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especially to Spain and the Netherlands, we should still more distinctly see how representation followed the charter, and grew out of feudal notions. But we have no wish to weary our readers by any such survey. A glance, however, at the corresponding history of our neighbour France, while it will show the same principles operating elsewhere, will also corroborate what has been said of the progress of our House of Commons. Notwithstanding the advantage which is said to have accrued to kingly power in that country by reason of its having grown on the conquest of the great fiefs, the same difficulty occurred to the crown of France as to that of Eugland in raising money without consent of their subjects. There, too, the States-General were accordingly convened, to which the chartered towns sent their representatives. But in France there was no union between the burghers and the nobility; on the contrary, the burghers were more jealous of the privileges of the nobles than even of the power of the Crown. These privileges were the first object of their attack: the Crown protected the nobility, and the nobility were willing to assist him in dispensing with the States-general.
This origin of the representative system is a striking instance of the indirect and circuitous route in which human affairs seem to progress, and it instructs us to look at the notions prevalent in the general mind for the real causes of momentous changes. "What great events from trifling causes spring!" has been a frequent exclamation.
But what are called "great events are often such only to the imagination, or to the persons immediately concerned; they are perhaps matters of indifference in the real history of mankind. The change of a dynasty, or the conquest of a kingdom, may leave the life of man just where it was. If it should be found that society had gained a new idea, a new
principle of conduct-had advanced a step in the art of government-this would be 66 a great event, but it would hardly be traceable to some one trifling cause," but rather to very many causes acting on the public mind, some remote, some direct, and acting perhaps through a long period of time. The introduction of the principle of representation is a great event; but we must reverse the usual exclamation. All the pomp of circumstance attends upon the causethe result itself steals unperceived into the world. The tumult and uproar of feudal times, and the barbarian conquest, were the noisy precursors that prepared the way for this unheeded novelty. Society seems to have been driven back to its first elements, in order that, at its reconstruction, another invention should be added to our schemes of polity.
Representation, viewed as a complete theory of politics-a theory which is to solve, for all future times, the problem of human governmentis manifestly defective: it proceeds on the supposition that the wisest election will be made by the greatest number of electors, and carries with it the altogether impracticable conclusion, that a man is bound to obey the laws of his country only on the ground of his having given his assent, or having had some share in their construction. Representation cannot safely pretend to be more than a conventional method of electing the senate, or any other body of rulers. But then let this also be borne in mind, that we should never have enjoyed the benefits of this conventional institute, unless there had existed in the country at large some notions of individual right, however obscure and ill-defined, leading to its adoption. A theory arose in the minds of the commonalty which has its fit result in a method of election, not to be determined by the theory, but shaped according to the times and the people.
THE JUDICIAL COMBAT.
CHIVALRY is the only remaining institution of the middle ages that we are here desirous of characterizing; but before we touch on this, (which we shall do very lightly,) let us drop a word, in passing, upon the Judicial Combat, an elder and independent institution, which reveals to us the
martial spirit of the times, and prepares us to expect that the virtues of dawning civilisation would be grafted, as on their main stock, on the passions of the warrior. Nor is it, perhaps, undeserving of remark, that war had earned a sort of judicial sacredness before it was enlisted in the service of
the cross, and called on to encamp around the tomb at Palestine.
As to those numerous ordeals of which we read-such as walking upon burning ploughshares, holding in the hand a heated iron, or plunging the supposed criminal in the water, to see whether he would sink or swimthey, no doubt, deserve to be enumerated amongst the historical curiosities of the times; but we nowhere read, nor is it possible to believe, that they were ever the frequent and ordinary methods by which truth and falsehood, guilt and innocence, were to be determined. They were too unskilfully framed to have borne the test of repeated experiment; they could only have been an occasional, unsystematized folly; they belong rather to the manners than the jurisprudence of the people. There was one mode of trial, however, partaking of the nature of an appeal to Heaven; namely, this of the judicial combat, which, though hardly less absurd, undoubtedly prevailed, and was the favourite method of deciding all legal controversies, whether civil or criminal. But then the judicial combat was not only supported by a superstitious faith that victory would fall to the true man or the innocent, it was demanded by a fierce and warlike people, impatient of law, and confident in their prowess, who held it the highest prerogative of free men to defend their own cause by their own right arm. It partook of the nature of the ordeal, but still more of another character; namely, the permitted violence of men too rude and warlike to submit to a peaceful arbitration of their claims-who would have been satisfied with no decision in which force had not the casting vote-who would have thought
"Arms ridiculous, useless the forgery Of brazen shield or spear," unless with these they had been al lowed to maintain and establish their own claims.
