Chapter IV: Part 4

From all which Arguments 'tis very plain, that anciently there was no certain Law or Right of _Francogallia_ touching this Matter; but the _whole Power of disposing_ of it was lodged in the _Publick Council_ of the Nation. Indeed afterwards in the Reign of _Philip_ the 3d, (the 41st King) it was ordained, that certain Lordships might be set out and assigned to younger Brothers: But even of this Law there were various Interpretations, and many Controversies arose concerning Daughters; so that we can deliver nothing for certain in this Affair; only thus much we may truly say, That _if the Ancient Institution of our Ancestors ought to be our Rule, the Determination of this whole Matter must be left to the Publick General Council of the Nation:_ that according to the Number of Children, some particular Lordships or Territories, may _(by its Authority)_ be assigned for their Maintenance.

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CHAP. VIII.

_Of the_ Salick Law, _and what Right_ Women _had in the
King's their Father's Inheritance_.

Because we have undertaken to give an Account of the _Law_ and _Right_ of _Regal Inheritance_, we must not omit making Mention of the _Salick Law_; which is both daily discours'd of by our Countrymen, and in the Memory of our Forefathers serv'd to appease a great and dangerous Contention, which arose touching the Succession to the Crown. For when (_Anno_ 1328.) _Charles the Fair_, Son of _Philip the Fair_, died, leaving his Wife with Child of a Daughter, (which some Months after was born) _Edward King of England_ (Son of _Isabella_, the Daughter of _Philip the fair_, and Sister to _Charles_ lately dead) claimed the Inheritance of his Grandfather's Kingdom as his Right. But _Philip of Valois_, Cousin germain by the Father's Side to the deceased King, standing up, alledged that there was an ancient Regal Law, called the _Salick Law_, by which _all Women_ were excluded from the Inheritance of the Crown. Now this Law both _Gaguinus_ and other Writers of like Stamp tell us, was written by _Pharamond_; and he calls it a most famous Law, even to his Time. For in his Life of _Philip of Valois_; "The _Salick_ Law (says he) was a Bar to _Edward_'s Title; which Law being first given by _Pharamond_ to the _Franks_, has been religiously observed, even to those Days. By that Law, only the Heirs Male of our Kings are capable of governing the Kingdom, and no Females can be admitted to that Dignity. The Words of that Law are these: _Nulla hereditatis portio de terrâ Salicâ ad mulierem venito; Let no Part of the Inheritance of_ Salick _Land come to a Woman_. Now (says _Gaguinus_) the _French_ Lawyers call _Salick_ Land, such as belongs only to the King, and is different from the _Alodial_ which concerns the Subjects; to whom, by that Law, is granted a free Dominion of any thing, not excluding the Princely Authority." And to the same Purpose, not only almost all the _Francogallican Historians_, but even all the _Lawyers_ and _Pettifoggers_ have wrote to this Day, as _Paponius_ testifies, _Arrest._ lib. 4. cap. 1. So that now the mistake has prevailed so far, as to have obtain'd the Force of a Law. To explain this, it must be remembred (which we formerly gave an Account of) that the _Franks_ had two Seats of their Empire, and two Kingdoms; One in _France_, which remains to this Day; The other beyond the _Rhine_, near the River _Sala_; from whence they were called _Salii_, and _Salici Franci_ (joyning the two Names together) but for the most part briefly _Salici_; the Kingdom of these last, and even their very Name is in a Manner extinct. _Ammianus Marcellinus_ makes mention in his History (as we told you before) of these _Salii_, and shews, that they are called the _Eastern Franks_, as the others were called the _Western_. Now as there were two Kingdoms of the _Franks_, so they had different Laws: those that belonged to the _Salii_, were called _Salick_; those that belonged to the _Francogalli_, were called _French. Eguinarthus_ in his Life of _Charles_ the Great says thus:--"After he had assumed the Imperial Title, finding that his Peoples Laws were in many Things deficient, (_for the_ Franks _have two Laws very different from each other in many Cases_,) he thought of adding such as were wanting."--The Author of the Preface to the _Salick_ Law has this Passage.--"The renowned Nation of the _Franks_, before it was converted to the Catholick Faith, enacted the _Salick_ Law by the Great Men of the Nation, who at that Time were their Governors; and from among a great many, four Persons were chosen; _Wisogast, Arbogast, Salogast_, and _Windogast_; who, during three Conventions [_tres mallos_] carefully perusing all Causes from their Original, gave their Judgment and Decree of every one of them in this Manner, &c.--" _Sigebertus_ in Chron. anni 422. & _Otto Frising_, lib. 4. cap. penult. make use of almost the same Words. "From that time (say they) the Laws recommended to them by _Wisigastaldus_ and _Salogastus_, began to be in Force. By this _Salogastus_, they tell us, that Law was invented, which from his Name is to this Day called the _Salick_ Law; and the most noble of the _Franks_, called _Salici_, observe it at this time."--Thus say the old Chronographers. By which we may refute the Error of such as derive the _Salick_ Law, _à Sale_, that is, _Prudence_; or what is called corruptly _Lex Salica_, instead of _Gallica_; than which nothing can be more absurd. But much greater Errors spring from the same Fountain: First, That People are so far imposed upon by those Authors, as to believe the _Salick_ Law had reference to the _Publick Right_ of the _Commonwealth_ and the _Government_, also to the _Hereditary Succession_ of the Kingdom. Now the very Records or Tables of this _Salick_ Law were not many Years ago found and brought to Light; from whose Inscription it appears, that they were first written and publish'd about _Pharamond'_s time: Besides, that all the Heads and Articles, both of the _Salick_ and _French_ Laws, were Constitutions relating only to _private Right_ between Man and Man, and meddled not with the _Publick_ Right of the Kingdom or Commonwealth: among the rest, one Chapter, _tit. 62._ has this in it.--"Of the _Salick_ Land, no Part or Portion of Inheritance passes to a Female; but this falls to the Male Off-spring; that is, the Sons shall succeed to the Inheritance: But where a Dispute shall arise (after a long Course of Time) among the Grandsons and great Grandsons, _de alode terræ_; [Footnote: _Allodium_ is the contrary to _Feudum, Gothick_ words, for which 'tis difficult to find proper _English_.] let it be divided, _Non per stirpes sed per capita."_ The like Law, _Extat apud_ Ripuarios, _tit._ 58. _Item apud_ Anglos, _tit._ 7. Where they are so far from enacting any thing relating to the Inheritances of Kingdoms, that they do not so much as affect _Feudal_ Successions, but only belong to _Allodial_; altho' a Portion was assigned to Women out of those _Allodial_ Lands. Which Way soever this Matter may be, 'tis manifest in the first Place, that altho' no Article, either of the _Frank_ or _Salick_ Law were extant, which debars Women from the Inheritance of the Crown; yet the Customs and Institutions of a Nation, preserv'd inviolate by universal Consent, during so many Ages, obtain the Force of a written Law: For tho' _Childeric_, the Third King, left two Daughters behind him at his Death, the Kingdom was given to his Brother _Lotharius_, and his Daughters excluded. Again, after the Death of _Cherebert_ the 5th King, who left three Daughters; the Succession devolv'd upon his Brother _Sigebert_. Also when _Gontrannus_ King of _Burgundy_ and _Orleans_ died, the Kingdom was conferr'd on his Brother _Sigebert_, not on his Daughter _Clotilda_. Lastly, _Philip_ of _Valois's_ Advocates might with greater Caution, as well as Efficacy, have argued for him out of the _Feudal_ Law, by which all Inheritances of _Fiefs_ descend to the Male Issue only, and not to the Female, who are not admitted to them. And when there happens a Want of Heirs Males in that Line or Branch wherein the Fief is lodged, then the _Feudum_ or _Fief_ returns back to the other Stock or Branch: which was the very Case at that Time. But such Fiefs as thro' a Depravation of the Law, are convey'd down to Women, cannot properly be called _Feuda_, but _Feudastra_, as in other of our Writings we have made it appear.

