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William Robertson

A View of the Progress of Society in Europe from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century (1769)

Proofs and Illustrarions XIII-XVIII

Note editoriali

Home | Editorial note | Preface | Section I | Par. i-ii | Par. iii-v | Par vi-x | Section II
Section III (pp. 106-119)
| Section III (pp. 120-139) | Section III (pp. 141-166)
Proofs & Illustrations

Proofs I-XII | Proofs XIII-XVIII | Proofs XIX-XXIII | Proof XXIV-XXIX

Note [XIII], page 21.

As there is no event in the history of mankind more singular than that of the crusades, every circumstance 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 exhortation of Peter the Hermit, by several occurrences previous to his time. A more particular detail of this curious and obscure part of history may, perhaps, 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 century, and that this occasioned a general alarm, is evident from the authors to whom I have referred in the text. This belief was so universal and so strong, that it mingled itself with civil transactions. Many charters, in the latter part of the tenth century, begin in this manner: «Appropinquante 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. et Vaisette, tom. II, Preuves, pp. 86, 89, 90, 117, 158, &c. One effect of this opinion 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, marquises, bishops, and even a great number of women, besides persons of an inferior rank, flocked to the Holy Land. Glaber. Rodulph. Hist. apud [533] Bouquet, Recueil, tom. X, pp. 50, 52. Another historian mentions a vast cavalcade of pilgrims who accompanied the count of Angoulême to Jerusalem in the year 1026. Chronic. Ademari, ibid. p. 162. Upon their return, these pilgrims filled Europe with lamentable 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 other cities in the East, to travel as mendicants through Europe; and, by describing the wretched condition of the professors of the Christian faith under the dominion of infidels, to extort 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, Gerbert, archibishop 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 Epistolæ, ap. Bouquet, Recueil, tom. X, p. 426. In consequence 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 enterprise did not arise, according to the description of many authors, from a sudden fit of frantic enthusiasm, but 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 enumerated in this note, as well as in the history, are sufficient to account for the ardour with which such vast numbers engaged in such a dangerous undertaking, the extensive privileges and immunities granted to the persons 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, vol. II, p. 1194.

2. They were exempted from paying interest for the money which they had borrowed, in order to fit them for this sacred warfare. Ibid.

3. They were exempted either entirely, or at least during a certain time, from the payment of taxes. Ibid. Ordonnances des Rois de France, tom. I, p. 33.

4. They might alienate their lands without the consent of the superior lord of whom they held. Ibid.

5. Their persons and effects were taken under the protection 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, during their absence, on account of the holy war. Du Cange, ibid. Guibertus Abbas, ap. Bongars. I pp. 480, 482.

6. They enjoyed all the privileges of ecclesiastics, and were not bound to plead in any civil court, but were declared subject to the spiritual jurisdiction alone. Du Cange, Ibid. Ordon. des Rois, tom. I pp. 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 other proof of their penitence, but their engaging in this expedition; and thus, by gratifying their favourite passion, the love of war, they secured to themselves immunities [534] which were not usually obtained but by paying large sums of money, or by undergoing painful penances. Guibert Abbas, p. 480. When we behold the civil and ecclesiastical powers vying with each other, and straining their invention, in order to devise expedients for encouraging and adding strength to the spirit of superstition, can we be surprised that it should become so general as to render it infamous, and a mark of cowardice, to decline engaging in the holy war? Willerm. Tyriensis, ap. Bongars. vol. II, p. 641. The histories 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 animated themselves with the same passions which possessed their contemporaries, exhibit to us a more striking picture of the times and manners which they describe. the enthusiastic rapture with which they account for the effects of the pope’s discourse in the council of Clermont; the exultation with which they mention the numbers who devoted themselves to this holy warfare; the confidence with which they express their reliance on the divine protection; the ecstasy 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 agitated the minds of men with such violence, and will suggest as many singular reflections to a philosopher, as any occurrence in the history of mankind. It is unnecessary to select the particular passages in the several historians, which confirm this observation. But, lest those authors may be suspected of adorning their narrative with any exaggerated description, I shall appeal to one of the leaders who conducted the enterprise. There is extant a letter from Stephen, the earl of Chartres ans Blois to Adela his wife he gives her an account of the progress of the crusaders. He describes the crusaders 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 conducted by his hand to victory and conquest. He speaks of the Turks as accursed, sacrilegious, and devoted by Heaven to destruction; and when he mentions the soldiers in the Christian army, who had died, er were killed, he is confident that their souls were admitted directly into the joys of Paradise. Dacherii, Spicilegium, vol. IV, p. 257.