The judicial combat was a sort of jurisprudence which the feudal baron could perhaps administer quite as well as the most learned judge who ever presided at Westminster Hall; and this made it still more acceptable among a rude nobility, proud of the privilege of executing justice, and accounts probably for its application to all persons, and to all manner of questions. That all ranks and conditions might have
the benefit of so enlightened a system of laws, those beneath the dignity of a knight might confirm their testimony by the weight of their cudgels, and champions were allowed to women and to the clergy. And not only did this very compendious method of judicial investigation decide on the innocence or veracity of the individual brought before the court, but if, after the facts had been determined, the law itself were uncertain, the wisdom of the Bench might be assisted by sending down the issue to be tried in the lists. It was at one time an unsettled point whether the son of an elder brother, or the next living brother, should succeed to the estate-the law was decided at the point of the lance.
According to the rules of the judicial combat, the accused might not only challenge his accuser, but might challenge any witness who gave his testimony against him; and, on the continent, he might even challenge the peers, or the baron himself who passed judgment on him. This was called an appeal of false judgment, and was tried by arms, with great solemnity, in the court of the king or the next superior lord. On reading such a passage as the following, which is extracted from Robertson's Survey of the State of Europe, prefixed to his history of Charles V., one is quite perplexed, so egregious appears the folly it exposes, how to believe it; one is apt to make a sort of mental reservation, and without venturing exactly to contradict the author, to resolve internally that there is some mistake or exaggeration. "To complete," he says, "the absurdity of this military jurisprudence, even the character of a judge was not sacred from its violence. Any one of the parties might interrupt a judge when about to deliver his opinion; might accuse him of iniquity and corruption in the most reproachful terms, and throwing down his gauntlet, might challenge him to defend his integrity in the field; nor could he without infamy refuse to accept the defiance, or decline to enter the lists against such an adversary." The passage perhaps requires a little explanation. Robertson is here speaking of this appeal of false judgment; but the sacred character of judge, which he somewhat indignantly describes as being thus violated, was sustained, be it remembered, by the same sort of person as the challenger himself. These judges were not men
of peace, clothed in ermine, and venerable with age and learning; they were either the peers or equals of the challenger, or of his feudal superior, a baron, not of the coif, but of the sword. The trial of this appeal took place, as we have said, in the court of the Lord paramount, where the challenger did battle either with the first of the peers who had passed judgment on him, with three of their number, or with the whole of them, according to certain rules for this species of forensic display. If in the baron's court, where the accused was first brought to trial, as peers chose to give a judgment which they should have thus gallantly to defend, the baron himself was compelled to uphold the justice of his own court; which must needs have made him anxious to have about him ablebodied and stout-hearted councillors. Accordingly, there might accrue this advantage from even so preposterous a thing as the appeal of false judgment-it might present, more especially as it prevailed where subinfeudation had been permitted, the administration of justice from falling into mean and contemptible hands. In England, there was no appeal of false judgment, or rather none that was tried by arms. And in France, as no challenge could be given of the king's court, there being no superior court into which the appeal could be carried, there was one expedient by which the lord might escape the inconvenience of a combat, if in those fighting days this could possibly be thought an inconvenience. Should the criminal be too powerful to be dealt with by his immediate superior, the cause could be carried at once to the king's court, or he could send down his peers to try it.
