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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 XXIV-XXIX

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 [XXIV], page 56.

It is not easy to fix with precision the period at which ecclesiastics first began to claim exemption from the civil jurisdiction. It is certain, that during the early and purest ages of the church, they pretended to no such immunity. The authority of the civil magistrate extended to all persons and to all causes. This facts has not only been clearly established by protestant authors, but is admitted by many Roman Catholics 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 show that, in the ninth and tenth centuries, causes of the greatest importance relating to ecclesiastics were still determined by civil judges. Antiq. Ital. vol. V, Dissert. LXX. Proofs of this are produced likewise by M. Houard, Anciennes Loix des François, &c. vol. I, p. 209. Ecclesiastics did not shake off all at once their subjection to civil courts. This privilege, like their other usurpations, was acquired 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 as charter of Charlemagne in favour of the church of Mans, A. D. 796, to which M. l’Abbé de Foy refers 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 character and function. A remarkable instance of this occurs in a charter of Frederic Barbarossa, A. D. 1172, to the monastery of Altenburg. He grants them «judicium non tantum sanguinolentis plagæ, sed vitæ et 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, et jugum suave; nos penitus nolumus illos oppressionis contumelia, vel manu laica, fatigari,» Mencken, Script. Rer. Germ. vol. III, p. 1067.

It is not necessary for illustrating what is contained in the text, that I should describe the manner in which the code of the canon law was compiled, or show that the doctrines in it most favourable to the power of the clergy, are founded on ignorance, or supposed by fraud and forgery. The reader will find a full account of these in Gerard. van Mastricht, Historia Juris Ecclesiastici, and in Science du Gouvernement, par M. Réal, tom. VII, c. 1, et 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 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, [571] has collected most of the causes with respect to which the clergy arrogated an exclusive jurisdiction, and refers to the authors, or original papers, which confirm his observations. Giannone, 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 the pretexts for extending the authority of the spiritual courts with so much boldness, that it was soon in their power to withdraw almost every person and every cause from the jurisdiction of the civil magistrate. Hist. Ecclés. tom. XIX, Disc. Prélim., 16. But how ill founded soever the jurisdiction of the clergy may have been, 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 seems to be certain, that ecclesiastics never submitted, during any period in the middle ages, to the laws contained in the codes of the barbarous nations, but were governed 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 Theodosian code, and other books extant among them. This we learn from a custom which prevailed universally in those ages. Every person was permitted to choose 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 submitted, that it might be known how any controversy that should arise between them was to be decided. Innumerable 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 code of 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 Longhobardorum, sed tamen, pro honore ecclesiastico, lege nunc videor vivere Romana». Charta, A. D. 1072. «Farulfus presbyter qui professus sum, more sacerdotii mei, lege vivere Romana». Charta, A. D. 1075. Muratori, Antichita Estensi, vol. I, p. 78. See likewise Houard, Anciennes Loix des François, &c. vol. I, p. 203.

The code of the canon law began to be compiled early in the ninth century. Mém. de l’Acad. des Inscript. tom. XVIII, pp. 346, &c. It was above two centuries after that before any collection was made of those customs which were the rule of judgments 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 general advantage of the canon law, its forms and principles were more consonant to reason, and more favourable to the equitable decision of every point in controversy, than those which prevailed in lay courts. It appears from Notes XXI and XXIII concerning private wars, and the trial by combat, that the whole spirit of ecclesiastical jurisprudence was adverse to those sanguinary customs which were destructive of justice; and the whole force of ecclesiastical authority was exerted 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 borrowed from the canon law. Fleury, Instit. du Droit Canon. part. III, c. 6, p. 52. St. Louis, in [572] his Establissemens, confirms many of his new regulations concerning property and the administration of justice, by the authority of the canon law, from which he borrowed them. Thus, for instance, the first hint of attaching moveables for the recovery of a debt, was taken from the canon law. Estab. liv. II, c. 21 et 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 had borrowed from the Roman law. Many other examples might be produced of more perfect jurisprudence in the canon law than was known in lay courts. For that reason, it was deemed a high privilege to be subject to ecclesiastical jurisdiction. Among the many immunities, by which men were allured to engage in the dangerous expeditions for the recovery of the Holy Land, one of the most considerable was the declaring such as took the cross to be subject only to the spiritual courts, and to the rules of decision observed in them. See Note XIII, and Du Cange, voc. Crucis Privilegia. [573] .


