letters of Slanes, known in the law of Scotland, are perfectly similar to these bonds of security. By the letters of Slanes, the heirs and relations of a person who had been murdered, bound themselves, in consi∣deration of an Assythment or composition paid to them, to forgive, pass over, and forever forget, and in ob∣livion inter all rancour, malice, revenge, prejudice, grudge and resentment, that they have or may con∣ceive against the aggressor or his posterity, for the crime which he had committed, and discharge him of all action, civil or criminal, against him or his estate, for now and ever. System of Stiles by Dallas of St. Martin's, p. 862. In the ancient form of letters of Slanes, the private party not only forgives and for∣gets, but pardons and grants remission of the crime. This practice, Dallas, reasoning according to the prin∣ciples

of his own age, considers as an encroachment on the rights of sovereignty, as none, says he, could pardon a criminal but the king. Ibid. But in early and rude times, the punishment, and the pardon of criminals, were all deeds of the private person who was injured. Madox has published two writs, one in the reign of Edward I. the other in the reign of Ed∣ward III. by which private persons grant a release or pardon of all trespasses, felonies, robberies, and mur∣ders committed. Formul. Anglican. No. 702, 705. In the last of these instruments, some regard seems to be paid to the rights of the sovereign, for the pardon is granted en quant que en nous est. Even after the au∣thority of the magistrate is interposed in punishing criminals, the punishment of criminals is long consi∣dered chiefly as a gratification to the resentment of the persons who have been injured. In Persia a murderer is still delivered to the relations of the person whom he has slain, who put him to death with their own hands. If they refuse to accept of a sum of money as a compensation, the sovereign, absolute as he is, cannot pardon the murderer. Tavernier's voyages, book v. c. 5 and 10. By a law in the kingdom of Ara∣gon as late as the year 1564, the punishment of one condemned to death cannot be mitigated but by con∣sent of the parties who have been injured. Fueros & Observancias del Reyno de Aragon, p. 204, 6.

IF, after all the engagements to cease from enmi∣ty, which I have mentioned, any person renewed hos∣tilities, and was guilty of any violence, either towards the person from whom he had received a compositi∣on, or towards his relations and heirs, this was deemed a most heinous crime, and punished with ex∣traordinary rigour. It was an act of direct rebellion against the authority of the magistrate, and was re∣pressed by the interposition of all his power. Leg. Longob. lib. i. tit. 9. § 8, 34. Capit. vol. i. p. 371. § 22. Thus the avenging of injuries was taken out of private hands, a legal composition was established, and peace and amity were restored under the inspec∣tion, and by the authority of a judge. It is evident, that at the time when the barbarians settled in the pro∣vinces

of the Roman Empire, they had fixed judges established among them with compulsive authority. Persons vested with this character are mentioned by the earliest historians. Du Cange, voc. Judices. The right of territorial jurisdiction was not altogether an usurpation of the feudal barons. There is good rea∣son to believe that the powerful leaders who seized different districts of the countries which they con∣quered, and kept possession of them as allodial pro∣perty, assumed at the same time the right of jurisdic∣tion, and exercised it within their own territories. This jurisdiction was supreme, and extended to all causes. The clearest proofs of this are produced by M. Bouquet. Le Droit publique de France eclairci, &c. tom. i. p. 206, &c. The privilege of judging his own vassals, appears to have been originally a right inherent in every baron who held a fief. As far back as the archives of nations can conduct us with any certainty, we find the jurisdiction and fief unit∣ed. One of the earliest charters to a layman which I have met with, is that of Ludovicus Pius, A. D. 814. And it contains the right of territorial juris∣diction, in the most express and extensive terms. Capitul. vol. ii. p. 1405. There are many charters to churches and monasteries of more early date, containing grants of similar jurisdiction, and prohi∣biting any royal judge to enter the territories of those churches or monasteries, or to perform any act of judicial authority there. Bouquet. Recuel. des Hist. tom. iv. p. 628, 631, 633. tom. v. p. 703, 710, 752, 762. Muratori has published many very an∣cient charters containing the same immunities. An∣tiq. Ital. Dissert. lxx. In most of these deeds, the exacting of Freda is particularly prohibited, which shews that they constituted a valuable part of the publick revenue at that juncture. The expence of obtaining a sentence in a court of justice during the middle ages was so considerable, that this circum∣stance alone was sufficient to render men unwilling to decide any contest in judicial form. It appears from a charter in the thirteenth century, that the baron who had the right of justice, received the

fifth part of the value of every subject, the property of which was tried and determined in his court. If, after the commencement of a law suit, the parties terminated the contest in an amicable manner, or by arbitration, they were nevertheless bound to pay the fifth part of the subject contested to the court before which the suit had been brought. Hist. de Dauphi∣nè. Geneve, 1722, tom. i. p. 22. Similar to this is a regulation in the charter of liberty granted to the town of Friburg, A. D. 1120. If two of the citizens shall quarrel, and if one of them shall complain to the superior Lord, or to his judge, and after com∣mencing the suit shall be privately reconciled to his adversary; the judge, if he does not approve of this reconciliation, may compel him to insist in his law∣suit; and all who were present at the reconciliation shall forfeit the favour of the superior Lord. Historia Zaringo Badensis. Auctor. Jo. Dan. Schoepflinus. Carolsr. 1765. 4to. vol. v. p. 55.

WHAT was the extent of that jurisdiction which those who held fiefs possessed originally, we cannot now determine with certainty. It is evident that during the disorders which prevailed in every king∣dom of Europe, the great vassals took advantage of the feebleness of their Monarchs, and enlarged their jurisdictions to the utmost. As early as the tenth century, the more powerful barons had usurped the right of deciding all causes, whether civil or crimi∣nal. They had acquired the High Justice as well as the Low. Establ. de St. Louis, lib. i. c. 24, 25. Their sentences were final, and there lay no appeal from them to any superior court. Several striking in∣stances of this are collected by Brussel. Traité des Fiefs, liv. iii. c. 11, 12, 13. Not satisfied with this, the more potent barons got their territories erected into Regalities, with almost every royal prerogative and jurisdiction. Instances of these were frequent in France. Bruss. ib. In Scotland, where the power of the feudal nobles became exorbitant, they were very numerous. Historical Law Tracts, vol. i. tract. vi. Even in England, though the authority of the Norman Kings circumscribed the jurisdiction of the

barons more than in any feudal kindom, several counties palatine were erected, into which the king's judges could not enter, and no writ could come in the King's name, until it received the seal of the county palatine. Spelman. Gloss. voc. Commites Pala∣tini; Blackstone's Commentaries on the Laws of Eng∣land, vol. iii. p. 78. These lords of regalities had a right to claim or rescue their vassals from the King's judges, if they assumed any jurisdiction over them. Brussel ubi supra. In the law of Scotland this pri∣vilege was termed the right of repledging; and the frequency of it not only interrupted the course of jus∣tice, but gave rise to great disorders in the exercise of it. Hist. Law Tracts, ib. The jurisdiction of the counties palatine was productive of like inconvenien∣cies in England.

THE remedies provided by Princes against the bad effects of these usurpations were various, and gradu∣ally applied. Under Charlemagne and his immediate descendants, the regal prerogative still retained great vigour, and the Duces, Comites, and Missi Dominici, the former of whom were ordinary and fixed judges, the latter extraordinary and itinerant judges, in the different provinces of their extensive dominions, ex∣ercised a jurisdiction co-ordinate with the barons in some cases, and superior to them in others. Du Cange voc. Dux. Comites & Missi. Murat. Antiq. Dis∣sert. viii. & ix. But under the feeble race of Mo∣narchs who succeeded them, the authority of the royal judges declined, and the barons usurped that unlimited jurisdiction which has been described. Louis VI. of France attempted to revive the function of the Missi Dominici under the title of Juges des Ex∣empts, but the barons were become too powerful to bear such an encroachment on their jurisdiction, and he was obliged to desist from employing them. He∣naut. A bregé Chron. tom. ii. p. 730. His success∣ors (as has been observed) had recourse to expedients less alarming. The appeal de defaute de Droit, or on account of the refusal of justice, was the first which was attended with any considerable effect. Ac∣cording to the maxims of feudal law, if a baron had

not as many vassals as enabled him to try by their peers, the parties who offered to plead in his court, or if he delayed or refused to proceed in the trial, the cause might be carried, by appeal, to the court of the superior lord of whom the baron held, and tried there. De l'Esprit des Loix, liv. xxviii. c. 28. Du Cange voc. defectus Justitiae. The number of Peers or assessors in the courts of Barons was frequently very considerable. It appears from a criminal trial in the court of the viscount de Lautrec, A. D. 1299, that upwards of two hundred persons were present, and assisted in the trial, and voted in passing judg∣ment. Hist. de Langued. par D. D. De Vic. & Vai∣sette, tom, iv. Preuves, p. 114. As the right of ju∣risdiction had been usurped by many inconsiderable barons, they were often unable to hold courts. This gave frequent occasion to such appeals, and rendered the practice familiar. By degrees, such appeals be∣gan to be taken from the courts of the more power∣ful barons, and it is evident, from a decision record∣ed by Brussel, that the royal judges were willing to give countenance to any pretext for them. Traité des Fiefs, tom. i. p. 235, 261. This species of ap∣peal had less effect in abridging the jurisdiction of the nobles, than the appeal on account of the injustice of the sentence. When the feudal monarchs were pow∣erful, and their judges possessed extensive authori∣ty, such appeals seem to have been frequent. Capi∣tul. vol. 1. p. 175, 180; and they were made in a manner suitable to the rudeness of a simple age. The persons aggrieved resorted to the palace of their sove∣reign, and with outcries and loud noise called to him for redress. Capitul. lib. iii. c. 59. Chronic. Law∣terbergiense ap. Mencken. Script. German, vol. ii. p. 284. b. In the kingdom of Aragon, the appeals to the Justiza or supreme judge were taken in such a form as supposed the appellant to be in immediate danger of death, or of some violent outrage; he rush∣ed into the presence of the judge, crying with a loud voice, Avi, Avi, Fuerza, Fuerza, thus imploring (as it were) the instant interposition of that supreme judge in order to save him. Hier. Blanca Comment.

de rebus Aragon. ap. Script. Hispanic. Pistorii, vol. iii. p. 753. The abolition of the trial by combat, fa∣cilitated the revival of appeals of this kind. The ef∣fects of this subordination which appeals established, in introducing attention, equity, and consistency of decision into courts of judicature, were soon conspi∣cuous; and almost all causes of importance were car∣ried to be finally determined in the King's courts. Brussel, tom. i. 252. Various circumstances which contributed towards the introduction and frequency of such appeals, are enumerated De l'Esprit de Loix, liv. xxviii. c. 27. Nothing however, was of such effect as the attention which monarchs gave to the constitution and dignity of their courts of justice. It was the ancient custom for the feudal monarchs to preside themselves in their courts, and to admini∣ster justice in person. Marculf. lib. i. § 25. Murat, Dissert. xxxi. Charlemagne, whilst he was dressing, used to call parties into his presence, and having heard and considered the subject of litigation, gave judg∣ment concerning it. Eginhartus vita Caroli magni cited by Madox Hist. of Exchequer, vol. 1. p. 91. This could not fail of rendering their courts respectable. St. Louis, who encouraged to the utmost the prac∣tice of appeals, revived this ancient custom, and ad∣ministred justice in person with all the ancient simpli∣city. "I have often seen the saint," says Joinville. "sit under the shade of an oak in the wood of Vin∣cennes, when all who had any complaint, freely ap∣proached him. At other times he gave orders to spread a carpet in a garden, and seating himself up∣on it, heard the causes that were brought before him." Hist. de St. Louis, p. 13. edit. 1761. Princes of inferior rank, who possessed the right of justice, sometimes dispensed it in person, and presided in their tribunals. Two instances of this occur with respect to the Dauphines of Vienne. Hist. de Dauphinè, tom. i. p. 18. tom. ii. p. 257. But as Kings and Princes could not decide every cause in person, nor bring them all to be determined in the same court; they appointed Baillis, with a right of jurisdiction, in different districts of their kingdom. These possessed

powers somewhat similar to those of the ancient Co∣mites. It was towards the end of the twelfth centu∣ry, and beginning of the thirteenth, that this office was first instituted in France. Brussel, liv. ii. c. 35. When the King had a court established in different quarters of his dominions, this invited his subjects to have recourse to it. It was the private interest of the Baillis, as well as an object of public policy, to ex∣tend their jurisdiction. They took advantage of e∣very defect in the rights of the barons, and of every error in their proceedings, to remove causes out of their courts, and to bring them under their own cog∣nizance. There was a distinction in the feudal law, and an extremely ancient one, between the high jus∣tice and the low. Capitul. 3. A. D. 812. § 4. A. D. 815. § 3. Establ. de St. Louis, liv. i. c. 40. Many barons possessed the latter jurisdiction who had no ti∣tle to the former. The former included the right of trying crimes of every kind, even the highest; the latter was confined to petty trespasses. This furnish∣ed endless pretexts for obstructing, restraining and reviewing the proceedings in the baron courts. Or∣don. ii. 457. § 25. 458. § 29.—A regulation of grea∣ter importance succeeded the institution of Baillis. The King's supreme court or parliament was ren∣dered fixed as to the place, and constant as to the time of its meetings. In France, as well as in the other feudal kingdoms, the King's court of justice was originally ambulatory, followed the person of the monarch, and was held only during some of the great festivals. Philip Augustus, A. D. 1••05. ren∣dered it sedentary at Paris, and continued its terms during the greater part of the year. Pasquier Rec∣herches, liv. ii. c. 2 and 3. &c. Ordon. tom. i. p. 366. § 62. He and his successors vested extensive po∣wers in that court: they granted the members of it several privileges and distinctions which it would be tedious to enumerate. Pasquier. ib. Velly hist. de France, tom. vii. p. 307. Persons eminent for integrity and skill in law were appointed judges there. Ib. By degrees the final decision of all causes of importance was brought into the parliament of

Paris, and the other parliaments which administred justice in the King's name, in different provinces of the kingdom. This jurisdiction, however, the par∣liament of Paris acquired very slowly, and the great vassals of the crown made violent efforts in order to obstruct the attempts of this parliament to extend its authority. Towards the close of the thirteenth cen∣tury, Philip the fair was obliged to prohibit his par∣liament from taking cognisance of certain appeals brought into it from the courts of the Count of Bre∣tagne, and to recognize his right of supreme and fi∣nal jurisdiction. Memoirs pour servir de Preuves à l'Histoire de Bretagne par Morice, tom. i. p. 1037. 1074. Charles VI. at the end of the following cen∣tury was obliged to confirm the rights of the Dukes of Bretagne in more ample form. Ibid. tom. ii. p. 580, 581. So violent was the opposition of the ba∣rons to this right of appeal which they considered as fatal to their privileges and power, that the authors of the Encyclopedie have mentioned several instances in which barons put to death, or mutilated, or con∣fiscated the goods of such as ventured to appeal from the sentences pronounced in their courts, to the par∣liament of Paris, tom. xii. Art. Parlement, p. 25.

THE progress of jurisdiction in the other feudal kingdoms was in a great measure similar to that which we have traced in France. In England, the territorial jurisdiction of the barons was both ancient and extensive. Leg. Edw. Conf. N^o 5 and 9. Af∣ter the Norman conquest it became more strictly feu∣dal; and it is evident from facts recorded in the En∣glish history, as well as from the institution of coun∣ties Palatine, which I have already mentioned, that the usurpations of the nobles in England were not in∣ferior to those of their contemporaries on the conti∣nent. The same expedients were employed to cir∣cumscribe or abolish those dangerous jurisdictions. William the Conqueror established a constant court in the hall of his palace; from which the four courts now entrusted with the administration of justice in England took their rise. Henry II. divided his king∣dom into six circuits, a••••••ent itinerant judges to

hold their courts in them at stated seasons. Black∣stone's Commentaries on the laws of England, vol. iii. p. 57. Justices of peace were appointed in every county by subsequent monarchs; to whose jurisdic∣tion the people gradually had recourse in many civil causes. The privileges of the Counties Palatine were gradually limited; with respect to some points they were abolished; and the administration of justice was brought into the King's courts, or before judges of his appointment. The several steps taken for this purpose are enumerated in Dalrymple's History of Feudal Property, chap. vii.

IN Scotland, the usurpations of the nobility were more exorbitant than in any other feudal kingdom, The progress of their encroachments, and the methods taken by the crown to limit or abolish their territori∣al and independent jurisdictions, both which I had occasion to consider and explain in a former work, differed very little from those of which I have now given the detail. History of Scotland, vol. i. p. 45.

I SHOULD perplex myself and my readers in the laby∣rinth of German jurisprudence, were I to attempt to delineate the progress of jurisdiction in the Empire with a minute accuracy. It is sufficient to observe, that the authority which the Aulick council and ••••∣perial chamber now possess, took its rise from 〈◊〉〈◊〉 same abuse of territorial jurisdiction, and was ac∣quired in the same manner that the royal 〈◊〉〈◊〉 ••••••∣tained influence in other countries. All the impor∣tant facts with respect to both these particulars, 〈◊〉〈◊〉 be found in Phil. Datt. de pace publica Imp•••••• 〈◊〉〈◊〉 iv. The capital articles are pointed out in 〈◊〉〈◊〉 ••••••∣bregé de l'Histoire & Droit publique d' Allemagne 〈◊〉〈◊〉 556, 581; and in Traité du Droit publique de ••••••∣pire par M. le Coq. de Villeray. Both the 〈…〉〈…〉 treatises are of great authority, having been 〈…〉〈…〉 under the eye of M. Schoepslin of Strasburgh 〈◊〉〈◊〉 of the ablest publick lawyers in Germany.

