Conscious of their own power and dignity, they pretended to the privilege of forming a separate bench in the diet [A. D. 1293]; and made good their pretensions.*

But in what way soever the representatives of cities first gained a place in the legislature, that event had great influence on the form and genius of government. It tempered the rigour of aristocratical oppression with a proper mixture of popular liberty it secured to the great body of the people, who had formerly no representatives, active and powerful guardians of their rights and privileges: it established an intermediate power between the king and the nobles, to which each had recourse alternately, and which at some times opposed the usurpations of the former, on other occasions checked the encroachments of the latter. As soon as the representatives of communities gained any degree of credit and influence in the legislature, the spirit of laws became different from what it had formerly been; it flowed from new principles; it was directed towards new objects; equality, order, the public good, and the redress of grievances, were phrases and ideas brought into use, and which grew to be familiar in the statutes and jurisprudence of the European nations. Almost all the efforts in favour of liberty in every country of Europe, have been made by this new power in the legislature. In proportion as it rose to consideration and influence, the severity of the aristocratical spirit decreased; and the privileges of the people became gradually more extensive, as the ancient and exorbitant jurisdiction of the nobles was abridged [19]. IV. The inhabitants of towns having been declared free by the charters of communities, that part of the people which resided in the country, and was employed in agriculture, began to recover liberty by enfranchisement. During the rigour of feudal government, as hath been already observed, the great body of the lower people was reduced to servitude. They were slaves fixed to the soil which they cultivated, and together with it were transferred from one proprietor to another, by sale, or by conveyance. The spirit of feudal policy did not favour the enfranchisement of that order of men. It was an established maxim, that no vassal could legally diminish the value of a fief, to the detriment of the lord from whom he had received it. In consequence of this, manumission by the authority of the immediate master was not valid; and unless it was confirmed by the superior lord of whom he held, slaves belonging to the fief did not acquire a complete right to their liberty. Thus it became necessary to ascend through all the gradations of feudal holding to the king, the lord paramount. A form of procedure so tedious and troublesome, discouraged the practice of manumission. Domestic or personal slaves often obtained liberty from the humanity or beneficence of their masters, to whom they belonged in absolute property. The condition of slaves fixed to the soil, was much more unalterable.

But the freedom and independence which one part of the people had obtained by the institution of communities, inspired the other with the most ardent desire of acquiring the same privileges; and their superiors, sensible of the various advantages which they had derived from their former concessions to their dependents, were less unwilling to gratify them by the grant of new immunities. The enfranchisement of slaves became more frequent; and the monarchs of France, prompted by necessity no less than by their inclination to reduce the power of the nobles, endeavoured to render it general [A. D. 1315 and 1318] Louis X. and Philip the Long issued ordinances, declaring, "That as all men were by nature freeborn, and as their kingdom was called the kingdom of Franks, they determined that it should be so in reality as well as in name; therefore they appointed

• Pfessel Abrege de l'histoire et droit d'Allemagne, p. 408 451. ↑ Establissemens de St. Louis, liv. ii. ch. 34. Ordon. tom. i. 283, not. (a)

that enfranchisements should be granted throughout the whole kingdom, upon just and reasonable conditions."* These edicts were carried into immediate execution within the royal domain. The example of their Sovereigns, together with the expectation of considerable sums which they might raise by this expedient, led many of the nobles to set their dependents at liberty and servitude was gradually abolished in almost every province of the kingdom [20]. In Italy, the establishment of republican government in their great cities, the genius and maxims of which were extremely different from those of the feudal policy, together with the ideas of equality, which the progress of commerce had rendered familiar, gradually introduced the practice of enfranchising the ancient predial slaves. In some provinces of Germany, the persons who had been subject to this species of bondage were released; in others, the rigour of their state was mitigated. In England, as the spirit of liberty gained ground, the very name and idea of personal servitude, without any formal interposition of the legislature to prohibit it, was totally banished.

The effects of such a remarkable change in the condition of so great a part of the people, could not fail of being considerable and extensive. The husbandman, master of his own industry, and secure of reaping for himself the fruits of his labour, became the farmer of the same fields where he had formerly been compelled to toil for the benefit of another. The odious names of master and of slave, the most mortifying and depressing of all distinctions to human nature, were abolished. New prospects opened, and new incitements to ingenuity and enterprise presented themselves to those who were emancipated. The expectation of bettering their fortune, as well as that of raising themselves to a more honourable condition, concurred in calling forth their activity and genius; and a numerous class of men, who formerly had no political existence, and were employed merely as instruments of labour, became useful citizens, and contributed towards augmenting the force or riches of the society which adopted them as members.