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CHAP. IX.

_Of the Right of Wearing a large Head of Hair peculiar to
the Royal Family._

It will not be amiss in this Place to give some Account of a Custom of our Ancestors, relating to the Hair worn by the Royal Family: For 'tis recorded, that our Forefathers had a particular Law concerning it; _viz._ That such as were chosen Kings by the People, or were of the Regal Family, shou'd preserve their Hair, and wear it parted from the Forehead, on both Sides the Head, and anointed with sweet Oyl, as an Ornament and peculiar Mark of their being of the Royal Family; whilst all other Persons, how nobly born soever, had no right to wear a large Head of Hair; but were obliged to go with their Heads shorn or shaved, upon the Account (as 'tis probable) that they shou'd be more ready and expedite in their continual military Exercises, as the _Roman_ Histories tell us of _Julius Cæsar_, and several others. _Aimoinus_ lib. I cap. 4. says--"The _Franks_ chusing for themselves a King, according to the Custom of other Nations, raised, _Pharamond_ to the Throne, to whom succeeded his Son Clodio crinitus; For at that Time the Kings of the _Franks_ wore large Heads of Hair. Also lib. 3. cap. 61. _Gundoaldus_ being brought up by his Mother after the regal Manner, wore a long Head of Hair, according to the Custom of the ancient Kings of the _Franks_." In like Manner _Agathius_, lib. de Bell. Goth. I. where he speaks of _Clodoveus_, one of our Kings, who was taken in Battel by the _Burgundians_, (he calls him _Clodamirus_). "As soon (says he) as his Horse had thrown him, the _Burgundians_ espying his large Head of Hair, which fell back over his Shoulders, presently knew him to be the Enemy's _General_; for 'tis not lawful for the Kings of the _Franks_ to cut off their Hair, but even from their Childhood they remain untrimm'd, and always keep a large Head of Hair hanging low down upon their Backs." And we have many Instances that it was our Ancestors Custom, whenever they either deprived any one of the Crown, or took away all Hopes of obtaining the Kingdom, to cut off his Head of Hair. _Aimoinus_ in the same Place--"He earnestly beholding him, commanded his Hair to be cut off, denying him to be his Son.--Also--Having caused his Hair to be cut off a second Time, he put him in Prison at _Cologne_; from whence making his Escape, he fled to _Narses_, and suffer'd his Hair to grow again, &c." Which Story _Gregory_ of _Tours_, lib. 6. cap. 24. likewise records. Also _cap._ 44. where he speaks of King _Theodorick_.--"The Franks (says he) rose up in Arms against him, and cast him out of the Kingdom, and cut off his Head of Hair by Force." But there is a very remarkable, or rather horrible Story related by _Gregory_ of _Tours_, concerning _Crotilda_, the Queen Mother; who chose rather to have the Heads of her two Grandsons cut off than their Hair. 'Tis in his 3d Book, _cap._ 18.--"Our Mother (says the King to his Brother) has kept our Brother's Sons with her, and intends to advance them to the Throne; we must concert what Measures ought to be taken in this Affair; whether we shall order their Hair to be cut off, and to reduce them to the State of common Subjects; or whether we shall cause them to be put to Death, and afterwards divide the Kingdom between us: Then they sent _Archadius_ with a Pair of Scissars in one Hand, and a naked Sword in t'other to the Queen; who approaching her, showed them both to her, and said, Your Sons, most Glorious Queen, have sent me to know your Pleasure, what Destiny you are pleased to allot to these two Youths; whether by suffering their Hair to be cut off, you will have them to live; or whether you had rather have both their Throats cut. Whereupon She chose rather to see them both kill'd, than to have their Hair cut off." I further observe, that it was the Fashion when our Kings went to single Combat, to have their long Hair tied up in a large Knot a-top of their Helmets like a Crest; and that was their Cognizance or Mark in all their Fights. Therefore _Aimoinus_, lib. 4. cap. 18. where he speaks of the dreadful Combat between King _Dagobert_ and _Bertoaldus_, Duke of the _Saxons:_ "The King (says he) having his Hair, together with a Part of his Helmet, cut off with a Blow of a Sword on his Head, sent them by his Esquire to his Father, desiring him to hasten to his Assistance."

Now when I consider what might be the Reasons of this Institution, I can find none but this. That since it had been the ancient Custom of the _Gauls_ and _Franks_ to wear their Hair long (as it was also of the _Sicambri_, and of most others in those Parts) our Ancestors thought fit to continue, and in Process of Time to appropriate this Ornament, and Mark of Distinction to the Regal Family. No Person, tho' but indifferently learn'd, needs any Proof that the _Gauls_ wore their Hair long, especially when he calls to mind that of the Poet _Claudian_, ex lib. in Ruffin. 2.

