who were afterwards known in France by the name of the third estate, and in England by the name of commons. The people, as well as the members of higher dignity, were admitted to a share of the legislative power. Thus, by ■ law, A. D. 803, it is ordained, "that the question shall be put to the people, with respect to every new law, and if they shall agree to it, they shall confirm it by their signature." Capit. vol. i. 394. There are two capitularia which convey to us a full idea of the part which the people took in the administration of government. When they felt the weight of any grievance, they had a right to petition the sovereign for redress. One of these petitions, in which they desire that ecclesiastics might be exempted from bearing arms, and from serving in person against the enemy, is still extant. It is addressed to Charlemagne, A. D. 830, and expressed in such terms as could have been used only by men conscious of liberty, and of the extensive privileges which they possessed, They conclude with requiring him to grant their demand, if he wished that they should any longer continue faithful subjects to him. That great monarch, instead of being offended or surprised at the boldness of their petition, received it in a most gracious manner, and signified his willingness to comply with it. But sensible that he himself did not possess legislative authority, he promises to lay the matter before the next general assembly, that such things as were of common concern to all might be there considered and established by common consent. Capitul. tom. i. p. 405-409. As the people by their petitions brought matters to be proposed in the general assembly, we learn from another capitu lare the form in which they were approved there, and enacted as laws. The propositions were read aloud, and then the people were required to declare whether they assented to them or not. They signified their assent by crying three times," We are satisfied," and then the capitulare was confirmed by the subscription of the monarch, the clergy, and the chief men of the laity. Capitul. tom. i. p. 627. A. D. 822. It seems probable from a capitulare of Carolus Calvus, A. D. 851, that the sovereign could not refuse his assent to what was proposed and established by his subjects in the general assembly. Tit. ix. 6. Capitul. vol. ii. p. 47. It is unnecessary to multiply quotations concerning the legislative power of the national assembly of France, under the second race, or concerning its right to determine with regard to peace and war. The uniform style of the Capitularia is an abundant confirmation of the former. The reader who desires any farther information with respect to the latter, may consult Les Origines ou l'Ancien Gouvernement de la France, &c. tom. iii. p. 87, &c, What has been said with respect to the admission of the people or their representatives into the supreme assembly merits attention, not only in tracing the progress of the French government, but on account of the light which it throws upon a similar question, agitated in England, concerning the time when the commons became part of the legislative body in that kingdom.

NOTE [39]. PAGE 78.

THAT important change which the constitution of France underwent, when the legislative power was transferred from the great council of the nation to the king, has been explained by the French antiquaries with less care than they bestow in illustrating other events in their history. For that reason I have endeavoured with greater attention to trace the steps which led to this memorable revolution. I shall here add some particulars, which tend to throw additional light upon it. The Leges Salice, the Leges Burgundionum, and other codes published by the several tribes which settled in Gaul, were general laws extending to every person, to every province and district where the authority of those tribes was acknowledged. But they seem to have become obsolete; and the reason of their falling into disuse is very obvious. Almost the whole property of the nation was allodial when these laws were framed. But when the feudal institutions became general, and gave rise to an infinite variety of ques tions peculiar to that species of tenure, the ancient codes were of no use in deciding with regard to these, because they could not contain regulations appli cable to cases which did not exist at the time when they were compiled. This considerable change in the nature of property, made it necessary to publish the new regulations contained in the Capitularia. Many of these, as is evident from the perusal of them, were public laws extending to the whole French

nation, in the general assembly of which they were enacted. The weakness of the greater part of the monarchs of the second race, and the disorder into which the nation was thrown by the depredations of the Normans, encouraged the barons to usurp an independent power, formerly unknown in France. The nature and extent of that jurisdiction which they assumed, I have formerly considered. The political union of the kingdom was at an end, its ancient constitution was dissolved, and only a feudal relation subsisted between the king and his vassals. The regal jurisdiction extended no further than the domains of the crown. Under the last kings of the second race, these were reduced almost to nothing. Under the first kings of the third race, they comprehended little more than the patrimonial estate of Hugh Capet, which he annexed to the crown. Even with this accession, they continued to be of small extent. Valley, Hist. de France, tom. iii. p. 32. Many of the most considerable provinces in France did not at first acknowledge Hugh Capet as a lawful monarch. There are still extant several charters, granted during the first years of his reign, with this remarkable clause in the form of dating the charter; " Deo regnante, rege expectante," regnante domino nostro Jesu Christo, Francis autem contra jus regnum usurpante Ugone rege. Bouquet Recueil, tom. x. p. 544. A monarch whose title was thus openly disputed, was not in a condition to assert the royal jurisdiction, or to limit that of the barons.

