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William Robertson

A View of the Progress of Society in Europe from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century (1769)

Proofs and Illustrarions XIX-XXIII

Note editoriali

Home | Editorial note | Preface | Section I | Par. i-ii | Par. iii-v | Par vi-x | Section II
Section III (pp. 106-119)
| Section III (pp. 120-139) | Section III (pp. 141-166)
Proofs & Illustrations

Proofs I-XII | Proofs XIII-XVIII | Proofs XIX-XXIII | Proof XXIV-XXIX

Note [XIX], page 33.

Soon after the introduction of the third estate into the national council, the spirit of liberty which that excited in France began to produce conspicuous effects. In several provinces of France the nobility and communities formed associations, whereby they bound themselves to defend their rights and privileges against the formidable and arbitrary proceedings of the king. The count de Boulainvilliers has preserved a copy of one of these associations, dated in the year 1314, twelve years after the admission of the deputies from towns into the states-general. Histoire de l’ancien Gouvernment de la France, tom. II, p. 94. The vigour with which the people asserted and prepared to maintain their rights, obliged their sovereigns to respect them. Six years after this association, Philip the Long issued a writ of summons to the community of Narbonne, in the following terms: «Philip, by the grace, &c. to our well-beloved, &c. As we desire with all our heart, and above all other things, to govern our kingdom and people in peace and tranquillity, by the help of God; and to reform our said kingdom in so far as it stands in need thereof, for the public good, and for the benefit of our subjects, who in times past have been aggrieved and oppressed in divers manners by the malice of sundry persons, as we have learned by common report, as well as by the information of good men worthy of credit, and we having determined in our council which we have called to meet in our good city, &c., to give redress to the utmost of our power, by all ways and means possible, according to reason and justice, and willing that this should be done with solemnity and deliberation by the advice of the prelates, barons, and good towns of our realm, and particularly of you, and that it should be transacted agreably to the will of God, and for the good of our people, therefore we command», &c. Mably. Observat. II, App. p. 386. I shall allow these to be only the formal words of a public and legal style; but the ideas are singular, and much more liberal and enlarged than one could expect in that age. A popular monarch of Great Britain could hardly address himself to parliament in terms more favourable to public liberty. There occurs in the history of France a striking instance of the progress which the principles of liberty had made in that kingdom, and of the influence which the deputies of towns had acquired in the states general. During the calamities in which the war with England, and the captivity of King John, had involved France, the states-general made a bold effort to extend their own privileges and jurisdiction. The regulations established by the states, held A. D. 1355, concerning the mode of levying taxes, the administration of which they vested not in the crown, but in commissioners, appointed by the states; concerning the coining of money; concerning the redress of the grievance of purveyance; concerning the regular administration of justice; are much more suitable to the genius of a republican government, than that of a feudal monarchy. this curious statute is published, Ordon. tom. III, p. 19. Such as have not an opportunity to consult that lasrge collection, will find an abridgement of it in Hist. de France par Villaret, tom. IX, p. 130, or in Histoire de Boulainv. tom. II, p. 213. The French historians represent the bishop of Laon, and Marcel, provost of the merchants of Paris, who had the chief direction of this assembly, as seditious tribunes, violent, interested, ambitious, and aiming at innovations subversive [547] of the constitution and government of their country. That may have been the case; but these men possessed the confidence of the people; and the measures which they proposed as the most popular and acceptable, as well as most likely to increase their own influence, plainly prove that the spirit of liberty had spread wonderfully, and that the ideas which then prevailed in France concerning government were extremely liberal. The states-general held at Paris A. D. 1355, consisted of about eight hundred members, and above one-half of these were deputies from towns. M. Secousse, Préf. à Ordon. tom. III, p. 48. It appears that in all the different assemblies of the states, held during the reign of John, the representatives of towns had great influence, and in every respect the third state was considered as co-ordinate and equal to either of the other two. Ib. passim. These spirited efforts were made in France long before the House of Commons in England acquired any considerable influence in the legislature. As the feudal system was carried to its utmost height in France sooner than in England, so it began to decline sooner in the former than in the latter kingdom. In England, almost all attempts to establish or to extend the liberty of the people have been successful; in France they proved unfortunate. What were the accidental events, or political causes, which occasioned this difference, it is not my present business to inquire.

Note [XX], page 35.

In a former note [Note VIII] I have inquired into the condition of that part of the people which was employed in agriculture; and have represented the various hardships and calamities of their situation. When charters of liberty or manumission were granted to such persons, they contained four concessions corresponding to the four capital grievances to which men in a state of servitude are subject.

1. The right of disposing of their persons by sale or grant was relinquished.

2. Power was given to them of conveying their property and effects by will or any other legal deed. Or if they happened to die intestate, it was provided that their property should go to their lawful heirs in the same manner as the property of other persons.

3. The services and taxes which they owed to their superior or liege lord, which were formerly arbitrary and imposed at pleasure, are precisely ascertained.