NOTE XXIV. [AA]. SECT. I.

IT is not easy to fix with precision the period, at which Ecclesiasticks first began to claim exemption from the civil jurisdiction. It is certain, that during the early and purest ages of the church, they pre∣tended to no such immunity. The authority of the civil magistrates extended to all persons, and to all causes. This fact has not only been clearly establish∣ed by Protestant authors, but is admitted by many Roman Catholicks of eminence, and particularly by the writers in defence of the liberties of the Gallican church. There are several original papers published by Muratori, which shew that in the ninth and tenth centuries, causes of the greatest importance relating to ecclesiasticks were still determined by civil judges. Antiq. Ital. vol. v. Dissert. lxx. Ecclesiasticks did not shake off all at once their subjection to civil courts. This privilege, like their other usurpations, was gain∣ed slowly, and step by step. This exemption seems at first to have been merely an act of complaisance, flowing from veneration for their character. Thus from a charter of Charlemagne in favour of the church of Mans, A. D. 796, to which M. l'Abbe de Foy re∣fers in his Notice de Diplomes, tom. i. p. 201, that monarch directs his judges, if any difference should arise between the administrators of the revenues of that church and any person whatever, not to summon the administrators to appear in mallo publico; but first of all to meet with them, and to endeavour to accommodate the difference in an amicable manner. This indulgence was in process of time improved into a legal exemption; which was founded on the same superstitious respect of the laity for the clerical charac∣ter and function. A remarkable instance of this oc∣curs in a charter of Frederick Barbarossa, A. D. 1172, to the monastery of Altenburg. He grants them ju∣dicium non tantum sanguinolentis plagae, sed vitae & mortis; he prohibits any of the royal judges from disturbing their jurisdiction; and the reason which he gives for this ample concession is, nam quorum ex

Dei gratia, ratione divini ministerii onus leve est, & jugum suave; nos penitus nolumus illius oppressionis contumelia, velmanu Laica fatigari. Mencken. Script. rer. Germ. vol. iii. p. 1067.

IT is not necessary for illustrating what is contain∣ed in the text, that I should describe the manner in which the code of the canon law was compiled, and shew that the doctrines in it most favourable to the power of the clergy, are founded on ignorance, or supported by fraud and forgery. The reader will find a full account of these in Gerard. Van Mastricht, Historia Juris Ecclesiastici, & in Science de Govern∣ment par M. Real, tom. vii. c. 1. & 3. § 2, 3, &c. The history of the progress and extent of ecclesiastical jurisdiction, with an account of the arts which the clergy employed, in order to draw causes of every kind into the spiritual courts, is no less curious, and would throw a great light upon many of the customs and institutions of the dark ages; but it is likewise foreign from the present subject. Du Cange in his Glossary, voc. Curia Christianitatis, has collected most of the causes with respect to which the clergy arro∣gated an exclusive jurisdiction, and refers to the au∣thors or original papers, which confirm his observati∣ons, Giannonè in his Civil History of Naples, lib. xix. § 3. has ranged these under proper heads, and scrutinizes the pretensions of the church with his usual boldness and discernment. M. Fleury observes, that the clergy multiplied at such a rate, the pretexts for extending the authority of the spiritual courts, that it was in their power to withdraw every person and every cause from the jurisdiction of the civil magistrate. Hist. Eccles. tom. xix. Disc. Prelim. 16. But how ill founded soever the jurisdiction of the clergy may be, or whatever might be the abuses to which their manner of exercising it gave rise, the principles and forms of their jurisprudence were far more perfect, than that which was known in the civil courts. It is probable, that ecclesiasticks never submitted during any period of the middle ages, to the laws contained in the codes of the barbarous nations, but were go∣verned entirely by the Roman law. They regulated

all their transactions by such of its maxims as were preserved by tradition, or were contained in the The∣odosian code, and other books extant among them. This we learn from a custom which prevailed univer∣sally in those ages. Every person was permitted to chuse among the various codes of laws then in force, that to which he was willing to conform. In any transaction of importance, it was usual for the persons contracting to mention the law to which they submit∣ted, that it might be known how any controversy that should arise between them was to be decided. In∣numerable proofs of this occur in the charters of the middle ages. But the clergy considered it as such a valuable privilege of their order to be governed by the Roman law, that when any person entered into holy orders, it was usual for him to renounce the laws to which he had been formerly subject, and to declare that he now submitted to the Roman law. Constat me Johannem clericum, filium quondam Verandi, qui professus sum, ex natione mea, lege vivere Lan∣gobardorum, sed tamen, pro honore ecclesiastico, lege nunc videor vivere Romana. Charta A. D. 1072. Farulfus presbyter qui professus sum, more sa∣cerdotii mei, lege vivere Romana. Charta, A. D. 1075. Muratori Antichita Estensi. vol. i. p. 78.

THE code of the cannon law began to be compiled early in the ninth century. Mem. de l'Acad. des In∣script. tom. xviii. p. 346, &c. It was above two centuries after that before any collection was made of those customs, which were the rule of judgment in the courts of the barons. Spiritual judges decided, of course, according to written and known laws; Lay judges, left without any fixed guide, were directed by loose traditionary customs. But besides this gene∣ral advantage of the canon law, its forms and princi∣ples were more consonant to reason, and more fa∣vourable to the equitable decision of every point in controversy, than those which prevailed in lay courts. It appears from Notes XXI. and XXII. concerning private wars, and the trial by combat, that the whole spirit of ecclesiastical jurisprudence was adverse to these sanguinary customs which were destructive of justice;

and the whole force of ecclesiastical authority was ex∣erted to abolish them, and to substitute trials by law and evidence in their room. Almost all the forms in lay courts which contribute to establish, and continue to preserve order in judicial proceedings, are borrow∣ed from the canon law. Fleury Instit. du droit can∣on, part iii. c. 6. p. 52. St. Louis in his Establisse∣mens confirms many of his new regulations concern∣ing property, and the administration of justice, by the authority of the canon law, from which he borrow∣ed them. Thus, for instance, the first hint of attach∣ing moveables for the recovery of a debt, was taken from the canon law. Establ. liv. ii. c. 21 and 40. And likewise the cessio bonorum, by a person who was insolvent. Ibid. In the same manner he established new regulations with respect to the effects of persons dying intestate, liv. i. c. 89. These and many other salutary regulations, the Canonists borrowed from the Roman law. Many other examples might be pro∣duced of more perfect jurisprudence in the canon law than was known in lay courts. For that reason it was deemed an high privilege to be subject to ecclesiastical jurisdiction. Among the many immunities, by which men were allured to engage in the dangerous expedi∣tions for the recovery of the Holy Land, one of the most considerable was the declaring those who took the Cross to be subject only to the spiritual courts. See note XIII. and Du Cange, voc. crucis privilegia.

NOTE XXV. [BB]. SECT. I.

THE rapidity with which the knowledge and study of the Roman law spread over Europe, is amazing. The copy of the Pandects was found at Amalphi, A. D. 1137. Irnerius opened a college of civil law at Bologne a few years after Giann. Hist. book xi. c. 2. It began to be taught as a part of academical learning in different parts of France before the middle of the century. Vaccarius gave lectures on the civil law at Oxford as early as the year 1147. A regular system of feudal law, formed plainly in imitation of the Ro∣man code, was composed by two Milanese lawyers

about the year 1150. Gratian published the code of canon law, with large additions and emendations, about the same time. The earliest collection of these customs, which served as the rules of decision in the courts of justice, is the Assises de Jerusalem. They were compiled, as the preamble informs us, in the year 1099, and are called Jus Consuetudinarium quo regebatur regnum orientale. Willerm. Tyr. lib. xix. c. 2. But peculiar circumstances were the oc∣casion of this early compilation. The victorious Cru∣saders settled as a colony in a foreign country, and ad∣venturers from all the different nations of Europe composed this new society. It was necessary on that account to ascertain the laws and customs which were to regulate the transactions of business, and the admi∣nistration of justice among them. But there was at that time no collection of customs, and no attempt to render law fixed in any country of Europe. The first undertaking of that kind was by Glanville, Lord Chief Justice of England, in his Tractatus de Legibus & Consuetudinibus Angliae, composed about the year 1181. The Regiam Majestatem in Scotland, as∣cribed to David I. seems to be an imitation, and a servile one of Glanville. Pierre de Fontaines, who tells us that he was the first who had attempted such a work in France, composed his Conseil, which contains an account of the customs of the country of Verman∣dois, in the reign of St. Louis, which began, A. D. 1226. Beaumanoir, the author of the Coustumes de Beauvoisis, lived about the same time. The Establisse∣mens of St. Louis, containing a large collection of the customs which prevailed within the royal domains, were published by the authority of that monarch. As soon as men became acquainted with the advantages of having written customs and laws to which they could have recourse on every occasion, the method of collecting them became common. Charles VII. of France, by an ordonance, A. D. 1453, appointed the customary laws in every province of France to be collected and arranged. Velly and Villaret. Histoire tom. xvi. p. 113. His successor, Louis XI. renewed the injunction. But this salutary undertaking hath

never been fully executed, and the French jurispru∣dence remains more obscure and uncertain than if these prudent regulations of their monarch had taken ef∣fect. A practice was established in the middle ages, which affords the clearest proof that judges while they had no other rule to direct their decrees but un∣written and traditionary customs, were often at a loss how to find out the facts and principles, accord∣ing to which they were bound to decide. They were obliged in dubious cases to call a certain number of old men, and to lay the case before them, that they might inform them what was the practice or custom with regard to the point. This was called Enqueste par tourbe. Du Cange, voc. Turba. The effects of the revival of the Roman jurisprudence have been ex∣plained by M. de Montesquieu, liv. xxviii. c. 42. and by Mr Hume, Hist. of England, vol. ii. p. 441. I have adopted many of their ideas. Who can pre∣tend to review any subject which such writers have considered, without receiving from them light and information? At the same time I am convinced that the knowledge of the Roman law was not so entirely lost in Europe during the middle ages, as is common∣ly believed. My subject does not require me to exa∣mine this point. Many striking facts with regard to it are collected by Donato Antonio D'Asti Dal' Uso e autorita della ragione civilè nelle provincie dell' Impe∣rio Occidentale. Nap. 1751. 2 vol. 8vo.

THAT the civil law is intimately connected with the municipal jurisprudence in several countries of Eu∣rope, is a fact so well known, that it needs no illustra∣tion. Even in England, where the Common law is supposed to form a system perfectly distinct from the Roman code, and although those who apply in that country to the study of the Common law boast, with affectation, of this distinction, it is evident that many of the ideas and maxims of the civil law are incorpo∣rated into the English jurisprudence. This is well il∣lustrated by the ingenious and learned author or Ob∣servations on the Statutes, chiefly the more ancient. 2d edit. p. 66.

NOTE XXVI. [CC] SECT. I.

THE whole history of the middle ages makes it evi∣dent that war was the sole profession of gentlemen, and the only subject attended to in their education, Even after some change in manners began to take place, and the civil arts of life had acquired some re∣putation, the ancient ideas with respect to the accom∣plishments necessary for a person of noble birth, con∣tinued long in force. In the Memoires de Fleuran∣ges, p. 9. &c. we have an account of the youthful ex∣ercises and occupations of Francis I. and they are al∣together martial and athletic. That father of letters owed his relish for them, not to education, but to his own good sense, and good taste. The manners of the superior order of ecclesiastics, during the mid∣dle ages, furnish the strongest proof, that the distinc∣tion of professions was scarce known in Europe. The functions and character of the clergy are obviously very different from those of laymen; and among the inferior orders of churchmen, this constituted a dis∣tinct character, separate from that of their citizens. But the dignified ecclesiastics, who were frequently of noble birth, were above such a distinction; they retained the idea of what belonged to them as gentle∣men, and in spite of the decrees of Popes, or the ca∣nons of counsels, they bore arms, led their vassals to the field, and fought at their head in battle. Among them the priesthood was scarce a separate profession; the military accomplishments which they thought essential to them as gentlemen, were cultivated; the theological science, and pacific virtues suitable to their spiritual function, were neglected and despised.

AS soon as the science of law became a laborious study, and the practice of it a separate profession, such as rose, to eminence in it obtained honours formerly appropriated to soldiers. Knighthood was the most illustrious mark of distinction during several ages, and conferred privileges to which rank or birth alone were not entitled. To this high dignity persons emi∣nent for their knowledge of law were advanced, and

by that were placed on a level with those whom their military talents had rendered conspicuous. Miles Justitiae, Miles Literatus became common titles. Matthew Paris mentions such knights as early as A. D. 1251. If a judge attained a certain rank in the courts of justice, that alone gave him a right to the honour of knighthood. Pasquier Recherches, liv. 11. c. 16. p. 130. Dissertations historiques sur la Che∣valerie par Honorè de Sainte Marie, p. 164, &c. A profession which led to offices that enobled such as held them, grew into credit, and the people of Europe become accustomed to see men rise to eminence by civil as well as military talents.

NOTE XXVII. [DD]. SECT. I.

THE chief intention of these notes, was to bring at once under the view of my readers, such facts and cir∣cumstances as tend to illustrate or confirm what is con∣tained in that part of the history to which they refer. When these lay scattered in many different authors, and were taken from books not generally known, or which it would be disagreeable to consult, I thought it would be of advantage to collect them together. But when everything necessary for the proof or illustration of my narrative or reasonings may be found in any one book which is generally known, or deserves to be so. I shall satisfy myself with referring to it. This is the case with respect to Chivalry. Almost every fact which I have mentioned in the text, together with many other curious and instructive particulars, con∣cerning this singular institution, may be found in Memoires sur l'ancienne Chevalerie considerée comme un establissement politique & militaire, par. M. de la Curne de St. Palaye.

NOTE XXVIII. [EE] SECT. III.

THE subject of my enquiries does not call me to write a history of the progress of science. The facts and observations which I have produced are sufficient to illustrate the effects of its progress upon manners and

the state of of society. While science was altogether extinct in the western parts of Europe, it was cultiva∣ted in Constantinople and other parts of the Grecian Empire. But the subtile genius of the Greeks turned almost entirely to theological disputation. The La∣tins borrowed that spirit from them, and many of the controversies which still occupy, and divide Theolo∣gians, took their rise among the Greeks, from whom the other Europeans derived a considerable part of their knowledge. See the testimony of Aeneas Sylvi∣us ap Coringium de antiq. academicis, p. 43. Histo∣ire literaire de France, tom. vii. p. 113, &c. tom. ix. p. 151, &c. Soon after the Empire of the Caliphs was established in the East, some illustrious princes arose among them, who encouraged science. But when the Arabians turned their attention to the lite∣rature cultivated by the ancient Greeks and Romans, the chaste and correct taste of their works of genius appeared frigid, and unanimated to a people of a more warm imagination. It was impossible for them to ad∣mire the poets and historians of Athens, or of Rome. But they were sensible of the merit of their philoso∣phers. The operations of the intellect are more fixed and uniform than those of the fancy or taste. Truth makes an impression nearly the same in every place; the ideas of what is beautiful, elegant, or sublime, vary in different climates. The Arabians, though they neglected Homer, translated the most eminent of the Greek philosophers into their own language; and, guided by their precepts and discoveries, applied themselves with great ardour to the study of geome∣try, astronomy, medicine, dialectics and metaphysics. In the three former they made considerable and useful improvements, which have contributed not a little to advance those sciences to that high degree of perfecti∣on which they have attained. In the two latter, they choose Aristotle for their guide, and refining on the subtle and distinguishing spirit which characterizes his philosophy, they rendered it altogether frivolous or unintelligible. The schools established in the East for teaching and cultivating these sciences, were in high reputation. They communicated their love of science

to their countrymen, who conquered Asia and Spain; and the schools instituted there were little inferior in fame to those in the East. Many of the persons who distinguished themselves by their proficiency in sci∣ence in the twelfth and thirteenth centuries, were educated among the Arabians. Bruckerus collects many instances of this. Histor. Philos. v. iii. p. 681, &c. Almost all the men eminent for science during several centuries, were instructed in the sciences by the Arabians. The first knowledge of the Aristotelian philosophy in the middle ages, was acquired by trans∣lations of his works out of the Arabick. The Arabi∣an commentators were deemed the most skilful and authentic guides in the study of his system. Conring. antiq. acad. Diss. iii. p. 95, &c. Supplem. p. 241, &c. Murat. antiquit. Ital. vol. iii. p. 932, &c. From them the schoolmen derived the genius and principles of their philosophy, which contributed so much to re∣tard the progress of true science.