_Inde truces flavo comitantur vertice_ Galli
_Quos_ Rhodanus _velox_, Araris _quos tardior ambit_,
_Et quos nascentes explorat gurgite_ Rhenus.

Now that the _Franks_ did so too, whom we have shewn to be descended from the _Chauci_ or _Chaiici_, that single Passage of the Poet _Lucan_ is sufficient to confirm.

_Et vos_ Crinigeros _bellis arcere_ Chaycos
_Opposui, petitis_ Roman, &c.

Which being so, we may easily comprehend the Reason why Strangers, who were ill affected towards our Nation, contumeliously called our Kings, who wore so great a Head of Hair, _Reges setatos, bristled Kings_; and not only so, but (tho' Bristles and long Hair be common to Lyons, Horses and Swine, all which are therefore called _Setosi_, or _Setigeri_) they stretched the Contumely so far, as to say, they had Hogs Bristles. From whence arose that filthy Fiction and foul Name, [Greek: trichorachaton] of which _Georgius Cedrenus_ writes thus in his History, [Greek: "Helegonto de hoi ek tou genous hekenou katagomenoi kristatoi ho hermêneuetai trichorachai heichon gar kata tês racheôs autôn trichas ekphuomenas hôs choiroi"] that is, "They who were of the Kingly Race were called _Cristati_, which may be interpreted _Bristleback'd_; because they had all along their Back bones, Bristles growing out like Swine"--, Which Passage of _Cedrenus_, I believe, is corrupted, and instead of the Word [Greek: kristatoi], ought to be [Greek: setatoi], or perhaps both. For as some Persons called them pleasantly _Christati_ by Reason of their large erected Bunch of Hair upon the Tops of their Helmets; so their Ill-Willers called them upbraidingly _Setati_, or _Setigeri_. If _Cedrenus_ had not been so very plain in this Passage, and the Appellation of _Cristati_ be to be retained, I shou'd rather have thought they might have been called [Greek: trichocharaktoi], as being remarkable for their large Heads of Hair.

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CHAP. X.

_The Form and Constitution of the_ Francogallican
_Government_.

These Things being thus briefly premised, we think it proper now to set forth in what Manner the Kingdom of _Francogallia_ was constituted. And we have already made it plain, that the _People_ reserv'd to themselves all the Power not only of _Creating_, but also of _Abdicating_ their _Kings_. Which Form of Government 'tis manifest our Ancestors had; before they were brought under by the _Romans_, "So that _the People_ (as _Cæsar_ tells us) _had no less authority and Power over their Kings, than the Kings had over the People_. Populus non minus in Regem, quam rex in populum imperii ac Potestatis retinet." Altho' 'tis probable the _Franks_ did not derive this Constitution of their Commonwealth from the _Gauls_; but from their Countrymen, the _Germans_; of whom _Tacitus_, lib. de mor. _Germ._ says,--"Regibus non est infinita aut libera Potestas. Their _Kings_ have not an _Arbitrary_ or _Unlimited Power_." Now 'tis manifest, that no Form of Government is more remote from Tyranny, than this: for not one of the three distinguishing Marks, or Characteristicks of _Tyranny_, which the old Philosophers make mention of, can be found in the Form and Constitution of our Government. First, as to a forced Obedience; _i. e._ that a King shou'd rule over a People against their Wills; we have shewn you already, that the _Supreme Power_, both of _Electing_ and _Abdicating_ their _Kings_, was in the _People_. Secondly, as to a Life-guard composed of Foreigners, (which they reckon the Second Mark of _Tyranny_); so far were our _Francogallian_ Kings from making use of Mercenary Strangers for their Guards, that they had not so much as their own Countrymen and Citizens, for that Purpose; but placed their whole Trust and Confidence in the Love and Fidelity of their Subjects; which they thought a sufficient Guard.

As an Argument of this, we may observe what _Gregory of Tours_ writes, lib. 7. cap. 18. and _Aimoinus_, lib. 3. cap. 63.--"King _Gontrannus_ being inform'd by an ordinary Fellow at _Paris_, that _Faraulphus_ lay in Wait for him, presently began to secure his Person by Guards and Weapons; so that he went no whither (not even to the Holy Places) without being surrounded with armed Men and Soldiers." We have at present a very famous History extant of St. _Lewis_, written by that excellent Person _Joannes Jonvillæus_, who lived very familiarly with that King for many Years; in which whole History there is not the least Mention made of Guards or Garisons, but only of Porters or Doorkeepers; which in his native Tongue, he calls Ushers.

Now as to the third Mark of _Tyranny_, which is when Matters are so carried, that what is done tends more to the Profit and Will of the _Person governing_, than to that of the _governed_, or the Good of the _Commonwealth_; we shall hereafter prove, that the _Supreme_ Administration of the _Francogallican Kingdom was lodged in the Publick Annual Council of the Nation, which in After-Ages was called the Convention of the Three Estates_. For the Frame of this Government was the very same which the _Ancient Philosophers_, and among them _Plato_ and _Aristotle_ (whom _Polybius_ imitates) judged to be the best and most excellent in the World, as being made up and constituted of a Mixture and just Temperament of the three Kinds of Government, _viz._ the _Regal, Noble_, and _Popular_. Which Form of a _Commonwealth, Cicero_ (in his Books _de Republicâ_) prefers to all other whatsoever. For since a _Kingly_ and a _Popular_ Government do in their Natures differ widely from each other, it was necessary to add a _third_ and _middle State_ participating of both, _viz._ that of the _Princes_ or _Nobility_; who, by Reason of the Splendor and Antiquity of their Families, approach, in some Degree, to the _Kingly Dignity_; and yet, being _Subjects_, are upon that Account on the same Foot and Interest with the _Commons_. Now of the Excellency of this Temperament in a Commonwealth, we have a most remarkable Commendation in Cicero, taken by him out of _Plato_'s Books _de Republicâ_; which, because of its singular Elegancy, we shall here insert at length.