Perhaps our readers may not be unwilling to take a glance at the manner in which the combat was dealt with by the English law, as it advanced in judicial wisdom and dignity. Even after that jurisprudence had assumed some degree of form and consistency, its lawyers were compelled to admit the combat into the system. They were fain to reason upon it as a mode of testing the credibility of a witness to be applied when there was a failure of corroborative evidence. Reason, before she triumphs over an absurdity, labours to make it look as much like good sense as she can. If a general belief existed that the party who spoke
truth would prevail in the combat, few men, it was argued, would dare to maintain a downright perjury in single fight, or if they did, would, under the fearful presentiments of an evil conscience, be likely to succeed in the encounter. At all events, it was but leaving, it might be said, to the chance of battle those cases which, as they afforded no grounds for legal decision, must in some sort be left to chance. After the trial by jury had been extensively applied by Henry II., there still remained a class of cases where the principle of the combat was exclusively applicable. Bracton, a law writer of the period, mentions a case of this kind. A person was charged with having poisoned a man; the accuser, called the appellant, (from an old French word, appeller, to accuse,) was willing, in the language of the times, to prove the fact on the body of the accused, the appellee. The accused, however, was not willing that his body should be used for any such judicial purpose, and desired to be tried by a jury-by the country, as it was then styled. But it was decided that he had no election-he must defend himself per corpus, by his body; for, says Bracton, "the patria, the country could know nothing of a concealed fact like this."
At a later time the well-known encounter between the Dukes of Here. ford and Norfolk, which was interrupted so strangely by Richard II., was an instance of the strict application of the law of combat. The scandalous words which Hereford accused Norfolk of having uttered, being spoken in the presence of no witness, there could be no corroborative evidence; there was merely oath against oath, and the battle was to determine whose oath was strongest.
From the judicial combat, on the one hand, and, on the other, from a peculiar sense of honour generated by the institution of chivalry, we have derived our custom of duelling. The judicial combat had supplied men with the notion of a formal regulated engagement, by which legal disputes, especially between gentlemen, were to be decided; and chivalry created new offences by the extreme sensitiveness to personal indignity which it encouraged. By the law of the ancient Franks, if a freeman struck another freeman three blows, (a less number, we suppose, was not worth considera
tion,) he was fined three sous; if he drew blood, fifteen. With the descendant of those Franks, a single blow, however slight, could be avenged only by the blood of the aggressor. Nay, the lie given was a mortal offence. Yet the laws of a country made for all men, citizen and noble, knight and peasant, could not visit
with death a rude contradiction, or a blow, which wounded nothing but pride. When, therefore, the lists were abandoned as a place for the trial of legal controversies, they were re-occupied, and with somewhat more propriety, for the determination of those private quarrels which no law could hope to determine.
This leads to our subject of chivalry -on which who is there that loves not to descant? Yet the reader need not fear that we shall din or dazzle him with battle or with tournament.
It is the peculiar advantage of this our miscellaneous literature, that it allows the writer to give out upon old topics just what he thinks may be new or acceptable, without trudging his methodical way, treatise-fashion, over ground familiar to all. He is enabled to communicate, with as little of introductory matter as may be, just those observations or notices which he thinks himself entitled to call his own; and can at once place his subject in that aspect which appears to him novel, or which, at least, has come out to his optics, as he fancies, with more than usual distinctness.
Turning from romance to history, we are disappointed at finding that chivalry had so little influence on the manners of feudal barons who embraced the institution. If we regard these men of gentle blood in their more private life, we find them carrying on perpetual wars against each other, or even descending into the plains from their castles to pillage the inhabitants of towns, or the passing traveller; and, if we contemplate them as they come before us on the public stage, and in the full light of history, we find in their conduct, not only violence and bloodshed, but consummate treachery and falsehood, most unknightly vices. We need only turn to our own annals. Take the reign of Richard II., which immediately succeeded what we are accustomed to regard as the zenith of chivalry-we seem to be reading a page out of the worst period of Italian history, when the political adventurers of that country were constantly aiming at tyranny through fraud and assassination. Treachery more refined and cruelty less reluctant could hardly be practised; and the
only wonder is, that oaths and promises could continue to answer the purpose of deception, for which alone, in the court of Richard, they seem to have been employed. We begin to doubt if the virtues of chivalry ever existed except in fable and in song. But having disabused ourselves of the flattering notions which poets and fabulists may have instilled into us, we must not fall into the opposite error of a total and arid scepticism. The well-known fact that knights, when taken prisoner, were often released upon their parole, in order to obtain their ransom, shows that chivalry was not altogether a dead letter