All these circumstances rendered it easy for the barons to usurp the rights of royalty within their own territories. The Capitularia became no less obsolete than the ancient laws; and customs were every where introduced, and became the sole rule by which all civil transactions were conducted, and all causes were tried. The wonderful ignorance, which became general in France, during the ninth and tenth centuries, contributed to the introduction of customary law. Few persons, except ecclesiastics, could read; and as it was not in the power of such illiterate persons to have recourse to written laws, either as their guide in business, or their rule in administering justice, the customary law, the knowledge of which was preserved by tradition, universally prevailed.

During this period, the general assembly of the nation seems not to have been called, nor to have once exerted its legislative authority. Local customs regulated and decided every thing. A striking proof of this occurs in tracing the progress of the French jurisprudence. The last of the Capitularia collected by M. Baluze, was issued in the year 921, by Charles the Simple. An hundred and thirty years elapsed from that period to the publication of the first ordonnance of the kings of the third race, contained in the great collection of M, Lauriere, and the first ordonnance, which appears to be an act of legislation, extending to the whole kingdom, is that of Philip Augustus, A. D. 1190. Ordon. tom. i. p. 1. 18. During that long period of two hundred and sixty-nine years, all transactions were directed by local customs, and no addition was made to the statutory law of France. The ordonnances, previous to the reign of Philip Augustus, contain regulations, the authority of which did not extend beyond the king's domains.

Various instances occur of the caution with which the kings of France ventured at first to exercise legislative authority. M. l'Ab. de Mably produces an ordonnance of Philip Augustus, A. D. 1206, concerning the Jews, who, in that age, were in some measure the property of the lord in whose territories they resided. But it is rather a treaty of the king with the countess of Champagne, and the compte de Dampierre, than an act of royal power; and the regulations in it seem to be established not so much by his authority, as by their consent. Observat, sur l'Hist. de France, ii. p. 355. In the same manner an ordonnance of Louis VIII., concerning the Jews, A. D. 1223, is a contract between the king and his nobles, with respect to their manner of treating that unhappy race of men. Ordon. tom. i. p. 47. The Establissemens of St. Louis, though well adapted to serve as general laws to the whole kingdom, were not published as such, but only as a complete code of customary law, to be of authority within the king's domains. The wisdom, the equity, and the order conspicuous in that code of St. Louis, procured it a favourable reception throughout the kingdom, The veneration due to the virtues and good intentions of its author, contributed not a little to reconcile the nation to that legislative authority which the king began to assume. Soon after the reign of St. Louis, the idea of the king's posVOL. II.-72

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sessing supreme legislative power became common. If," says Beaumanoir, "the king makes any establishment, especially for his own domain, the barons may nevertheless adhere to their ancient customs; but if the establishment be general, it shall be current throughout the whole kingdom, and we ought to believe that such establishments are made with mature deliberation, and for the general good." Count de Beauvoisis, c. 48. p. 265. Though the kings of the third race did not call the general assembly of the nation, during the long period from Hugh Capet to Philip the Fair, yet they seem to have consulted the bishops and barons who happened to be present in their court, with respect to any new law which they published. Examples of this occur, Ordon. tom. i. p. 3. & 5. This practice seems to have continued as late as the reign of St. Louis, when the legislative authority of the crown was well established. Ordon. tom. i. p. 58. A. D. 1246. This attention paid to the barons, facilitated the kings acquiring such full possession of the legislative power, as enabled them afterwards to exercise it without observing that formality.

The assemblies distinguished by the name of the States General, were first talled, A. D. 1302, and were held occasionally from that period to the year 1614, since which time they have not been summoned. These were very different from the ancient assemblies of the French nation, under the kings of the first and second race. There is no point with respect to which the French antiquaries are more generally agreed, than in maintaining that the States General had no suffrage in the passing of laws, and possessed no proper legislative jurisdiction. The whole tenor of the French history confirms this opinion. The form of proceeding in the States General was this:-The king addressed himself, at opening the meeting, to the whole body assembled in one place, and laid before them the affairs on account of which he had summoned them. Then the deputies of each of the three orders, of nobles, of clergy, and of the third estate, met apart, and prepared their cahier or memorial, containing their answer to the propositions which had been made to them, together with the representations which they thought proper to lay before the king. These answers and representations were considered by the king in his council, and generally gave rise to an ordonnance. These ordonnances were not addressed to the three estates in common. Sometimes the king addressed an ordonnance to each of the estates in particular. Sometimes he mentioned the assembly of the three estates. Sometimes he mentioned the assembly of that estate to which the ordonnance is addressed. Sometimes no mention at all is made of the assembly of estates, which suggested the propriety of enacting the law. Preface, au tom. iii. des Drdon. p. xx. Thus the States General had only the privilege of advising and emonstrating; the legislative authority resided in the king alone.