"Ut in fidibus (inquit) ac tibiis, atque cantu ipsò, ac vocibus, tenendus est quidam concentus ex distinctis sonis, quem immutatum ac discrepantem aures eruditæ ferre non possunt; isque concentus ex dissimillimarium vocum moderatione concors tamen efficitur, & congruens; Sic ex summis, & mediis, & infimis interjectis ordinibus, ut sonis, moderatâ ratione _civitas_, consensu dissimillimorum concinit, & quæ _harmonia_ a musicis dicitur in _cantu_, ea est in _Civitate concordia_: arctissimum atq; optimum in Repub. vinculum incolumitatis, quæ fine justitiâ nullo pacto esse potest. _i. e._ As in Fiddles and Flutes, and even in Singing and Voices, a certain Consort of distinct Sounds is to be observed; which if it be alter'd, or not tunable, skilful Hearers cannot bear or endure: And this Consort of very different Tones, is, through as just Proportion of the Notes, rendred Concord, and very agreeable: Even so a Commonwealth, judiciously proportioned, and composed of the _first_, the _middlemost_, and the _lowest_ of the _States_, (just as in the Sounds) through the Consent of People very unlike to each other, becomes agreeable: And what Musicians in Singing call _Harmony_, that in a Commonwealth is _Concord_; the very best and strongest Bond of Safety for a Government, which can never fail of being accompanied with _Justice_." Our Ancestors therefore following this Method, of a just Mixture of all the three Kinds, in the constituting their Commonwealth, most wisely ordained, that every Year on the _Calends_ of _May_, a Publick _Council_ of the whole Nation should be held: at which _Council_ the great Affairs of the Republick shou'd be transacted by the common Consent and Advice of all the _Estates_. The Wisdom and Advantage of which Institution, appears chiefly in these three things: First, That in the Multitude of prudent Counsellors, the Weight and Excellency of Counsel shews it self more apparently, as _Solomon_ and other Wise Men have said. Secondly, _Because it is an essential part of liberty, that the same persons, at whose cost and peril any thing is done, shou'd have it done likewise by their authority and advice: for_ ('tis a common Saying) _what concerns all, ought to be approved by all_. Lastly, That such Ministers of State as have great Power with the Prince, and are in high Employments, may be kept within the Bounds of their Duty, thro' the Awe they stand in of this _great Council_, in which all the Demands and Grievances of the Subject are freely laid open.--"For such Kingdoms as are ruled by the arbitrary Will and Pleasure of _one Prince_, may most justly (as _Aristotle_ in his third Book of Politicks observes) be reckon'd Governments of Sheep; and brute Beasts, without Wit or judgment; not of Freemen, who are endued with Understanding, and the Light of Reason." The Case is thus--That even as Sheep are not guided or tended by one of their own Kind, nor Boys govern'd by one of themselves, but by something of more Excellency; even so a Multitude of Men ought not to be ruled and govern'd by one single Person, who perhaps understands and sees less than several others among them; but by many select Persons, who, in the Opinion of all Men, are both very prudent and eminent; and who act by united Counsels, and, as it were, by one Spirit, composed and made up of the Minds of many Wise Men.

Now whereas it may be objected, that most Kings have a constant _Privy Council_ to advise them in the Administration of publick Affairs: We answer, That there is a great deal of Difference between a Counsellor of the _King_, and a Counsellor of the _Kingdom_. This last takes care of the Safety and Profit of the whole Commonwealth; the other serves the Humour and studies the Conveniences of one Man only; and besides, these King's Counsellors reside, for the most part, in one certain Place; or at least near the Person of the Prince, where they cannot be supposed to be throughly acquainted with the Condition of the more remote Cities or Provinces; and being debauched by the Luxury of a Court life, are easily depraved, and acquire a lawless Appetite of Domineering; are wholly intent upon their own ambitious and covetous Designs; so that at last they are no longer to be consider'd as Counsellors for the Good of the Kingdom and Commonwealth, but Flatterers of a single Person, and Slaves to their own and Prince's Lusts.

Concerning this Matter, we have a most excellent Saying of the Emperor _Aurelian_, recorded by _Flavius Vopiscus_.--"My Father used to tell me (says _Aurelian_) that the Emperor _Dioclesian_, whilst he was yet a private Man, frequently said, That nothing in the World was more difficult than to govern well. For, four or five Persons combine together, and unanimously agree to deceive the Emperor they determine what shall be approved or disapprov'd. The Emperor, who, for the most part, is shut up in his Palace, knows nothing of the Truth of Affairs; he is compell'd to hear and see only with their Ears and Eyes; he makes judges, such Persons as do not deserve to be made so; he removes from Offices in the Commonwealth such as he ought to keep in; in short, a good, provident and excellent Emperor is sold by such Counsellors."--Now our Ancestors, in the constituting their Commonwealth, wisely avoiding these Mischiefs (as Mariners wou'd do dangerous Rocks) decreed that the _Publick_ Affairs shou'd be managed by the joynt Advice and Counsel of _all_ the _Estates_ of the _Kingdom_. To which Purpose the _King_, the _Nobles_, and the _Representatives_ of the _Commons_ out of the several Provinces, were obliged to meet at a certain Time every Year. And this very same Institution we find to have been that of many other Nations. First in our Ancient _Gallia_, where the Administration of Publick Affairs was intrusted with the _Common Councel of the chosen Men in the whole Nation_ as we have above demonstrated. But because we are now speaking of a Kingdom, I shall give Instances of them. 'Tis man felt, that in old Times the Council of the _Amphictions_ was instituted in _Greece_ (as _Suidai_ and others testify) by King _Amphyction_, Son of _Deucalion_; and therein it was ordained, that at a certain appointed Time every Year, _Representatives_ chosen out of the Twelve Commonwealths of _Greece_ shou'd meet at _Thermopylæ_, and deliberate concerning all the weighty Affairs of the Kingdom and Commonwealth: For which Reason, _Cicero_ calls this the _Common Council of Græcia_, _Pliny_ calls it the _Publick Council_.