THE establishment of Colleges or universities is a remarkable aera in literary history. The schools in cathedrals and monasteries confined themselves chiefly to the teaching of grammar. There were only one or two masters employed in that office. But in colleges, professors were appointed to teach all the different parts of science. The time that ought to be allotted to the study of each was ascertained. A regular form of trying the proficien∣cy of students was prescribed; and academical titles and honours were conferred on such as acquitted themselves with approbation. A good account of the origin and nature of these is given by Seb. Bac∣meisterus Antiquitates Rostochienses, sive, Historia Urbis & Academiae Rostoch. ap. Monumenta inedita Rer. Germ. per E. J. de Westphalen, vol. iii. p. 781. Lips. 1743. The first obscure mention of these aca∣demical degrees in the University of Paris, (from which the other universities in Europe have borrowed most of their customs and institutions) occurs, A. D. 1215. Crevier. hist. de l'univ. de Paris, tom. i. p. 296, &c. They were compleatly established, A. D. 1231. lb. 248. It is unnecessary to enumerate the several

privileges to which batchelors, masters and doctors were entitled. One circumstance is sufficient to de∣monstrate the high degree of estimation in which they were held. Doctors in the different faculties contend∣ed with knights for the precedence, and the dispute was terminated in many instances by advancing the former to the dignity of knighthood, the high prero∣gatives of which I have mentioned. It was even as∣serted, that a doctor had a right to that title without creation. Bartolus taught—doctorem actualiter regentem in jure civili per decennium effici militem ipso facto. Honore de St. Marie Dissert. p. 165. This was called Chevalierie de lectures, and the persons ad∣vanced to that dignity, milites Clerici. These new establishments for education, together with the extra∣ordinary honours conferred on learned men, greatly increased the number of scholars. In the year 1262, there were ten thousand students in the university of Bologna; and it appears from the history of that uni∣versity, that law was the only science taught in it at that time. In the year 1340, there were thirty thou∣sand in the university of Oxford. Speed's Chron. ap. Anderson's Chronol. Deduction of Commerce, vol. i. p. 172. In the same century, ten thousand persons voted in a question agitated in the university of Paris; and as graduates alone were admitted to that privi∣lege, the number of students must have been vast∣ly great. Velly Hist. de France, tom. xi. p. 147. There were indeed few universities in Europe at that time; but such a number of students may nevertheless be produced as a proof of the extraordinary ardour with which men turned to the study of science in those ages; it shows likewise that they already began to consider other professions than that of a soldier as ho∣nourable and useful.

NOTE XXIX. [FF]. SECT. III.

THE great variety of subjects which I have endea∣voured to illustrate, and the extent of this upon which I now enter, will justify my adopting the words of M. de Montesquieu, when he begins to treat

of commerce.

The subject which follows would require to be discussed more at large; but the na∣ture of this work does not permit it. I wish to glide on a tranquil stream; but I am hurried along by a torrent.

MANY proofs occur in history of the little inter∣course between nations during the middle ages. To∣wards the close of the tenth century, Count Bouch∣ard intending to found a monastery at St. Maur des Fosses, near Paris, applied to an Abbot of Clugny in Burgundy, famous for his sanctity, intreating him to conduct the monks thither. The language in which he addressed that holy man is singular: He tells him that he had undertaken the labour of such a great journey; that he was fatigued with the length of it, therefore hoped to obtain his request, and that his journey into such a distant country should not be in vain. The answer of the abbot is still more extra∣ordinary: He refused to comply with his desire, as it would be extreamly fatiguing to go along with him into a strange and unknown region. Vita Burchar∣di venerabiles Comites ap. Bouquet Rec. des Hist. vol. x. p. 351. Even so late as the beginning of the twelfth century, the monks of Ferrieres in the dio∣cese of Sens did not know that there was such a city as Tournay in Flanders; and the monks of St. Mar∣tin of Tournay, were equally unacquainted with the situation of Ferrrieres. A transaction in which they were both concerned, made it necessary for them to have some intercourse. The mutual interest of both monasteries prompted each to find out the situation of the other. After a long search, which is particu∣larly described, the discovery was made by accident. Herimannus Abbas de Restauratione St. Martini Tor∣nacensis ap. Dacher. Spicel. vol. xii. p. 400. The ig∣norance of the middle ages with respect to the situati∣on and geography of remote countries was still more remarkable. The most ancient geographical chart which now remains as a monument of the state of that science in Europe during the middle ages, is found in a manuscript of the Chronique de St. De∣nys. There the three parts of the earth then known

are so represented, that Jerusalem is placed in the middle of the globe, and Alexandria appears to be as near to it as Nazareth. Mem. de l'Acad. des Belles Lettres, tom. xvi. p. 185, There seem to have been no inns or houses of entertainment for the reception of travellers during the middle ages. Murat. An∣tiq. Ital. vol. iii. p. 581, &c. This is a proof of the little intercourse which took place between different nations. Among people whose manners are simple, and who are seldom visited by strangers, hospitali∣ty is a virtue of the first rank. This duty of hospitali∣ty was so necessary in that state of society which took place during the middle ages, that it was not considered as one of those virtues which men may practise or not, according to the temper of their minds, and the generosity of their hearts. Hospita∣lity was enforced by statutes, and those who neglect∣ed this duty were liable to punishment. Quicumque hospiti venienti lectum, aut focum negaverit, trium selidorum inlatione mulctetur, Leg. Burgund. tit. xxxviii. § 1. Si quis homini aliquo pergenti in iti∣nere mansionem vetaverit sexaginta solidos componat in publico. Capitul. lib. vi. § 82. This increase of the penalty, at a period so long after that in which the laws of the Burgundians were published, and when the state of society was much improved, is very re∣markable. Other laws of the same purport are col∣lected by Jo. Fred. Polac Systema Jurisprud. Germa∣nicae, Lips. 1733. p. 75. The laws of the Slavi were more rigorous than any that he mentions; they or∣dained, "that the moveables of an inhospitable per∣son should be confiscated, and his house burnt. They were even so solicitous for the entertainment of stran∣gers, that they permitted the landlord to steal for the entertainment of his guest." Quot noctu furatus fueris, eras appone hospitibus. Rerum Mecleburgicar. lib. viii. a Mat. Jo. Beehr. Lips. 1751. p. 50. In con∣sequence of these laws or of that state of society which made it proper to enact them, hospitality abounded while the intercourse among men was inconsiderable, and secured the stranger a kind reception under every roof where he chose to take shelter. This two proves clearly, that the intercourse among men was rare

for as soon as this increased, what was a pleasure be∣came a burden, and the entertaining of travellers was converted into a branch of commerce.

BUT the laws of the middle ages afford a proof still more convincing of the small intercourse between dif∣ferent nations. The genius of the Feudal system, as well as the spirit of jealousy which always accompanies ignorance, joined in discouraging strangers from set∣tling in any country. If a person removed from one province in a kingdom to another, he was bound with∣in a year and a day, to acknowledge himself the vassal of the baron in whose estate he settled; if he ne∣glected to do so, he became liable to a penalty, and if at his death he neglected to leave a certain legacy to the baron within whose territories he resided, all his goods were confiscated. The hardships imposed on foreigners settling in a strange country, were still more intolerable. In more early times, the superior lord of any territory, in which a foreigner settled, might seize his person, and reduce him to servitude. Very striking instances of this occur in the history of the middle ages. The cruel depredations of the Normans in the ninth century, obliged many inhabitants of the maritime provinces of France, to fly into the interior parts of the kingdom. But instead of being received with that humanity to which their wretched condition entitled them, they were reduced to a state of servi∣tude. Both the civil and ecclesiastical powers found it necessary to interpose, in order to put a stop to this barbarous practice. Potgiesser. de Statu Servor. lib. i. c. 1. § 16. In other countries, the laws permitted the inhabitants of the maritime provinces, to reduce such as were shipwrecked on their coast, to servitude. Ibid. § 17. This barbarous custom prevailed in other coun∣tries of Europe. The practice of seizing the goods of persons who had been shipwrecked, and of confiscating as the property of the lord on whose manor they were thrown, seems to have been universal. De Westpha∣len Monum. inedita Rer. Germ. vol. iv. p. 907, &c. et Du Cange, voc Laganum, Beehr. Rer. Mecleb. lib. p. 512. Among the ancient Welsh, three sorts of per∣sons, a madman, a stranger, and a leper, might be

killed with impunity. Leges Hoel Dda, quoted in observat. on the Statutes, chiefly the more ancient, p. 22. M. de Lauriere produces several ancient deeds which prove, that in different provinces of France, strangers became the slaves of the lord on whose lands they settled. Glossaire du Droit Francois, Art. Aubai∣ne, p. 92. Beaumanoir says, "that there are several places in France, in which, if a stranger fixes his resi∣dence for a year and a day, he becomes the slave of the lord of the manor. Coust. de Beauv. ch. 45. p. 254. But as a practice so contrary to humanity could not subsist, the superior lords found it necessary to rest satisfied with levying certain annual taxes from aliens, by imposing upon them some extraordinary duties or services. But when any stranger died, he could not convey his effects by a will; and all his real as well as personal estate fell to the king, or to the lord of the barony, to the exclusion of his natural heirs. This is termed in France Droit d'Aubaine. Pref. de Laurier. Ordon. tom. i. p. 15. Brussel. tom. ii. p. 944. Du Cange, voc. Albani. Pasquier Recherches, p. 367. This practice of confiscating the effects of strangers up∣on their death, was very ancient. It is mentioned, though very obscurely, in a law of Charlemagne, A. D. 813. Capitul. Baluz. p. 507. § 5. Not only per∣sons who were born in a foreign country were subject to the Droit d'Aubaine, but even such as removed from one diocese to another, or from the lands of one baron to another. Brussel. vol. ii. p. 947, 949. It is scarce possible to conceive any law more unfavourable to the intercourse between nations. Something simi∣lar to it, however, may be found in the ancient laws of every kingdom in Europe. With respect to Italy, see Murat. Ant. vol. ii. p. 14. It is no small disgrace to the French jurisprudence, that this barbarous, in∣hospitable custom, should still remain in a nation so highly civilized.

THE confusion and outrage which abounded under a feeble form of government, incapable of framing or executing salutary laws, rendered the communication between the different provinces of the same kingdom extremely dangerous. It appears from a letter of Lu∣pus,

abbot of Ferrieres, in the ninth century, that the highways were so much infested by banditti, that it was necessary for travellers to form themselves into companies or caravans, that they might be safe from the assaults of robbers. Bouquet Recueil des Hist. vol. vii. 515. The numerous regulations published by Charles the bald in the same century, discover the frequency of these disorders; and such acts of vio∣lence were become so common, that by many they were hardly considered as criminal; and for this rea∣son, the inferior judges called Centenarii, were re∣quired to take an oath, that they would neither com∣mit any robbery themselves, nor protect such as were guilty of that crime. Capitul. edit. Baluz. vol. ii. p. 63, 68. The historians of the ninth and tenth centuries give pathetic descriptions of these disorders. Some remarkable passages to this purpose are collected by Mat. Jo. Beehr. Rer. Mecleb. lib. viii. p. 603. They became so frequent and audacious, that the au∣thority of the civil magistrate was unable to repress them. The ecclesiastical jurisdiction was called in to aid it. Councils were held with great solemnity, the bodies of the saints were brought thither, and in pre∣sence of the sacred reliques, anathemas were de∣nounced against robbers, and other violators of the publick peace. Bouquet Recueil des Hist. tom. x. p. 360, 431, 536. One of these forms of excommu∣nication issued A. D. 988, is still preserved, and is so singular, and composed with eloquence of such a peculiar kind, that it will not perhaps appear unwor∣thy of a place here. After the usual introduction, and mentioning the outrage which gave occasion to the anathema, it runs thus, "Obtenebrescant occuli ves∣stri, qui concupiverunt; arescant manus, quae rapue∣runt; debilitentur omnia membra, quae adjuverunt. Semper laboretis, nec requiem inveniatis, fructuque vestri laboris privemini. Formidetis, & paveatis, à facie persequentis, & non persequentis hostis, ut ta∣bescendo deficiatis. Sit portio vestra cum Juda tra∣ditore Domini, in terra mortis et tenebrarum; donec corda vestra ad satisfactionem plenam convertantur. Ne cessent a vobis hae malidictiones, scelerum vestroram

persecutrices, quamdiu permanebitis in peccato per∣vasionis. Amen. Fiat, Fiat." Bouquet. lb. p. 517.

WITH respect to the progress of commerce which I have described, p. 78, &c. it may be observed that the Italian states carried on some commerce with the cities of the Greek empire, as early as the age of Char∣lemagne, and imported into their own country the rich commodities of the east. Murat. Antiq. Ital. vol. ii. p, 882. In the tenth century, the Venetians had opened a trade with Alexandria in Egypt. Ibid. The inhabitants of Amalphi and Pisa had likewise ex∣tended their trade to the same ports. Murat. Ib. p. 884, 885. The effects of the Crusades in increasing the wealth and commerce of the Italian states, and particularly that which they carried on with the East, I have already explained in this volume. They not only imported the Indian commodities from the East, but established manufactures of curious fabric in their own country. Several of these are enumerated by Muratori in his Dissertations concerning the arts and the weaving of the middle ages. Antiq. Ital. vol. ii. p. 349, 399. They made great progress particularly in the manufacture of silk, which had long been pe∣culiar to the eastern provinces of Asia. Silk stuffs were of such high price in ancient Rome, that only a few persons of the first rank were able to purchase them. Under Aurelian, A. D. 270, a pound of silk was equal in value to a pound of gold. Absit ut auro fila pensentur. Libra enim auri tune libra serici fuit. Vopiscus in Aureliano. Justinian, in the sixth centu∣ry, introduced the art of rearing silk-worms into Greece, which rendered the commodity somewhat more plentiful, though still it was of such great va∣lue, as to remain an article of luxury or magnificence, reserved only for persons of the first order, or for pub∣lic solemnities. Roger I. King of Sicily, about the year 1130, carried off a number of artificers in the silk trade from Athens, and settling them in Palermo, introduced the culture of silk into his kingdom, from which it was communicated to other parts of Italy. Gianon. Hist. of Naples, b. xi. c. 7. This seems to have rendered silk so common, that about the mid∣dle

of the fourteenth century, a thousand citizens of Genoa appeared in one procession clad in silk robes. Sugar is likewise a production of the East. Some plants of the sugar-cane were brought from Asia; and the first attempt to cultivate them in Sicily was made about the middle of the twelfth century. From thence they were transplanted into the southern provinces of Spain. From Spain they were carried to the Canary and Madeira isles, and at length into the new world. Ludovico Guicciardini, in enumerating the goods im∣ported into Antwerp, about the year 1560, mentions the sugar which they received from Spain and Portu∣gal as a considerable article. He describes that as the product of the Madeira and Canary islands. Descritt. de Paesi Bassi, p. 180, 181. The sugar-cane was either not introduced into the West-Indies at that time, or the cultivation of it was not so considerable as to furnish an article in commerce. In the middle ages, though sugar was not raised in such quantities, or employed for so many purposes, as to become one of the common necessaries of life, it appears to have been a considerable article in the commerce of the Italian states.

THESE various commodities with which the Itali∣ans furnished the other nations of Europe, procured them a favourable reception in every kingdom. They were established in France in the thirteenth century with most extensive immunities. They not only ob∣tained every indulgence favourable to their commerce, but personal rights and privileges were granted to them, which the natives of the kingdom did not en∣joy. Ordon. tom. iv. p. 688. By a special proviso, they were exempted from the droit d'aubaine. Ibid, p. 670. As the Lombards engrossed the trade of every kingdom in which they settled, they became masters of its cash. Money of course was in their hands not only a sign of the value of their commodities, but became an object of commerce itself. They dealt largely as bankers. In an ordonance, A. D. 1295, we find them stiled mercatores and campsores. They car∣ried on this as well as other branches of their com∣merce with somewhat of that rapacious spirit which is

natural to monopolizers, who are not restrained by the concurrence of rivals. An absurd opinion, which prevailed in the middle ages, was, however, in some measure, the cause, of their exorbitant demands, and may be pleaded in apology for them. Commerce can∣not be carried on with advantage unless the persons who lend a sum are allowed a certain premium for the use of their money, and as a compensation for the risk which they run in permitting another to traffick with their stock. This premium is fixed by law in all com∣mercial countries, and is called the legal interest of money. But the Fathers of the church preposterous∣ly applied the prohibitions of usury in scripture to the payment of legal interest, and condemned it as a sin. The schoolmen, misled by Aristotle, whose sentiments they followed implicitly, and without examination, adopted the same error, and enforced it. Blackstone's Commentaries on the laws of England, vol. ii. p. 455. Thus the Lombards found themselves engaged in a traffick which was deemed criminal and odious. They were liable to punishment if detected. They were not satisfied, therefore, with that moderate premium, which they might have claimed, if their trade had been open and authorised by law. They exacted a sum proportional to the danger and infamy of a disco∣very. Accordingly, we find th•• it was usual for them to demand twenty per cent. for the use of mo∣ney in the thirteenth century. Murat. Antiq. Ital. vol. i. p. 893. About the beginning of that century, the countess of Flanders was obliged to borrow money in order to pay her husband's ransom. She procured the sum requisite, either from Italian merchants or from Jews. The lowest interest which she paid to them was above twenty per cent. and some of them exacted near thirty. Martene and Durand. Thesaur. Anecdotorum. vol. i. p. 886. In the fourteenth century, A. D. 1311, Philip IV. fixed the interest which might be legally exacted in the fairs of Ch••m∣pagne at twenty per cent. Ordonan. tom. i. p. 484. The interest of money in Aragon was somewhat lower. James I. A. D. 1242. fixed it by law at eighteen per cent. Petr. de Marca. Marca sive Limes Hispan,

app. 1433. As late as the year 1490, it appears that the interest of money in Placentia, was at the rate of forty per cent. This is the more extraordinary, be∣cause at that time the commerce of the Italian States was become considerable. Memoire Storiche de Pia∣cenza, tom. viii. p. 134. Piac. 1760. It appears from Lud. Guicciardini, that Charles V. had fixed the rate of interest in his dominions in the Low-Coun∣tries at twelve per cent. and at the time when he wrote about the year 1560, it was not uncommon to exact more than that sum. He complains of this as exorbitant, and points out its bad effects both on agriculture and commerce. Descritt. di Paesi Bassi, p. 172. This high interest of money, is alone a proof that the profits on commerce were exorbitant.—The Lombards were likewise established in England, in the thirteenth century, and a considerable street in the city of London still bears their name. They en∣joyed great privileges, and carried on an extensive com∣merce, particularly as bankers. See Anderson's Chronol. Deduction, vol. i. p. 137, 160, 204, 231, where the statutes or other authorities, which confirm this are quoted. But the chief mart for Italian com∣modities was at Bruges. Navigation was then so im∣perfect, that a voyage between the Baltick and Me∣diterranean could not be performed in one summer. For that reason, a magazine or storehouse half way between the commercial cities in the North, and those in Italy became necessary. Bruges was pitched upon as the most convenient station. That choice intro∣duced vast wealth into the Low-Countries. Bruges was at once the staple for English wool; for the wool∣len and linnen manufactures of the Netherlands; for the naval stores, and other bulky commodities of the north; and for the Indian commodities, as well as do∣mestick productions imported by the Italian States. The extent of its commerce in Indian goods with Ve∣nice alone appears from one fact. In the year 1318, five Venetian galeasses laden with Indian commodities arrived at Bruges, in order to dispose of their cargoes at the fair. L. Guic. Descritt, di Paesi Bassi, p. 174. Galeasses were vessels of very considerable bur∣then.