4. They are allowed the privilege of marrying according to their own inclination; formerly they could contract no marriage without their lord’s permission, and with no person but one of his slaves. All these particulars are found united in the charter granted «Habitatoribus Montis Britonis», A. D. 1367. Hist. de Dauphiné, tom. I, p. 81. Many circumstances concurred with those which I have mentioned in the text in procuring them deliverance from that wretched state. The gentle spirit of the Christian religion; the doctrines which it teaches, concerning the original equality of mankind; its tenets with respect to the divine government, and the impartial eye with which the Almighty regards men of every condition, and admits them to a participation of his benefits, are all inconsistent with servitude. But in this, as in many other instances, considerations of interest, and the maxims of false policy, led men to a conduct inconsistent with their principles. They were so sensible, however, of this inconsistency, that to set their fellow-Christians at liberty from servitude was deemed an act of piety highly meritorious and acceptable to Heaven. The humane spirit of the Christian religion struggled long with the maxims and manners of the world, and contributed more than any other circumstance to [548] introduce the practice of manumission. When Pope Gregory the Great, who fluorished toward the end of the sixth century, granted liberty to some of his slaves, he gives this reason for it: «Cum Redemptor noster, totius conditor naturæ, ad hoc propitiatus humanam carnem voluerit assumere, ut divinitatis suæ gratia, dirempto (quo tenebamur captivi) vinculo, pristinæ nos restitueret libertati; salubriter agitur, si homines, quos ab initio liberos natura protulit, et jus gentium jugo substituit servitutis, in ea, qua nati fuerant, manumittentis beneficio, libertati reddantur». Gregor. Magn. ap. Potgiess lib. IV, c. 1, § 3. Several laws or charters founded on reasons similar to this are produced by the same author. Accordingly, a great part of the charters of manumission, previous to the reign of Louis X, are granted «pro amore Dei, pro remedio animæ, et pro mercede animæ». Murat. Antiq. Ital. vol. I, pp. 849, 850. Du Cange, voc. Manumissio. The formality of manumission was executed in a church, as a religious solemnity. The person to be set free was led round the great altar with a torch in his hand, he took hold of the horns of the altar, and there the solemn words conferring liberty were pronounced. Du Cange, ibid. vol. IV, p. 467. I shall transcribe a part of a charter of manumission, granted A. D. 1056; both as it contains a full account of the ceremonies used in this form of manumission, and as a specimen of the imperfect knowledge of the Latin tongue in that barbarous age. It is granted by Willa, the widow of Hugo, the duke and marquis, in favour of Clariza, one of her slaves. «Et ideo nos Domine Wille inclite cometisse-libera et absolvo te Cleriza filia Uberto-pro timore omnipotentis Dei, et remedio luminarie anime bone memorie quondam supra scripto Domini Ugo gloriosissimo, ut quando illum Dominus de hac vita migrare jusserit, pars iniqua non abeat potestatem ullam, sed anguelus Domini nostri Jesu Christi colocare dignitur illum inter sanctos dilectos suos; et beatus Petrus princips apostolorum, qui habed potestatem omnium animarum ligandi et absolvendi, ut ipsi absolvat animæ ejus de peccatis sui, aperiad illum janua paradisi; pro eadem vero rationi, in mano mite te, Benzo presbiter, ut vadat tecum in ecclesia sancti Bartholomæi apostoli; traad de tribus vicibus circa altare ipsius ecclesiæ cum cæreo apprehensum in manibus tuis et manibus suis; deinde exite ambulate in via quadrubio, ubi quatuor vie se dividuntur. Statimque pro remedio luminarie anime bone memorie quondam supra scripto Domini Ugo et ipsi presbiter Benzo fecit omnia, et dixit, Ecce quatuor vie, ite et ambulate in quacumque partem tibi placuerit, tam sic supra scripta Cleriza, qua nosque tui heredes, qui ab ac hora in antea nati, vel procreati fuerit utriusque sexus», &c. Murat. ibid. p. 853. Many other charters might have been selected, which, in point of grammar or style, are in nowise superior to this. Manumission was frequently granted on death-bed or by latter will. As the minds of men are at that time awakened to sentiments of humanity and piety, these deeds proceeded from religious motives, and were granted pro redemptione animæ, in order to obtain acceptance with God. Du Cange, ubi supra, p. 470, et voc. Servus, vol. VI, p. 451. Another method of obtaining liberty was by entering into holy orders, or taking the vow in a monastery. This was permitted for some time, but so many slaves escaped, by this means, out of the hands of their masters, that the practice was afterwards restrained and at last prohibited by the laws of almost all the nations of Europe. Murat. ibid. p. 842. Conformably to the same principles, princes, on the birth of a son, or upon any other agreeable event, appointed [549] a certain number of slaves to be enfranchised, as a testimony of their gratitude to God for that benefit. Marculfi Form. lib. I, cap. 39. There are several forms of manumission published by Marculfus, and all of them are founded on religious considerations, in order to procure the favour of God, or to obtain the forgiveness of their sins. Lib. II, c. 23, 33, 34, edit. Baluz. The same observation holds with respect to the other collections of Formulæ annexed to Marculfus. As sentiments of religion induced some to great liberty to their fellow-Christians who groaned under the yoke of servitude, so mistaken ideas concerning devotion led others to relinquish their liberty. When a person conceived an extraordinary respect for the saint who was the patron of any church or monastery in which he was accustomed to attend religious worship, it was not unusual among men possessed with an excess of superstitions reverence, to give up themselves and their posterity to be the slaves of the saint. Mabillon, De Re Diplomat. lib. VI, 632. The oblati, or voluntary slaves of churches or monasteries, were very numerous, and may be divided into three different classes. The first were such as put themselves and effects under the protection of a particular church or monastery, binding themselves to defend its privileges and property against every aggressor. These were prompted to do so not merely by devotion, but in order to obtain that security which arose from the protection of the church. They were rather vassals than slaves; and sometimes persons of noble birth found it prudent to secure the protection of the church in this manner. Persons of the second class bound themselves to pay an annual tax or quit-rent out of their estates to a church or monastery. Besides this, they sometimes engaged to perform certain services. They were called censuales. The last class consisted of such as actually renounced their liberty, and became slaves in the strict and proper sense of the word. These were called ministeriales, and enslaved their bodies, as some of the charters bear, that they might procure the liberty of their souls. Potgiesserus, De Statu Servorum, lib. I, cap. I, §§ 6, 7. How zealous the clergy were to encourage the opinions which led to this practice, will appear from a clause in a charter by which one gives up himself as a slave to a monastery. «Cum sit omni carnali ingenuitate generosius extremum quodeumque Dei servitium, scilicet quod terrena nobilitas multos plerumque vitiorum servos facit, servitus vero Christi nobiles virtutibus reddit, nemo autem sani capitis virtutibus vitia comparaverit, claret pro certo eum esse generosiorem, qui se Dei servitio præbuerit proniorem. Quod ego Regnaldus intelligens», &c. Another charter is expressed in the following words: «Eligens magis esse servus Dei quam libertus sæculi, firmiter credens et sciens, quod servire Deo, regnare est, summaque ingenuitas sit in qua servitus comparabatur Christi», &c. Du Cange, voc. Oblatus, vol. IV, pp. 1286, 1287. Great, however, as the power of religion was, it does not appear that the enfranchisement of slaves was a frequent practice while the feudal system preserved its vigour. On the contrary, there were laws which set bounds to it as detrimental to society. Potgiess. lib. IV, c. 2, § 6. The inferior order of men owed the recovery of their liberty to the decline of that aristocratical policy which lodged the most extensive power in the hands of a few members of the society, and depressed all the rest. When Louis X issued his ordinance, several slaves had been so long accustomed to servitude, and their minds were so much debased by that unhappy situation, that they refused to accept of the liberty which was offered them. D’Acher. Spicil., vol. XI, [550] p. 387. Long after the reign of Louis X, several of the French nobility continued to assert their ancient dominion over their slaves. It appears, from an ordinance of the famous Bertrand de Guesclin, constable of France, that the custom of enfranchising them was considered as a pernicious innovation. Morice, Mém. pour servir de Preuves à l’Hist. de Bret. tom. II, p. 100. In some instances, when the prædial slaves were derclared to be freemen, they were still bound to perform certain services to their ancient masters; and were kept in a state different from other subjects, being restricted either from purchasing land, or becoming members of a community within the precincts of the manor to which they formerly belonged. Martene et Durand, Thesaur. Anecdot. vol. I, p. 914. This, however, seems not to have been common. – There is no general law for the manumission of slavess in the statute-book of England, similar to that which has been quoted from the ordonnances of the kings of France. Though the genius of the English constitution seems early to have favoured personal liberty, personal servitude, nevertheless, continued long in England in some particular places. In the year 1514, we find a charter of Henry VIII enfranchising two slaves belonging to one of his manors. Rym. Fœder. vol. XIII, p. 470. As late as the year 1574, there is a commission from Queen Elizabeth with respect to the manumission of certain bondmen belonging to her. Rymer. in Observat. on the Statutes, &c. p. 251.

