cans have ever since deplored it as a fatal wound to their liberties. There is much exaggeration in this, as far as the relation of the Gallican church to Rome is concerned; but the royal nomination to bishoprics impaired of course the independence of the hierarchy. Whether this prerogative of the crown were upon the whole beneficial to France, is a problem that I cannot affect to solve; in this country there seems little doubt that capitular elections, which the statute of Henry VIII. had reduced to a name, would long since have degenerated into the corruption of close boroughs; but the circumstances of the Gallican establishment may not have been entirely similar, and the question opens a variety of considerations that do not belong to my present subject. church. elections of bishops were made free from | only to force; the university hardly stopall control; mandats or grants in ex-ped short of sedition; the zealous Gallipectancy, and reservations of benefices were taken away; first fruits were abolished. This defalcation of wealth, which had now become dearer than power, could not be patiently borne at Rome. Pius II., the same Eneas Sylvius who had sold himself to oppose the council of Basle, in whose service he had been originally distinguished, used every endeavour to procure the repeal of this ordinance. With Charles VII. he had no success; but Louis XI., partly out of blind hatred to his father's memory, partly from a delusive expectation that the pope would support the Angevin faction in Naples, repealed the Pragmatic Sanction.* This may be added to other proofs that Louis XI., even according to the measures of worldly wisdom, was not a wise politician. His people judged from better feelings; the parliament of From the principles established during Paris constantly refused to enregister the the schism, and in the Pragmatic Liberties revocation of that favourite law, and it Sanction of Bourges, arose the of the continued in many respects to be acted far-famed liberties of the Gallican Gallican upon until the reign of Francis I. At church, which honourably distinthe States-General of Tours, in 1484, the guished her from other members of the inferior clergy, seconded by the two other Roman communion. These have been orders, earnestly requested that the Prag-referred by French writers to a much earmatic Sanction might be confirmed; but the prelates were timid or corrupt, and the Regent Anne was unwilling to risk a quarrel with the Holy See. This unsettled state continued, the Pragmatic Sanction neither quite enforced nor quite repealed, till Francis I., having accommodated the differences of his predecessor with Rome, agreed upon a final concordat with Leo X., the treaty that sub-constant spirit of the parliaments and sisted for almost three centuries between the papacy and the kingdom of France. Instead of capitular election or papal provision, a new method was devised for filling the vacancies of episcopal sees. The king was to nominate a fit person, whom the pope was to collate. The one obtained an essential patronage, the other preserved his theoretical supremacy. Annates were restored to the pope; a concession of great importance. He gave up his indefinite prerogative of reserving benefices, and received only a small stipulated patronage. This convention met with strenuous opposition in France; the parliament of Paris yielded 256, 274. Villaret and Garnier, t. xvi. Crevier, t. iv., P. + Garnier, t. xvi., p. 432; t. xvii., p. 222, et alibi. Crevier, t. iv., p. 318, et alibi. Garnier, t. xix., p. 216 and 321. lier era; but, except so far as that country participated in the ancient ecclesiastical independence of all Europe, before the papal encroachments had subverted it, I do not see that they can be properly traced above the fifteenth century. Nor had they acquired, even at the expiration of that age, the precision and consistency which was given in later times by the universities, as well as by the best ecclesiastical authors, with little assistance from the crown, which, except in a few periods of disagreement with Rome, has rather been disposed to restrain the more zealous Gallicans. These liberties, therefore, do not strictly fall within my limits; and it will be sufficient to observe that they depended upon two maxims; one, that the pope does not possess any direct or indirect temporal authority; the other, that his spiritual jurisdiction can only be exercised in conformity with such parts of the canon law as are received by the kingdom of France. Hence the Gallican church rejected a great part of the Sext and Clementines, and paid little regard to modern papal bulls, which in fact obtained validity only by the king's approbation.