It was the greatest emporium in all Europe. Many proofs of this occur in the historians and re∣cords of the thirteenth and fourteenth centuries. But instead of multiplying quotations, I shall refer my readers to Anderson, vol. i. p. 12, 137, 213, 246, The nature of this work prevents me from entering into any long details, but there are some detached facts, which give an high idea of the wealth both of the Flemish and Italian commercial states. The Duke of Brabant contracted his daughter to the Black Prince, son of Edward III. of England, A. D. 1339, and gave her a portion which would amount to three hundred thousand pounds of our present money. Ry∣mer's Faed••••, vol. v. p. 113. John Galeazzo Vis∣conti Duke of Milan concluded a treaty of marriage between his daughter and Lionel Duke of Clarence Edward's third son. A. D. 1367, and granted a por∣tion equal to two hundred thousand pounds of our present money. Rymer Faeder. vol. vi. p. 547. These exorbitant sums so far exceeding what was then granted by the most powerful monarchs, and which appear extraordinary even in the present age, when the wealth of Europe is so much increased, must have arisen from the riches which flowed into these coun∣tries from their extensive and lucrative commerce. The first source of wealth to the towns situated on the Baltick sea, seems to have been the herring fishery; the shoals of herring frequenting at that time the coasts of Sweden and Denmark, in the same manner as they now resort to the British coasts. The effects of this fishery are thus described by an author of the thir∣teenth century. The Danes, says he, who were for∣merly clad in the poor garb of sailors, are now cloath∣ed in scarlet, purple and fine linen. For they abound with wealth flowing from their annual fishery on the coast of Schonen; so that all nations resort to them, bringing their gold, silver and precious commodities, that they may purchase herrings, which the divine bounty bestows upon them. Arnoldus Lubecensis ap. Conring. de Urbib. German. § 87.

THE Hanseatick league is the most powerful com∣mercial confederacy known in history. Its origin to∣wards

the close of the twelfth century, and the ob∣jects of its union, are described by Knipscildt Tracta∣tus Historico-Politico Juridicus de Juribus Civitat. Imper. lib. i. cap. 4. Anderson has mentioned the chief facts with respect to their commercial progress, the extent of the privileges which they obtained in different countries, their successful wars with several monarchs, as well as the spirit and zeal with which they contended for those liberties and rights, without which it is impossible to carry on commerce to advan∣tage. The vigorous efforts of a society attentive only to commercial objects, could not fail of diffusing over Europe new and more liberal ideas concerning justice and order wherever they settled.

IN England the progress of commerce was extre∣mely slow; and the causes of this are obvious. Dur∣ing the Saxon heptarchy, England, split into many petty kingdoms, which were perpetually at va∣riance with each other, exposed to the fierce incursions of the Danes, and other northern pirates, and sunk in barbarity and ignorance, was in no condition to cultivate commerce, or to pursue any system of useful and salutary policy. When a better prospect began to open by the union of the kingdom under one monarch, the Norman conquest took place. This occasioned such a violent shock, and such a sudden and total re∣volution of property, that the nation did not recover from it during several reigns. By the time that the constitution began to acquire some stability, and the English had so incorporated with their conquerors as to become one people, the nation engaged with no less ardour than imprudence in support of their monarch's pretensions to the crown of France, and long wasted its vigour and genius in its wild efforts to conquer that kingdom. When by ill success and repeated disappointments, a period was at last put to this fatal frenzy, and the nation beginning to enjoy some re∣pose, had leisure to breathe and to gather new strength, the destructive wars between the houses of York and Lancaster broke out, and involved the kingdom in the worst of all calamities. Thus, besides the common obstructions of commerce occasioned by the nature of

the feudal government, and the state of manners dur∣ing the middle ages, its progress in England was re∣tarded by peculiar causes. Such a succession of events adverse to the commercial spirit was sufficient to have checked its growth, although every other circumstance had favoured it. The English were accordingly one of the last nations in Europe who availed themselves of their natural commercial advantages. Before the reign of Edward III. all the wool of England except a a small quantity wrought into course cloths for home consumption, was sold to the Flemings or Lombards, and manufactured by them. Though Edward, A. D. 1326, began to allure some of the Flemish weavers to settle in England, it was long before the English were capable of fabricating cloth for foreign markets, and the export of unwrought wool still continued to be the chief article of their commerce. Anderson passim. All foreign commodities were brought into England by the Lombard or Hanseatick merchants. The En∣glish ports were frequented by ships both from the north and south of Europe, and they tamely allowed foreigners to reap all the profits arising from the sup∣ply of their wants. The first commercial treaty of England on record, is that with Haquin King or Nor∣way, A. D. 1217. Anders. vol. i. p. 108. But they did not venture to trade in their own ships to the Baltick until the beginning of the fourteenth century. Ib. 151. It was after the middle of the fifteenth be∣fore they sent any ships into the mediterranean. Ib. p. 177. Nor was it long before this period that their vessels visited the ports of Spain or Portugal. But though I have pointed out the slow progress of the English commerce, as a fact little attended to, and yet meriting consideration; the concourse of foreign∣ers to the ports of England, together with the com∣munication among all the different countries in Europe, which went on increasing from the beginning of the twelfth century, is sufficient to justify all the observa∣tions and reasonings in the text concerning the influ∣ence of commerce on the state of manners, and of society.

NOTE XXX. [GG.] SECT. III.

I HAVE not been able to discover the precise man∣ner in which the Justiza was appointed, Among the claims of the junta or union formed against James I. A. D. 1264, this was one; that the King should not nominate any person to be Justiza without the consent or approbation of the ricos-hombres. Zurita Anales de Aragon, vol. i. p. 180. But the King in his an∣swer to their remonstrance asserts, "that it was estab∣lished by immemorial practice, and was conformida∣ble to the laws of the kingdom, that the King, in vir∣tue of his royal prerogative, named the Justiza. Zuri∣ta, Ibid. 181. Blanca, 656. From another passage in Zurita, it appears that while the Aragonese enjoyed the privilege of the union, i. e. the power of confede∣rating against their sovereign as often as they conceiv∣ed that he had violated any of their rights and immu∣nities. the Justiza was not only nominated by the King, but held his office during his pleasure. Nor was this practice attended with any bad effects, as the privilege of the union was a sufficient and effectual check to any abuse of the royal prerogative. But when the privilege of the union was abolished as dan∣gerous to the order and peace of society, it was agreed that the Justiza should continue in office during life. Several kings, however, attempted to remove the Justizas who were obnoxious to them, and they some∣times succeeded in the attempt. In order to guard against this encroachment, which would have de∣stroyed the intention of the institution, and have ren∣dered the Justiza the dependant and tool of the crown, instead of the guardian of the people, a law was enact∣ed in the Cortes, A. D. 1442, ordaining that the Justiza should continue in office during life, and should not be removed from it unless by the authority of the Cortes. Fueros & Observancial del Reyno de Arag. lib. i. p. 22. By former laws the person of the Justiza had been declared sacred, and he was re∣sponsable only to the Cortes. Ibid. p. 15. b. Zurita and Blanca, who both published their histories, while

the Justiza of Aragon retained the full exercise of his privileges and jurisdiction, have neglected to explain several circumstances with regard to the office of that respectable magistrate, because they addressed their works to their countrymen, who were well acquaint∣ed with every particular concerning the functions of a judge, to whom they looked up as to the guardian of their liberties. It is in vain to consult the latter historians of Spain, about any point, with respect to which the excellent historians whom I have named are silent. The ancient constitution of their country was overturned, and despotism, established on the ruin of its liberties, when the writers of this and the preceed∣ing century composed their histories, and on that ac∣count they had little curiosity to know the nature of those institutions to which their ancestors owed the enjoyment of freedom, or they were afraid to describe them with much accuracy. The spirit with which Mariana, his continuator Miniana, and Ferreras, write their histories, is very different from that of the two historians of Aragon, from whom I have taken my account of the constitution of that kingdom.

TWO circumstances concerning the Justiza, besides those which I have mentioned in the text, are unwor∣thy of observation. 1. None of the ricos-hombres, or noblemen of the first order, could be appointed Justiza. He was taken out of the second class or ca∣valleros, who answer nearly to gentlemen or com∣moners in Great-Britain. Fueros & Observanc. del Reyno, &c. lib. 1. p. 21. b. The reason was. By the laws of Aragon, the ricos-hombres were not subject to capital punishment; but as it was necessary for the security of liberty, that the Justiza should be accountable for the manner in which he executed the high trust reposed in him, it was a powerful restraint upon him to know that he was liable to be punished with the utmost rigour. Blanca, p. 657, 756. Zuri∣ta, tom. ii. 229. Fueros & Observanc. lib. ix. p. 182. b. 183. It appears too from many passages in Zurita, that the Justiza was appointed to check the domineering and oppressive spirit of the nobles, as well as to set bounds to the power of the monarch,

and therefore he was chosen from an order of citizens equally interested in opposing both.

2. A MAGISTRATE possessed of such vast powers as the Justiza, might have exercised them in a manner pernicious to the state, if he himself had been subject to no controul. A constitutional remedy, however, was provided against this danger. Seventeen persons were chosen by lot in each meeting of the Cortes. These formed a tribunal called the court of inquisition into the office of Justiza. This court met at three stated terms in each year. Every person had liberty of com∣plaining to it of any inquiry or neglect of duty in the Justiza, or in the inferior judges, who acted in his name. The Justiza and his deputies were called to an∣swer for their conduct. The members of the court passed sentence by ballot. They might punish by de∣gradation, confiscation of goods, or even with death. The law which erected this court, and regulated the forms of its procedure, was enacted A. D. 1461. Zu∣rita Anales, iv. 102. Blanca Comment. Rer. Aragon 770. Previous to this period, inquiry was made into the conduct of the Justiza, though not with the same formality. He was from the first institution of the of∣fice subject to the review of the Cortes. The constant dread of such an impartial and severe inquiry into his behaviour, was a powerful motive to the vigilant and faithful discharge of his duty. A remarkable instance of the authority of the Justiza when opposed to that of the King, occurs, in the year 1386. By the con∣stitution of Aragon, the eldest son or heir apparent of the crown possessed considerable power and jurisdicti∣on in the kingdom. Fueros & Observan. del Reyno de Arag. lib. 1. p. 16. Peter IV. instigated by a se∣cond wife, attempted to deprive his son of this, and enjoined his subjects to yield him no obedience. The Prince immediately applied to the Justiza; "the safe∣guard and defence, says Zurita, against all violence and oppression. The Justiza granted him the firmo de derecho, the effect of which was, that upon his giving surety to appear in judgment, he could not be depri∣ved of any immunity or privilege, which he possessed, but in consequence of a legal trial before the Justiza,

and of a sentence pronounced by him. This was pub∣lished throughout the kingdom, and notwithstanding the proclamation in contradiction to this which had been issued by the King, the Prince continued in the exercise of all his rights, and his authority was univer∣sally recognized. Zurita Anales de Aragon, tom. ii. 385.

NOTE XXXI. [HH.] SECT. III.

I HAVE been induced by the concurring testimony of many respectable authors, to mention this as the constitutional form of the oath of allegiance, which the Aragonese swore to their Sovereigns. I must ac∣knowledge, however, that I have not found this singu∣lar oath in any Spanish author whom I have had an opportunity to consult. It is mentioned neither by Zurita, nor Blanca, nor Argensola, no•• Sayas, who were all historiographers appointed by the Cortes of Aragon to record the transactions of the kingdom. All these writers possess a merit, which is very rare among historians. They are extremely accurate in tracing the progress of the laws and constitution of their country. Their silence with respect to this, cre∣ates some suspicion concerning the genuiness of the oath. But as it is mentioned by so many authors, who produce the ancient Spanish words in which it is expressed, it is probable that they have taken it from some writer of credit, whose works have not fallen in∣to my hands. The spirit of the oath is perfectly agreeable to the genius of the Aragonese constitution.

THE privilege of Union which I mentioned in the preceding note, and alluded to in the text, is indeed one of the most singular which could take place in a regular government, and the oath that I have menti∣oned expresses nothing more than this constitutional privilege entitled the Aragonese to perform. If the King or his Ministers violated any of the laws or immu∣nities of the Aragonese, and did not grant immediate redress in consequence of their representations and re∣monstrances, the nobles of the first rank, or Ricos-hom∣bres de natura. & de mesnada, the equestrian order, or

the nobility of the second class, called Hidalgos & In∣fanciones, together with the magistrates of cities, might either in the cortes, or in a voluntary assembly, join in union, and binding themselves by mutual oaths and the exchange of hostages to be faithful to each other, they might require the King, in the name and by the authority of this body corporate, to grant them redress. If the King refused to comply with their re∣quest, or took arms in order to oppose them, they might, in virtue of the privilege of union, instantly withdraw their allegiance from the King, refuse to acknowledge him as their Sovereign, and proceed to elect another Monarch; nor did they incur any guilt, or become liable to any prosecution on that account. Blanca Com. Rer. Arag. 661. 669. This union did not resemble the confederacies in other feudal king∣doms. It was a constitutional association, which pre∣tended to legal privileges, which issued its mandates under a common seal, and proceeded in all its operati∣ons by regular and ascertained forms. This dangerous right was not only claimed, but exercised in the year 1287, the Aragonese formed an union in opposition to Alfonso III. and obliged the King not only to comply with their demands, but to ratify a privilege so fatal to the power of the crown, Zurita Anales, tom. i. p. 322. In the year 1347, an union was formed against Pe∣ter IV. with equal success, and a new ratification of the privilege was extorted. Zurita, tom. ii. p. 202. But soon after, the King having defeated the leaders of the uni∣on in battle, the privilege of union was finally abro∣gated in the Cortes, and all the laws or records which contained any confirmation of it, were cancelled or destroyed. The King, in presence of the Cortes, call∣ed for the act whereby he had ratified the union, and having wounded his hand with his poiniard, he held it above the record,

That privilege, says he, which has been so fatal to the kingdom, and so injurious to royalty, should be effaced with the blood of a King.

Zurita, tom. ii. p. 229. The law abo∣lishing the union is published. Fueros & Observanc. lib. ix. p. 178. From that period the Justiza became the constitutional guardian of public liberty, and his

power and jurisdiction occasioned none of those vio∣lent convulsions which the tumultuary privilege of the union was apt to produce. The constitution of Aragon, however, still remained extremely free. One source of this liberty was from the early admission of the representatives of cities into the Cortes. It seems probable, from Zurita, that the burgesses were con∣stituent members of the Cortes from its first instituti∣on. He mentions a meeting of Cortes, A. D. 1133, in which the procuradores de las ciudades y villas were present. Tom. i. p. 51. This is the constitutional language in which their presence is declared in the Cortes. after the journals of that court were regularly kept. It is probable, that an historian so accurate as Zurita, would not have used these words, if he had not taken them from some authentick record. It was more than a century after this period before the representatives of cities formed a constituent part in the supreme assemblies of the other European nations. The free spirit of the Aragonese government is conspi∣cuous in many particulars. The Cortes not only op∣posed the attempts of their Kings to increase their re∣venue, or to extend their prerogative, but they claim∣ed right and exercised powers which will appear ex∣traordinary even in a country accustomed to the en∣joyment of liberty. In the year 1286, the Cortes claimed the privilege of naming the members of the King's council and the officers of his houshold, and they seem to have obtained it for some time. Zurita, tom. i. p. 303, 307. It was the privilege of the Cortes to name the officers who commanded the troops raised by their authority. This seems to be evident from a passage in Zurita. When the Cortes, in the year 1503, raised a body of troops to be employed in Italy, it passed an act empowering the King to name the officers who should command them, Zurita, tom. v. p. 274; which plainly implies that without this warrant, it did not belong to him in virtue of his pre∣rogative. In the Fueros and Observancias del reyno de Aragon, two general declarations of the rights and privileges of the Aragonese are published; the one in the reign of Pedro I. A. D. 1284, the other in that

of James II. A. D. 1323. They are of such length, that I cannot insert them, but it is evident from these, that not only the privileges of the nobility, but the rights of the people, personal as well as political, were, at that period, more extensive, and better understood than in any kingdom in Europe. Lib. 1. p. 7, 9. The oath by which the King bound himself to observe those rights and liberties of the people, was very solemn. Ibid. p. 14. b. & p. 15. The Cortes of Aragon discovered not only the jealousy and vigilance, which are peculiar to free states, in guarding the es∣sential parts of the constitution, but they were scru∣pulously attentive to observe the most minute forms and ceremonies to which they were accustomed. Ac∣cording to the established laws and customs of Ara∣gon, no foreigner had liberty to enter the hall in which the Cortes assembled. Ferdinand, in the year 1481, appointed his Queen, Isabella, regent of the kingdom, while he was absent during the course of the campaign. The law required that a regent should take the oath of fidelity in presence of the Cortes; but as Isabella was a foreigner, before she could be admitted, the Cortes thought it necessary to pass an act authorizing the serjeant-porter to open the door of the hall, and to al∣low her to enter;

so attentive were they, says Zu∣rita, to observe their laws and forms, even such as may seem most minute.