The expense 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 extremely small. Some account is preserved of the expedients employed by Humbert II, Dauphin of Vienne, in order to levy the money requisite towards equipping him for the crusade, A. D. 1346. These I shall mention, as they tend to show 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 Dauphiné, 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 [535] that account. Ibid. tom. II, p. 512. Many of the charters of community, which I shall mention in another note, were obtained in this manner.

3. He exacted a contribution towards defraying the charges of the expedition from all his subjects, whether ecclesiastics or laymen, who did not accompany him in person to the East. Ibid. tom. I, p. 335.

4. He appropriated a considerable 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 residence there. Ibid. tom. I, p. 338, tom. II, p. 528. Notwithstanding the variety of these resources, the dauphin was involved in such expense by this expedition, 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 pp. 344, 347. When the count de Foix engaged in the first crusade, he raised the money necessary for defraying the expenses of that expedition by alienating part of his territories. Hist. de Langued. par D.D. de Vict. et Vaisette, tom. II, p. 287. In like manner Baldwin, count of Hainault, mortgaged or sold a considerable portion of his dominions 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. Miræi Oper. I, p. 313.


Note [XIV] page 25

The usual method of forming an opinion concerning the comparative state of manners in two different nations, is by attending to the facts which historians relate concerning each of them. Various passages might be selected from the Byzantine historians, describing the splendour 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 minute details concerning 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 eleventh century, though inferior in power, did not yield to them in ostentation and splendour. Mémoires de l’Acad. des Inscript. tom. XX, p. 197. But we may decide concerning the comparative state of manners 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 Costantinople was the place of rendez-vous 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 singular congress of people, formerly strangers, in a great measure, to each other. They describe, with simplicity and candour, the impression which that new spectacle 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 other was ignorant. It is thus Anna Comnena describes [536] the manners of the Latins, Alexias, pp. 224, 231, 237, ap. Byz. Script. vol. IX, She always views 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 describing the incursions of the Goths and Vandals. Nicet. Chron. ap. Byz. Script. vol. III, pp. 302, &c. But, on the other hands, the Latin historians were struck with astonishment at the magnificence, wealth, and elegance which they discovered in the eastern empire. «O what a vast city is Constantinople (exclaims Fulcherius Carabtensis, when he first beheld it), and how beautiful! How many monasteries are there in it, and how many palaces built with wonderful art! How many manufactures are there in the city amazing to behold! It would be astonishing to relate how it abounds with all good things, with gold, silver, and stuffs of various kind; 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, seems to be fond, on every occasion, of describing the elegance and splendour of the court of Constantinople, and adds, that what he and his countrymen observed there execeded any idea which they could have formed of it, «nostrarum enim rerum modum et dignitatem excedunt». Willerm. Tyr. ap. Bong. vol. II, pp. 675, 664. Benjamin the Jew, of Tudela in Navarre, who began his travels A. D. 1173, appears to have been equally astonished at the magnificence of that city, and gives a description of its splendour, in terms of high admiration. Benj. Tudel. ap. Les Voyages faits dans les 12e, 13e, &c. Siècles, par Bergeron, p. 10, &c. 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 admiration: «Structuram autem ædificiorum in corpore civitatis, in ecclesiis videlicet, et turribus, et in domibus magnatorum, vix ullus vel describere potest, vel credere describenti, nisi qui ea oculata fide cognoverit». Hist. Constantinop. ap. Canisii, Lectiones Antiquas, fol. Antw. 1725, vol. IV, p. 14. Geoffrey de Villehardouin, a nobleman of high rank, and accustomed to all the magnificence then known in the West, describes, in similar terms, the astonishment and admiration of such of his fellow-soldiers as beheld Constantinople for the first time: «They could not have believed», says he, «that there was a city so beautiful and so rich in the whole world. When they viewed its walls, its lofty towers, its rich palaces, its superb 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». Histoire de la Conquête de Constant. p. 49. From these undisguised representations of their own feelings, it is evident, that to the Greeks the crusaders appeared to be a race of rude, unpolished barbarians; whereas the latter, how much soever they might contemn the unwarlike character of the former, could not help regarding them as far superior to 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 intelligent leaders of the crusaders were struck with the difference. Jacobus de Vitriaco, a French historian of the holy war, makes an elaborate panegyric on the [537] character and manners of the Italians. He views them as a more polished people, and particularly celebrates them for their love of liberty, and civil wisdom: «in consiliis circumspecti, in re suâ publicâ procurandâ diligentes et studiosi; sibi in posterum providentes; aliis subjici renuentes; ante omnia libertatem sibi defendentes; sub uno quem eligunt capitaneo, communitati suæ jura et instituta dictantes et similiter observantes». Histor. Hierosol. ap. Gesta Dei per Francos, vol. II, p. 1085.