We find the like Wisdom in the Constitution of the _German Empire_, wherein the _Emperor_ represents the _Monarchical_ State, the _Princes_ represent the _Aristocratical_, and the _Deputies of the Cities_ the _Democratical_; neither can any Matter of Moment appertaining to the whole _German Republick_ be firm and ratified, but what is first agreed upon in that _great Convention of the Three Estates_. To this End was framed that ancient and famous Law of the _Lacedemonians_, which joyned the _Ephori_ to their _Kings_; "Who, as Plato writes, were designed to be like Bridles to the Kings, and the Kings were obliged to govern the Commonwealth by their Advice and Authority." _Pliny_, lib. 6. cap. 22. makes mention of the like Practice in the Island of _Taprobana_, where the King had thirty Advisers appointed by the People; by whose Counsel he was to be guided in the Government of the Commonwealth; "For fear (says he) lest the King if he had an unlimited Power should esteem his Subjects no otherwise than as his _Slaves_ or his _Cattel_."

Furthermore, we find the very same Form of Administration of the Kingdom of England, in _Polydore Virgil_'s History of _England_, lib. 11. where he has this Passage in the Life of _Henry_ the First.--"Before this Time the Kings used to summon a publick Convention of the People in order to consult with them, but seldom: So that we may in some Manner say, that the Institution derived its Original from _Henry_: which took such deep Root, that it has always continued ever since, and still does so; _viz._ That whatever related to the Well governing or Conservation of the _Commonwealth_, ought to be debated and determin'd by the _great Council_. And that if either the _King_ or the _People_ shou'd act any thing _alone_, it shou'd be esteemed _invalid_, and as _nothing_, unless it were first approved and established by the _Authority of that Council_. And for fear this _Council_ shou'd be cumbred with the Opinions of an _unskilful Multitude_, (whose Custom it is to distinguish nothing justly) it was at first establish'd by a certain Law, what _Sort_ of Persons, and what _Numbers_ either of the _Priests_ or of the _People_ shou'd be called to this _Council_, which, after a _French_ Name, they commonly call _A Parliament_; which every King at the Beginning of his Reign uses to hold, and as often afterward as he pleases, or as _Occasion_ requires." Thus far _Polydore Virgil_.

But among all the Laws and Customs of this Kind, there is none so remarkable as that of the _Spaniards_; who, when they _elect_ a King in the _Common-Council_ of _Arragon_, (in order to keep up a perpetual Remembrance of their Privileges) represent a Kind of Play, and introduce a certain _Personage_, whom they call by the Name of _The Law of Arragon_, [Footnote: _La justitia di Arragon._] whom (by a publick Decree) they declare to be greater and more Powerful than their King; and afterwards they harangue the King (who is elected upon certain Terms and Conditions) in Words which (because of the remarkable Virtue and Fortitude of that Nation in repressing the _unbridled Will_ of their Prince,) we will here set down at length.--"Nos que valemos tanto come vos, ii podemos mas que vos; vos elegimos Reii con estas ii estas Conditiones; intra vos ii nos un que manda mas que vos: That is, We, who are of as great Value as you, and can do more than you, do elect you to be our King, upon such and such Conditions: Between you and us there is _one_ of _greater Authority_ than you."

Seeing then that the Case is so, and that _this has always been a constant and universal Law of all Nations, that are governed by a Kingly, and not by a Tyrannical Power_: 'Tis very plain, that this most valuable Liberty of holding a _Common-Council_ of the Nation, is not only a Part of the _People's Right_; but that all Kings, who by Evil Arts do oppress or take away this _Sacred Right_, ought to be esteemed _Violators of the Laws of Nations_; and being no better than _Enemies of Human Society_, must be consider'd not as _Kings_, but as _Tyrants_.

But to return to the Matter in Hand. Our Commonwealth being constituted by the Laws of our Ancestors, upon the Bottom above-mention'd, and participating of all the three Kinds of Government; it was ordain'd, that once every Year (and as much oftner as important Occasions should make it necessary) a _Solemn General Council_ shou'd be held: Which for that Reason, was called a _Parliament_ of the _Three Estates_. By that Word was meant a Convention or Meeting of Men out of several Parts of the Country to one Place, there to confer and deliberate concerning the Publick Welfare: And therefore all Conferences (tho' between Enemies) in order to a Peace or Truce are always in our Chronicles called by the Name of _Parliaments_. Now of this Council, the _King_ sitting in his Golden Tribunnal, was _chief_; next to him were the _Princes_ and _Magistrates_ of the Kingdom; in the third Place were the _Representatives_ of the several Towns and Provinces, commonly called the _Deputies_: For as soon as the Day prefix'd for this Assembly was come, the _King_ was conducted to the Parliament House with a Sort of Pomp and Ceremony, more _adapted to popular Moderation_, than to _Regal Magnificence_: which I shall not scruple to give a just account of out of our own Publick Records; it being a Sort of _Piety_ to be pleas'd with the Wisdom of our Ancestors; tho' in these most profligate Times, I doubt not but it wou'd appear ridiculous to our flattering Courtiers. The King then was seated in a _Waggon_, and drawn by _Oxen_, which a _Waggoner_ drove with his _Goad_ to the Place of Assembly: But as soon as he was arrived at the Court, or rather indeed the Venerable _Palace of the Republick_, the Nobles conducted the King to the Golden Throne; and the rest took their Places (as we said before) according to their Degrees. This _State_, and in this _Place_, was what was called _Regia Majestas, Royal Majesty_. Of which we may even at this Day observe a signal Remain in the King's Broad Seal, commonly called the _Chancery_ Seal. Wherein the King is not represented in a _military Posture_ a Horse-back, or in a _Triumphant Manner_ drawn in his Chariot by Horses, but sitting in his Throne _Robe'd_ and _Crown'd_, holding in his Right Hand the Royal Sceptre, in his Left the Sceptre of Justice, and presiding in his _Solemn Council_. And indeed, in that Place only it can be said that _Royal Majesty_ does truly and properly reside, where the great Affairs of the Commonwealth are transacted; and not as the unskilful Vulgar use to profane the Word; and whether the King plays or dances, or prattles with his Women, always to stile him YOUR MAJESTY.

Of all these Matters, we shall give only a few Proofs, out of many which we could produce. First, out of _Eginarthus_, who was _Chancellor_ to _Charles the Great_, and wrote his Life. These are his Words: "Wherever he went (speaking of _Charlemagn_) _about the publick Affairs_: he was drawn in a Waggon by a Pair of Oxen, which an ordinary Waggoner drove after his rustical Manner. Thus he went to the Courts of Justice, thus to the Place of the Publick Convention of his People, which every Year was celebrated for the Good of the Realm; and thus he used to return Home again."