Note [XXI], page 40

There is no custom in the middle ages more singular than that of private war. It is a right of so great importance, and prevailed so universally, that the regulations concerning it occupy a considerable place in the system of laws during the middle ages. M. de Montesquieu, who has unravelled so many intricate points in feudal jurisprudence, and thrown light on so many customs formerly obscure and unintelligible, was not led by his subject to consider this. I shall there give a more minute account of the customs and regulations which directed a practice so contrary to the present ideas of civilized nations concerning government and order.

1. Among the ancient Germans, as well as other nations in a similar state of society, the right of avenging injuries was a private and personal right exercised by force of arms, without any reference to an umpire, or any appeal to a magistrate for decision. The clearest proofs of this were produced, [Note VI].

2. This practice subsisted among the barbarous nations, after their settlement in the provinces of the empire which they conquered; and as the causes of dissension among them multiplied, their family feuds and private wars became more frequent. Proofs of this occur in their early historians. Greg. Turon. Hist. liv. VII, c. 2, lib. VIII, c. 18, lib. X, c. 27, and likewise in the codes of their laws. It was not only allowable for the relation to avenge the injuries of their family, but it was incumbent on them. Thus, by the laws of the Angli and Werini, «ad quemcunque hereditas terræ pervenerit, ad illum vestis bellica, id est lorica et ultio proximi, et solatio leudis, debet pertinere», tit. VI, § 5, ap. Lindenbr. Leg. Saliq. tit. 63. Leg. Longob, lib. II, tit. 14, § 10. 3. None but gentlemen, or persons of noble birth, had the right of private wart. All disputes between slaves, villani, the inhabitants of towns, and freemen of inferior condition, were decided in the courts of justice. All disputes between gentlemen and persons of inferior rank were terminated in the same manner. The right of private war supposed nobility of birth, and equality of rank, in both the [551] contending parties. Beaumanoir,Coustumes de Beauv., ch. LIX, p. 300. Ordon. des Rois de France, tom. II, p. 395, § XVII, p. 508, § XV, &c. The dignified ecclesiastics likewise claimed and exercised the right of private war; but, as it was not altogether decent for them to prosecute quarrels in person, advocati or vidames were chosen by the several monasteries and bishoprics. These were commonly men of high rank and reputation, who became the protectors of the churches and convents by which they were elected; espoused their quarrels, and fought their battles; «armis omnia quæ erant ecclesiæ viriliter defendebant, et vigilanter protegebant». Brussel, Usage des Fiefs, tom. I, p. 144. Du Cange, voc. Advocatus. On many occasions, the martial ideas to which ecclesiastics of noble birth were accustomed, made them forget the pacific spirit of their profession, and led them into the field in person, at the head of their vassals, «flamma, ferro, cæde, possessiones ecclesiarum prælati defendebant». Guido Abbas, ap. Du Cange, ib. p. 179.