Note [XV], page 28.

The different steps taken by the cities of Italy, in order to extend their power and dominions, are remarkable. As soon as their liberties were established, and they began to feel their own importance, they endeavoured to render themselves masters of the territory round their walls. Under the Romans, when cities enjoyed municipal privileges and jurisdiction, the circum-jacent lands belonged to each town, and were the property of the community. But as it was not the genius of the feudal policy to encourage cities, or to show any regard for their possessions and immunities, these lands had been seized, and shared among the conquerors. The barons to whom they were granted, erected their castles almost at the gates of the city, and exercised their jurisdiction there. Under pretence of recovering 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 addition 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 ambition increasing together with their power, the cities afterwards attacked several baron s situated at a greater distance from their walls, and obliged them to engage that they would become members of their community; that they would take the oath of fidelity to their magistrates; that they would subject their lands to all burdens and taxes imposed by common consent; that they would defend the community against all its enemies; and that they would reside within the city during a certain specified time in each year. Murat. ibid. p. 163. This subjection of the nobility to the municipal government established in cities, became almost universal, and was often extremely grievous to persons accustomed to consider themselves as independent. Otto Frisingensis thus describes the state of Italy under Frederick I: «The cities so much affect liberty, 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 magistrates. Insomuch that all that country is now filled with free cities, most of which have compelled their bishops to reside within their walls, and there is scarcely any nobleman, how great soever his power may be, who is not subject to the laws and government of some city». De Gestis Frider. I Imp. lib. II, c. 13, p. 453. In another place he observes of the marquis of Montferrat, that he was almost the only Italian baron who had preserved his independence, and had not become subject to the laws of any city. See also Muratori, Antichità Estensi, vol. I pp. 411, 412. That state, into which some of the nobles were compelled to enter, others embraced from choice. they observed the 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 partake of these, and to put themselves under such powerful protection. With this view they [538] voluntarily became citizens of the towns to 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. ibid. p. 165, &c. A charter, by which Atto de Macerata is admitted as a citizen of Osima, 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 its magistrates; that he will enter into no league with its enemies; that he will reside in the town during 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, Ævi, Aug. Taur. 1755, fol. p. 66. This privilege was deemed so important, that not only laymen, but ecclesiastics of the highest rank, condescended to adopted as members of the great communities, in hopes of enjoying the safety and dignity which that condition conferred. Murat. ibid. 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 populous, 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 consideration and dignity by the accession of such citizens, they became more solicitous to preserve their liberty and independence. The emperors, as sovereigns, had anciently a palace in almost every great city of Italy; when they visited that country, they were accustomed to reside in these palaces, and the troops which accompanied them were quartered in the houses of the citizens. This the citizens deemed both 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 would never enter their gates, but take up their residence without the walls. Chart. Hen. IV, Murat. ibid. p. 24. Others obtained the imperial licence to pull down the palace situated within their liberties, on condition that they built another in the suburbs for the occasional reception of the emperor. Chart. Hen. IV, Murat. ibid. p.25. These various encroachments of the Italian cities alarmed the emperors, and put them on schemes for re-establishing the imperial jurisdiction over them on its ancient footing. Frederick Barbarossa engaged in this enterprise 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 immunities granted by former emperors to the principal cities in Italy were confirmed and ratified. Murat. Dissert. XLVIII, This treaty of Constance was considered as such an important article in the jurisprudence of the middle ages, that it is usually published together with the Libri Feudorum at the end of the Corpus Juris Civilis. The treaty secured privileges of great importance to the confederate [539] cities, and though it reserved a considerable degree of authority and jurisdiction 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 empire, and were become independent sovereign republics. 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 industry, has collected many original papers which illustrate this curious and little known part of history. Murat. Antiq. Ital. Dissert. L. See also Jo. Bapt. Villanovæ Hist. Laudis Pompeii, sive Lodi, in Græv. Thes. Antiquit. Ital. vol. III, p. 888.