Note [XXV], page 58

The rapidity with which the knowledge and study of the Roman law spread over Europe is amazing. The copy of the Pandects was found a Amalfi, A. D. 1137. Inerius opened a college of civil law at Bologna 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 Roman code, was composed by two Milanese lawyers about the year 1150. Gratian published the code of canon law, with large addition and emendations, about the same time. The earliest collection of those customs, which served as the rules of decision in the courts of justice, is the Assises de Jérusalem. 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 gave occasion to this early compilation. The victorious crusaders settled as a colony in a foreign country, and adventurers 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 administration of justice among them. But in no country of Europe was there, at that time, any collection of customs, nor had any attempt been made to render law fixed. The first undertaking of that kind was by Glanville, lord chief justice of England, in his Tractatus de Legibus et Consuetudinibus Angliæ, composed about the year 1181. The Regiam Majestatem in Scotland, ascribed to David I, seems to be an imitation, and a serbvile one, of Glanville. Several Scottish antiquarians, under the influence of that pious credulity which disposes men to assent, without hesitation, to whatever they deem for the honour of their native country, contend zealously, that the Regiam Majestatem is a production prior to the treatise of Glanville; and have brought themselves to believe, that a nation, in a superior state of improvement, borrowed its laws and institutions from one considerably less advanced in its political progress. The internal evidence (were it my province to examine it) by which this theory might be refuted, is, in my opinion, decisive. The external circumstances which have seduced Scottish authors into this mistake, have been explained with so much [573] precision and candour by Sir David Dalrymple, in his examination of some of the arguments for the high antiquity of Regiam Majestatem, Edin. 1769, $to, that it is to be hoped the controversy will not be again revived. 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 Vermandois, 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 Establissemens 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 practice of collecting them became common. Charles VII of France, by an ordinance A. D. 1453, appointed the customary laws in every province of France to be collected and arranged. Velley et Villaret, Histoire, tom. XVI, p. 113.

His successor, Louis XI, renewed the injunction. But this salutary undertaking hath never been fully executed, and the jurisprudence of the French nation remains more obscure and uncertain than it would have been if these prudent regulations of their monarchs had taken effect. A mode of judicial determination was established in the middle ages, which affords the clearest proof that judges, while they had no other rule to direct their decrees but unwritten and traditionary customs, were often at a loss how to find out the facts and principles, according 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 explained 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 pretend 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 commonly believed. My subject does not require me to examine this point. Many striking facts with regard to it are collected by Donato Antonio d’Asti, Dell’Uso e Autorità della ragione civile nelle provincie dell’Imperio Occidentale, Nap. 1751, 2 vols. 8vo.

That the civil law is intimately connected with the municipal jurisprudence in several countries of Europe, is a fact so well known, that it needs no illustration. Even in England, where the common law is supposed to form a system perfectly distinct from the Roman code, and although such as apply in that country to the study of the common law boast of this distinction with some degree of affectation, it is evident that many of the ideas and maxims of the civil law are incorporated into the English jurisprudence. This is well illustrated by the ingenious and learned author of observations on the Statutes, chiefly the more ancient, 3d edit. pp. 76, &c.


Note [XXVI], page 60.

The whole history of the middle ages makes it evident that war was the sole profession of gentlemen, and almost the only object attended to in their education. Even after some change in manners began to take place [574], and the civil arts of life had acquired some reputation, the ancient ideas with respect to the accomplishments necessary for a person of noble birth, continued long in force. In the Mémoires de Fleuranges, pp. 9, &c., we have an account of the youthful exercises and occupations of Francis I, and they were altogether 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 middle ages furnish the strongest proof that, in some instance, the distinction of profession was not completely ascertained 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 distinct character separate from that of other 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 gentlemen, and in spite of the decrees of popes, or the canons of councils, they bore arms, led their vassals to the field, and fought at their head in battle. Among them the priesthood was scarcely 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 persons as rose to eminence in it obtained honours which had formerly been 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 eminent for their knowledge of law were advanced, and were thereby placed on a level with those whom their military talents had rendered conspicuous. Miles justitiæ, 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. XI, c. 16, p. 130. Dissertations Historiques sur la Chevalerie par Honoré de Sainte Marie, pp. 164, &c. A profession that led to offices, which ennobled the persons who held them, grew into credit, and the people of Europe became accustomed to see men rise to eminence by civil as well as military talents.