-at least in the intercouse of war. The higher virtues of chivalry never could have belonged to a whole class, any more than the enthusiastic and single-hearted piety which led to a seclusion from the world could be perpetuated in an order of monks. Its disinterested heroism-its pursuit of glory, through deeds not of valour only, but performed in defence of the right -in the service of the weak, or for the advocacy of the true faith,-all this could have been realized only in a few singular and elevated spirits. But these, its true disciples and bright exemplars, threw a splendour over the whole order, and certainly extended throughout, and to the least of its members, a jealous sense of honour, and a fear of reproach from cowardice or falsehood, the effect of which European society feels to this day. Many a good knight might have been living in the worst of times, though the council-chamber of a crafty monarch was not the place to find him. Nor let us deny the institution its influence because it failed to answer purposes quite beyond its scope. From chivalry nothing could be expected in the way of political reformation. It taught no Roman or Attic virtue, whose object was the good of the commonwealth;
nor did it induce its members to look into forms of government, or take a vivid interest in their administration. Its virtue was quite personal, and the knight remained self-centred. He was not converted into a patriot; he was not connected any more closely to his own country. It was a European order he had entered; one which made him a cosmopolite, or denizen of all nations-an order which extended wherever the Church extended, under the shadow of whose might it grew and flourished. His best qualities unfitted him for an instrument of political amelioration. Fidelity to engage. ments, preserved with Stoic rigidity, was the leading virtue of a true knight; and, if once bound to a sovereign by personal allegiance, no views of expediency could have justified him in a departure from his plighted faith. How the king governed, was his responsibility—the knight had only to perform his own part-to maintain his own loyalty. Nor was it to be expected that chivalry, itself an aristocratic institution, could assist in breaking down those barriers which distinctions of birth had thrown up between the several classes of society. Every knight could give the accolade, but could give it only to one of gentle blood. It was a new order of nobility, highly favourable to the poor gentleman, or the younger brother, and therefore in some measure a counterpoise to that feudal nobility which was founded on the proprietorship of the soil. But, though confessedly the reward of sonal prowess, it served rather to increase than diminish the prejudice in favour of birth, by appearing to confine valour and courtesy to the wellborn; and, what is still more to the disparagement of knighthood, one is tempted to think, from the stories that are told, that not only were gentlemen the sole materials out of which knights could be made, but that gentlemen were the only objects on which the virtues of knighthood were worthy of being practised. The courtesies of war seem rarely to have been extended to the rude rabblement, as Spencer (himself, in this particular, a somewhat too knightly poet) would have called them, or to the plebeian townsmen, who were slaughtered with as little mercy by their chivalrous conquerors, as they ever were by conquerors in any age of the world. That beautiful instance of conduct related
of Sir Philip Sydney, was of a higher strain of chivalry than knights of old can be said to have attained. One of these might have passed the cup of water to a fellow knight, or to a poor gentleman, but hardly to the plebeian soldier. Even in the exercise of that chivalrous virtue, liberality, so especially extolled by romancers and troubadours, who had, we suspect, more interest in the largess of a knight than any other demonstration of virtue he could possibly make-even here, we meet with instances of the most curious obliquity of moral vision. Hallam relates the following excellent anecdote:-A Count of Champagne was petitioned by a poor knight for a sum to marry his daughter with. A rich burgess, who was standing by at the time, in order to relieve the Count of an importunate suitor, told the knight that the Count had already given away so much that he had nothing left. "How say you," cried the Count, turning to the unfortunate burgess, "that I have nothing left, when I have yourself!" And therewith he gave the rich citizen to the poor knight, who, nothing embarrassed, seized his prize by the collar, nor relinquished him till he had paid a ransom of 500 crowns. The contemporary writer, it seems, who tells the story, notes in it nothing but a signal instance of liberality. The Count, having nothing more to give to poor gentlemen who wanted a dowery for their daughters, gives a worthy burgess to the next petitioner-a whole burgess of very squeezable material.
After all these explanations and drawbacks, chivalry still remains a subject of just admiration, and will still continue to furnish the dream and romance of future ages. In dissecting its character, or tracing its origin, which are often one and the same process, there is no necessity to recur to the customs of the Germans or Seythians, or other barbarians, in their native woods, who introduced the young soldier into his military life, and placed the shield upon his arm with certain solemn ceremonies. Whether these solemnities were or were not of a religious character, they concern us little, for there is nothing extraordinary in the union of sacred rites with the profession of arms. Many people have mingled religion with their war-few have failed to do so-but with no equivalent result.