NOTE [40]. PAGE 80.

If the parliament of Paris be considered only as the supreme court of justice, every thing relative to its origin and jurisdiction is clear and obvious. It is the ancient court of the king's palace, new modelled, rendered stationary, and invested with an extensive and ascertained jurisdiction. The power of this court, while employed in this part of its functions, is not the object of present consideration. The pretensions of the parliament to control the exercise of the legislative authority, and its claim of a right to interpose with respect to public affairs and the political administration of the kingdom, lead to inquiries attended with great difficulty. As the officers and members of the parliament of Paris were anciently nominated by the king, were paid by him, and on several occasions were removed by him at pleasure (Chronic. Scandaleuse de Louis XI. chez les Mem. de Comines, tom. ii. p. 51. Edit. de M. Lenglet de Fresnoy), they cannot be considered as representatives of the people, nor could they claim any share in the legislative power as acting in their name. We must therefore search for some other source of this high privilege. The parliament was originally composed of the most eminent persons in the kingdom. The peers of France, ecclesiastics of the highest order, and noblemen of illustrious birth, were members of it, to whom were added some clerks and counsellors, learned in the laws. Pasquier Recherches, p. 44, &c. Encyclopedie, tom. xii. Art. Parlement, p. 3. 5. A court thus constituted, was properly a committee of the States General of the kingdom, and was composed of those barons and fideles, whom

the kings of France were accustomed to consult with regard to every act of jurisdiction or legislative authority. It was natural, therefore, during the intervals between the meetings of the States General, or during those periods when that assembly was not called, to consult the parliament, to lay matters of public concern before it, and to obtain its approbation and concurrence, before any ordonnance was published, to which the people were required to conform. 2. Under the second race of kings, every new law was reduced into proper form by the chancellor of the kingdom, was proposed by him to the people, and when enacted, was committed to him to be kept among the public records, that he might give authentic copies of it to all who should demand them. Hincm. de Ord. Palat. c. 16. Capitul. Car. Calv. tit. xiv. § 11. tit. xxxiii. The chancellor presided in the parliament of Paris, at its first institution. Encyclopedie, tom. iii. art. Chancelier, p. 88. It was therefore natural for the king to continue to employ him in his ancient functions of framing, taking into his custody, and publishing the ordonnances which were issued. To an ancient copy of the Capitularia of Charlemagne, the following words are subjoined: "Anno tertio clementissimi domini nostri Caroli Augusti, sub ipso anno, hæc facta Capitula sunt, et consignata Stephano comiti, ut hæc manifesta faceret Parisiis mallo publico, et illa legere faceret coram Scabineis, quod ita et fecit, et omnes in uno consenserunt, quod ipsi voluissent observare usque in posterum, etiam omnes Scabinei, Episcopi, Abbates, Comites, manu propria subter signaverunt." Bouquet Recueil, tom. v. p. 663. Mallus signifies not only the public assembly of the nation, but the court of justice held by the Comes, or Micsus dominicus. Scabini were the judges, or the assessors of the judges in that court. Here then seems to be a very early instance, not only of laws being published in a court of justice, but of their being verified or confirmed by the subscription of the judges. If this was the common practice, it naturally introduced the verifying of edicts in the parliament of Paris. But this conjecture I propose with that diffidence, which I have felt in all my reasonings concerning the laws and institutions of foreign nations. 3. This supreme court of justice in France was dignified with the appellation of parliament, the name by which the general assembly of the nation was distinguished towards the close of the second race of kings; and men, both in reasoning and in conduct, are wonderfully influenced by the familiarity of names. The preserving the ancient names of the magistrates established while the republican government subsisted in Rome, enabled Augustus and his successors to assume new powers with less observation and greater ease. The bestowing the same name in France upon two courts, which were extremely different, contributed not a little to confound their jurisdiction and functions.

All these circumstances concurred in leading the kings of France to avail themselves of the parliament of Paris, as the instrument of reconciling the people to the exercise of legislative authority by the crown. The French, accustomed to see all new laws examined and authorized, before they were pub lished, did not sufficiently distinguish between the effect of performing this in the national assembly, or in a court appointed by the king. But as that court was composed of respectable members, and who were well skilled in the laws of their country, when any new edict received its sanction, that was sufficient to dispose the people to submit to it.