Note [XXVII], page 62

The chief intention of these notes was to bring at once under the view of my readers such facts and circumstances as tend to illustrate or confirm what is contained 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 many of my readers might find it 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 reasoning 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 ease with respect to chivalry. Almost every fact which I have mentioned in the text, together with many other curious and instructive particulars concerning this singular institution, may be found in Mémoires sur l’ancienne Chevalerie considérée comme une Establissement politique et militaire, par M. de la Curne de St. Palaye [575].


Note [XXVIII], page 66

The subject of my inquiries 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 society. While science was altogether extinct in the western parts of Europe, it was cultivated in Constantinople and other parts of the Grecian empire. But the subtle genius of the Greeks turned almost entirely to theological disputation. The Latins borrowed that spirit from them, and many of the controversies which still occupy and divide theologians, took their rise among the Greeks, from whom the other Europeans derived a considerable part of their knowledge. See the testimony of Æneas Silvius, ap. Conrigium de Antiq. Academicis, p. 43. Histoire Littéraire 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 literature 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. Though they could not admire the poets and historians of Greece or of Rome, they were sensible to the merit of their philosophers. 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 geometry, 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 perfection which they have attained. In the two latter they chose Aristotle for their guide, and refining on the subtle and distinguishing spirit which characterises his philosophy, they rendered it in a great degree frivolous and 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 Africa 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 science during the twelfth and thirteenth centuries, were educated among the Arabians. Bruckerus collects many instances of this, Histor. Philos. vol. III, p. 681, &c. Almost all the men eminent for science during several centuries, if they did not resort in person to the schools in Africa and Spain, were instructed in the philosophy of the Arabians. The first knowledge of the Aristotelian philosophy in the middle ages was acquired by translation of Aristotle’s works out of the Arabic. The Arabian 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 retard the progress of true science.

The establishment of colleges or universities is a remarkable era 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 course or order of education was fixed. The time that [576] ought to be allotted to the study of each science was ascertained. A regular form of trying the proficiency 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. Bacmeisterus, Antiquitates Rostochienses, sive, Historia Urbis et Academiæ Rostoch. ap. Monumenta inedita Rer. Germ. per E. J. de Westphalen, vol. III, p. 781. Lips. 1743. The first obscure mention of these academical degree 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 completely established A. D. 1231. Ibid. 248. It is unnecessary to enumerate the several privileges to which bachelors, masters, and doctors were entitled. One circumstance is sufficient to demonstrate the high degree of estimation in which they were held. Doctors in the different faculties contended with knights for precedence, and the dispute was terminated in many instances by advancing the former to the dignity of knighthood, the high prerogatives of which I have mentioned. It was even asserted 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». Honoré de St. Marie, Dissert. p. 165. This was called «chevalerie de lecture», and the persons advanced to that dignity, «milites clerici». These new establishments for education, together with the extraordinary 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 university, that law was the only science taught in it at that time. In the year 1340 there were thirty thousand 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 privilege, the number of students must have been very great. Velley, 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 applied to the study of science in those ages; it shows, likewise, that they already began to consider other professions beside that of a soldier as honourable and useful.