Note [XVI], page 29.

Long before the institution of communities in France, charters of immunity or franchise were granted 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 centuries. They did not erect these towns into corporations: they did not establish a municipal government; they did not grant them the privilege of bearing arms. They contained nothing more than a manumission of the inhabitants from the yoke of servitude; an exemption from certain services which were oppressive and ignominious; and the establishment of a fixed tax or rent which the citizens 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 Roussillon, one in A. D. 974, the other in A. D. 1025, are still extant. Petr. de Marca, Marca, sive Limes Hispanicus, App. pp. 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 le Gros, on the towns within his domains. The communities in France never aspired to the same independence with those in Italy. They acquired new privileges and immunities, but the right of sovereignty 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 published by M. d’Achery in his Spicilegium, and many are found in the collection of the Ordonnances des Rois de France. These convey a very striking representation of the wretched condition of cities previous to the institution of communities, when they were subject to the judges appointed by the superior lords of whom they held, and who had scarcely any other law but their will. Each concession in these charters must be considered as a grant of some new privileges which the people did not formerly enjoy, and each regulation as a method of redressing some grievance under which the inhabitants of cities formerly laboured. The charters of communities contain likewise the first expedients employed for the introduction 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. [540]

I, During that state of turbulence and disorder which the corruption of the feudal government introduced into Europe, personal safety was first and great 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 individuals, independent of the nobles. For,

1. The fundamental article in every charter was, that all the members of the community 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 molest any of their fellow-citizens. D’Acher. Spicil. X, 642; XI 341, &c.

2. Whoever resided in any town which was made free, was obliged, under a severe penalty, to accede to the community, and to take part in the mutual defence of its members. D’Acher. Spic. XI, 344.

3. The communities had the privilege of carrying arms; of making war on their private enemies; and of executing by military force any sentence which their magistrates pronounced. D’Acher. Spicil. X, 643, 644; XI, 343.

4. The practice of making satisfaction by a pecuniary compensation for murder, assault, or other acts of violence, most inconsistent with the order of society, and the safety of individuals, was abolished; and such as committed these crimes were punished capitally, or with rigour adequate to their guilt. D’Acher. XI, 362. Miræ Opera Diplomatica, 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 convicted only by the evidence of witnesses, and the regular course of legal proceedings. Miræus, ibid. D’Acher. 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 effect before a magistrate, the person suspected was bound under a severe penalty to give security for his peaceable behaviour. D’Acher. XI 346. This is the same species of security which is still known in Scotland under the name of law burrows. In France it was first introduced among the inhabitants of communities, and having been found to contribute considerably towards personal safety, it was extended to all the other members of the society. Etablissemens 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 considerable 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. Ordonn. 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 account 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 towards refinement, before creditors acquired a right of seizing the property of their debtors, in order to recover 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 person who sold any commodity should receive a pledge from him who bought it, which he restored upon receiving payment. Of [541] this custom there are vestiges in several charters of community. D’Acher. IX, 185; XI 377.

2. When no pledge was given, and the debtor became refractory or insolvent, the creditor was allowed to seize his effects with a strong hand, and by his private authority; the citizens of Paris are warranted by the royal mandate, «ut ubicumque, et quocumque modo poterunt, tantum capiant, inde pecuniam sibi debitam integrè et plenariè habeant, et inde sibi invicem adjutores existant», Ordon. &c. tom. I, p. 6. This rude practice, suitable only to the violence of that whicyh has been called 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 ordinance 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 warrant from a magistrate, and under his inspection, was not published until the year 1351. Ordon. tom. II, p. 438 It is probable, however, that men were taught, by observing the disorders which the former mode of proceeding occasioned, to correct it in practice long before 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 mentioned. New customs are not always to be ascribed to the laws which authorize them. Those statutes only give a legal sanction to such things as the experience of mankind 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’Acher. IX, pp. 184, 185; XI, pp. 348, 380. As this regulation afforded the most complete security to the creditor, it was considered as so severe, that humanity pointed out several limitations in the execution of it. Creditors were prohibited from seizing the wearing apparel of their debtors, their beds, the door of their house, their instruments of husbandary, &c. D’Acher. IX, p. 184; XI, p. 377. Upon the same principles when the power of distraining effects became more general, the horse and arms of a gentleman could not seized. D’Acher. IX, p. 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. Capitul. lib. IV, § 21. But if the debtor had no other moveables, even these privileged articles might be seized.