When the practice of verifying and registering the royal edicts in the parliament of Paris became common, the parliament contended that this was necessary in order to give them legal authority. It was established as a fundamental maxim in French jurisprudence, that no law could be published in any other manner; that without this formality, no edict or ordonnance could have any effect; that the people were not bound to obey it, and ought not to consider it as an edict or ordonnance, until it was verified in the supreme court, after free deliberation. Roche-flavin des Parlemens de France, 4to. Gen. 1621. p. 921. The parliament, at different times, hath, with great fortitude and integrity, opposed the will of their sovereigns; and, notwithstanding repeated and peremptory requisitions and commands of the crown, hath refused to verify and publish such edicts as it conceived to be oppressive to the people, or subversive of the constitution of the kingdom. Roche-flavin reckons, that between the year 1562 and the year 1589, the parliament refused to verify more than a hundred edicts of the kings. Ibid. 925. Many instances of the spirit and con.

stancy with which the parliaments of France opposed pernicious laws, and asserted their own privileges, are enumerated by Limnæus in his Notitiæ Regni Francia, lib. i. c. 9. p. 224.

But the power of the parliament to maintain and defend this privilege, bore no proportion to its importance, or to the courage with which the members asserted it. When any monarch was determined that an edict should be carried into execution, and found the parliament inflexibly resolved not to verify or publish it, he could easily supply this defect by the plenitude of his regal power. He repaired to the parliament in person, he took possession of his seat of justice, and commanded the edict to be read, verified, registered, and published in his presence. Then, according to another maxim of French law, the king himself being present, neither the parliament, nor any magistrate whatever, can exercise any authority, or perform any function. Adveniente Principe, cessat magistratus. Roche-flavin, ibid. p. 928, 929. Encyclopedie, tom. ix. Art. Lit. de Justice, p. 581. Roche-flavin mentions several instances of kings who actually exerted this prerogative, so fatal to the residue of the rights and liberties transmitted to the French by their ancestors. Pasquier produces some instances of the same kind. Rech. p. 61. Limnæus enumerates many other instances, but the length to which this note has swelled, prevents me from inserting them at length, though they tend greatly to illustrate this important article in the French history, p. 245. Thus by an exertion of prerogative, which, though violent, seems to be constitutional, and is justified by innumerable precedents, all the efforts of the parliament to limit and control the king's legislative authority are rendered ineffectual.

I have not attempted to explain the constitution or jurisdiction of any parliament in France, but that of Paris. All of them are formed upon the model of that most ancient and respectable tribunal, and all my observations concerning it, will apply with full force to them.

NOTE [41]. PAGE 81.

THE humiliating posture in which a great emperor implored absolution is an event so singular, that the words in which Gregory himself describes it, merit a place here, and convey a striking picture of the arrogance of that pontiff. "Per triduum, ante portam castri, deposito omni regio cultu, miserabiliter, utpote discalceatus, et laneis indutus, persistens, non prius cum multo fletu apostolicæ, miserationis auxilium, et consolationem implorari destitit, quam omnes qui ibi aderant, et ad quos rumor ille pervenit, ad tantam pietatem, et compassionis miserecordiam movit, ut pro eo multis precibus et lacrymis intercedentes, omnes quidem insolitam nostræ mentis duritiem mirarentur; nonnulli vero in nobis non apostolica sedis gravitatem, sed quasi tyrannice feritatis crudelitatem esse clamârunt." Epist. Gregor. ap. Memoire della Contessa Matilda da Fran. Mar. Florentini, Lucca, 1756, vol. i. p. 174.

NOTE [42]. PAGE 85.

As I have endeavoured in the history to trace the various steps in the progress of the constitution of the empire, and to explain the peculiarities in its policy very fully, it is not necessary to add much by way of illustration. What appears to be of any importance, I shall range under distinct heads.

1. With respect to the power, jurisdiction, and revenue of the emperors. A very just idea of these may be formed by attending to the view which Pfeffel gives of the rights of the emperors at two different periods. The first at the close of the Saxon race, A. D. 1024. These, according to his enumeration, were the right of conferring all the ecclesiastical benefices in Germany; of receiving the revenues of them during a vacancy; of mortmain, or of succeeding to the effects of ecclesiastics who died intestate. The right of confirming or of annulling the elections of the popes. The right of assembling councils, and of appointing them to decide concerning the affairs of the church. The right of conferring the title of king upon their vassals. The right of granting vacant fiefs. The right of receiving the revenues of the empire, whether arising from the imperial domains, from imposts and tolls, from gold or silver mines, from the taxes paid by the Jews, or from forfeitures. The right of governing Italy as its proper sovereigns. The right of erecting free cities and of establishing