Note [XXIX], page 67

The great variety of subjects which I have endeavoured 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 nature 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 intercourse between nations during the middle ages. Towards the close of the tenth century, Count Bouchard, intending to found a monastery at St. Maur des Fosses, near Paris, applied to an abbot of Clugny, in Burgundy, famous for his sanctity, entreating 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 extraordinary. He refused to [577] comply with his desire, as it would be extremely fatiguing to go along with him into a strange and unknown region. Vita Buchardi venerabilis Comites, ap. Bouquet, Rec. des Hist. vol. X, p. 351. Even so late as the beginning of thye twelfth century, the monks of Ferrieres, in the diocese of Sens. did not know that there was such a city as Tournay in Flanders; and the monks of St. Martin of Tournay were equally unacquainted with the situation of Ferrieres. 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 particularly described, the discovery was made by accident. Herimannus Abbas, de Restauratione St. Martini Tornacensis ap. Dacher, Spicil. vol. XII, p. 400. The ignorance of the middle ages with respect to the situation and geography of remoter 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. Denys. 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. Mém. de l’Acad. des Belles Lettres, tom. XVI, p. 185. There seen to have been no inns or houses of entertainment for the reception of travellers during the middle ages. Murat. Antiq. 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, hospitality is a virtue of the first rank. This duty of hospitality 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. Hospitality was enforced by statutes; and such as neglected this duty were liable to punishment. «Quicumque hospiti venienti lectum aut focum negaverit, trium solidorum inlatione mulctetur». Leg. Burgund. tit. XXXVIII, § 1. «Si quis homini aliquo pergenti in itinere 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 remarkable. Other laws of the same purport are collected by Jo. Fred. Polac. Systema Jurisprud. Germanicæ, Lips. 1733, p. 75. The laws of the Slavi were more rigorous than any that he mentions; they ordained, that the moveables of an inhospitable person should be confiscated, and his house burnt. They were even so solicitous for the entertainment of strangers, that they permitted the landlord to steal for the support of his guest. «Quod noctu furatus fueris, eras appone hospitibus». Rerum Mecleburgicar. lib. VIII, a Mat. Jo. Beehr. Lips. 1751, p. 50. In consequence of these laws, or of the 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, too, proves clearly that the intercourse among men was rare, for as soon as this became frequent, what was a pleasure became 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 different nations. The genius of the feudal system [578], as well as the spirit of jealousy which always accompanies ignorance, concurred in discouraging strangers from settling in any new country. If a person removed from one province in a kingdom to another, he was bound within a year and a day to acknowledge himself the vassal of the baron on whose estate he settled; if he neglected 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 territory he had resided, all his goods were confiscated. The hardships imposed on foreigners settling in a 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 servitude. 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 many countries of Europe. The practice of seizing the goods of persons who had been shipwrecked, and of confiscating them as the property of the lord on whose manor they were thrown, seems to have been universal. De Westphalen, Monum. inedita Rer. Germ. vol. IV, pp. 907. &c., and in Du Cange, voc. Laganum. Beehr. Rer. Mecleb. lib. VIII, p. 512. Among the ancient Welsh, three sorts of persons, 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 Laurière 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 François, art. Aubaine, p. 92. Beaumanoir says, «That there are several places in France in which, if a stranger fixes his residence for a year and a day, he becomes the slave of the lord of the manor». Coust. de Beauv. ch. 45, p. 254. As a practica so contrary to humanity could not subsist long, the superior lords found it necessary to rest satisfied, instead of enslaving aliens, with levying certain annual taxes upon them, or imposing upon them some extraordinary duties or services. But when any stranger died, he could not convey his effects by 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. Préf. de Laurière, 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 strasngers upon 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 persons who were born in a foreign country were subject to the «droit d’aubaine», but in some countries such as removed from one diocese to another, or from the lands of one baron to another. Brussel, vol. II, pp. 947, 949. It is hardly possible to conceive any law more unfavourable to the intercourse between nations. Something similar 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. As nations advanced in improvement, this practice [579] was gradually abolished. It is no small disgrace to the French jurisprudence that this barbarous, inhospitable custom should have so long remained among a people 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 Lupus, 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, p. 515. The numerous regulations published by Charles the Bald in the same century, discover the frequency of these disorders; and such acts of violence were become so common, that by many they were hardly considered as criminal. For this reason the inferior judges, called «centenarii", were required to take an oath that they would neither commit any robbery themselves, nor protect such as were guilty of that crime. Capitul. edit. Baluz. vol. II, pp. 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 authority 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 presence of their sacred reliques, anathemas were denounced against robbers, and other violators of the public peace. Bouquet, Recueil des Hist. tom. X, pp. 360, 431, 536. One of these forms of excommunication, 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 be deemed unworthy of a place here. After the usual introduction, and mentioning the outrage which gave occasion to the anathema, it runs thus: «Obtenebrescant oculi vestri, qui concupiverunt; arescant manus, quæ rapuerunt; debilitentur omnia membra, quæ adjuverunt. Semper laboretis, nec reqiem inveniatis, fructuque vestri laboris privemini, Formidetis, et paveatis, a facie persequentis et non persequentis hostis, ut tabescendo deficiatis. Sit portio vestra cum Juda traditore Domini, in terra mortis et tenebrarum; donec corda vestra ad satisfactionem plenam convertantur. Ne cessent a vobis hæ maledictiones, scelerum vestrorum persecutrices, quamdiu permanebitis in peccato pervasionis. Amen, Fiat, Fiat», Bouquet, ibid. p. 517.

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Proofs & Illustrations

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