CHAPTER II.

HISTORY OF THE PROTECTIVE SPIRIT, AND COMPARISON OF IT IN FRANCE AND ENGLAND.

When, towards the end of the fifth century, the Roman empire was broken up, there followed, as is well known, a long period of ignorance and of crime, in which even the ablest minds were immersed in the grossest superstitions. During these, which are rightly called the Dark Ages, the clergy were supreme: they ruled the consciences of the most despotic sovereigns, and they were respected as men of vast learning, because they alone were able to read and write; because they were the sole depositaries of those idle conceits of which European science then consisted; and because they preserved the legends of the saints and the lives of the fathers, from which, as it was believed, the teachings of divine wisdom might easily be gathered.

Such was the degradation of the European intellect for about five hundred years, during which the credulity of men reached a height unparalleled in the annals of ignorance. But at length the human reason, that divine spark which even the most corrupt society is unable to extinguish, began to display its power, and disperse the mists by which it was surrounded. Various circumstances, which it would be tedious here to discuss, caused this dispersion to take place at different times in different countries. However, speaking generally, we may say that it occurred in the tenth and eleventh centuries, and that by the twelfth century there was no nation now called civilized, upon whom the light had not begun to dawn.

It is from this point that the first great divergence between the European nations took its rise. Before this time their superstition was so great and universal, that it would avail little to measure the degree of their relative darkness. Indeed, so low had they fallen, that, during the earlier period, the authority of the clergy was in many respects an advantage, as forming a barrier between the people and their rulers, and as supplying the sole instance of a class that even made an approach to intellectual pursuits. But when the great movement took place, when the human reason began to rebel, the position of the clergy was suddenly changed. They had been friendly to reasoning as long as the reasoning was on their side.[271] While they were the only guardians of knowledge, they were eager to promote its interests. Now, however, it was falling from their hands: it was becoming possessed by laymen: it was growing dangerous: it must be reduced to its proper dimensions. Then it was that there first became general the inquisitions, the imprisonments, the torturings, the burnings, and all the other contrivances by which the church vainly endeavoured to stem the tide that had turned against her.[272] From that moment there has been an unceasing struggle between these two great parties,--the advocates of inquiry, and the advocates of belief: a struggle which, however it may be disguised, and under whatever forms it may appear, is at bottom always the same, and represents the opposite interests of reason and faith, of scepticism and credulity, of progress and reaction, of those who hope for the future, and of those who cling to the past.

[271] 'Toute influence qu'on accordait à la science ne pouvait, dans les premiers temps, qu'être favorable au clergé.' _Meyer_, _Institut. Judic._ vol. i. p. 498.

[272] Early in the eleventh century the clergy first began systematically to repress independent inquiries by punishing men who attempted to think for themselves. Compare _Sismondi_, _Hist. des Français_, vol. iv. pp. 145, 146; _Neander's Hist. of the Church_, vol. vi. pp. 365, 366; _Prescott's Hist. of Ferdinand and Isabella_, vol. i. p. 261 note. Before this, such a policy, as Sismondi justly observes, was not required: 'Pendant plusieurs siècles, l'église n'avoit été troublée par aucune hérésie; l'ignorance étoit trop complète la soumission trop servile, la foi trop aveugle, pour que les questions qui avoient si long-temps exercé la subtilité des Grecs fussent seulement comprises par les Latins.' As knowledge advanced, the opposition between inquiry and belief became more marked: the church redoubled her efforts, and at the end of the twelfth century the popes first formally called on the secular power to punish heretics; and the earliest constitution addressed 'inquisitoribus hæreticæ pravitatis' is one by Alexander IV. _Meyer_, _Inst. Jud._ vol. ii. pp. 554, 556. See also on this movement, _Llorente_, _Hist. de l'Inquisition_, vol. i. p. 125, vol. iv. p. 284. In 1222 a synod assembled at Oxford caused an apostate to be burned; and this, says Lingard (_Hist. of England_, vol. ii. p. 148), 'is, I believe, the first instance of capital punishment in England on the ground of religion.' Compare _Wright's Biog. Brit. Lit._ vol. ii. p. 444.

This, then, is the great starting point of modern civilization. From the moment that reason began, however faintly, to assert its supremacy, the improvement of every people has depended upon their obedience to its dictates, and upon the success with which they have reduced to its standard the whole of their actions. To understand, therefore, the original divergence of France and England, we must seek it in the circumstances that took place when this, which may be called the great rebellion of the intellect, was first clearly seen.