* Fleury, Institutions au Droit, t. ii., p. 226, &c., Ecclés. Fr., t. ii., p. 243. Fleury, Institutions au and Discours sur les Libertés de l'Eglise GalliDroit, t. i, p. 107. cane. The last editors of this dissertation go far The pontifical usurpations which were | swered at large by some bishops, and the Ecclesiastical thus restrained, affected, at king did not venture to take any active jurisdiction least in their direct operation, measures at that time. Several regularestrained. rather the church than the tions were however made in the fourstate; and temporal governments would teenth century, which took away the econly have been half emancipated, if their clesiastical cognizance of adultery, of the national hierarchies had preserved their execution of testaments, and other causes enormous jurisdiction.* England, in this which had been claimed by the clergy.† also, began the work, and had made a Their immunity in criminal matters was considerable progress, while the mistaken straitened by the introduction of privileged piety or policy of Louis IX. and his suc- cases, to which it did not extend; such cessors had laid France open to vast en- as treason, murder, robbery, and other croachments. The first method adopted heinous offences. The parliament began in order to check them was rude enough; to exercise a judicial control over episcoby seizing the bishop's effects when he pal courts. It was not, however, till the exceeded his jurisdiction. This jurisdic- beginning of the sixteenth century, action, according to the construction of cording to the best writers, that it devised churchmen, became perpetually larger: its famous form of procedure, the appeal even the reforming council of Constance because of abuse. This, in the course give an enumeration of ecclesiastical of time, and through the decline of ecclecauses far beyond the limits acknowledg- siastical power, not only proved an efed in England, or perhaps in France. fectual barrier against encroachments of But the parliament of Paris, instituted in spiritual jurisdiction, but drew back again 1304, gradually established a paramount to the lay court the greater part of those authority over ecclesiastical as well as causes which by prescription, and indeed civil tribunals. Their progress was in- by law, had appertained to a different cogdeed very slow. At a famous assembly nizance. Thus testamentary, and even in 1329 before Philip of Valois, his advo- in a great degree matrimonial causes, cate-general, Peter de Cugnieres, pro- were decided by the parliament; and in nounced a long harangue against the ex- many other matters, that body, being the cesses of spiritual jurisdiction. This is a judge of its own competence, narrowed, curious illustration of that branch of legal by means of the appeal because of abuse, and ecclesiastical history. It was an- the boundaries of the opposite jurisdicbeyond Fleury, and perhaps reach the utmost point have been more extensively applied than tion. This remedial process appears to in limiting the papal authority which a sincere member of that communion can attain.-See notes, our English writ of prohibition. The latter p. 417 and 445. merely restrains the interference of the *It ought always to be remembered, that ecclesi- ecclesiastical courts in matters which the astical, and not merely papal, encroachments are what civil governments and the laity in general law has not committed to them. But the have had to resist; a point which some very zeal- parliament of Paris considered itself, I ous opposers of Rome have been willing to keep apprehend, as conservator of the liberties out of sight. The latter arose out of the former, and discipline of the Gallican church; and and, perhaps, were in some respects less objection-interposed the appeal because of abuse, able. But the true enemy is what are called Highchurch principles; be they maintained by a pope, a bishop, or a presbyter. Thus Archbishop Stratford writes to Edward III.: Duo sunt, quibus principaliter regitur mundus, sacra pontificalis auctoritas, et regalis ordinata potestas: in quibus est pondus tanto gravius et sublimius sacerdotum, quanto et de regibus illi in divino reddituri sunt examine rationem et ideo scire debet regia celsitudo ex illorum vos dependere judicio, non illos ad vestram dirigi posse voluntatem.-Wilkins, Concilia, t. ii., p. 663. This amazing impudence towards such a prince as Edward did not succeed; but it is interesting to follow the track of the star which was now rather receding, though still fierce. + De Marca, De Concordantiâ, l. iv., c. 18. Id., c. 15. Lenfant, Conc. de Constance, t. ii., p. 331. De Marca, 1. iv., c. 15, gives us passages from one Durandus, about 1309, complaining that the lay judges invaded ecclesiastical jurisdiction, and reckoning the cases subject to the latter, under which he includes feudal and criminal causes in some circumstances, and also those in which the temporal judges are in doubt; si quid ambigu. um inter judices sæculares oriatur. whenever the spiritual court, even in its proper province, transgressed the canonical rules by which it ought to be governed. T Velly, t. viii., p. 234. Fleury, Institutions, t. ii., p. 12. Hist. du Droit Ecclés. Franç., t. ii., p. 86. † Villaret, t. xi., p. 182. Fleury, Institutions au Droit, t. ii., p. 138. In the famous case of Balue, a bishop and cardinal, whom Louis XI. detected in a treasonable intrigue, it was contended by the king that he had a right to punish him capitally.