_Joannes Nauclerus_ gives us an Account of the very same Thing, in almost the same Words, in _Chron. Generat. 26_. So does the _Author_ of the _Great Chronicle_, in the Beginning of his Life of _Charlemagn_, Fol. 77. Neither ought this to seem so great a Wonder to any, who considers it was the Fashion in those Days for our Kings and Queens, and the Royal Family, to be drawn by _Oxen_; of which we have one Instance in _Greg. Turon. lib. 3. cap. 26. "Deuteria_, (says he) Wife of King _Childebert_, seeing her Daughter by a former Husband grown to Woman's Estate, and fearing lest the King (being in Love with her) should lye with her, caused her to be put into a Sort of Litter with untamed Oxen, and thrown Headlong off a Bridge." _Aimoinus, lib. 4. cap. 30._ makes mention of the Golden Throne, where he speaks of King _Dagobert_: "He proclaimed, says he, _Generale PLACITUM in loco nuncupato Bigargio_, a _Great Council_ in a Place named _Bigargium_: To which all the Great Men of _France_ assembling with great Diligence on the Kalends of _May_, the King thus began his Speech to them, sitting on his _Golden Throne_." Also in his 41st Chapter, speaking of King _Clodoveus_--Sitting in the midst of them, on his _Golden Throne_, he spoke in this Manner, &c. _Sigebertus in Chron. Anni 662._--"'Tis the Ancient Custom (says he) of the Kings of the _Franks_, every _Kalends of May_, to preside in a Convention of all the People, to salute and be saluted, to receive Homage, and give and take Presents." _Georgius Cedrenus_ expresses this in almost the same Words: [Greek: katta de ton Maion mêna prokaithesesai epi pantos tou ethnous kai proskunin autois kai antiproskunisthai hup autô dôrophoreisthai te katta sunêpheian kai antididonai autois]

Now, concerning the _Authority_ of the _People_, who were thus gather'd together at the _Great Council_, we have many Testimonies, _Aimoinus, lib. 4. cap. 41._ speaking of _Clodoveus_ the Second; "Altho' (says that King in his Speech) the Care of our Earthly Principality _obliges_ us to call you together _Francigenæ cives_, and to consult you in Affairs relating to the Publick, &c."--Also in his 74th Chapter of the same Book--"In the Beginning of the Year he went into _Saxony_, and there he held a _General Convention every Year_, as he used to do every Year in _France_ also."--Again, _lib._ 4. _cap._ 13. where he speaks of _Charles_ the Great--"When the Hunting near _Aix la Chapelle_ was ended, as soon as he return'd, he held a _General Convention_ of his People, according to usual Custom, &c. _Cap._ 116. The Emperor having held Two _Conventions_, one at _Nimeguen_, the other at _Compiegn_, wherein he receiv'd the Annual Presents, &c. Again, _Cap._ 117. In the Month of _August_ he came to _Wormes_, and holding there the General Convention according to constant Practice, he received the Yearly Gifts which were offer'd him, and gave Audience to several Ambassadors, &c. Again, _Lib. 5. cap. 31._ The General _Placitum_ was held on the Ides of _June_, in the Town _Dusiacum_."

And this may suffice touching this solemn _General Council_, which both _French_ and _German_ Historians, thro' a deprav'd Custom of the _Latin_ Tongue, called by different Names; sometimes _Curia_, sometimes _Conventus Generalis_, but for the most Part _Placitum. Gregorius, lib. 7 cap. 14_ says thus:--"Therefore when the Time of the _Placitum_ approached, they were directed by King _Childebert, &c. Aimoinus, lib. 4. cap. 109._ In the middle of the Month he held the General Convention at _Thionville_, where there was a very great Appearance of the People of the _Franks_; and in this _Placitum_, the singular Compassion of the most Pious Emperor eminently show'd it self, &c."

Now it was the Custom in that _Council_ to send Presents from all Parts to the King; as may appear from many Places which might be quoted, wherein that _Council_ is called _Conventus Generalis. Aimoinus, lib. 4. cap. 64._ speaking of King _Pipin_--"He compell'd them (says he) to promise they would obey all his Commands, and to send him every Year at the Time of the _General Convention_, Three Hundred Horses, as a Gift and Token of Respect. _Item, cap. 85._ Not forgetting the Perfidy of the _Saxons_, he held the _General Convention_ beyond the _Rhine_, in the Town of _Kufftein_, according to the usual Custom."

This _Council_ was sometimes called by another Name, _Curia_, the _Court_; from whence proceeded the common Saying, when People went to the _King's Hall_ or _Palace, we are going to Court_; because they seldom approach'd the King, but upon great Occasions, and when a _Council_ was call'd. _Aimoinus, lib. 5. cap. 50. "Charles_, (says he) the Son of the _Danish King_, sued (or prosecuted) several Noblemen of _Flanders_ very conveniently at this _Curia_, or _Court_. _Item, cap. sequenti_; _Henry_ King of the _Romans_ being dead, at that Great and General _Court, Curia_, held at _Mentz. &c._ Also _Otto Frising._ _Lib. Frideric._ I. _cap._ 40. After these Things, the Prince enter'd _Bavaria_, and there celebrated a General _Curia, Court_, in the Month of _February_. _Item, cap._ 43. _Conrade_ King of the _Romans_, calling the Princes together at _Francfort_, a City of _East France_, celebrated there a _General Court_."

* * * * *

CHAP. XI.

_Of the_ Sacred Authority _of the_ Publick Council; _and
what Affairs were wont to be transacted therein_.

We think it necessary in this Place to consider what Kind of Affairs were wont to be transacted in this general _Annual Council_, and to admire the great _Wisdom_ of our Ancestors in _constituting our Republick_. We have (in short) observed that they are these that follow. First, the _Creating or abdicating of their Kings_. Next, the _declaring of Peace or War_. The _making of all Publick Laws_: The _Conferring_ of all _great Honours, Commands_, or _Offices_ belonging to the _Commonwealth_: The _assigning_ of any _part_ of the _deceased King's Patrimony_ to his Children, or giving _Portions_ to his _Daughters_, which they usually called by a _German_ Name _Abannagium_; that is, _pars exclusoria_, a Part set out for younger Children. Lastly, all such Matters as in Popular Speech are commonly called _Affairs of State_: Because it was not lawful to determine or debate of any Thing relating to the _Commonwealth_, but in the _General Council_ of the _States_.