If now, with a view to such inquiry, we examine the history of Europe, we shall find that just at this period there sprung up the feudal system: a vast scheme of polity, which, clumsy and imperfect as it was, supplied many of the wants of the rude people among whom it arose.[273] The connexion between it and the decline of the ecclesiastical spirit is very obvious. For the feudal system was the first great secular plan that had been seen in Europe since the formation of the civil law: it was the first comprehensive attempt which had been made, during more than four hundred years, to organize society according to temporal, not according to spiritual circumstances, the basis of the whole arrangement being merely the possession of land, and the performance of certain military and pecuniary services.[274]

[273] Sir F. Palgrave (_English Commonwealth_, vol. ii. p. ccvi.) says, 'it is generally admitted, by the best authorities, that from about the eleventh century benefices acquired the name of fiefs or feuds;' and Robertson (_State of Europe_, note viii. in _Works_, p. 393) supposes that the word _feudum_ does not occur before 1008. But according to M. Guizot (_Civilisation en France_, vol. iii. p. 238), 'il apparaît, pour la première fois, dans une charte de Charles le Gros en 884.' This is a question more curious than important; since whatever the origin of the word may be, it is certain that the thing did not, and could not, exist before the tenth century at the earliest: inasmuch as the extreme disorganisation of society rendered so coercive an institution impossible. M. Guizot, in another work (_Essais sur l'Hist. de France_, p. 239), rightly says, 'Au X^e siècle seulement, les rapports et les pouvoirs sociaux acquirent quelque fixité.' See also his _Civilisation en Europe_, p. 90.

[274] 'La terre est tout dans ce système.... Le système féodal est comme une religion de la terre.' _Origines du Droit_, in _[OE]uvres de Michelet_, vol. ii. p. 302. 'Le caractère de la féodalité, c'était la prédominance de la _réalité_ sur la _personnalité_, de la terre sur l'homme.' _Eschbach_, _Etude du Droit_, p. 256.

This was, no doubt, a great step in European civilization, because it set the first example of a large public polity in which the spiritual classes as such had no recognized place;[275] and hence there followed that struggle between feudality and the church, which has been observed by several writers, but the origin of which has been strangely overlooked. What, however, we have now to notice is, that by the establishment of the feudal system, the spirit of protection, far from being destroyed, was probably not even weakened, but only assumed a new form. Instead of being spiritual, it became temporal. Instead of men looking up to the church, they looked up to the nobles. For, as a necessary consequence of this vast movement, or rather as a part of it, the great possessors of land were now being organized into an hereditary aristocracy.[276] In the tenth century, we find the first surnames:[277] by the eleventh century most of the great offices had become hereditary in the leading families:[278] and in the twelfth century armorial bearings were invented, as well as other heraldic devices, which long nourished the conceit of the nobles, and were valued by their descendants as marks of that superiority of birth to which, during many ages, all other superiority was considered subordinate.[279]

[275] According to the social and political arrangements from the fourth to the tenth century, the clergy were so eminently a class apart, that they were freed from 'burdens of the state,' and were not obliged to engage in military services unless they thought proper to do so. See _Neander's Hist. of the Church_, vol. iii. p. 195, vol. v. pp. 133, 140; and _Petrie's Ecclesiast. Archit._ p. 382. But under the feudal system this immunity was lost; and in regard to performing services no separation of classes was admitted. 'After the feudal polity became established, we do not find that there was any dispensation for ecclesiastical fiefs.' _Hallam's Supplemental Notes_, p. 120; and for further proof of the loss of the old privileges, compare _Grose's Military Antiquities_, vol. i. pp. 5, 64; _Meyer_, _Instit. Judic._ vol. i. p. 257; _Turner's Hist. of England_, vol. iv. p. 462; and _Mably's Observations_, vol. i. pp. 434, 435: so that, as this writer says, p. 215, 'Chaque seigneur laïc avait gagné personnellement à la révolution qui forma le gouvernement féodal; mais les évêques et les abbés, en devenant souverains dans leurs terres, perdirent au contraire beaucoup de leur pouvoir et de leur dignité.'

[276] The great change of turning life-possessions of land into hereditary possessions, began late in the ninth century, being initiated in France by a capitulary of Charles the Bald, in 877. See _Allen on the Prerogative_, p. 210; _Spence's Origin of the Laws of Europe_, pp. 282, 301; _Meyer_, _Instit. Judiciaires_, vol. i. p. 206.