4. It was not every injury or trespass that gave a gentleman a title to make war upon his adversary. Atrocious acts of violence, insults, and affronts, publicly committed, were legal and permitted motives for taking arms against the authors of them. Such crimes as are now punished capitally in civilized nations, at that time justified private hostilities. Beauman. ch. LIX, Du Cange, Dissert. XXIX, sur Joinville, p. 331. But, though the avenging of injuries was the only motive that could legally authorize a private war, yet disputes concerning civil property often gave rise to hostilities, and were terminated by the sword. Du Cange, Dissert. p. 332.

5. All persons present, when any quarrel arose, or any act of violence was committed, were included in the war which it occasioned; for it was supposed to be impossible for any man in such a situation to remain neuter, without taking side with one or other of the contending parties. Beauman p. 300.

6. All the kindred of the two principals in the war were included in it, and obliged to espouse the quarrel of the chieftain with whom they were connected. Du Cange, ibid. 332. This was founded on the maxim of the ancient Germans, «suscipere tam inimicitias seu patris, seu propinqui, quam amicitias, necesse est» a maxim natural to all rude nations, among which the form of society, and political union, strengthen such a sentiment. This obligation was enforced by legal authority. If a person refused to take part in the quarrel of his kinsman, and to aid him against his adversary, he was deemed to have renounced all the rights and privileges of kindredship, and became incapable of succeding to any of his relations, or of deriving any benefit from any civil right or property belonging to them. Du Cange, Dissert. p. 333. The method of ascertaining the degree of affinity which obliged a person to take part in ther quarrel of a kinsman, was curious. While the church prohibited the marriage of persons within the seventh degree of affinity, the vengeance of private war extended as far as this absurd prohibition, and all who had such a remote connexion with any of the principals were involved in the calamities of war. But when the church relaxed somewhat of its rigour, and did not extend its prohibition of marrying beyond the fourth degree of affinity, the same restriction took place in the conduct of private war. Beauman. 303. Du Cange, Dissert. 333.

7. A private war could not be carried on between two full brothers, because both have the same common kindred, and consequently neither had any persons bound to stand by him against the other, in the contest; but two brothers of the half blood might [552] wage war, because each of them has a distinct kindred. Beauman. p. 299.

8. The vassals of each principal in any private war were involved in the contest, because, by the feudal maxims, they were bound to take arms in defence of the chieftain of whom they held, and to assist him in every quarrel. As soon, therefore, as feudal tenures were introduced, and this artificial connexion was established between vassals and the baron of whom they held, vassals came to be considered as in the same state with relations. Beauman. 303.

9. Private wars were very frequent for several centuries. Nothing contributed more to increase those disorders in government, or to encourage such ferocity of manners as reduced the nations of Europe to that wretched state which distinguished the period of history which I am reviewing. Nothing was such an obstacle to the introduction of a regular administration of justice. Nothing could more effectually discourage industry, or retard the progress and cultivation of the arts of peace. Private wars were carried on with all the destructive rage which is to be dreaded from violent resentment, when armed with force and authorized by law. It appears from the statutes, prohibiting or restraining the exercise of private hostilities, that the invasion of the most barbarous enemy could not be more desolating to a country, or more fatal to its inhabitants, than those intestine wars. Ordon. tom. I, p. 701, tom. II, pp. 395, 408, 507, &c. The contemporary historians describe the excesses committed in prosecution of these quarrels in such terms as excite astonishment and horror. I shall mention only one passage from the History of the Holy War, by Guibert, abbot of Nogent: «Erat eo tempore, maximis ad invicem histilitatibus, totius Francorum regni facta turbatio; crebra ubique latrocinia, viarum obsessio; audiebantur passim, immo fiebant incendia infinita; nullis præter sola et indomita cupiditate existentibus causis, extruebantur prælia; et ut brevi totum claudam, quicquid obtutibus cupidorum subjacebat, nusquam attendendo cujus esset, prædæ patebat». Gesta Dei per Francos, vol. I, p. 482.

Having thus collected the chief regulations which custom had established concerning the right and exercise of private war, I shall enumerate, in chronological order, the various expedients employed to abolish or restrain this fatal custom.

1. The first expedient employed by the civil magistrate, in order to set some bounds to the violence of private revenge, was the fixing by law the fine or composition to be paid for each different crime. The injured person was originally the sole judge concerning the nature or the wrong which he had suffered, the degree of vengeance which he should exact, as well as the species of atonement or reparation with which he might rest satisfied. Resentment became, of course, as implacable as it was fierce. It was often a point of honour not to forgive, nor to be reconciled. This made it necessary to fix those compositions which make so great a figure in the laws of barbarous nations. The nature of crimes and offences was estimated by the magistrate, and the sum due to the person offended was ascertained with a minute, and often a whimsical accuracy. Rotharis, the legislator of the Lombards, who reigned about the middle of the seventh century, discovers his intention both in ascertaining the composition to be paid by the offender, and in increasing its value; it is, says he, that the enmity may be extinguished, the prosecution may ease, and peace may be restored. Leg. Longob. lib. I, tit. 7, § 10.