-Du Clos, Vie de Louis XI., t. i., p. 422. Garnier, Hist. de France, t. xvii., p. 330. Balue was confined for many years in a small iron cage, which till lately was shown in the castle of Loches. Pasquier, 1. iii., c. 33. Hist. du Droit Ecclés. François, t. ii., p. 119. Fleury, Institutions au Droit Ecclés. François, t. ii., p. 221. De Marca, De Concordantiâ Sacerdotii et Imperii, l. iv., c. 19. The last author seems to carry it rather higher. Fleury, Institutions, t. i., p, 42, &c. De Marca, De Concordantiâ, 1. iv., c. 9. Fleu Decline of While the bishops of Rome were losing | Even the crusades, which had already their general influence over Eu- been tried against the heretics of LanPapal indu- rope, they did not gain more es- guedoc, were now preached against all ence in Ita- timation in Italy. It is indeed who espoused a different party from the ly. a problem of some difficulty, Roman see in the quarrels of Italy. Such whether they derived any substantial were those directed at Frederick II., at advantage from their temporal principali- Manfred, and at Matteo Visconti, accomty. For the last three centuries, it has panied by the usual bribery, indulgences certainly been conducive to the mainte- and remission of sins. The papal internance of their spiritual supremacy, which, dicts of the fourteenth century wore a in the complicated relations of policy, different complexion from those of formight have been endangered by their be- mer times. Though tremendous to the coming the subjects of any particular imagination, they had hitherto been consovereign. But I doubt whether their fined to spiritual effects, or to such as real authority over Christendom in the were connected with religion, as the promiddle ages was not better preserved by hibition of marriage and sepulture. But a state of nominal dependance upon the Clement V., on account of an attack empire, without much effective control made by the Venetians upon Ferrara, in on one side, or many temptations to 1309, proclaimed the whole people infaworldly ambition on the other. That mous, and incapable for three generacovetousness of temporal sway which, tions of any office; their goods, in every having long prompted their measures of part of the world, subject to confiscation, usurpation and forgery, seemed, from the and every Venetian, wherever he might time of Innocent III. and Nicolas III., be found, liable to be reduced into slaveto reap its gratification, impaired the ry. A bull in the same terms was pubmore essential parts of the papal author- lished by Gregory XI., in 1376, against ity. In the fourteenth and fifteenth cen- the Florentines. turies, the popes degraded their character From the termination of the schism, by too much anxiety about the politics of as the popes found their ambition thwartItaly. The veil woven by religious awe ed beyond the Alps, it was diverted more was rent asunder, and the features of or- and more towards schemes of temporal dinary ambition appeared without dis- sovereignty. In these we do not perguise. For it was no longer that magnif- ceive that consistent policy, which reicent and original system of spiritual markably actuated their conduct as supower, which made Gregory VII., even preme heads of the church. Men generin exile, a rival of the emperor, which ally advanced in years, and born of noheld forth redress where the law could ble Italian families, made the papacy not protect, and punishment where it subservient to the elevation of their kincould not chastise, which fell in some-dred, or to the interests of a local factimes with superstitious feeling, and tion. For such ends they mingled in the sometimes with political interest. Many dark conspiracies of that bad age, distinmight believe that the pope could depose a schismatic prince, who were disgusted at his attacking an unoffending neighbour. As the cupidity of the clergy in regard to worldly estate had lowered their character everywhere, so the similar conduct of their head undermined the respect felt for him in Italy. The censures of the church, those excommunications and interdicts which had made Europe tremble, became gradually despicable as well as odious, when they were lavished in every squabble for territory which the pope was pleased to make his own.