[277] That surnames first arose in the tenth century is stated by the most competent authorities. See _Sismondi_, _Hist. de Français_, vol. iii. pp. 452-455; _Hallam's Middle Ages_, vol. i. p. 138; _Monteil_, _Hist. des divers Etats_, vol. iii. p. 268; _Petrie's Ecclesiast. Archit._ pp. 277, 342. Koch (_Tableau des Révolutions_, vol. i. p. 138) erroneously says, 'c'est pareillement aux croisades que l'Europe doit l'usage des surnoms de famille;' a double mistake, both as to the date and the cause, since the introduction of surnames being part of a large social movement, can under no circumstances be ascribed to a single event.

[278] On this process from the end of the ninth to the twelfth century, compare _Hallam's Supplemental Notes_, pp. 97, 98; _Dalrymple's Hist. of Feudal Property_, p. 21; _Klimrath_, _Hist. du Droit_, vol. i. p. 74.

[279] As to the origin of armorial bearings, which cannot be traced higher than the twelfth century, see _Hallam's Middle Ages_, vol. i. pp. 138, 139; _Ledwich_, _Antiquities of Ireland_, pp. 231, 232; _Origines du Droit_, in _[OE]uvres de Michelet_, vol. ii. p. 382.

Such was the beginning of the European aristocracy, in the sense in which that word is commonly used. With the consolidation of its power, feudality was made, in reference to the organization of society, the successor of the church;[280] and the nobles, becoming hereditary, gradually displaced in government, and in the general functions of authority, the clergy, among whom the opposite principle of celibacy was now firmly established.[281] It is, therefore, evident, that an inquiry into the origin of the modern protective spirit does, in a great measure, resolve itself into an inquiry into the origin of the aristocratic power; since that power was the exponent, and, as it were, the cover under which the spirit displayed itself. This, as we shall hereafter see, is likewise connected with the great religious rebellion of the sixteenth century; the success of which mainly depended on the weakness of the protective principle that opposed it. But, reserving this for future consideration, I will now endeavour to trace a few of the circumstances which gave the aristocracy more power in France than in England, and thus accustomed the French to a closer and more constant obedience, and infused into them a more reverential spirit than that which was usual in our country.

[280] For, as Lerminia says (_Philos. du Droit_, vol. i. p. 17), 'la loi féodale n'est autre chose que la terre élevée à la souveraineté.' On the decline of the church in consequence of the increased feudal and secular spirit, see _Sismondi_, _Hist. des Français_, vol. iii. p. 440, vol. iv. p. 88. In our own country, one fact may be mentioned illustrative of the earliest encroachments of laymen: namely, that, before the twelfth century, we find no instance in England of the great seal being entrusted 'to the keeping of a layman.' _Campbell's Chancellors_, vol. i. p. 61.

[281] Celibacy, on account of its supposed ascetic tendency, was advocated and in some countries was enforced, at an early period; but the first general and decisive movement in its favour was in the middle of the eleventh century, before which time it was a speculative doctrine, constantly disobeyed. See _Neander's Hist. of the Church_, vol. vi. pp. 52, 61, 62, 72, 93, 94 note, vol. vii. pp. 127-131; _Mosheim's Eccles. Hist._ vol. i. pp. 248, 249; _Eccleston's English Antiq._ p. 95.

Soon after the middle of the eleventh century, and therefore while the aristocracy was in the process of formation, England was conquered by the Duke of Normandy, who naturally introduced the polity existing in his own country.[282] But, in his hands, it underwent a modification suitable to the new circumstances in which he was placed. He, being in a foreign country, the general of a successful army composed partly of mercenaries,[283] was able to dispense with some of those feudal usages which were customary in France. The great Norman lords, thrown as strangers into the midst of a hostile population, were glad to accept estates from the crown on almost any terms that would guarantee their own security. Of this, William naturally availed himself. For, by granting baronies on conditions favourable to the crown, he prevented the barons[284] from possessing that power which they exercised in France, and which, but for this, they would have exercised in England. The result was, that the most powerful of our nobles became amenable to the law, or, at all events, to the authority of the king.[285] Indeed, to such an extent was this carried, that William, shortly before his death, obliged all the landowners to render their fealty to him; thus entirely neglecting that peculiarity of feudalism, according to which each vassal was separately dependent on his own lord.[286]

[282] Where it was particularly flourishing: 'la féodalité fut organisée en Normandie plus fortement et plus systématiquement que partout ailleurs en France.' _Klimrath_, _Travaux sur l'Hist. du Droit_, vol. i. p. 130. The 'coutume de Normandie' was, at a much later period, only to be found in the old 'grand coutumier.' _Klimrath_, vol. ii. p. 160. On the peculiar tenacity with which the Normans clung to it, see _Lettres d'Aguesseau_, vol. ii. pp. 225, 226: 'accoutumés à respecter leur coutume comme l'évangile.'