2. About the beginning of the ninth century, Charlemagne struck at the root of the evil, [553] and enacted, «That when any person had been guilty of a crime, or had committed an outrage, he should immediately submit to the penance which the church imposed, and offer to pay the composition which the law prescribed; and if injured person or his kindred should refuse to accept of this, and presume to avenge themselves by force of arms, their lands and properties should be forfeited». Capitul. A. D. 802, edit. Baluz. vol. I, 371.

3. But in this, as well as in other regulations, the genius of Charlemagne advanced before the spirit of his age. The ideas of his contemporaries concerning regular government were too imperfect, and their manners too fierce, to submit to this law. Private wars, with all the calamities which they occasioned, became more frequent than ever after the death of that great monarch. His successors were unable to restrain them. The church found it necessary to interpose. The most early of these interpositions now extant is towards the end of the tenth century. In the year 990, several bishops in the south of France assembled, and published various regulations, in order to set some bounds to the violence and frequency of private wars; if any person within their dioceses should venture to transgress, they ordained that he should be excluded from all Christian privileges during his life, and be denied Christian burial after his death. Du Mont., Corps Diplomatique, tom. I, p. 41. These, however, were only partial remedies; and, therefore, a council was held at Limoges, A. D.994. The bodies of the saints, according to the custom of those ages, were carried thither; and by these sacred relics men were exhorted to lay down their arms, to extinguish their animosities, and to swear that they would not, for the future, violate the public peace by their private hostilities. Bouquet, Recueil des Histor., vol. X, pp. 49, 147. Several other councils issued decrees to the same effect. Du Cange, Dissert. 343.

4. But the authority of councils, how venerable soever in those ages, was not sufficient to abolish a custom which flattered the pride of the nobles, and gratified their favourite passions. The evil grew so intolerable, that it became necessary to employ supernatural means for suppressing it. A bishop of Aquitaine, A. D. 1032, pretended that an angel had appeared to him, and brought him a writing from heaven, enjoining men to ease from their hostilities, and to be reconciled to each other. It was during a season of public calamity that he published this revelation. The minds of men were disposed to receive pious impressions, and willing to perform anything in order to avert the wrath of heaven. A general peace and cessation from hostilities took place, and continued for seven years; and a resolution was formed that no man should, in times to come, attack or molest his adversaries during the seasons set apart for celebrating the great festivals of the church, or from the evening of Thursday in each week to the morning of Monday in the week ensuing; the intervening days being considered as particularly holy, our Lord’s passion having happened on one of these days, and his resurrection on another. A change in the dispositions of men so sudden, and which produced a resolution so unexpected, was considered as miraculous; and the respite from hostilities which followed upon it, was called the truce of God. Glaber. Rodulphus, Histor. lib. V, ap. Bouquet, vol. X, p. 59. This, from being a regulation or concert in one kingdom, became a general law in Christendom, was confirmed by the authority of several popes, and the violators were subjected to the penalty of excommunication. Corpus Jur. Canon. Decretal. lib. I, tit. 34, c. 1. Du Cange, Glossar. voc. Treuga. An act of the [554] council of Toulujes in Roussillon, A. D.1041, containing all the stipulations required by the truce of God, is published by Dom de Vic et Dom Vaisette, Hist. de Languedoc, tom. II, Preuves, p. 206. A cessation from hostilities during three complete days in every week. allowed such a considerable space for the passions of the antagonist to cool, and for the people to enjoy a respite from the calamities of War, as well as to take measures for their own security, that, if this truce of God had been exactly observed, it must have gone far towards putting an end to private wars. This, however, seems not to have been the case; the nobles, disregarding the truce, prosecuted their quarrels without interruption as formerly. «Qua nimirum tempestate, universæ provinciæ adeo devastationis continuæ importunitate inquietantur, ut ne ipsa, pro observatione divinæ pacis, professa sacramenta custodiantur». Abbas Uspurgensis, apud Datt. de Pace Imperii Publica, p. 13, No. 35. The violent spirit of the nobility could not be restrained by any engagements. The complaints of this were frequent; and bishops, in order to compel them to renew their vows and promises of ceasing from their private wars, were obliged to enjoin their clergy to suspend the performance of divine service, and the exercise of any religious function, within the parishes of such as were refractory and obstinate. Hist. de Langued. par D.D. de Vic et Vaisette, tom. II, Preuves, p. 118.

5. The people, eager to obtain relief from their sufferings, called in a second time revelation to their aid. Towards the end of the twelfth century, a carpenter in Guienne gave out that Jesus Christ, together with the blessed Virgin, had appeared to him, and having commanded him to exhort mankind to peace, had given him a proof of his mission, an image of the Virgin holding her Son in her arms, with this inscription, Lamb of God, who takest away the sins of the world, give us peace. This low fanatic addressed himself to an ignorant age, prone to credit what was marvellous. He was received as an inspired messenger of God. Many prelates and barons assembled at Puy, and took an oath, not only to make peace with all their enemies, but to attack such as refused to lay down their arms, and to be reconciled to their enemies. They formed an association for this purpose, and assumed the honourable name of the brotherhood of God. Robertus de Monte Michaele, ap. M. de Laurière Préf. tom. I, Ordon. p. 29. But the influence of this superstitious terror or devotion was not of long continuance.