Tom. iv. p. 313.

THE Aragonese were no less solicitous to secure the personal rights of individuals, than to maintain the freedom of the constitution; and the spirit of their statutes with respect to both was equally liberal. Two facts relative to this matter merit observation. By an express statute in the year 1325, it was declared to be unlawful to put any native Aragonese to the tor∣ture. If he could not be convicted by the testimony of witnesses, he was instantly absolved. Zurita, tom. ii. p. 66. Zurita records the regulation with the sa∣tisfaction natural to an historian, when he contem∣plates the humanity of his countrymen. He compares the laws of Aragon to those of Rome, as both exempt∣ed citizens and freemen from such ignominious and cruel treatment, and had recourse to it only in the tri∣al

of slaves. Zurita had reason to bestow such an en∣comium on the laws of his country. Torture was at that time permitted by the laws of every other nation in Europe. Even in England, from which the mild spirit of legislation has long banished it, torture was not, at that time, unknown. Observations on the Statutes, chiefly the more antient, &c. p. 66.

THE other fact shows, that the same spirit which influenced the legislature, prevailed among the people. In the year 1485, the religious zeal of Fer∣dinand and Isabella, prompted them to introduce the inqusition into Aragon. Though the Aragonese were no less superstitiously attached, than the other Spa∣niards, to the Roman Catholick faith, and no less de∣sirous to root out the seeds of error and of heresy which the Jews and Moors had scattered, yet they took arms against the inquisitors, murdered the chief inquisitor, and long opposed the establishment of that tribunal. The reason which they gave for their con∣duct, was, that the mode of trial in the inquisition, was inconsistent with liberty. The criminal was not confronted with the witnesses, he was not acquainted with what they deposed against him, he was sub∣jected to torture, and the goods of persons condemn∣ed were confiscated. Zurita Anales, tom. iv. p. 341.

THE form of Government in the kingdom of Va∣lencia, and principality of Catalonia, which were an∣nexed to the crown of Aragon, was likewise extreme∣ly favourable to liberty. The Valencians enjoyed the privilege of union in the same manner with the Aragonese. But they had no magistrate resembling the Justiza. The Catalonians were no less jealous of their liberties than the two other nations, and no less bold in asserting them. But it is not necessary for il∣lustrating the following history, to enter into any farther detail concerning the peculiarities in the con∣stitution of these kingdoms.

NOTE XXXII. [II]. SECT. III.

I HAVE searched in vain among the historians of Castile, for such information as might enable me to trace the progress of laws and government in Castile, or to explain the nature of the constitution with the

same degree of accuracy, wherewith I have described the political state of Aragon. It is manifest, not on∣ly from the historians of Castile, but from its ancient laws, particularly the Fuero Juzgo, that its monarchs were originally elective. Ley 2, 5, 8. They were chosen by the bishops, the nobility, and the people, ibid. It appears from the same venerable code of laws, that the prerogative of the Castilian monarchs was extremly limited. Villaldiego in his commentary on these laws, produces many facts and authorities in confirmation of both these particulars. Dr. Ged∣des, who was well acquainted with Spanish lite∣rature, complains that he could find no author who gave a distinct account of the Cortes, or supreme as∣sembly of the nation, or who described the manner in which it was held, or mentioned the precise num∣ber of members who had a right to sit in it. He pro∣duces, however, from Gil Gonzales d'Avila, who published a history of Henry II. the writ of summons to the town of Abula, requiring it to chuse represen∣tatives to appear in the Cortes which he called to meet A. D. 1390. From this we learn, that Prelates, Dukes, Marquisses, the masters of the three military orders, Conde's and Riccos-hombres were required to attend. These composed the bodies of ecclesiasticks and nobles, which formed two members of the legis∣lature. The cities which sent members to that meet∣ing of the Cortes, were forty-eight. The number of representatives (for the cities had right to chuse more or fewer, according to their respective dignity) amounted to an hundred and twenty-five. Geddes Miscellaneous Tracts, vol. i. 331. Zurita having occasion to mention the Cortes which Ferdinand held at Toro, A. D. 1505, in order to secure to himself the government of Castile after the death of Isabella, records with his usual accuracy, the names of the members present, and of the cities which they repre∣sented. From that list it appears, that only eighteen cities had deputies in this assembly. Annales de Ara∣gon, tom. vi. p. 3. What was the occasion of this great inequality, in the number of cities represented in these two meetings of the Cortes, I am unable to explain.

NOTE XXXIII. [KK] SECT. III.

A GREAT part of the territory in Spain was en∣grossed by the nobility. L. Marinaeus Siculus, who composed his treatise de Rebus Hispaniae during the reign of Charles V. gives a catalogue of the Spanish nobility, together with the yearly rent of their estates. According to his account, which he affirms was as accurate as the nature the subject would admit, the sum total of the annual revenue of their lands amount∣ed to one million four hundred and eighty-two thou∣sand ducats. If we make allowance for the vast differ∣ence in the value of money in the fifteenth century, from that which it now bears, and consider that the catalogue of Marinaeus includes only the Titulados, or nobility, whose families were distinguished by some honorary title, their wealth must appear very great. L. Marinaeus ap. Schotti Scriptores Hispan. vol. i. p. 323. The Commons of Castile, in their contests with the crown, which I shall hereafter relate, com∣plain of the extensive property of the nobility, as ex∣tremely pernicious to the kingdom. In one of their manifesto's they assert, that from Valladolid to St. Ja∣go in Galicia, which was an hundred leagues, the crown did not possess more than three villages. All the rest belonged to the nobility, and could be subject∣ed to no public burden. Sandov. Vida del Emperor, Carl. V. vol. 1. p. 422. It appears from the testimony of authors quoted by Bovadilla, that these vast posses∣sions were bestowed upon the Ricos-hombres, hidalgos, and cavalleros by the Kings of Castile, in reward for the assistance, which they had received from them in expelling the Moors. They likewise obtained by the same means, a considerable influence in the cities, ma∣ny of which antiently depended upon the nobility. Politica para Corregidores. Amb. 1750. vol. i. 440, 442.

NOTE XXXIV. [LL]. SECT. III.

I HAVE been able to discover nothing certain, as I

observed Note XVIII. with respect to the origin of communities or free cities in Spain. It is probable, that as soon as these were recovered from the Moors, the inhabitants who fixed their residence in them, be∣ing persons of distinction and credit, had all the privi∣leges of municipal government and jurisdiction, con∣ferred upon them. Many striking proofs occur of the splendour, wealth, and power of the Spanish cities. Hieronymus Paulus wrote a description of Barcelona in the year 1491, and compares the dimensions of the town to that of Naples, and the elegance of its build∣ings, the variety of its manufactures, and the extent of its commerce to Florence, Hieron. Paulus ap. Scottum. Script. Hisp. ii. 844., Marinaeus describes Toledo as a large and populous city. A great number of its inhabitants were persons of quality, and of illus∣trious rank. Its commerce was great. It applied par∣ticularly to the manufactures of silk and wool; and the number of inhabitants employed in these two branches of trade, amounted nearly to ten thousand. Marin. ubi supr. p. 308. I know no city, says he, that I would prefer to Valladolid for elegance and splendour. Ibid. p. 312. We may form some esti∣mate of its populousness from the following circum∣stances. The citizens took arms in the year 1516, in order to oppose a measure concerted by cardinal Ximenes, and they mustered in the city, and in the territory which belonged to it, thirty thousand fight∣ing men. Sandow. Vida del Emper. Carl. V. tom. i. p. 81. The manufactures carried on in the towns of Spain, were not intended merely for home con∣sumption, they were exported to foreign countries, and that commerce was a considerable source of wealth to the inhabitants. The maritime laws of Barcelona, are the foundation of mercantile jurisprudence in mo∣dern times, as the Leges Rhodiae were among the ancients. All the commercial states in Italy adopted these laws, and regulated their trade according to them. Sandi Storia Civile Veneziana, vol, ii. 865. It appears from several ordonances of the Kings of France, that the merchants of Aragon and Castile were received on the same footing, and admitted to

the same privileges with those of Italy. Ordonances des Roys, &c. tom. ii. p. 135. iii. 166, 504, 635. Cities in such a flourishing state became a respectable part of the society, and were entitled to a considera∣ble share in the legislature. The magistrates of Bar∣celona aspired to the highest honour a Spanish sub∣ject can enjoy, that of being covered in the presence of their Sovereign, and of being treated as grandees of the kingdom. Origin de la dignidad de Grande de Castilla por Don Alonso Carillo. Madr. 1657. p. 18.

NOTE XXXV. [MM]. SECT. III.

THE military order of St. Jago, the most honour∣able and opulent of the three Spanish orders, was in∣stituted about the year 1170. The bull of confirma∣tion by Alexander III. is dated A. D. 1176. At that time a considerable part of Spain was subject to the Moors, and the whole country much exposed to the depredations, not only of the enemy, but of ban∣ditti. It is no wonder, then, that an institution, the object of which was to oppose the enemies of the Chris∣tian faith, and to restrain and punish those who dis∣turbed the public peace, should be extremely popular, and meet with general encouragement. The wealth and power of the order became so great, that one his∣torian says, that the Grand Master of St. Jago, was the person in Spain of the greatest power and dignity next to the King. Ael. Anton. Nebrissensis, ap. Schott. Scrip. Hisp. i. 812. Another observes, that the or∣der possessed every thing in Castile that a King would most desire to obtain. Zurita Anales, v. 22. The knights took the vows of obedience, of poverty, and of conjugal chastity. By the former they were bound implicitly to obey the commands of their grandmaster. The order could bring into the field a thousand men at arms. Ael. Ant. Nebres. p. 813. If these men at arms were accompanied as was usual in that age, this was a formidable body of cavalry. There belonged to this order eighty-four commanderies, and two hundred priories and other benefices. Dissertations sur la Chevalerie par Hon. de St. Marie, p. 〈◊〉〈◊〉

is easy to see how formidable to his sovereign the com∣mand of these troops, the administration of such re∣venues, and the disposal of so many offices, must have rendered a subject. The other two orders though, inferior to that of St. Jago in power and wealth, were nevertheless very considerable. When the conquest of Granada deprived the knights of St. Jago of those enemies against whom their zeal was originally direct∣ed, superstition found out a new object, in defence of which they engaged to employ their courage. To their usual oath, they added the following clause: "We swear to believe, to maintain, and to contend in public and in private, that the Virgin Mary, the mother of God, our Lady, was conceived without the stain of original sin." This singular addition was made about the middle of the seventeenth century. Honorè de St. Marie Dissertations, &c. p. 263.

NOTE XXXVI. [NN]. SECT. III.

I HAVE frequently had occasion to take notice of the defects in police during the middle ages, occasion∣ed by the feebleness of Government, and the want of proper subordination among the different ranks of men. I have observed in a former note, that this greatly in∣terrupted the intercourse between nations, and even between different places in the same kingdom. The description which the Spanish historians give of the frequency of rapine, murder, and every act of vio∣lence, in all the provinces of Spain, are amazing, and present to us the idea of Society but little removed from the disorder and turbulence of that which has been called a state of nature. Zurita Anales de Arag. i. 175, Ael. Ant. Nebrissensis rer. a Ferdin. gestar. Hist. ap. Schottum II. 849. Though the access of these disorders rendered the institution of the Santa Hermandad necessary, great care was taken at first to avoid giving any offence or alarm to the nobility. The jurisdiction of the judges of the Hermandad, was expressly confined to crimes that violated the public peace. All other offences were left to the cognizance of the ordinary judges. If a person was guilty of

the most notorious perjury, in any trial before a judge of the Hermandad, he could not punish him, but was obliged to remit the case to the ordinary judge of the place. Commentaria in Regias Hispan. Constitut. per. Alph. de Azevedo, pars v. p. 220, &c. fol. Duaci, 1612. Notwithstanding these restrictions, the Ba∣rons were sensible how much the Hermandad would encroach on their jurisdiction. In Castile. some op∣position was made to the institution; but Ferdinand had the address to obtain the consent of the Constable to the introduction of the Hermandad into that part of the kingdom where his estate lay; and by that means, as well as the popularity of the institution, he surmounted every obstacle that stood in its way. Ael. Ant. Nebrissen. 851. In Aragon the Nobles combined against it with greater spirit; and Ferdi∣nand, though he supported it with vigour, was obliged to make some concessions in order to reconcile them. Zurita Anales de Arag. iv. 356. The power and revenue of the Hermandad in Castile seems to have been very great▪ Ferdinand, when preparing for the war against the Moors of Granada, required of the Hermandad to furnish him sixteen thousand beasts of burden, together with eight thousand men to conduct them, and he obtained what he demanded, Ael. Ant. Nebriss. 881. The Hermandad has found to be of so much use in preserving peace, and restraining or de∣tecting crimes, that it is still continued in Spain, al∣though it be no longer necessary either for moderat∣ing the power of the nobility, or extending that of the crown.

NOTE XXXVII. [OO.] SECT. III.

NOTHING is more common among Antiquarians, and there is not a more copious source of error, than to decide concerning the institutions and manners of past ages, by the forms and ideas which prevail in their own times. The French lawyers in the seventeenth and eighteenth centuries having found their sove∣reigns in possession of absolute, power, seem to think it a duty incumbent on them, to maintain that such

unbounded authority belonged to the crown in every period of their monarchy. "The government of France, says M. de Real very gravely, is purely mo∣narchical at this day, as it was from the beginning. Our Kings were absolute originally as they are at pre∣sent." Science du Government, tom. ii. p. 31. It is impossible, however, to conceive two states of civil society more unlike to each other, than that of the French nation under Clovis, and that under Louis XV. It is evident from the codes of laws of the vari∣ous tribes which settled in Gaul and the countries ad∣jacent to it, as well as from the history of Gregory of Tours, and other early annalists, that among all these people the form of government was extremely rude and simple, and that they had scarce begun to acquire the first rudiments of that order and police which are necessary in extensive societies. The King or leader had the command of soldiers or companions, who fol∣lowed his standard from choice, not by constraint. I have produced the clearest evidence of this, Note VI. An event related by Gregory of Tours, lib. iv. c. 14, affords the most striking proof of the dependance of the early French Kings on the sentiments and inclina∣tions of their people. Clotaire I. having marched at the head of his army, in the year 553, against the Sax∣ons, that people, intimidated at his approach sued for peace, and offered to pay a large sum to the offended monarch. Clotaire was willing to close with what they proposed. But his army insisted to be led forth to battle. The King employed all his eloquence to persuade them to accept of what the Saxons were ready to pay. The Saxons, in order to sooth them, increas∣ed their original offer. The King renewed his solici∣tations: But the army enraged, rushed upon the King, tore his tent in pieces, dragged him out of it, and would have slain him on the spot, if he had not consented to lead them instantly against the enemy.