* ry, t. ii., p. 224. In Spain, even now, says De Marca, bishops or clerks not obeying royal mandates that inhibit the excesses of ecclesiastical courts, are expelled from the kingdom and deprived of the nights of denizenship. *In 1290, Pisa was put under an interdict for having conferred the signiory on the Count of Montefeltro, and he was ordered, on pain of excommunication, to lay down the government within a guished only by the more scandalous turpitude of their vices from the petty tyrants and intriguers with whom they were engaged. In the latter part of the fifteenth century, when all favourable prejudices were worn away, those who occupied the most conspicuous station in Europe disgraced their name by more notorious profligacy than could be paralleled in the darkest age that had preceded; and at the moment beyond which this work is not carried, the invasion of Italy by Charles VIII., I must leave the pontifical throne in the possession of Alex ander VI. It has been my object in the present month.-Muratori ad ann. A curious style for the pope to adopt towards a free city! Six years before the Venetians had been interdicted, because they would not allow their galleys to be hired by the King of Naples. But it would be almost endless to quote every instance. * Muratori. chapter to bring within the compass of | sively declined. Slowly and silently rea few hours' perusal the substance of a ceding from their claims to temporal great and interesting branch of history; power, the pontiffs hardly protect their not certainly with such extensive reach dilapidated citadel from the revolutionof learning as the subject might require, ary concussions of modern times, the rabut from sources of unquestioned credi- pacity of governments, and the growbility. Unconscious of any partialities ing averseness to ecclesiastical influence. that could give an oblique bias to my But, if thus bearded by unmannerly and mind, I have not been very solicitous to threatening innovation, they should occaavoid offence where offence is so easily sionally forget that cautious policy which taken. Yet there is one misinterpreta- necessity has prescribed, if they should tion of my meaning which I would gladly attempt, an unavailing expedient! to reobviate. I have not designed, in exhibit- vive institutions which can be no longer ing without disguise the usurpations of operative, or principles that have died Rome during the middle ages, to furnish away, their defensive efforts will not be materials for unjust prejudice or unfound- unnatural, nor ought to excite either ed distrust. It is an advantageous cir- indignation or alarm. A calm, comprecumstance for the philosophical inquirer hensive study of ecclesiastical history, into the history of ecclesiastical domin- not in such scraps and fragments as the ion, that, as it spreads itself over the ordinary partisans of our ephemeral litvast extent of fifteen centuries, the de- erature obtrude upon us, is perhaps the pendance of events upon general causes, best antidote to extravagant apprehenrather than on transitory combinations sions. Those who know what Rome has or the character of individuals, is made once been are best able to appreciate more evident, and the future more prob- what she is; those who have seen the ably foretold from a consideration of the thunderbolt in the hands of the Gregories past, than we are apt to find in political and the Innocents, will hardly be intimihistory. Five centuries have now elap- dated at the sallies of decrepitude, the sed, during every one of which the au- impotent dart of Priam amid the crackthority of the Roman see has succes-ling ruins of Troy. CHAPTER VIII. THE CONSTITUTIONAL HISTORY OF ENGLAND. PART I. not owing to the soil of this island, nor to the latitude in which it is placed; but The Anglo-Saxon Constitution.-Sketch of An- to the spirit of its laws, from which, glo-Saxon History.-Succession to the Crown. -Orders of Men.-Thanes and Ceorls.-Wit- through various means, the characteristic tenagemot.-Judicial System.Division into independence and industriousness of our Hundreds.-County-Court.-Trial by Jury-its nation have been derived. The constiAntiquity investigated.-Law of Frank-pledge-tution, therefore, of England must be to its several Stages.-Question of Feudal Tenures before the Conquest. inquisitive men of all countries, far more to ourselves, an object of superior interNo unbiased observer, who derives est; distinguished especially, as it is pleasure from the welfare of his species, from all free governments of powerful can fail to consider the long and uninter- nations which history has recorded, by ruptedly increasing prosperity of England its manifesting, after the lapse of several as the most beautiful phenomenon in the centuries, not merely no symptom of irhistory of mankind. Climates more pro- retrievable decay, but a more expansive pitious may impart more largely the energy. Comparing long periods of mere enjoyments of existence; but in no time, it may be justly asserted that the other region have the benefits that polit- administration of government has proical institutions can confer been diffused gressively become more equitable, and over so extended a population; nor have the privileges of the subject more secure ; any people so well reconciled the dis- and, though it would be both presumptucordant elements of wealth, order, and ous