6. The civil magistrate was obliged to exert his authority in order to check a custom which threatened the dissolution of government. Philip Augustus, as some image, or St. Louis, as is more probable, published an ordinance, A. D. 1245, prohibiting any person to commence hostilities against the friend and vassals of his adversary, until forty days after the commission of the crime or offence which gave rise to the quarrel; declaring that if any man presumed to transgress this statute, he should be considered as guilty of a breach of the public peace, and be tried and punished by the judge ordinary as a traitor. Ordon. tom. I, p. 56. This was called the royal truce, and afforded time for the violence of resentment to subside, as well as leisure for the good offices of such as were willing to compose the difference. The happy effects of this regulation seem to have been considerable, if we may judge from the solicitude of succeeding monarchs to enforce it.

7. In order to restrain the exercise of private war still farther, Philip the Fair, towards the close of the same century, A. D. 1296, published an ordinance commanding all private hostilities to cease, while he [555] was engaged in war against the enemies of the state. Ordon. tom. I, pp. 328, 390. This regulation, which seems to be almost essential to the existence and preservation of society, was often renewed by his successors, and, being enforced by the regal authority, proved a considerable check to the destructive contests of the nobles. Both these regulations, introduced first in France, were adopted by the other nations of Europe.

8. The evil, however, was so inveterate, that it did not yield to all these remedies. No sooner was public peace established in any kingdom, than the barons renewed their private hostilities. They not only struggled to maintain this pernicious right, but to secure the exercise of it without any restraint. Upon the death of Philip the Fair, the nobles of different provinces in France formed associations, and presented remonstrances to his successor, demanding the repeal of several laws, by which he had abridged the privileges of their order. Among these, the right of private war is always mentioned as one of the most valuable; and they claim that the restraint imposed by the truce of God, the royal truce, as well as that arising from the ordinance of the year 1296, should be taken off. In some instances, the two sons of Philip, who mounted the throne successively, eluded their demands; in others, they were obliged to make concessions. Ordon. tom. I, pp. 551, 557, 561, 573. The ordinances to which I here refer are of such length that I cannot insert them; but they are extremely curious, and may be peculiarly instructive to an English reader, as they throw considerable light on that period of English history in which the attempts to circumscribe the regal prerogative were carried on, not by the people struggling for liberty, but by the nobles contending for power. It is not necessary to produce any evidence of the continuance and frequency of private wars under the successors of Philip the Fair.

9. A practice somewhat similar to the royal truce was introduced, in order to strengthen and extend it. Bonds of assurance, or mutual security, were demanded from the parties at variance, by which they obliged themselves to abstain from all hostilities, either during a time mentioned in the bond, or for ever, and became subject to heavy penalties if they violated this obligation. These bonds were sometimes granted voluntarily, but more frequently exacted by the authority of the civil magistrate. Upon a petition from the party who felt himself weakest, the magistrate summoned his adversary to appear in court, and obliged him to give him a bond of assurance. If, after that, he committed any further hostilities, he became subject to all the penalties of treason. This restraint on private war was known in the age of St. Louis. Establissements, liv. I, c. 28. It was frequent in Bretagne; and, what is very remarkable, such bonds of assurance were given mutually between vassals and the lord of whom they held. Oliver de Clisson grants one to the duke of Bretagne, his sovereign. Morice, Mém. pour servir de Preuves à l’Hist. de Bret. tom. I, p. 846; II, p. 371. Many examples of bonds of assurance in other provinces of France are collected by Brussel, tom. II, p. 856. The nobles of Burgundy remonstrated against this practice, and obtained exemption from it as an encroachment on the privileges of their order. Ordon. tom. I, p. 558. This mode of security was first introduced into cities, and, the good effects of it having been felt there, was extended to the nobles. See [Note XVI].

10. The calamities occasioned by private wars became at some times so intolerable, that the nobles entered into voluntary associations, binding themselves to refer all matters in dispute, whether concerning civil property or [556] points of honour, to the determination of the majority of the associates. Morice, Mém. pour servir de Preuves à l’Hist. de Bret. tom. II, p. 728.

11. But all these expedients proving ineffectual, Charles VI, A. D. 1413, issued an ordinance expressly prohibiting private wars on any pretext whatsoever, with power to the judge ordinary to compel all persons to comply with this injunction, and to punish such as should prove refractory or disobedient, by imprisoning their persons, seizing their goods, and appointing the officers of justice, manageurs et gasteurs, to live at free quarters on their estate. If those who were disobedient to this edict could not be personally arrested, he appointed their friends and vassals to be seized, and detained until they gave surety for keeping the peace; and he abolished all lawes, customs, or privileges, which might be pleaded in opposition to this ordinance. Ordon. tom. X, p. 138. How slow is the progress of reason and of civil order! Regulations which to us appear so equitable, obvious, and simple, required the efforts of civil and ecclesiastical authority, during several centuries, to introduce and establish them. Even posterior to this period, Louis XI, was obliged to abolish private wars in Dauphiné, by a particular edict, A. D. 1451. Du Cange, Dissert. p. 348.