We have already produced sufficient Proofs of the _Electing_ and _Abdicating_ their _Kings_, as well from the last _Will_ and _Testament_ of _Charles_ the _Great_, as from several other Authors: To which we will add this one Passage more out of _Aimoinus_, lib. 5. cap. 17. where speaking of _Charles_ the _Bald_, he says thus,--"Having summon'd a _General Council_ at [Footnote: _Crecy._] _Carisiacum_, he there first gave his Son _Charles arma virilia_; that is, he girt him with a Sword, or knighted him, and putting a Regal Crown upon his Head, assign'd _Neustria_ to him, as he did _Aquitain_ to _Pippin_."

Now concerning the _Administration_ of the _Kingdom_, _Aimoinus_ gives us this remarkable Instance, _lib._ 5. _cap._ 35. speaking of _Charles_ the _Bald_. "_Charles_ (says he) being about taking a Journey to _Rome_, held a general _Placitum_ on the Kalends of _June_ at _Compeign_; and therein was ordained under particular Heads, after what Manner his Son _Lewis_ should govern the Kingdom of _France_, in _Conjunction_ with his _Nobles_, and the rest of the _Faithful People_ of the _Realm_, till such time as he returned from _Rome_."

Also in the same Book, _cap._ 42. speaking of _Charles_ the _Simple_: "Whose Youth (says he) the principal Men of _France_ judging (as it was indeed) very unfit for the exercise of the Government of the Realm, they held a _General Council_ touching these weighty Affairs; and the great Men of the _Franks_, _Burgundians_, and _Aquitanians_ being assembled, elected _Odo_ to be _Charles'_s _Tutor_ and _Governor_ of the Kingdom."

Now concerning _the Power_ of _making Laws_ and _Ordinances_, that single Passage in _Gaguinus'_s Life of St. _Lewis_ is a sufficient Proof. "As soon (says he) as King _Lewis_ arrived at _Paris_, he called a _General Convention_, and _therein_ reformed the Commonwealth; making excellent Statutes relating to the Judges, and against the Venality of Offices, &c."

Concerning the _conferring_ the _great Honours and Employments_ upon _Persons of approved Worth, Aimoinus lib. 5. cap. 36._ gives us this Instance; speaking of _Charles_ the _Bald_, he tells us, "That whereas he began (before his Inauguration) to distribute the Governments and great Offices of the Realm according to his own liking; the _Great Men summoned a General Council_, and sent Ambassadors to the King; neither would they admit him to be crowned till he had made use of their Advice and Authority in disposing of those great Employments. The Nobles (says he) being very much displeas'd, because the King _conferr'd Honours without their Consent_; for that Reason, agreed together against him, and summoned a _general Convention_ in the Town of _Witmar_, from whence they sent Ambassadors to _Lewis_, as _Lewis_ likewise sent his Ambassadors to them, &c."

Also the Appendix to _Gregory_ of _Tours, lib. 11. cap. 54._ "That same Year (says he) King _Clotharius, cum Proceribus & Leudibus_, i. e. with the Nobility and free Subjects of _Burgundy_, met at _Troyes_, and when he earnestly solicited them to advance another Person to the same Place and Degree of Honour which _Warnhar_ (lately deceased) had enjoy'd, they unanimously refused to do it; and said, they would by no Means have any _Mayor of the Palace_, earnestly desiring the King to excuse them:" And thus they gained their Point with the King.

To this Head may be referr'd all _the Contentions_ of such _Princes_, as were foreseen might be _dangerous to the Commonwealth_. These were debated in the _General Council_. For _Aimoinus_, lib. 4 cap. I. where he speaks of _Clotharius_, Son of _Chilperic_, from whom Queen _Brunechild_ demanded the Kingdom of _Austratia_, says thus:--"_Clotharius_ made answer, that she ought to call a _Convention_ of the _Nobles_ of the _Franks_, and there debate (by common Consent) an Affair relating to the Community. That as for him, he would submit to their judgment in all Things, and would not obstruct in any Measure whatever they should command." The same Thing is recorded in the _Appendix_ to _Gregory_ of _Tours_, lib. II. "_Clotharius_ (says he) made Answer to her, that he would refer the Difference between them, to the Determination of the _Select Franks_, and promis'd to fulfil whatsoever they should ordain." Also _Aimoinus_ lib. 5. cap. 12. where he speaks of King _Lewis_ the _Pious_, who was grievously tormented with the Contentions of his Sons, says thus,--"When Autumn approached, they whose Sentiments differ'd from the Emperor's, were for having the _General Convention_ held in some Town of _France_.--_Item_ cap. 13. He appointed the _General Convention_ of his People to be held at _Thionville_. And after a little Time, summon'd his People to meet on the Feast of St. _Martin_, and used all his Endeavours to recal his Son _Pipin_ who had absented himself; but he refused to come, &c." _Gaguinus_ making Mention of this Same Passage, says; "When the Conspirators found out they should not be able to dethrone the King, without the Consent of the _Nobility in Convention_, they labour'd by all Means to have the _Great Council_ held within the Limits of _France_. But _Lewis_ knowing for certain that those _Franks_ were gained by his Enemies against him, refused it, and summon'd the Convention to meet at _Mentz_, and ordered that none should be admitted _Armed_ to the Council. But his Sons, (who had conspired against their Father) lest they should want the _Authority_ of a _Publick Convention_, assembled a Council at _Compiegne_, consisting of the Bishops and Nobility of the Kingdom. And _Lotharius_ taking his Father out of Custody, brought him to _Compiegne_."

Again, _Aimoinus_, lib. 5. cap. 38. where he speaks of Lewis _the Stammerer_, who held a _Council_ at _Marsua_, wherein he treated a Peace with his Cousin, says: "In that _Placitum_, or _Parliament_, these Articles which follow were agreed upon between them, _by and with the Consent of the faithful Subjects of the Realm_."