V. The various expedients which were employed in order to introduce a more regular, equal, and vigorous administration of justice, contributed greatly towards the improvement of society. What were the particular modes of dispensing justice, in their several countries, among the various barbarous nations, which overran the Roman Empire, and took possession of its different provinces, cannot now be determined with certainty. We may conclude, from the form of government established among them, as well as from their ideas concerning the nature of society, that the authority of the magistrate was extremely limited, and the independence of individuals proportionally great History and records, as far as these reach back, justify this conclusion, and represent the ideas and exercise of justice in all the countries of Europe, as little different from those which must take place in the most simple state of civil life. To maintain the order and tranquillity of society by the regular execution of known laws; to inflict vengeance on crimes destructive of the peace and safety of individuals, by a prosecution carried on in the name and by the authority of the community; to consider the punishment of criminals as a public example to deter others from violating the laws; were objects of government little understood in theory, and less regarded in practice. The magistrate could hardly be said to hold the sword of justice; it was left in the hands of private persons. Resentment was almost the sole motive for prosecuting crimes; and to gratify that passion, was considered as the chief end in punishing them. He who suffered the wrong, was the only person who had a right to pursue the aggressor, and to exact or remit the punishment. From a system of judicial procedure, so crude and defective,

* Ordon. tom. i. p. 583 653.

that it seems to be scarcely compatible with the subsistence of civil society, disorder and anarchy flowed. Superstition concurred with this ignorance concerning the nature of government, in obstructing the adminis tration of justice, or in rendering it capricious and unequal. To provide remedies for these evils, so as to give a more regular course to justice, was, during several centuries, one great object of political wisdom. The regulations for this purpose may be reduced to three general heads: To explain these, and to point out the manner in which they operated, is an important article in the history of society among the nations of Europe.

1. The first considerable step towards establishing an equal administration of justice, was the abolishment of the right which individuals claimed of waging war with each other, in their own name, and by their own authority. To repel injuries, and to revenge wrongs, is no less natural to man, than to cultivate friendship; and while society remains in its most simple state, the former is considered as a personal right no less alienable than the latter. Nor do men in this situation deem that they have a title to redress their own wrongs alone; they are touched with the injuries done to those with whom they are connected, or in whose honour they are interested, and are no less prompt to avenge them. The savage, how imperfectly soever he may comprehend the principles of political union, feels warmly the sentiments of social affection, and the obligations arising from the ties of blood. On the appearance of an injury or affront offered to his family or tribe, he kindles into rage, and pursues the authors of it with the keenest resentment. He considers it as cowardly to expect redress from any arm but his own, and as infamous to give up to another the right of determining what reparation he should accept, or with what vengeance he should rest satisfied.

The maxims and practice of all uncivilized nations, with respect to the prosecution and punishment of offenders, particularly those of the ancient Germans, and other barbarians who invaded the Roman Empire, are perfectly conformable to these ideas.* While they retained their native simplicity of manners, and continued to be divided into small tribes or societies, the defects in this imperfect system of criminal jurisprudence (if it merits that name) were less sensibly felt. When they came to settle in the extensive provinces which they had conquered, and to form themselves into great monarchies; when new objects of ambition presenting themselves, increased both the number and the violence of their dissensions; they ought to have adopted new maxims concerning the redress of injuries, and to have regulated, by general and equal laws, that which they formerly left to be directed by the caprice of private passion. But fierce and haughty chieftains, accustomed to avenge themselves on such as had injured them, did not think of relinquishing a right which they considered as a privilege of their order, and a mark of their independence. Laws enforced by the authority of princes and magistrates, who possessed little power, commanded no great degree of reverence. The administration of justice among rude illiterate people, was not so accurate, or decisive, or uniform, as to induce men to submit implicitly to its determinations. Every offended baron buckled on his armour, and sought redress at the head of his vassals. His adversary met him in like hostile array. Neither of them appealed to impotent laws, which could afford them no protection. Neither of them would submit points, in which their honour and their passions were warmly interested, to the slow determination of a judicial inquiry. Both trusted to their swords for the decision of the contest. The kindred and dependents of the aggressor, as well as of the defender, were involved in the quarrel. They had not even the liberty of remaining neutral. Such * Tacit. de Mor, German. cap. 21. Vell. Paterc. lib. ii. c. 118.

VOL. II.-4

as refused to act in concert with the party to which they belonged, were not only exposed to infamy, but subjected to legal penalties.

The different kingdoms of Europe were torn and afflicted, during several centuries, by intestine wars, excited by private animosities, and carried on with all the rage natural to men of fierce manners, and of violent passions. The estate of every baron was a kind of independent territory, disjoined from those around it, and the hostilities between them seldom ceased. The evil became so inveterate and deep-rooted, that the form and laws of private war were ascertained, and regulations concerning it made a part in the system of jurisprudence,* in the same manner as if this practice had been founded in some natural right of humanity, or in the original constitution of civil society.