This note would swell to a disproportionate bulk, if I should attempt to inquire, with the same minute attention, into the progress of this pernicious custom in the other countries of Europe. In England, the ideas of the Saxons concerning personal revenge, the right of private wars, and the composition due to the party offended, seem to have been much the same with those which prevailed on the continent. The law of Ina de vindicantibus, in tyhe eight century, Lamb. p. 3; those of Edmund in the tenth century, de homicidio, Lamb. p. 72, and de inimicitiis, p. 76; and those of Edward the Confessor, in the eleventh century, de temporibus et diebus pacis, or Treuga [sic] Dei, Lamb. p. 126, are perfectly similar to the ordonnances of the French kings their contemporaries. The laws of Edward, de pace regis, are still more explicit than those of the French monarchs, and, by several provisions in them, discover that a more perfect police was established in England at that period. Lombard, p. 128, fol. vers. Even after the conquest, private wars, and the regulations for preventing them, were not altogether unknown, as appears from Madox, Formulare Anglicanum, No. CXLV, and from the extracts from Domesday Book, published by Gale, Scriptores Hist. Britan. pp. 759, 777. The well-known clause in the form of an English indictment, which, as an aggravation of the criminal’s guilt, mentions his having assaulted a person who was in the peace of god and of the king, seems to be borrowed from the Treuga or Pax Dei, and the Pax Regis, which I have explained. But after tho conquest, the mention of private wars among the nobility occurs more rarely in the English history than in that of any other European nation, and no laws concerning them are to be found in the body of their statutes. Such a change in their own manners, and such a variation from those of their neighbours, is remarkable. Is it to be ascribed to the extraordinary power that William the Norman acquired by right of conquest, and transmitted to his successors, which rendered the execution of justice more vigorous and decisive, and the jurisdiction of the king’s court more extensive than under the monarchs on the continent? Or, was it owing to the settlement of the Normans in England, who, having never adopted the practice of private war in their own country [557], abolished it in the kingdom which they conquered? It is asserted in an ordinance of John, king of France, that in all times past, persons of every rank in Normandy have been prohibited to wage private war, and the practice has been deemed unlawful. Ordon. tom. II, p. 407. If this fact were certain, it would go far towards explaining the peculiarity which I have mentioned. But as there are some English acts of parliament which, according to the remark of the learned author of the Observations on the Statutes, chiefly the more ancient, recite falsehoods, it may be added that this is not peculiar to the laws of that country. Notwithstanding the positive assertion contained in this public law of France, there is good reason for considering it as a statute which recites a falsehood. This, however, is not the place for discussing that point. It is an inquiry not unworthy the curiosity of an English antiquary.

In Castile, the pernicious practice of private war prevailed, and was authorized by the customs and law of the kingdom. Leges Tauri, tit. 76, cum commentario Anton. Gomezii, p. 551. As the Castilian nobles were no less turbulent than powerful, their quarrels and hostilities involved their country in many calamities. Innumerable proofs of this occur in Mariana. In Aragon the right of private revenge was likewise authorized by law; exercised in its full extent, and accompanied with the same unhappy consequences. Hieron. Blanca, Comment. de Rebus Arag. ap. Schotti Hispan. illustrat. vol. III, p. 733. Lex Jacobi I, A. D. 1247. Fueros y Observancias del Reyno de Aragon, lib. IX, p. 182. Several confederacies between the kings of Aragon and their nobles, for the restoring of peace, founded on the truce of God, are still extant. Petr. de Marca, Marca sive Limes Hispanic. App. 1303, 1388, 1428. As early as the year 1165, we find a combination of the king and court of Aragon, in order to abolish the right of private war, and to punish those who presumed to claim that privilege. Annales de Aragon por Zurita, vol. I, p. 73. But the evil was so inveterate, that as late as A. D. 1519, Charles V, was obliged to publish a law enforcing all former regulations tending to suppress this practice. Fueros y Observanc. lib. IX, 183, b.

The Lombards, and other northern nations who settled in Italy, introduced the same maxims concerning the right of revenge into that country, and these were followed by the same effects. As the progress of the evil was perfectly similar to what happened in France, the expedients employed to check its career, or to extirpate it finally, resembled those which I have enumerated. Murat. Ant. Ital. vol. II, pp. 306, &c.

In Germany, the disorders and calamities occasioned by the right of private war were greater and more intolerable than in any other country of Europe. The imperial authority was so much shaken and enfeebled by the violence of the civil wars excited by the contests between the popes and the emperors of the Franconian and Suabian lines, that not only the nobility but the cities acquired almost independent power, and scorned all subordination and obedience to the laws. The frequency of these faidæ, or private wars, is often mentioned in the German annals, and the fatal effects of them are most pathetically described, Datt. de Pace Imper. pub. lib. I, cap. 5, No. 30, et passim. The Germans early adopted the Treuga Dei, which was first established in France. This, however, proved but a temporary and ineffectual remedy. The disorders multiplied so fast, and grew to be so enormous, that they threatened the dissolution of society, and compelled the Germans to have recourse to the [558] only remedy of the evil, viz. an absolute prohibition of private wars. The Emperor William published his edict to this purpose, A. D. 1255, an hundred and sixty years previous to the ordinance of Charles VI, in France. Datt. lib. I, cap. 4, No. 20. But neither he nor his successors had authority to secure the observance of it. This gave rise to a practice in Germany, which conveys to us a striking idea both of the intolerable calamities occasioned by private wars, and of the feebleness of government during the twelfth and thirteenth centuries. The cities and nobles entered into alliances and associations, by which they bound themselves to maintain the public peace, and to make war on such as should violate it. This was the origin of the league of the Rhine, of Suabia, and of many smaller confederacies distinguished by various names. The rise, progress, and beneficial effects of these associations, are traced by Datt with great accuracy. Whatever degree of public peace or of regular administration was preserved in the empire from the beginning of the twelfth century to the close of the fifteenth, Germany owes to these leagues. During that period, political order, respect for the laws, together with the equal administration of justice, made considerable progress in Germany. But the final and perpetual abolition of the right of private war was not accomplished until A. D. 1495. The imperial authority was by that time more firmly established, the ideas of men with respect to government and subordination were become more just. That barbarous and pernicious privilege of waging private war, which the nobles had so long possessed, was declared to be incompatible with the happiness and existence of society. In order to terminate any differences which might arise among the various members of the Germanic body, the Imperial Chamber was instituted with supreme jurisdiction, to judge without appeal in every question brought before it. That court has subsisted since that period, forming a very respectable tribunal of essential importance in the German constitution. Datt. lib. III, IV, V, Pfeffel, Abrégé de l’Histoire du Droit, &c. p. 556.