To proceed, We find further, that it was the Custom (when any _Prince_, or _Person_ of _Extraordinary Quality_, was _accused of any Crime_) to summon him to appear before the _Great Council_, and there he was to stand his _Trial_. Thus in the Reign of King _Clotharius_, when _Queen Brunechild_ stood accused, and was found guilty of many capital Crimes, the King made a Speech to the Estates of the _Great Council of Francogallia_, in these Words; which are recorded by _Aimoinus_, lib. 4. cap 1. "It belongs to you, my most dear Fellow-Soldiers, and high Nobility of _France_, to appoint what Kind of Punishment ought to be inflicted on a Person guilty of such enormous Crimes, &c." And _Ado Ætat 6. sub Anno_ 583. tells us, "The _Franks_ passing Sentence upon her in the King's Presence, condemn'd her to be torn in Pieces by wild Horses."

Now concerning the _dividing_ of the _Royal Patrimon_, and the _Appanages_, we have the same Person's Testimony, _lib. 5. cap. 94._ where speaking of _Charlemagn_, he has these Words--"These Matters being ended, the King held a _Convention_ of the _Nobility and Gentry_ of the _Franks_, for the making and maintaining a firm Peace among his Sons, and dividing the Kingdom into Three Parts, that every one of them might know what Part of it he ought to defend and govern, in Case they survived him."--Also in that Place where he speaks of the Partition made among the Children of _Lewis_, lib. 5. cap. 40. he says thus.--"They went to _Amiens_, and there they divided their Father's Kingdom among them, _according to the Advice and Direction of their faithful Subjects_." Further, _cap._ 41. where he writes of _Carloman_, who held his _Great Council_ then at _Worms_.----"To this _Placitum_ (says he) came _Hugo_, and preferred his Petition for that Part of the Kingdom, which his Brother _Lewis (in Locarium acceperat)_ had rented of him, or received in Pawn."

We may further observe, from very many Instances, that whenever the King had any expensive Design in Hand, such as the Building of Churches or Monasteries, he took first the Advice of the _Council_ of the _Estates_. For _Aimoinus_, lib. 4. cap. 41. where he speaks of _Clodoveus_ the Second, tells us, that sitting on his Throne, he began his Oration to the _General Council_ in these Words.--"_Quamquam Franciginæ cives, &c._ Altho' (says he) the Care I ought to take of my Kingdom, obliges me to take your Advice in all Matters relating to the Publick, &c."

And thus much may suffice on this Point. From all which we think it appears plainly, that the whole Power of the Administration of the Kingdom was lodg'd in the _Publick Council_, which they called _Placitum_; because according to the Idiom of the _Latin_ Tongue, _that_ is properly termed _Placitum_, which after having been proposed and debated in a Council of many Persons, is at last agreed to, and resolved upon by them. And therefore _Cicero_, with others of the Ancients, were wont to call such-like Determinations, _Placita Philosophorum_.

Since therefore the Matter is so, I hope the Opinion which we have formerly given in some of our other Books, will not be esteemed absurd; _viz._ That the common Form used by the King's Secretary in the last Clause of our Ordinances and Edits, _Quia tale est PLACITUM nostrum_, arises from hence: For anciently those Laws were written in the _Latin Tongue_, (as is sufficiently proved by _Aimoinus_, the _Capitulary of Charles the Great_, and many other Records); but afterwards when the King's Secretaries or Clerks began to make Use of the Vulgar Tongue, thro' Ignorance, or rather Malice, they translated it thus,--_Car tel est nostre Plaisir: For such is our Will and Pleasure_.

Now as to the _Power_ of the _People_, we have this farther Argument extant in the same Capitulary of _Charles the Great_.--"Let the _People_ (says it) be consulted touching all the Heads of the new Laws, which are to be added to the former; and after they have _all given their Consents_, let them set their Hands and Seals to every Article."

From which Words, 'tis apparent that the People of _France_ were wont to be bound by such Laws _only_, as they had publickly agreed to in their _Parliaments_. Also _in fine Leg. Aleman._ we find this Passage.--"This is decreed by the _King_ and his _Nobles_, and all the Christian _People_ which compose the Kingdom of the _Merovingians_." Also _Aimoinus_, lib. 5 cap. 38.--"In this _Placitum_ the Laws which follow were agreed upon, to be observed between them, by the _Consent_ of the faithful _Subjects_.--An Agreement made between the Glorious Kings, &c. by the _Advice_ and _Consent_ of their faithful Commons, &c."

Lastly, we cannot omit observing, that so great was the _Reputation_ and _Authority_ of this _General Council_, even among _Strangers_, that _foreign Princes_ submitted to have their Controversies and Differences decided by it. The _Appendix_ to _Greg. Turon._ lib. 11. cap. 37. _Anno_ 12. of _Theodorick_'s Reign, has this Passage in it.--"When _Alsaciones_, [perhaps _Alsatia_] in which Country he had been brought up, and which was left him by his Father _Childebert_, fell nevertheless to _Theodebert_, according to the Custom in Use among the _Barbarians_; the two Kings agreed that their Difference should be decided by the judgment of the _Franks_, (in _Salocissa castro_) in their Camp near the River _Sala_."

* * * * *

CHAP. XII.

_Of the Kingly Officers, commonly call'd_ Mayors of the
Palace.

Before we treat farther of the _uninterrupted Authority_ of the _Publick Council_, we think it not improper to say somewhat of those Regal great Officers, which, during the _Merovingian_ Race were called (_Majores domus_) Masters, or _Mayors of the Palace_. These having for some Time encroach'd upon the Kingly Power, finding at last a fit Opportunity, seiz'd upon it entirely as their own. Their Dignity near the Persons of our Kings seems to have been much the same with that of _Præfecti Pretorio_, or Generals of the Guards in the Time of the _Roman_ Emperors, who were sometimes also titled _Aulæ Præfecti_. They were usually appointed in and by the same _Convention_ which chose the _Kings_, and were wont to be Chiefs or Heads of the _Publick Council_. And upon this Account we frequently meet with such-like Expressions as these among our Historians.--"They elected such and such a Man to the Dignity of _Mayor of the Palace_. _Herchinold, Mayor of the Palace_, being dead, the _Franks_ conferr'd that Dignity upon _Ebroinus_, and appointed him to be _Mayor_ in the King's Court." Also--"They chose _Hilderick_ for their _King_, and _Wolfold_ for _Mayor of the Palace_." Which Quotations of ours might indeed have been made as properly in out foregoing Chapter, where we proved that the greater Employments were not usually given by the _Kings_, but appointed by the Yearly _General_ Council, and conferred upon Men of the greatest Fidelity and Probity.