IF the early monarchs of France possessed such li∣mited authority, even while at the head of their ar∣my, their prerogative during peace will be found to be still more confined. They ascended the throne not

by any hereditary right, but in consequence of the election of their subjects. In order to avoid an unne∣cessary number of quotations, I refer my readers to Hottomanni Francogallia, cap. vi. p. 47. edit. 1573, where they will find the fullest proof of this from Gre∣gory of Tours, Amoinus, and the most authentick historians of the Merovingian Kings. The effect of this election was not to invest them with absolute pow∣er. Whatever related to the general welfare of the nation, was submitted to publick deliberation, and determined by the suffrage of the people, in the an∣nual assemblies called Les Champs des Mars, and Les Champs de Mai. These assemblies were called Champs, because, according to the custom of all the barbarous nations, they were held in the open air, in some plain capable of containing the vast number of persons who had a right to be present. Jo. Jac. Sorberus de Comi∣tiis veterum Germanorum. vol. i. § 19, &c. They were denominated Champs de Mars and de Mai, from the Months in which they were held. Every free man seems to have had a right to be present in these as∣semblies. Sorberus, ibid. §. 133, &c. The ancient annals of the Franks describe the persons who were present in the assembly held A. D. 788, in these words: In placito Ingelheimensi conveniunt pontifices, majo∣res, minores, sacerdotes, reguli, duces, comites, prae∣fecti, cives, oppidani, Apud Sorber. § 304. There every thing that concerned the happiness of their coun∣try, says an ancient historian, every thing that could be of benefit to the Franks was considered, and en∣joined. Fredegarius ap. Du Cange Glossar. voc. Cam∣pus Martii. Clotharius II. describes the business, and acknowledges the authority of these assemblies. They are called, says he, that whatever relates to the com∣mon safety may be considered and resolved by common deliberation; and whatever they determine, to that I will conform. Amoinus de Gest. Franc. lib. iv. c. i. ap. Bouquet Recueil. iii. 116. The statutory clauses, or words of legislative authority in the decrees issued in these assemblies, run not in the name of the King alone. "We have treated, says Childebert, in a de∣cree

A. D. 532, in the assemby of March, together with our Nobles, concerning some affairs, and we now pub∣lish the conclusion, that it may come to the knowledge of all." Childeb. Decret. ap. Bouquet Recueil des His∣tor. tom. iv. p. 3. We have agreed together with our vassals. Ibid. § 2. It is agreed in the assembly in which we are all united. Ibid. § 4. The Salic laws, the most venerable monument of French jurisprudence, were enacted in the same manner, Dictaverunt Salicam legem proceres ipsius gentis, qui tunc temporis apud eam erant Rectores. Sunt autem electi de pluribus viri quatuor—qui per tres Mallos convenientes, om∣nes causarum origines soliceté discurrendo, tractantes de singulis judicium decreverunt hoc modo. Praef. Leg. Salic. ap. Bouquet. Ibid. p. 122. Hoc decretum est apud regem & principes ejus, & apud cunctum po∣pulum christianum, qui infra regnum Merwingorum consistunt. Ibid. p. 124. Nay, even in their charters, the Kings of the first race are careful to specify that they were granted with the consent of their vassals. Ego Childebertus Rex unà cum consensu & voluntate Francorum, &c. A. D. 558. Bouquet, ibid. 622. Clotharius III. una cum patribus nostris episcopis, op∣timatibus, caeterisque palatii nostri ministris, A. D. 664. Ibid. 648. De consensu fidelium nostorum. Ma∣bly Observ. tom. i. p. 239. The historians likewise describe the functions of the King •••• the national as∣semblies in such terms, as imply that his authority there was extremely small, and that every thing de∣pended on the court itself. Ipse Rex (says the authors Annales Francorum, speaking of the field of March) sedebat in sella regia, circumstante exercitu, praecipi∣ebatque is, die illo, quicquid a Francis decretum erat. Bouquet Recueil, tom. ii. p. 647.

THAT the general assemblies exercised supreme ju∣risdiction over all persons, and with respect to all cau∣ses, is so evident as to stand in need of no proof. The trial of Brunchaut. A. D. 613, how unjust soever the sentence against her may be, as related by Fredegari∣us, Chron. cap. 42. Bouquet, ibid. 430. is in itself sufficient proof of this. The notorious violence and ini∣quity of the sentence serve to demonstrate the extent

of jurisdiction which this assembly possessed, as a Prince so sanguinary as Clothaire II. thought the sanction of its authority would be sufficient to justify his rigour∣ous treatment of the mother and grandmother of so many Kings.

WITH respect to conferring donatives on the Prince, we may observe that among nations whose manners and political institutions are simple, the publick, as well as individuals, having few wants, they are unac∣quainted with taxes, and free uncivilized tribes disdain to submit to any stated imposition. This was remark∣ably the case of the Germans, and of all the various people that issued from that country. Tacitus pronoun∣ces two tribes not to be of the German origin, because they submitted to pay taxes. De Morib. Germ. c. 43; and speaking of another tribe according to the ideas prevalent in Germany, he says, "they were not de∣graded by the imposition of taxes." Ibid c. 29. Up∣on their settlement in Gaul, we may conclude that while elated with the consciousness of victory, they would not renounce the high-spirited ideas of their ancestors, or voluntarily submit to a burthen which they regarded as a badge of servitude. The evidence of the earliest records and historians justify this con∣clusion. M. de Montesquieu in the twelfth and sub∣sequent chapters of the thirteenth book of l'Esprit des Loix, and M. de Mably Observat. sur l'Hist. de France, tom. i. p. 247. have investigated this fact with great attention, and have proved clearly that the property of no free-man among the Franks was subject to any stated tax. That the state required nothing from per∣sons of this rank but military service at their own ex∣pence, and that they should entertain the King in their houses when he was upon any progress through his dominions, or his officers when sent on any public employment, furnishing them with carriages and hor∣ses. Monarchs subsisted almost entirely upon the re∣venues of their own domains, and upon the perqui∣sites arising from the administration of justice, toge∣ther with a few small fines and forfeitures exacted from those who had been guilty of certain trespasses. It is

foreign from my subject to ennumerate these. The reader may find them in Observat. de M. de Mably, vol. i. p. 267.

WHEN any extraordinary aid was granted by free∣men to their sovereign it was purely voluntary. In the annual assembly of March or May it was the custom to make the King a present of money, of horses or arms, or of some other thing of value. This was an ancient custom, and derived from their ancestors the Germans. Mos est civitatibus, ultro ac viritim con∣ferri principibus vel armentorum vel frugum, quod pro honore acceptum, etiam necessitatibus subvenit. Ta∣cit. de Mor. Germ. c. 15. These gifts, if we may form a judgment concerning them from the general terms in which they are mentioned by the ancient historians, were considerable, and made no small part of the roy∣al revenue. Many passages to this purpose are produ∣ced by M. du Cange, Dissert. iv. sur Joinville, 153. Sometimes a conquered people specified the gift which they bound themselves to pay annually, and it was exacted as a debt if they failed. Annales Metenses, ap. Du Cange, ibid. p. 155. It is probable that the first step towards taxation was to ascertain the value of these gifts which were originally gratuitous, and to compel the people to pay the sum at which they were rated. Still, however, some memory of their original was preserved, and the aids granted to monarchs in all the kingdoms of Europe were termed benevolences or free gifts.

THE Kings of the second race in France were raised to the throne by the election of the people, Pepinus Rex pius, says an author who wrote a few years after the transaction which he records, per authoritatem Papae, & unctionem sancti chrismatis, & electionem omnium Francorum in regni solio sublimatus est. Clausula de Pepini consecratione ap. Bouq. Recueil des Histor. tom. v. p. 9. At the same time, as the chief men of the nation had transferred the crown from one family to another, an oath was exacted of them that they should maintain on the throne the family which they had now promoted; ut nunquam de alterius lum∣bis

regem in aevo praesumant eligere. Ibid. p. 10. This oath the nation faithfully observed during a conside∣rable space of time. The posterity of Pepin kept pos∣session of the throne; but with respect to the manner of dividing their dominions among their children, Princes were obliged to consult the general assembly of the nation. Thus Pepin himself, A. D. 768, ap∣pointed his two sons, Charles and Charlomannus, to reign as joint sovereigns; but he did this, una cum concensu Francorum & procerum suorum seu & epis∣coporum, before whom he laid the matter in their ge∣neral assembly. Conventus apud sanctum Dionysium. Capitular. vol. i. p. 187. This destination the French confirmed in a subsequent assembly, which was called upon the death of Pepin; for, as Eginhart relates, they not only appointed them Kings, but by their au∣thority they regulated the limits of their respective ter∣ritories, Vita Car. Magni. ap. Bouquet Recueil, tom. v. p. 90. In the same manner, it was by the authori∣ty of the supreme assemblies that any dispute which arose among the descendants of the royal family was determined. Charlemagne recognizes this important part of their jurisdiction, and confirms it in his charter concerning the partition of his dominions; for he ap∣points, that, in case of any uncertainty with respect to the right of the several competitors, he whom the people shall chuse, shall succeed to the crown. Capi∣tular, vol. i. 442.

UNDER the second race of Kings, the assembly of the nation, distinguished by the name of coventus, Malli, Placita, were regularly assembled once a year at least, and frequently twice in the year. One of the most valuable monuments of the history of France is the treatise of Hincmarus, archbishop of Rheims, de ordine Palatii. He died A. D. 882. only sixty-eight years after Charlemagne, and he relates in that short dis∣course the facts which were communicated to him by Adalhardus, a minister and confident of Charlemagne. From him we learn that this great monarch never failed to hold the general assembly of his subjects every year. In quo placito generalitas universorum majorum tam

clericorum quam laicorum conveniebat. Hincm. oper. edit. Sirmondi, vol. ii. c. 29. 211. In these assemblies, matters which related to the general safety and state of the kingdom were always discussed, before they en∣tered upon any private or less important business. Ibid. c. 33. p. 213. His immediate successors imitated his example, and transacted no affair of importance without the advice of their great council.

UNDER the second race of Kings; the genius of the French government continued to be in a good measure democratical. The nobles the dignified ecclesiastics, and the great officers of the crown, were not the only mem∣bers of the national council; the people, or the whole body of free-men, either in person, or by their repre∣sentatives, had a right to be present in it. Hincma∣rus, in describing the manner of holding the general assemblies, says, that if the weather was favourable, they met in the open air, but, if otherwise, they had different apartments allotted to them, so that the dig∣nified clergy were separated from the laity, and the comites vel hujusmodi principes sibimet honorificabili∣ter a caetera multitudine segregarentur. Ibid. p. c. 35. p. 114. Agobardus, archbishop of Lyons, thus de∣scribes a national council in the year 833, wherein he was present. Qui ubique conventus extitit ex reve∣rentissimis episcopis, & magnificentissimis viris inlu∣stribus, collegio quoque abatum & comitum, promis∣cuaeque aetatis & dignitatis populo. The caetera multi∣tudo of Hincmarus is the same with the populus of Ago∣bardus, and both describe the inferior order of free∣men, the same who were afterwards known in France by the name of the third estate, and in England by the name of commons. The people, as well as the mem∣bers of higher dignity, were admitted to a share of the legislative power. Thus, by a law, A. D. 803, it is ordained, "that the question shall be put to the people with respect to every new law, and if they shall agree to it, they shall confirm it by their signature. Capit. vol. i. 394. There are two capitularia which convey to us a full idea of the part which the people had in the administration of government. When they felt the weight of any grievance, they had a right to

petition the sovereign for redress. One of these peti∣tions, in which they desire that ecclesiasticks might be exempted from bearing arms, and from serving in person against the enemy, is still extant. It is ad∣dressed to Charlemagne, A. D. 803, and expressed in such terms as could have been used only by men conscious of liberty, and of the extensive privileges which they possessed. They conclude with requiring him to grant their demand, if he wished that they should any longer continue faithful subjects to him. That great monarch, instead of being offended or sur∣prized at the boldness of their petition, received it in a most gracious manner, and signified his willingness to comply with it. But sensible that he himself did not possess legislative authority, he promises to lay the matter before the next general assembly, that such things as were of common concern to all might be there considered and established by common consent. Capitul. tom. i. p. 405—409. As the people by their petitions brought matters to be proposed in the general assembly, we learn from another capitulare the form in which they were approved there, and enacted as laws. The propositions were read aloud, and then the people were required to declare whether they assented to them or not. They signified their assent by crying three times, "We are satisfied," and then the capitulare was confirmed by the subscrip∣tion of the monarch, the clergy and the chief men of the laity. Capitul. tom. i. p. 627. A. D. 822. It seems probable from a capitulare of Carolus Calvus, A. D. 851, that the sovereign could not refuse his assent to what was proposed and established by his sub∣jects in the general assembly. Tit. ix. § 6. Capi∣tul. vol. ii. p. 47. It is unnecessary to multiply quotations concerning the legislative power of the nati∣onal assembly of France under the second race, or concerning its rights to determine with regard to peace and war. The uniform style of the Capitula∣ria is an abundant confirmation of the former. The reader who desires any farther information with respect to the latter, may consult Les Origines ou l'Ancien Gouvernement de la France, tom. iii. p. 87. &c.

What has been said with respect to the admission of the people or their representatives in the supreme assembly merits attention not only in tracing the progress of the French government, but on account of the light which it throws upon a similar question agitated in England, concerning the time when the commons be∣came part of the legislative body in that kingdom.

NOTE XXXVIII. [PP]. SECT. III.

THAT important change which the constitution of France underwent, when the legislative power was transferred from the great council of the nation to the King, has been explained by the French antiquarians with less care, than they bestow in illustrating other events in their history. For that reason I have endea∣voured with the greater attention to trace the steps which led to this memorable revolution. I shall here add some particulars which tend farther to illustrate it. The Leges Salicae, the Leges Burgundionum, and other codes published by the several tribes which set∣tled in Gaul, were general laws extending to every person, to every province and district where their au∣thority was acknowledged. But they seem to have become obsolete; and the reason of their falling into disuse is very obvious. Almost the whole property of the nation was allodial when these laws were fram∣ed. But when the feudal institutions became gene∣ral, and gave rise to an infinite variety of questions peculi∣ar to that species of tenure, the ancient codes were of no use in deciding with regard to these, because they could not contain regulations applicable to cases which did not exist at the time when they were compiled. This considerable change in the nature of property made it necessary to publish the new regulations con∣tained in the Capitularia. Many of these as is evident from the perusal of them, were general laws extend∣ing to the whole French nation, in the general assem∣bly in which they were enacted. The weakness of the greater part of the monarchs of the second race, and the disorder into which the nation was thrown by the depredations of the Normans, encouraged the

barons to usurp an independent power formerly un∣known in France. The nature and extent of that ju∣risdiction which they assumed, I have formerly consi∣dered. The political union of the kingdom was at an end, its ancient constitution was dissolved, and only a feudal relation subsisted between the King and his vassals. The regal jurisdiction extended no further than the domains of the crown. Under the last Kings of the second race, these were reduced almost to no∣thing. Under the first Kings of the third race, they comprehended little more than the patrimonial estate of Hugh Capet, which he annexed to the crown. Even with this accession, they continued to be very narrow. Velly. Hist. de France, tom. iii. p. 32. Many of the most considerable provinces of France did not at first acknowledge Hugh Capet as a lawful Mo∣narch. There are still extant several charters, grant∣ed during the first years of his reign, with this re∣markable clause in the form of dating the charter; "Deo regnante, rege expectante," regnante domino nostro Jesu Christo, Francis autem contra jus regnum usurpante Ugone rege. Bouquet Recueil. tom. x. p. 544. A Monarch whose title was thus openly dis∣puted, was not in a condition to assert the royal juris∣diction, or to limit that of the barons.

ALL these circumstances rendered it easy for the barons to usurp the rights of royalty within their own territories. The capitularia became no less obsolete than the ancient laws; local customs were every where introduced, and became the sole rule by which all civil transactions were conducted, and all causes were tried. The wonderful ignorance, which became ge∣neral in France, during the ninth and tenth centuries, contributed to the introduction of customary law. Few persons, except ecclesiastics, could read; and as it was not possible for them to have recourse to written laws, either as their guide in business, or their rule in administring justice, the customary law uni∣versally prevailed.

DURING this period, the general assembly of the nation seems not to have been called, nor to have once exerted its legislative authority. Local customs regu∣lated

and decided every thing. A striking proof of this occurs in tracing the progress of the French juris∣prudence. The last of the Capitularia collected by M. Baluze, was issued in the year 921, by Charles the Simple. An hundred and thirty years elapsed from that period to the publication of the first ordonance of the Kings of the third race, contained in the great collection of M. Lauriere, and the first ordonance which appears to be an act of legislation extending to the whole kingdom is that of Philip Augustus, A. D. 1190. Ordon. tom. i. p. 1, 18. During that long period of one hundred and sixty-nine years, all trans∣actions were directed by local customs, and no addi∣tion was made to the statutory law of France. The ordonances, previous to the reign of Philip Augustus, contain regulations, the authority of which did not extend beyond the King's domains.

VARIOUS instances occur of the caution with which the King's of France ventured at first to exercise le∣gislative authority. M. l'Ab. de Mably produces an ordonance of Philip Augustus, A. D. 1206, con∣cerning the Jews, who, in that age, were in some measure the property of the lord in whose territories they resided. But it is not so much an act of royal power, as a treaty of the King with the countess of Champagne, and the comte de Dampierre; and the regulations in it seem to be established not by his au∣thority, but by their consent. Observat. sur l'hist. de France, ii. p. 355. In the same manner an ordo∣nance of Louis VIII. concerning the jews, A. D 1223, is a contract between the King and his nobles, with respect to their manner of treating that unhappy race of men. Ordon. tom. i. p. 47. The Establisse∣mens of St. Louis, though well adapted to serve as general laws to the whole kingdom, were not publish∣ed as such, but only as a complete code of customary law, to be of authority within the King's domains The wisdom, the equity and the order conspicuous in that code of St. Louis, procured it a favourable re∣ception throughout the kingdom. The veneration due to the virtues and good intentions of its author, contributed not a little to reconcile the nation to that

legislative authority, which the King began to assume. Soon after his time, the idea of the King's possessing supreme legislative power became common. If, says Beaumanoir, the King makes any establishment specially for his own domain, the barons may nevertheless ad∣here to their ancient customs; but if the establishment be general, it shall be current throughout the king∣dom, and we ought to believe that such establishments are made with mature deliberation, and for the gene∣ral good. Count de Beauvoisis, c. 48. p. 265. Though the Kings of the third race did not call the general assembly of the nation, during the long period from Hugh Capet to Philip the fair, yet they seem to have consulted the bishops and barons who happened to be present in their court, with respect to any new law which they published. Examples of this occur Ordon. tom. i. p. 3 & 5. The practice seems to have continued as late as the reign of St. Louis, when the legislative authority of the crown was well established. Ordon. tom. 1. p. 58. A. D. 1246. This attention paid to the barons facilitated the King's acquiring such full possession of the legislative power, as enabled them afterwards to exercise it without ob∣serving that formality.