and unwise to express an unlimited liberty. These advantages are surely confidence as to the durability of liber Sketch of The destruction of those minor states was reserved for a different enemy. About the end of the eighth century the northern pirates began to ravage the coast of England. Scandinavia exhibited in that age a very singular condition of society. Her population, continually redundant in those barren regions which gave it birth, was cast out in search of plunder upon the ocean. Those who ties which owe their greatest security to the constant suspicion of the people, yet, if we calmly reflect on the present aspect of this country, it will probably appear, that whatever perils may threaten our constitution are rather from circumstances altogether unconnected with it than from any intrinsic defects of its own. It will be the object of the ensuing chapter to trace the gradual formation of this system of government. Such an inves-loved riot rather than famine embarked tigation, impartially conducted, will de- in large armaments under chiefs of legittect errors diametrically opposite; those imate authority, as well as approved valintended to impose on the populace, our. Such were the sea-kings, renownwhich, on account of their palpable ab- ed in the stories of the North; the youngsurdity and the ill faith with which they er branches commonly of royal families, are usually proposed, I have seldom who inherited, as it were, the sea for thought it worth while directly to re- their patrimony. Without any territory pel; and those which better informed but on the bosom of the waves, without persons are apt to entertain, caught from any dwelling but their ships, these princetransient reading and the misrepresenta- ly pirates were obeyed by numerous subtions of late historians, but easily refuted jects, and intimidated mighty nations." by the genuine testimony of ancient times. Their invasions of England became conThe seven very unequal kingdoms of tinually more formidable; and, as their the Saxon Heptarchy, formed confidence increased, they began first to successively out of the countries winter, and ultimately to form permanent wrested from the Britons, were settlements in the country. By their originally independent of each command of the sea, it was easy for other. Several times, however, a power- them to harass every part of an island ful sovereign acquired a preponderating presenting such an extent of coast as influence over his neighbours, marked Britain; the Saxons, after a brave resistperhaps by the payment of tribute. Sev-ance, gradually gave way, and were on en are enumerated by Bede as having thus reigned over the whole of Britain; an expression which must be very loosely interpreted. Three kingdoms became at length predominant; those of Wessex, Mercia, and Northumberland. The first rendered tributary the small estates of the Southeast, and the second that of the Eastern Angles. But Egbert, king of Wessex, not only incorporated with his own monarchy the dependant kingdoms of Kent and Essex, but obtained an acknowledgment of his superiority from Mercia and Northumberland; the latter of which, though the most extensive of any Anglo-Saxon state, was too much weakened by its internal divisions to offer any resistance. Still, however, the kingdoms of Mercia, East Anglia, and Northumberland remained under their ancient line of sovereigns; nor did either Egbert or his five immediate successors assume the title of any other crown than Wessex.t • Chronicon Saxonicum, p. 70. the brink of the same servitude or extermination which their own arms had already brought upon the ancient possessors. From this imminent peril, after the three dependant kingdoms, Mercia, Northumberland, and East Anglia, had been overwhelmed, it was the glory of Alfred to rescue the Anglo-Saxon monarchy. Nothing less than the appearance of a hero so undesponding, so enterprising, and so just, could have prevented the entire conquest of England. Yet he never subdued the Danes, nor became master of the whole kingdom. The Thames, the Lea, the Ouse, and the Roman road called Watling-street, determined the limits of Alfred's dominion.† To the northeast of this boundary were spread the invaders, still denominated the armies of East Anglia and Northumberland; name terribly expressive of foreign conquerors, who retained their warlike confederacy without melting into the mass * For these Vikingr, or sea-kings, a new and interesting subject, I would refer to Mr. Turner's History of the Anglo-Saxons, in which valuable work almost every particular that can illustrate our early annals will be found. + Alfred denominates himself in his will, Occidentalium Saxorum rex; and Asserius never gives him any other name. But his son Edward the Elder takes the title of Rex Anglorum on his coins.Vid. Numismata Anglo-Saxon. in Hickes's The-Saxon., p. 99. saurus, vol. ii. f Wilkins, Leges Anglo-Saxon., p. 47. Chron. Chronicon Saxon., passim. a |