So great was the disorder, and such the calamities, which these perpetual hostilities occasioned, that various efforts were made to wrest from the nobles this pernicious privilege. It was the interest of every sovereign to abolish a practice which almost annihilated his authority. Charlemagne prohibited it by an express law, as an invention of the devil to destroy the order and happiness of society; but the reign of one monarch, however vigorous and active, was too short to extirpate a custom so firmly esta blished. Instead of enforcing this prohibition, his feeble successors durst venture on nothing more than to apply palliatives. They declared it unlawful for any person to commence war until he had sent a formal defiance to the kindred and dependants of his adversary; they ordained that, after the commission of the trespass or crime which gave rise to a private war, forty days must elapse before the person injured should attack the vassals of his adversary; they enjoined all persons to suspend their private animosities, and to cease from hostilities, when the king was engaged in any war against the enemies of the nation. The church co-operated with the civil magistrate, and interposed its authority in order to extirpate a practice so repugnant to the spirit of Christianity. Various councils issued decrees, prohibiting all private wars; and denounced the heaviest anathemas against such as should disturb the tranquillity of society, by claiming or exercising that barbarous right. The aid of religion was called in to combat and subdue the ferocity of the times. The Almighty was said to nave manifested, by visions and revelations to different persons, his disapprobation of that spirit of revenge, which arined one part of his creatures against the other. Men were required, in the name of God, to sheathe their swords, and to remember the sacred ties which united them as Christians, and as members of the same society. But this junction of civil and ecclesiastical authority, though strengthened by every thing most apt to alarm and to overawe the credulous spirit of those ages, produced no other effect than some temporary suspensions of hostilities, and a cessation from war on certain days and seasons consecrated to the more solemn acts of devotion. The nobles continued to assert this dangerous privilege, they refused to obey some of the laws calculated to annul and circunscribe it; they eluded others; they petitioned; they remonstrated; they struggled for the right of private war as the highest and most honourable distinction of their order. Even so late as the fourteenth century, we find the nobles, in several provinces of France, contending for their ancient method of terminating their differences by the sword, in preference to that of submitting them to the decision of any judge. The final abolition of this practice in that kingdom, and the other countries in which it prevailed. is not to be ascribed so much to the force of statutes and decrees, as to the gradual increase of the royal authority, and to the imperceptible

Beaumanoir Coustumes de Beauvoisis, ch. 59, et les notes de Thaumassiere, p. 447. Pul. A. D. 801. Edit. Baluz vol. i p. 371.

↑ Capi

STATE OF EUROPE.

progress of juster sentiments concerning government, order, and public security [21].

The

2. The prohibition of the form of trial by judicial combat, was another considerable step towards the introduction of such regular government, as secured public order and private tranquillity. As the right of private war left many of the quarrels among individuals to be decided, like those between nations, by arms; the form of trial by judicial combat, which was established in every country of Europe, banished equity from courts of justice, and rendered chance or force the arbiter of their determinations. In civilized nations, all transactions of any importance are concluded in writing. The exhibition of the deed or instrument is full evidence of the fact, and ascertains with precision what each party has stipulated to perform But among a rude people, when the arts of reading and writing were such uncommon attainments, that to be master of either entitled a person to the appellation of a clerk or learned man, scarcely any thing was committed to writing but treaties between princes, their grants and charters to their subjects, or such transactions between private parties as were of extraordinary consequence, or had an extensive effect. greater part of affairs in common life and business were carried on by verbal contracts or promises. This, in many civil questions, not only made it difficult to bring proof sufficient to establish any claim, but encouraged falsehood and fraud, by rendering them extremely easy. Even in criminal cases, where a particular fact must be ascertained, or an accusation must be disproved, the nature and effect of legal evidence were little underTo define with accuracy that species of stood by barbarous nations. evidence which a court had reason to expect; to determine when it ought to insist on positive proof, and when it should be satisfied with a proof from circumstances; to compare the testimony of discordant witnesses, and to fix the degree of credit due to each; were discussions too intricate and subtile for the jurisprudence of ignorant ages. In order to avoid encumbering themselves with these, a more simple form of procedure was introduced into courts as well civil as criminal. In all cases where the notoriety of the fact did not furnish the clearest and most direct evidence, the person accused, or he against whom an action was brought, was called legally, or offered voluntarily, to purge himself by oath; and upon his declaring his innocence, he was instantly acquitted.* This absurd practice effectually screened guilt and fraud from detection and punishment, by rendering the temptation to perjury so powerful, that it was not easy to resist it. The pernicious effects of it were sensibly felt; and in order to guard against them, the laws ordained, that oaths should be administered with great solemnity, and accompanied with every circumstance which cou d inspire religious reverence, or superstitious terror. This, however, proved a feeble remedy; these ceremonious rites became familiar, and their impression on the imagination gradually diminished; men who could venture to disregard truth, were not apt to startle at the solemnities of an oath. Their observation of this, put legislators upon devising a new expedient for rendering the purgation by oath more certain and satisfactory. They required the person accused to appear with a certain number of freemen, his neighbours or relations, who corroborated the oath which he took, by swearing that they believed all that he uttered to be true. These were called Compurgators, and their number varied according to tne importance of the subject in dispute, or the nature of the crime with which a person was charged. In some cases, the concurrence of no less than three hundred of these auxiliary witnesses was requisite to acquit the

Leg. Burgund. tit. 8, and 45. Leg. Aleman. tit. 89. Leg. Baiwar. tit. 8. sect. 5. 2, &c. 1 Du Cange Glossar. voc. Juramentum, vol. iii. p. 1607. Edit. Bonedict.

p.1559.

Ibid. vi.