[283] _Mills' Hist. of Chivalry_, vol. i. p. 387; _Turner's Hist. of England_, vol. ii. p. 390, vol. iv. p. 76. Mercenary troops were also employed by his immediate successors. _Grose's Military Antiq._ vol. i. p. 55.

[284] On the different meanings attached to the word 'baron,' compare _Klimrath_, _Hist. du Droit_, vol. ii. p. 40, with _Meyer_, _Instit. Judiciaires_, vol. i. p. 105. But M. Guizot says, what seems most likely, 'il est probable que ce nom fut commun originairement à tous les vassaux immédiats de la couronne, liés au roi _per servitium militare_, par le service de chevalier.' _Essais_, p. 265.

[285] _Meyer_, _Instit. Judic._ vol. i. p. 242; _Turner's Hist. of England_, vol. iii. p. 220. The same policy of reducing the nobles was followed up by Henry II., who destroyed the baronial castles. _Turner_, vol. iv. p. 223. Compare _Lingard_, vol. i. pp. 315, 371.

[286] 'Deinde c[oe]pit homagia hominum totius Angliæ, et juramentum fidelitatis cujuscumque essent feodi vel tenementi.' _Matthæi Westmonast. Flores Historiarum_, vol. ii. p. 9.

But in France, the course of affairs was very different. In that country the great nobles held their lands, not so much by grant, as by prescription.[287] A character of antiquity was thus thrown over their rights; which, when added to the weakness of the crown, enabled them to exercise on their own estates, all the functions of independent sovereigns.[288] Even when they received their first great check, under Philip Augustus,[289] they, in his reign, and indeed long after, wielded a power quite unknown in England. Thus, to give only two instances: the right of coining money, which has always been regarded as an attribute of sovereignty, was never allowed in England, even to the greatest nobles.[290] But in France it was exercised by many persons independently of the crown, and was not abrogated until the sixteenth century.[291] A similar remark holds good of what was called the right of private war; by virtue of which the nobles were allowed to attack each other, and disturb the peace of the country with the prosecution of their private feuds. In England the aristocracy were never strong enough to have this admitted as a right,[292] though they too often exercised it as a practice. But in France it became a part of the established law; it was incorporated into the text-books of feudalism, and it is distinctly recognized by Louis IX. and Philip the Fair,--two kings of considerable energy, who did every thing in their power to curtail the enormous authority of the nobles.[293]

[287] See some good remarks on this difference between the French and English nobles, in _Hallam's Middle Ages_, vol. ii. pp. 99, 100. Mably (_Observations_, vol. i. p. 60) says: 'en effet, on négligea, sur la fin de la première race, de conserver les titres primordiaux de ses possessions.' As to the old customary French law of prescription, see _Giraud_, _Précis de l'Ancien Droit_, pp. 79, 80.

[288] _Mably_, _Observations sur l'Hist. de France_, vol. i. pp. 70, 162, 178.

[289] On the policy of Philip Augustus in regard to the nobles, see _Mably_, _Observations_, vol. i. p. 246; _Lerminier_, _Philos. du Droit_, vol. i. p. 265; _Boulainvilliers_, _Hist. de l'Ancien Gouvernement_, vol. iii. pp. 147-150; _Guizot_, _Civilisation en France_, vol. iv. pp. 134, 135; _Courson_, _Hist. des Peuples Brétons_, Paris, 1846, vol. ii. p. 350.

[290] 'No subjects ever enjoyed the right of coining silver in England without the royal stamp and superintendence; a remarkable proof of the restraint in which the feudal aristocracy was always held in this country.' _Hallam's Middle Ages_, vol. i. p. 154.

[291] _Brougham's Polit. Philos._ 1849, vol. i. p. 446. In addition to the evidence there given on the right of coinage, see _Mably's Observations_, vol. i. p. 424, vol. ii. pp. 296, 297; and _Turner's Normandy_, vol. ii. p. 261.

[292] _Hallam's Supplemental Notes_, pp. 304, 305.