4. In order to render the security of property complete 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 the town a considerable portion of his moveables, per quæ justiciari possit, si quid fortè in eum querelæ evenerit. D’Acher. XI, p. 326. Ordon. I, p. 367. Libertates S. Georgii, de Esperanchia, Hist. de Dauphiné, tom. I, p. 26.

5. That security might be as perfect as possible, in some towns the members of the community seem to have been bound for each other. D’Acher. X, p. 644.

6. All questions with respect to property were tried within the community by magistrates and judges whom the citizens elected or appointed. Their decisions were more equal and fixed than the sentences which depended onb the capricious and arbitraryt will of a baron, who thought himself superior to all laws. D’Acher. X, pp. 644, 646; XI, p. 344, et passim. Ordon. III, p. 204.

7. No member of a community could be burdened by any arbitrary tax; for the superior lord, who granted the [542] charter of community, accepted of a fixed census or duty in lieu of all demands. Ordon. tom. III, p. 204. Libertatis de Calma, Hist. de Dauphiné, tom. I, p.19. Libertates 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 community. Regulations are inserted in the charters of some communities, concerning the method of determining the quota of any tax to be levied on each inhabitant. D’Ach. XI, pp. 350, 365. St. Louis published an ordinance concerning this matter, which extended to all the communities. Ordon. tom. I, p. 186. These regulations are extremely favourable to liberty, as they vest the power of proportioning the taxes in a certain number 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 thin g, but from the express words of several charters, of which I shall only mention that granted by Alienor, queen of England and duchess of Guienne, to the community of Poitiers, «ut sua propria melius defendere possint, et magis integrè custodire». Du Cange, voc. Communia, vol. II, p. 863. Such are some of the capital regulations established in communities during the twelfth and thirteenth centuries. These may be considered as the first expedients for the re-establishment of law and order, and contributed greatly to introduce regular government among all the members of society. As soon as communities were instituted, high sentiments of liberty began to manifest themselves. 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 successors, 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, p. 183. In the same manner, the lord of Moriens in Dauphiné produced a certain number of persons as his sureties for the observation of the articles contained in the charter of community to that town. These were bound to surrender themselves prisoners to the inhabitants of Moriens, if their liege lord should violate any of their franchises, and they promised to remain in custody until he should grant the members of the community redress. Hist. de Dauphiné, tom. I, p. 17. If the mayor or chief magistrate of a town did any injury to a citizen, he was obliged to give security for his appearance in judgment, in the same manner as a private person; and if cast, was liable to the same penalty. D’Acher. IX, p.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, vol. II, p. 863. They were at first extremely odious to the nobles, who foresaw what a check they must prove to their power and domination. 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, ibid. p. 862. The zeal with which some of the nobles and powerful ecclesiastics opposed the establishment of communities, and endeavoured to circumscribe their privileges, was extraordinary. A striking instance of this occurs in the contest between the archbishop of Reims and the inhabitants of that community. It was the chief business of every archbishop, during a considerable time, to abridge the rights and jurisdiction of the community; and the great object of the citizens, [543] especially when the see was vacant, to maintain, to recover, and to extend their own jurisdiction. Histoire Civile et Politique de la Ville de Reims, par M. Anquetil, tom. I, p. 287, &c.

The observations which I have made concerning the low state of cities, and the condition of their inhabitants, are confirmed by innumerable passages in the historians and laws of the middle ages. It is not improbable, 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 municipal government established in cities was extremely favourable to liberty. The jurisdiction of the senate in each corporation, and the privileges of the citizens, were both extensive. There is reason to believe that some of the greater cities, which escaped the destructive rage of the barbarous nations, still retained 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. Franç. tom. I, p. 18, &c. tom. II, p. 524, edit. 1742. It appears from some of the charters of community to cities, granted in the twelfth and thirteenth centuries, that these only confirm the privileges possessed by the inhabitants previous to the establishment of the community. D’Acher. Spicileg., vol. XI, p. 345. Other cities claimed their privileges, as having possessed them without interruption from the times of the Romans. Hist. Crit. de la Mon. Franç. tom. II, p. 333. But the number of cities which enjoyed such immunities was so small, as hardly, in any degree, to diminish the force of my conclusions in the text.


Note [XVII], page 29.