THE assemblies, distinguished by the name of the States General, were first called, A. D. 1302, and were held occasionally from that period to the year 1614, since which time they have not been summon∣ed. These were very different from the ancient as∣semblies of the French nation under the Kings of the first and second race. There is no point with respect to which the French antiquarians are more generally agreed, than in maintaining that the States General had no suffrage in the passing of laws, and possessed no proper jurisdiction. The whole tenor of the French history confirms this opinion. The form of proceeding in the States General was this. The King addressed himself to the whole body assembled in one place, and laid before them the affairs on account of which he had summoned them. The deputies of each •••• the three orders, of nobles, of clergy, and of the third estate, met apart, and prepared their cahier or

memorial, containing their answer to the propositi∣ons which had been made to them, together with the representations which they thought proper to lay be∣fore the King. These answers and representations were considered by the King in his council, and ge∣nerally gave rise to an ordonance. These ordonances were not addressed to the three estates in common. Sometimes the King addressed an ordonance to each of the estates in particular. Sometimes he mentioned the assembly of the three estates. Sometimes mention is made only of the assembly of that estate to which the ordonance is addressed. Sometimes no mention at all is made of the assembly of estates, which suggested the propriety of enacting the law. Preface au tom. iii. des Ordon. p. xx. Thus the States General had only the privilege of advising and remonstrating; the le∣gislative authority resided in the King alone.

NOTE XXXIX. [QQ.] SECT. III.

IF the parliament of Paris be considered only as the supreme court of justice, every thing relative to its origin and jurisdiction is clear and obvious. It is the ancient court of the King's palace, new-modelled, rendered sedentary, and invested with an extensive and ascertained jurisdiction. The power of this court, while employed in this part of its functions, is not the object of present consideration. The pretensions of the parliament to controul the exercise of the legi∣slative authority, and its claim of a right to interpose with respect to publick affairs and the political admi∣nistration of the kingdom, lead to enquiries attended with greater difficulty. As the officers and members of the parliament of Paris were antiently nominated by the King, were paid by him, and on several occa∣sions were removed by him at pleasure (Chroniq. Scan∣deleuse de Louis XI. chez les Mem. de Comines, tom. ii. p. 51. Edit. de M. Lenglet de Fresnoy), they can∣not be considered as representatives of the people, nor could they claim any share in the legislative power as acting in their name. We must search for some other source of this high privilege. The parliament was origi∣nally

composed of the most eminent persons in the king∣dom. The peers of France, ecclesiasticks of the high∣est order, and noblemen of illustrious birth were mem∣bers of it, to whom were added some clerks and con∣sellors learned in the laws. Pasquier Recherches, p. 44, &c. Encyclopedie, tom. xii. Art▪ Parlement, p. 3, 5. A court thus constituted, was properly a committee of the States General of the Kingdom, and was composed of these barons and fideles, whom the Kings of France were accustomed to consult with re∣gard to every act of jurisdiction or legislative autho∣rity. It was natural, therefore, during the intervals between the meetings of the States General, or during those periods when that assembly was not called, to consult the parliament, to lay matters of publick con∣cern before it, and to obtain its approbation and con∣currence, before any ordonance was published, to which the people were required to conform. 2. Un∣der the second race of Kings, every new law was re∣duced into proper form by the Chancellor of the king∣dom, was proposed by him to the people, and when enacted, was committed to him to be kept among the publick records, that he might give authentick copies of it to all who should demand them. Hincm. de ord. palat. c. 16. Capitul. Car. Calv. tit. xiv. § 11. tit. xxxiii. The Chancellor presided in the parliament of Paris at its first institution. Encyclopedie, tom. iii. art. Chancelier, p. 88. It was therefore natural for the King to continue to employ him in his ancient functi∣ons of framing, taking into his custody, and publish∣ing the ordonances which were issued. To an ancient copy of the Capitularia of Charlemagne, the following words are subjoined. Anno tertio Clementissimi do∣mini nostri Caroli Augusti, sub ipso anno, haec facta Capitula sunt, & consignata Stephano comiti, ut haec manifesta faceret Parisiis mallo publico, & illa legere faceret coram Scabineis, quod ita & fecit, & omnes in uno consenserunt, quod ipsi voluissent observare usque in posterum, etiam omnes Scabinei, Episcopi, Abbates, Comites, manu propria subter signaverunt. Bouquet Recueil. tom. v. p. 663. Mallus signifies not only the publick assembly of the nation, but the court of justice

held by the comes, or missus dominicus. Scabini were the judges, or the assessors of the judges in that court. Here then seems to be a very early instance, not only of laws being published in a court of justice, but of their being verified or confirmed by the sub∣scription of the judges. If this was the common prac∣tice, it naturally introduced the verifying of edicts in the parliament of Paris. But this conjecture I pro∣pose with that diffidence, which I felt in all my rea∣sonings concerning the laws and institutions of foreign nations. 3. This supreme court of justice in France was dignified with the appellation of parliament, the name by which the general assembly of the nation was distinguished towards the close of the second race of Kings; and men, both in reasoning and in conduct, are wonderfully influenced by the similarity of names. The preserving the ancient names of the magistrates, established while republican government subsisted in Rome, enabled Augustus and his successors to assume new powers, with less observation, and greater ease. The bestowing the same name in France upon two courts, which were extremely different, contributed not a little to confound their jurisdiction and functions.

ALL these circumstances concurred in leading the Kings of France to avail themselves of the parliament of Paris, as the instrument of reconciling the people to their exercise of legislative authority. The French, accustomed to see all new laws examined and autho∣rized before they were published, did not sufficiently distinguish between the effect of performing this in the national assembly, or in a court appointed by the King. But as that court was composed of respectable members, and well skilled in the laws of their coun∣try, when any new edict received its sanction, that was sufficient to dispose the people to implicit submis∣sion.

WHEN the practice of verifying and registering the royal edicts in the parliament of Paris became com∣mon, the parliament contended, that this was necessary in order to give them legal authority. It was esta∣blished as a fundamental maxim in French jurispru∣dence, that no law could be published in any other

manner; that without this formality, no edict or or∣donance could have any effect; that the people were not bound to obey it, and ought not to consider it as an edict or ordonance until it was verified in the supreme court, after free deliberation. Roche-flavin des Par∣lemens de France, 4to. Gen. 1621. p. 921. The par∣liament, at different times, hath with great fortitude and integrity, opposed the will of their sovereigns, and notwithstanding their repeated and peremptory requisitions and commands, hath refused to verify and publish such edicts, as it conceived to be oppres∣sive to the people, or subversive of the constitution of the kingdom. Roche-flavin reckons that between the year 1562, and the year 1589, the parliament refused to verify more than a hundred edicts of the Kings. Ibid. 924. Many instances of the spirit and constan∣cy, with which the parliaments of France opposed pernicious laws, and asserted their own privileges, are enumerated by Limnaeus Notitiae Regni Franciae, lib. i. c. 9. p. 224.

BUT the power of the parliament to maintain and defend this privilege, bore no proportion to its im∣portance, or to the courage with which its members asserted it. When any monarch was determined that an edict should be carried into execution, and found the parliament inflexibly resolved not to verify or pub∣lish it, he could easily supply this defect by the pleni∣tude of his regal power. He repaired to the parlia∣ment in person, he took possession of his seat of ju∣stice, and commanded the edict to be read, verified, registered, and published in his presence. Then, ac∣cording to another maxim of French law, the King himself being present, neither the parliament, nor any magistrate whatever, can exercise any authority, or perform any function. Adveniente Principe, cessat magistratus. Roche-flavin. ibid. p. 928, 929. Ency∣clopedie, tom. ix. Art. Lit de Justice, p. 581. Roche-flavin mentions several instances of Kings who actual∣ly exerted this prerogative, so fatal to the residue of the rights and liberties, transmitted to the French by their ancestors. Pasquier produces some instances of the same kind. Rech. p. 61. Limnaeus enumerates

many others, which the length to which this note has swelled, prevents me from inserting at length though they tend greatly to illustrate this important article in the French history. Thus by an ex••ution of prerogative, which, though violent, seems to be con∣stitutional, and is justified by innumerable precedents, all the efforts of the parliament to limit and controul the King's legislative authority, are rendered ineffec∣tual.

I HAVE not attempted to explain the constitution or jurisdiction of any parliament in France, but that of Paris. All of them are formed upon the model of that most ancient and respectable tribunal, and all my observations concerning it will apply with full force to them.

NOTE XL. [RR]. SECT. III.

THE humilitating posture, in which a great Empe∣ror implored absolution, is an event so singular, that the words in which Gregory himself describes it, me∣rit a place here, and convey a striking picture of the arrogance of that Pontiff. Per triduum, ante portam castri, deposito omni regio cultu, miserabiliter, ut∣pote discalceatus, & laneis indutus, pesistens, non pri∣us cum multo fletu apostolicae miserationis auxilium, & consolationem implorari destitit, quam omnes qui ibi aderant, & ad quos rumor ille pervenit, ad tantam pietatem, & compassionis misericordiam movit, ut pro eo multis precibus & lacrimis intercedentes, omnes quidem insolitam nostrae mentis duritiem mirarentur; nonulli vero in nobis non apostolicae sedis gravitatem. sed quasi tyrannicae feritatis crudelitatem esse clama∣rent Epist. Gregor. ap. Memorie della Contessa Ma∣tilda de Fran. Mar. Fiorentini. Lucca. 1756, vol. i. p. 174.

NOTE XLI. [SS]. SECT. III.

AS I have endeavoured in the history to trace the various steps in the progress of the constitution of the Empire, and to explain the peculiarities in its policy

very fully, it is not necessary to add much by way of illustration. What appears to be of any importance I shall range under distinct heads.

1. WITH respect to the power, jurisdiction and revenue of the Emperors. A very just idea of these may be formed by attending to the view which Pfeffel gives of the rights of the Emperors at two different periods. The first at the close of the Saxon race, A. D. 1024. These, according to his enumeration were the right of conferring all the great ecclesiastical beni∣fices in Germany; of receiving the revenues of them during a vacancy; of Mort-main, or of succeeding to the effects of ecclesiasticks who died intestate. The right of confirming or of annulling the elections of the Popes. The right of assembling councils, and of ap∣pointing them to decide concerning the affairs of the church. The right of conferring the title of King upon their vassals. The right of granting vacant fiefs. The right of receiving the revenues of the Empire, whether arising from the Imperial domains, from im∣posts and tolls, from gold or silver mines, from the taxes paid by the Jews, or from forfeitures. The right of governing Italy as its proper sovereigns. The right of erecting free cities, and of establishing fairs in them. The right of assembling the diets of the Em∣pire, and of fixing the time of their duration. The right of coining money, and of conferring that privi∣lege on the states of the Empire. The right of admi∣nistring both high and low justice within the territo∣ries of the different states. Abregé p. 160. The other period is at the extinction of the Emperors of the families of Luxemburg, and Bavaria, A. D. 1437. According to the same author the Imperial preroga∣tives at that time were the right of conferring all dig∣nities and titles, except the privilege of being a state of the Empire. The right of Precis primariae or of ap∣pointing once during their reign a dignitary in each chapter or religious house. The right of granting dis∣pensations with respect to the age of majority. The right of erecting cities, and of conferring the privilege of coining money. The right of calling the meetings of the diet, and of presiding in them. Abregé, &c.

p. 507. It were easy to show that M. Pfeffel is well founded in all these assertions, and to confirm them by the testimony of the most respectable authors. In the one period the Emperors appear as mighty sovereigns with extensive prerogatives; in the other as the heads of a confederacy with very limited powers.

THE revenues of the Emperors decreased still more than their authority. The early Emperors, and par∣ticularly those of the Saxon line, besides their vast pa∣trimonial or hereditary territories, possessed an ex∣tensive domain both in Italy and Germany which be∣longed to them as Emperors. Italy belonged to the Emperors as their proper kingdom, and the revenues which they drew from it were very considerable. The first alienations of the Imperial revenue were made in this country. The Italian cities having acquired wealth, and aspiring at independance, purchased their liberty from different Emperors, as I have observed Note XV. The sums which they paid, and the Emperors with whom they concluded these bargains, are mentioned by Casp. Klockius de Aerario Norimb. 1671. p. 85, &c. Charles IV. and his son Wenceslaus dissipated all that remained of the Italian branch of the domain. The German domain lay chiefly upon the banks of the Rhine, and was under the government of the Counts Palatine. It is not easy to mark out the bound∣aries, or to estimate the value of this ancient domain, which has been so long incorporated with the terri∣tories of different Princes. Some hints with respect to it may be found in the glossary of Speidelius which he has intitled Speculum Juridico-Philologico-politico-Historicum Observationum, &c. Norimb. 1673. vol. i. 679. 1045. a more full account of it is given by Klockius de Aerario, p. 84. Besides this, the Empe∣rors possessed considerable districts of land lying inter∣mixed with the estates of the Dukes and barons. They were accustomed to visit these frequently, and drew from them what was sufficient to support their court during the time of their residence. Annalistae, ap. Struv. tom. i. 611. A great part of these were seiz∣ed by the nobles during the long interregnum, or during the wars occasioned by the contests between

the Emperors and the court of Rome. At the same time that such encroachments were made on the fixed or territorial property of the Emperors, they were robbed almost entirely of their casual revenues. The Princes and barons appropriating to themselves taxes and duties of every kind, which had usually been paid to them, Pfeffel Abregè, p. 374. The profuse and inconfiderate ambition of Charles IV. squandered what∣ever remained of the Imperial revenues after so many defalcations. He, in the year 1376, in order to pre∣vail with the electors to chuse his son Wenceslaus King of the Romans, promised each of them a hun∣dred thousand crowns. But being unable to pay so large a sum, and eager to secure the election to his son, he alienated to the three ecclesiastical Electors, and to the Count Palatine, such countries as still belonged to the Imperial domain on the banks of the Rhine, and likewise made over to them all the taxes and tolls then levied by the Emperors in that district. Trithemius, and the author of the Chronicle of Magdeburgh enume∣rate the territories and taxes which were thus alienated, and represent this as the last and fatal blow to the Im∣perial authority. Struv. Corp. vol. i. p. 437. From that period, the shreds of the ancient revenues possess∣ed by the Emperors have been so inconsiderable, that in the opinion of Speidelius, all that they yield would be so far from defraying the expence of supporting their houshold, that they would not pay the charge of maintaining the posts established in the Empire. Spei∣delii Speculum, &c. vol. i. p. 680. These funds, in∣considerable as they were, continued to decrease. Granvelle, the minister of Charles V, asserted in the year 1546, in presence of several of the German Prin∣ces, that his master drew no money at all from the Empire. Sleid. History of the Reformation. Lond. 1689. p. 372. The same is the case at present. Trai∣tè de droit Publique de l'Empire par M. le Coq de Villeray, p. 55. From the reign of Charles IV, whom Maximilian called the pest of the Empire, the Empe∣rors have depended entirely on their hereditary domi∣nions, as the only source of their power and even of their subsistence.

2. THE ancient mode of electing the Emperors, and the various changes which it underwent, require some illustration. The Imperial crown, as well as those of most monarchies in Europe, were originally attained by election. An opinion long prevailed among the antiquaries and publick lawyers of Germa∣ny, that the right of chusing the Emperors was vested in the archbishops of Mentz, Cologne and Treves, the King of Bohemia, the Duke of Saxony, the Marquis of Brandenburgh, and the Count Palatine of the Rhine, by an edict of Otho III, confirmed by Grego∣ry the V, about the year 996. But the whole tenor of history contradicts this opinion. It appears that from the earliest period in the history of Germany, the per∣son who was to reign over all, was elected by the suf∣rage of all. Thus Conrad I. was elected by all the people of the Franks, says some annalists; by all the princes and chief men, says others; by all the nation, says others. See their words, Struv. Corp. 211. Con∣ringius de German. Imper. Repub. Acroamata Sex. Ebroduni 1654. p. 103. In the year 1024, posterior to the supposed regulations of Otho III, Conrad II, was elected by all the chief men, and his election was approved and confirmed by the people, Struv. Corp. 284. At the election of Lotharius II, A. D. 1125, sixty thousand persons of all ranks were present. He was named by the chief men, and their nomination was approved by the people. Struv. ibid. p. 357. The first author who mentions the seven Electors is Martinus Polonus, who flourished in the reign of Frederick II, which ended A. D. 1250. We find that in all the ancient elections to which I have refer∣red, the Princes of greatest power and authority were allowed by their countrymen to name the person whom they wished to appoint Emperor, and the people approv∣ed or disapproved of their nomination. This privilege of voting first is called by the German lawyers the right of Praetaxation. Pfeffel Abregé, p. 316. This was the first origin of the exclusive right which the Electors acquired. The Electors possessed the most extensive territories of any Princes in the Empire; all the great offices of the state were in their hands by he∣reditary

right; as soon as they obtained or engrossed so much influence in the election, as to be allowed the right of praetaxation, it became unnecessary for the in∣ferior ecclesiasticks and barons to attend, when they had no other function but that of confirming the deed of these more powerful Princes, by their assent. Dur∣ing times of turbulence, they could not resort to the place of election, without a numerous retinue of arm∣ed vassals, the expence of which they were obliged to defray out of their own revenues. The rights of the seven Electors were supported by all the descendants and allies of their powerful families, who shared in the splendor and influence, which they enjoyed by this distinguishing privilege. Pfeffel. Abregé, p. 376. The seven Electors were considered as the representatives of all the orders, which composed the highest class of German nobility. There were three archbishops, chancellors of the three great districts into which the Empire was anciently divided; one King; one Duke; one Marquis; and one Count. All these circumstan∣ces contributed to render the introduction of this con∣siderable innovation into the constitution of the Ger∣manick body, extremely easy. Every thing of impor∣tance, relating to this branch of the political state of the Empire, is well illustrated by Onuphrius Panvi∣nius an Augustinian Monk of Verona, who lived in the reign of Charles V. His treatise, if we make some allowance for that partiality which he expresses in fa∣vour of the powers which the Popes claimed in the Empire has the merit of being one of the first works in which a controverted point in history is examined with critical precision, and with a proper attention to that evidence which is derived from records, or the testimony of contemporary historians. It is inserted by Goldastus in his Politica Imperialia, p. 2.