[293] 'Saint-Louis consacra le droit de guerre.... Philippe le Bel, qui voulut l'abolir, finit par le rétablir.' _Montlosier_, _Monarchie Française_, vol. i. pp. 127, 202: see also pp. 434, 435, and vol. ii. pp. 435, 436. Mably (_Observations_, vol. ii. p. 338) mentions 'lettres-patentes de Philippe-de-Valois du 8 février 1330, pour permettre dans le duché d'Aquitaine les guerres privées,' &c.; and he adds, 'le 9 avril 1353 le roi Jean renouvelle l'ordonnance de S. Louis, nommée la quarantaine du roi, touchant les guerres privées.'

Out of this difference between the aristocratic power of France and England, there followed many consequences of great importance. In our country the nobles, being too feeble to contend with the crown, were compelled, in self-defence, to ally themselves with the people.[294] About a hundred years after the Conquest, the Normans and Saxons amalgamated; and both parties united against the king in order to uphold their common rights.[295] The Magna Charta, which John was forced to yield contained concessions to the aristocracy; but its most important stipulations were those in favour of 'all classes of freemen.'[296] Within half a century, fresh contests broke out; the barons were again associated with the people, and again there followed the same results,--the extension of popular privileges being each time the condition and the consequence of this singular alliance. In the same way, when the Earl of Leicester raised a rebellion against Henry III., he found his own party too weak to make head against the crown. He, therefore, applied to the people:[297] and it is to him that our House of Commons owes its origin; since he, in 1264, set the first example of issuing writs to cities and boroughs; thus calling upon citizens and burgesses to take their place in what had hitherto been a parliament composed entirely of priests and nobles.[298]

[294] Sir Francis Palgrave (in his _Rise and Progress of the English Commonwealth_, vol. i. pp. 51-55) has attempted to estimate the results produced by the Norman Conquest; but he omits to notice this, which was the most important consequence of all.

[295] On this political union between Norman barons and Saxon citizens, of which the first clear indication is at the end of the twelfth century, compare _Campbell's Chancellors_, vol. i. p. 113, with _Brougham's Polit. Philos._ vol. i. p. 339, vol. iii. p. 222.

In regard to the general question of the amalgamation of races, we have three distinct kinds of evidence:

1st. Towards the end of the twelfth century, a new language began to be formed by blending Norman with Saxon; and English literature, properly so called, dates from the commencement of the thirteenth century. Compare _Madden's Preface to Layamon_, 1847, vol. i. pp. xx. xxi., with _Turner's Hist. of England_, vol. viii. pp. 214, 217, 436, 437.

2nd. We have the specific statement of a writer in the reign of Henry II., that 'sic permixtæ sunt nationes ut vix discerni possit hodie, de liberis loquor, quis Anglicus, quis Normannus sit genere.' _Note in Hallam's Middle Ages_, vol. ii. p. 106.

3rd. Before the thirteenth century had passed away, the difference of dress, which in that state of society would survive many other differences, was no longer observed, and the distinctive peculiarities of Norman and Saxon attire had disappeared. See _Strutt's View of the Dress and Habits of the People of England_, vol. ii. p. 67, edit. Planché, 1842, 4to.

[296] 'An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter.' _Hallam's Middle Ages_, vol. ii. p. 108. This is very finely noticed in one of Lord Chatham's great speeches. _Parl. Hist._ vol. xvi. p. 662.

[297] Compare _Meyer_, _Instit. Judic._ vol. ii. p. 39, with _Lingard's England_, vol. ii. p. 127, and _Somers Tracts_, vol. vi. p. 92.

[298] 'He is to be honoured as the founder of a representative system of government in this country.' _Campbell's Chief-Justices_, vol. i. p. 61. Some writers (see, for instance, _Dalrymple's Hist. of Feudal Property_, p. 332) suppose that burgesses were summoned before the reign of Henry III.: but this assertion is not only unsupported by evidence, but is in itself improbable; because at an early period the citizens, though rapidly increasing in power, were hardly important enough to warrant such a step being taken. The best authorities are now agreed to refer the origin of the House of Commons to the period mentioned in the text. See _Hallam's Supplement_, _Notes_, pp. 335-339; _Spence's Origin of the Laws of Europe_, p. 512; _Campbell's Chancellors_, vol. i. p. 155; _Lingard's England_, vol. ii. p. 138; _Guizot's Essais_, p. 319. The notion of tracing this to the wittenagemot is as absurd as finding the origin of juries in the system of compurgators; both of which were favourite errors in the seventeenth, and even in the eighteenth century. In regard to the wittenagemot, this idea still lingers among antiquaries: but, in regard to compurgators, even they have abandoned their old ground, and it is now well understood that trial by jury did not exist till long after the Conquest. Compare _Palgrave's English Commonwealth_,