Having given a full account of the establishment, as well as effects of communities in Italy and France, it will be necessary to inquire, with some attention, into the progress of cities and of municipal government in Germany. The ancient Germans had no cities. Even in their hamlets of villages, they did not build their houses contiguous to each other. Tacit. 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 confined. 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 previous to the ninth century of the Christian era. Conringius, Exercitatio de Urbibus Germaniæ, Oper. vol. I §§ 25, 27, 31, &c. Heineccius differs from Conrigius with respect to his. 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 bestowed 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 archbishoprics and nine bishoprics in the most considerable towns of Germany. Aub. Miræi Opera Diplomatica, vol. I, p. 16. His successors increased the number of these; and [544] as bishops fixed their residence in the chief town of their diocese, and performed religious functions there, that induced many people to settle in them. Conring. ibid. § 48. But Henry, surnamed the Fowler, who began his reign A. D. 920, must be considered as the great founder of 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 settle in cities, which he surrounded with walls strengthened by towers. He enjoined or persuaded a certain proportion of the nobility to fix their residence in the towns, and thus rendered the condition of citizens more honourable than it had been formerly. Wittikindus, Annal. lib. I, ap. Conrig. § 82. From this period, the number of cities continued to increase, and they became more populous and more wealthy. But cities in Germany were still destitute of municipal liberty or jurisdiction. Such of them as were situated in the imperial demesnes, were subject to the emperors. Their comites, missi, and other judges, presided in them, and dispensed justice. Towns situated on the estate of a baron were part of his fief, and he or his officers exercised a similar jurisdiction in them. Conring. ibid. §§ 73, 74. Heinec. Elem. Jur. Germ. lib. I § 104. The Germans borrowed the institution of communities from the Italians. Knipschildius, Tractatus Politico-Histor. Jurid. de Civitatum Imperialium Juribus, vol. I cap. 5, No. 23. Frederick Barbarossa was the first emperor who, from the same political consideration that influenced Louis le Gros, multiplied communities, in order to abridge the power of the nobles. Pfeffel, Abrégé de l’Histoire et du Droit Publique d’Allemagne, 4to, p. 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 bishoprics (already mentioned), and the building of cathedrals, naturally induced many people to settle near the chief place of worship. 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 enfranchised, the greater part of whom settled in cities. Several mines were discovered and wrought in different provinces, which drew together such a concourse of people, as gave rise to several cities, and increased the number of inhabitants in others. 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 other 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 familiæ; the citizens, or liberi; and the artisans, who were slaves, or homines proprii; Knipschild. lib. II, cap. 29, No 13. Henry V, who began his reign A. D. 1106, enfranchised 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. Nos. 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 cities, 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 within their own precincts all the [545] rights of complete and independent sovereignty. The various privileges of the imperial cities, the great guardians of the Germanic liberties, are enumerated by Knipschild. lib. II, The most important articles are generally known, and it would be improper to enter into any disquisition concerning minute particulars.


Note [XVIII], page 29.

The Spanish historians are almost entirely silent concerning the origin and progress of communities in that kingdom; so that I cannot fix, with any degree of certainty, the time and manner of their first introduction there. It appears, however, from Mariana, vol. II, p. 221, fol. Hagæ, 1736, that in the year 1350, eighteen cities had obtained a seat in the cortes of Castile. From the account which is given of their constitution and pretensions, Sect. III, of this volume, it will appear that their privileges and form of government were the same with those of the other feudal corporations; and this, as well as the perfect similarity of political institutions and transactions in all the feudal kingdoms, may lead us to conclude, that communities were introduced 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 subsequent note, cities seem early to have acquired extensive immunities, together with a share in the legislature. In the year 1118, the citizens of Saragossa had not only attained political liberty, but they were declared to be of equal rank with the nobles of the second class; and many other immunities, unknown to persons 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 communities 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 Boroughs. Madox, Firma Burgi, cap. 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 Norman race were not charters of enfranchisement from a state of slavery, but a confirmation of privileges which they already enjoyed. See Lord Lyttelton’s History of Henry II, vol. II, p. 317. The English cities, however, 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; and every description of them in general terms is very apt to deceive. It appears from Peter of Blois, archdeacon of London, who flourished in the same reign, and who had good opportunity of being well informed, that this city, of which Fitzstephen gives such a pompous account, contained no more than forty thousand inhabitants. Ibid. pp. 315, 316. The other cities were small in proportion, and were not in a condition to extort any extensive privileges. that the constitution of the boroughs in Scotland, in many circumstances, [546] resembled that of the towns in France and England, is manifest from the Leges Burgorum, annexed to the Regiam Majestatem.

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