AS the Electors have engrossed the sole right of chusing the Emperors, they have assumed likewise that of deposing them. This high power the Electors have not only presumed to claim, but have ventured, in more than one instance, to exercise. In the year 1298, a part of the Electors desposed Adolphus of Nassau and substituted Albert of Austria in his place.

The reasons on which they found their sentence, show that this deed flowed from factious, not from public-spi∣rited motives. Struv. Corp. vol. i. 540. In the first year of the fifteenth century, the Electors deposed Wenceslaus, and placed the Imperial crown on the head of Rupert Elector Palatine. The act of deposi∣tion is still extant. Goldasti Constit. vol. i. 379. It is pronounced in the name and by the authority of the Electors, and confirmed by several prelates and barons of the Empire, who were present. These exertions of the electoral power demonstrate that the Imperial authority was sunk very low.

THE other privileges of the electors, and the rights of the electoral college are explained by the writers on the publick law in Germany.

3. WITH respect to the diets or general assemblies of the Empire, it would be necessary, if my object were to write a particular history of Germany, to enter in∣to a minute detail, concerning the forms of assembling it, the persons who have a right to be present, their division into several Colleges or Benches, the objects of their deliberations, the mode in which they carry on their debates or give their suffrages, and the au∣thority of their decrees or recesses. But in a general history it is sufficient to observe, that, originally, the diets of the Empire were perfectly the same with the as∣semblies of March and of May, held by the Kings of France. They met, at least, once a year. Every freeman had a right to be present. They were assem∣blies in which a monarch deliberated with his subjects, concerning their common interest. Arumaeus de comitiis Rom. German Imperii, 4to. Jenae. 1660, cap. 7. No. 20, &c. But when the Princes, dig∣nified ecclesiasticks, and barons, acquired territorial and independant jurisdiction, the diet became an as∣sembly of the separate states, which formed the con∣federacy of which the Emperor was head. While the constitution of the Empire remained in its primitive form, attendance on the diets was a duty, like the other services due from feudal subjects to their sove∣reign, which the members were bound to perform in person; and if any member who had a right to be

present in the diet neglected to attend in person, he not only lost his vote, but was liable to an heavy pen∣alty. Arumaeus de Comit. c. 5. No. 40. Whereas, from the time that the members of the diet became independant states, the right of suffrage was annexed to the territory or dignity, not to the person. The members, if they could not, or would not attend in person, might send their deputies, as Princes send ambassadors, and they were entitled to exercise all the rights belonging to their constitutients. Ibid. No. 42, 46, 49. By degrees, and upon the same princi∣ple of considering the diet as an assembly of independ∣ant states, in which each confederate had the right of suffrage, if any member possessed more than one of those states or characters which entitle to a seat in the diet, he was allowed a proportional number of suffra∣ges. Pfeffel, Abregé 622. From the same cause the Imperial cities, as soon as they became free, and acquired supreme and independant jurisdiction within their own territories, were received as members of the diet. The powers of the diet extend to every thing relative to the common concern of the Germanick bo∣dy, or that can interest or affect it as a confederacy. The diet takes no cognizance of the interior admini∣stration in the different States, unless that happens to disturb or threaten the general safety.

4. WITH respect to the Imperial chamber, the ju∣risdiction of which has been the great source of order and tranquillity in Germany, it is necessary to observe, that this court was instituted in order to put an end to the calamities occasioned by private wars in Germa∣ny. I have already traced the rise and progress of this practice, and pointed out its pernicious effects as fully as their extensive influence during the middle ages merited. In Germany, private wars seem to have been more frequent and productive of worse con∣sequences than in the other countries of Europe. There are obvious reasons for this. The nobility of Germany were extremely numerous, and the causes of their dissention multiplied in proportion. The territorial jurisdiction which the German nobles ac∣quired, was more compleat than that possessed by

their order in other nations. They became, in reali∣ty, independent powers, and they claimed all the pri∣vileges of that character. The long interregnum ac∣customed them to an uncontrouled licence, and led them to forget that subordination which is necessary in order to maintain public tranquillity. At the time when the other monarchs of Europe began to acquire such an increase of power and revenues, as added new force to their government, the authority and reve∣nues of the Emperors continued gradually to decline. The diets of the Empire, which alone had autho∣rity to judge between such mighty barons, and pow∣er to enforce its decisions, met very seldom. Con∣ring. Acroamata, p. 234. The diets when they did assemble were often composed of several thousand members, Chronic, Constant. ap. Struv. Corp. i. p. 546, and were mere tumultuary assemblies, ill-quali∣fied to decide concerning any question of right. The session of the diets continued only two or three days; Pfeffel Abregè, p. 244, so that they had no time to hear or discuss any cause that was in the smallest de∣gree intricate. Thus Germany was left, in some measure, without any court of judicature, capable of repressing the evils of private war.

ALL the expedients which were employed in other countries of Europe in order to restrain this practice, and which I have described Note XXI. were tried in Germany with little effect. The confederacies of the nobles and of the cities, and the division of Germany in∣to various circles, which I mentioned in that Note, were found likewise insufficient. As a last remedy, the Germans had recourse to arbiters whom they call∣ed Austregae. The barons and states in different parts of Germany joined in conventions, by which they bound themselves to refer all controversies, that might arise between them, to the determination of Austregae, and to submit to their sentences as final. These arbi∣ters are named sometimes in the treaty of convention, an instance of which occurs in Ludewig Reliquae Ma∣nuscr. omnis aevi, vol. 2. 212. sometimes they were chosen by mutual consent; sometimes they were ap∣pointed by neutral persons; and sometimes the choice

was left to be decided by lot. Datt. de Pace publi∣ca Imperii, lib. i. cap. 27. N^o 60, &c. Speidelius Speculum, &c. voc. Austreg. p. 95. Upon the in∣troduction of this practice, the public tribunals of jus∣tice became, in a great measure, useless, and were al∣most entirely deserted.

IN order to re-establish the authority of govern∣ment, Maximilian instituted the Imperial chamber, at the period which I have mentioned. This tribunal consisted originally of a president, who was always a nobleman of the first order, and of sixteen judges. The president was appointed by the Emperor, and the judges, partly by him, and partly by the States, ac∣cording to forms which it is unnecessary to describe. A sum was imposed with their own consent, on the States of the Empire, for paying the salaries of the judges, and officers in this court. The Imperial chamber was established first at Francfort on the Maine. During the reign of Charles V. it was removed to Spires, and continued in that city above a century and a half. It is now fixed at Wetzlar. This court takes cognizance of all questions concerning civil right between the States of the Empire, and passes judg∣ment in the last resort, and without appeal. To it belongs, likewise, the privilege of judging in criminal causes, which may be considered as connected with the preservation of the publick peace. Pfeffel Abregé, 560.

ALL causes relating to points of feudal right or jurisdiction, together with such as respect the territo∣ries, which hold of the Empire in Italy, belong pro∣perly to the jurisdiction of the Aulick council. This tribunal was formed upon tihe model of the ancient court of the palace instituted by the Emperors of Ger∣many. It depended not upon the States of the Em∣pire, but upon the Emperor; he having the right of appointing at pleasure all the judges of whom it is composed. Maximilian, in order to procure some compensation for the diminution of his authority, by the powers vested in the Imperial chamber, prevailed on the diet A. D. 1512. to give its consent to the establishment of the Aulick council. Since that time,

it has been a great object of policy in the court of Vi∣enna to extend the jurisdiction, and support the au∣thority of the Aulick council, and to circumscribe and weaken those of the Imperial chamber. The te∣dious forms and dilatory proceeding of the Imperial chamber have furnished the Emperors with pretexts for doing so. Lites Spirae, according to the witticism of a German lawyer, spirant, sed nunquam exspirant. Such delays are unavoidable in a court composed of members named by States, jealous of each other. Whereas the judges of the Aulick council, depending on one master, and being responsible to him alone, are more vigorous and decisive. Puffendorf. de Statu Imper. German. cap. v. § 20. Pfeffel Abrege, p. 581.

NOTE XLII. [TT]. SECT. III.

THE description which I have given of the Turkish government is conformable to the accounts of the most intelligent travellers who have visited that Empire. The count de Marsigli, in his trea∣tise concerning the military state of the Turkish Empire, ch. vi. and the Author of observations on the religion, laws, government and manners of the Turks, published at London 1768, vol i. p. 81. differ from other writers who have described the political constitu∣tion of that powerful monarchy. As they had opportunity, dur∣ing their long residence in Turky, to observe the order and justice conspicuous in several departments of administration, they seem unwilling to admit that it should be denominated a despotism. But when the form of government in any country is represented to be despotick, this does not suppose that the power of the monarch is continually exerted in acts of violence, injustice and cruelty. Under government of every species, unless when some frantick tyrant hap∣pens to hold the scepter, the ordinary administration must be con∣formable to the principles of justice, and if not active in promoting the welfare of the people, cannot certainly have their destruction for its object. A state, in which the sovereign possesses the abso∣lute command of a vast military force, together with the disposal of an extensive revenue; in which the people have no privileges, and no part eitheir immediate or remote in legislation; in which there is no body of hereditary nobility, jealous of their own rights and distinctions, to stand as an intermediate order between the Prince and People, cannot be distinguished by any name but that of a despotism. The restraints, however, which I have mention∣ed arising from the Capiculy, and from religion, are powerful. But they are not such as change the nature or denomination of the government. When a despotick Prince employs an armed force to support his authority, he commits the supreme power to their

hands. The Praetorian bands in Rome, dethroned, murdered, and exalted Princes, in the same wanton manner with the soldiery of the Porte at Constantinople. But notwithstanding this, the Roman Emperors have been considered by all political writers as possessing despotick power.

NOTE XLIII. [UU.] SECT. III.

THE institution, the discipline, and the privileges of the Jani∣••aries are described by all the authors who give any account of the Turkish government. The manner in which enthusiasm was em∣ployed in order to inspire them with courage is thus related by Prince Cantemir, "When Amurath I. had formed them into a body, he sent them to Haji Bektash a Turkish Saint, famous for his miracles and prophecies, desiring him to give them a banner to pray to God for their success, and to give them a name. The saint, when they appeared in his presence, put the sleeve of his gown upon one of their heads, and says, Let them be called Yeu∣gicheri. Let their countenance be ever bright, their hands victori∣ous, their sword keen, let their spear always hang over the heads of their enemies, and wherever they go, may they return with a shining face. History of the Ottoman Empire, p. 38. The num∣ber of Janizaries, at the first institution of the body, was not con∣siderable. Under Solyman, in the year 1521, they amounted to twelve thousand, Since that time their number has greatly in∣creased, Marsigli, Etat. &c. ch. 16. p. 68. Though Solyman possessed such abilities and authority as to restrain this formidable body within the bounds of obedience, yet its tendency to limit the power of the Sultans was, even in that age, foreseen by sagacious observers. Nicolas Daulphinois, who accompined M. d'Aramon ambassador from Henry II. of France to Solyman, published an account of his travels, in which he describes and celebrates the discipline of the Janizaries, but at the same time predicts that they would, one day, become formidable to their masters, and act the same part at Constantinople▪ as the Praetorian bands had done at Rome. Collection of Voyages from the Earl of Oxford's Library, vol. i. p. 599.

NOTE XLIV. [XX]. SECT. III.

SOLYMAN the Magnificent, to whom the Turkish historians have given the sirname of Ca••••ni, or instituter of rules, first brought the finances and military establishment of the Turkish Empire into a regular form. He divided the military force into the Capiculy or soldiery of the Porte. which was properly the standing army, and Serrataculy or soldiers appointed to guard the frontiers. The chief strength of the latter consisted of those who held Timariots and Ziams. These were portions of land granted to certain persons for life, in much the same manner as the military fiefs among the na∣tions of Europe, in return for which military service was perform∣ed. Solyman, in his Ca•••••• Name or book of regulations, fixed

with great accuracy the extent of these lands in each province of his Empire, appointed the precise number of soldiers each person who held a Timariot or a Ziam should bring into the field, and esta∣blish the pay which they should receive while engaged in service. Count Marsigli and Sir Paul Rycaut have been extracts from this book of regulations, and it appears that the ordinary establishment of the Turkish army exceeded an hundred and fifty thousand men. When these are added to the soldiery of the Porte, they formed a military power which vastly exceeded what any Christian State could command. Marsigli Etat Militaire, &c. p. 136. Rycaut's state of the Ottoman Empire, book iii. ch. 2. As Solyman, dur∣ing his active reign, was engaged so constantly in war, that his troops were always in the field, the Serrataculy became almost equal to the Janizaries themselves in discipline and valour.

IT is not surprizing, then, that the authors of the sixteenth century should represent the Turks as far superior to the Christians, both in the knowledge and in the practice of the art of war. Gu∣icciardini informs us, that the Italians learned the art of fortifying towns from the Turks. Histor. lib. xv. p. 266. Busbequius, who was ambassador from Ferdinand to Solyman, and who had oppor∣tunity to observe the state both of the Christian and Turkish ar∣mies, published a discourse concerning the best manner of carrying on war against the Turks, in which he points out at great length the immense advantages which the infidels possessed with respect to dis∣cipline, and military improvements of every kind. Busbequii opera edit. Elzevir. p. 393, &c. The Testimony of other authors might be added, if the matter were, in any degree, doubtful.

BEFORE I conclude these Proofs and Illustrations, I ought to explain the reason of two omissions in them; one of which it is ne∣cessary to mention on my own account, the other to obviate an ob∣jection to this part of the work.

IN all my inquiries and disquisitions concerning the progress of government, manners, literature, and commerce during the mid∣dle ages, as well as in my delineations of the political constitution of the different States of Europe at the opening of the sixteenth century, I have not once mentioned M. de Voltaire, who, in his Essay sur l'histoire generale, has reveiwed the same period, and has treated of all these subjects. This does not proceed from inattenti∣on to the works of that extraordinary man, whose genius, no less enterprizing than universal, has attempted almost every different species of literary composition. In many of these he excels, In all if he had left religion untouched, he is instructive and agreeable. But as he seldom imitates the example of modern historians in cit∣ing the authors from whom they derived their information. I could not, with propriety, appeal to his authority in confirmation of any doubtful or unknown fact. I have often, however, follow∣ed him as my guide in these researches; and he has not only point∣ed out the facts with respect to which it was of importance to in∣quire, but the conclusions which it was proper to draw from them. If he had, at the same time, mentioned the books which relate these particulars, a great part of my labour would have been un∣necessary,

and many of his readers who now consider him only as an entertaining and lively writer, would find that he is a learned and well-informed historian.

AS to the other omission; every intelligent reader must have observed, that I have not entered, either in the historical part of this volume, or in the Proofs and Illustrations, into the same de∣tail with respect to the ancient laws and customs of the British king∣doms, as concerning those of the other European nations. As the capital facts with regard to the progress of government and man∣ners in their own country are known to most of my readers, such a detail appeared to me to be less essential. Such facts and obser∣vations, however, as were necessary towards compleating my design in this part of the work, I have mentioned under the different arti∣cles which are the subjects of my disquisitions. The state of go∣vernment, in all the nations of Europe, having been nearly the same during several ages, nothing can tend more to illustrate the progress of the English constitution, than a careful inquiry into the laws and customs of the kingdoms on the continent. This source of information has been too much neglected by the English antiquarians and lawyers. Filled with admiration of that happy constitution now established in Great Britain, they have been more attentive to its forms and principles, than to the condition and ideas of remote times, which, in almost every particular, differ from the present. While engaged in perusing the laws, charters, and early historians of the continental kingdoms, I have often been led to think that an attempt to illustrate the progress of the English jurisprudence and policy, by a comparison with those of other kingdoms in a similar situation, would be of great utility, and might throw much light on some points which are now obscure, and decide others, which have been long controverted.

THE END OF THE PROOFS AND ILLUSTRATIONS.