Note [XXII], page 49

It would be tedious and of little use to enumerate the various mode of appealing to the justice of God, which superstition introduced during the ages of ignorance. I shall mention only one, because we have an account of it in a placitum, or trial, in the presence of Charlemagne, from which we may learn the imperfect manner in which justice was administrated even during his reign. In the year 775, a contest arose between the bishop of Paris and the abbot of St. Denys, concerning the property of a small abbey. Each of them exhibited deeds and records, in order to prove the right to be in them. Instead of trying the authenticity, or considering the import of these, the point was referred to the judicium crucis. Each produced a person, who, during the celebration of mass, stood before the cross with his arms expanded; and he whose representative first became weary, and altered his posture, lost the cause. The person employed by the bishop on this occasion had less strength or less spirit than his adversary, and the question was decided in favour of the abbot. Mabillon, De Re Diplomat., lib. VI, p. 498. If a prince so enlightened as Charlemagne countenanced such an absurd mode of decision, it is no wonder that other monarchs should tolerate it so long. M. de Montesquieu has treated of the trial by judicial combat at considerable length. The two talents which distinguish that illustrious author-industry in tracing all the circumstances of [559] ancient and obscure institutions, and sagacity in penetrating into the causes and principles which contributed to establish them – are equally conspicuous in his observations on this subject. To these I refer the reader, as they contain most of the principles by which I have endeavoured to explain this practice. De l’Esprit des Lois, liv. XXVIII, It seems to be probable, from the remarks of M. de Montesquieu, as well as from the facts produced by Muratori, tom. III, Dissert. XXXVIII, that appeals to the justice of God by the experiments with fire and water, &c., were frequent among the people who settled in the different provinces of the Roman empire, before they had recourse to the judicial combat; and yet the judicial combat seems to have been the most ancient mode of terminating any controversy among the barbarous nations in their original settlements. This is evident from Velleius Paterculus, lib. II, c. 118, who informs us that all questions which were decided among the Romans by legal trial, were terminated among the Germans by arms. The same thing appears in the ancient laws and customs of the Swedes, quoted by Jo. O. Stiernhöök de Jure Suconum et Gothorum vetusto, 4to Holmiæ, 1682, lib. I, c. 7. It is probable that when the various tribes which invaded the empire were converted to Christianity, their ancient custom of allowing judicial combats appeared so glaringly repugnant to the precepts of religion, that for some time it was abolished, and, by degrees, several circumstances which I have mentioned led them to resume it.

It seems likewise to be probable, from a law quoted by Stiernhöök in the treatise which I have mentioned, that the judicial combat was originally permitted, in order to determine points respecting the personal character or reputation of individuals, and was afterwards extended not only ti criminal cases, but to questions concerning property. The words of the law are, «If any man shall say to another these reproachful words, ‘You have not the heart of a man’, and the other shall reply, ‘I am a man good as you’, let them meet on the highway. If he who first gave offence appeart, and the person offended absent himself, let the latter be deemed a worse man even than he was called; let him not be admitted to give evidence in judgment either for man or woman, and let him not have the privilege of making a testament. If he who gave the offence be absent, and only the person offended appear, let him call upon the other thrice with a loud voice, and make a mark upon the earth, and then let him who absented himself be deemed infamous, because he uttered words which he durst not support. If both shall appear properly armed, and the person offended shall fall in the combat, let a half compensation be paid for his death. But if the person who gave the offence shall fall, let it be imputed to his own rashness. The petulance of his tongue hath been fatal to him. Let him lie in the field without any compensation being demanded for his death». Lex Uplandica, ap. Stien. p. 76. Martial people were extremely delicate with respect to everything that affected their reputation as soldiers. By the laws of the Salians, if any man called another a hare, or accused him of having left his shield in the field of battle, he was ordained to pay a large fine. Leg. Sal. tit. XXXII, §§ 4, 6. By the law of the Lombards, if any one called another arga, i. e. a good-for-nothing fellow, he might immediately challenge him to combat. Leg. Longob. lib. I, tit. V, § 1. By the law of the Salians, if one called another cenitus, a term of reproach aquivalent to arga, he was bound to pay a very [560] high fine. Tit. XXXII, § 1. Paulus Diaconus relates the violent impression which this reproachful expression made upon one of his countrymen, and the fatal effects with which it was attended. De Gestis Longobard. liv. VI, c. 34. Thus the ideas concerning the point of honour, which we are apt to consider as a modern refinement, as well as the practice of duelling, to which it gave rise, are derived from the notions of our ancestors, while in a state of society very little improved.

As M. de Montesquieu’s view of this subject did not lead him to consider every circumstance relative to judicial combats, I shall mention some particular facts necessary for the illustration of what I have said with respect to them. A remarkable instance occurs of the decision of an abstract point of law by combat. A question arose in the tenth century concerning the right of representation, which was not then fixed, though now universally established in every part of Europe. «It was a matter of doubt and dispute (saith the historian) whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive. An assembly was called to deliberate on this point, and it was the general opinion that it ought to be remitted to the examination and decision of judges. But the emperor, following a better course, and desirous of dealing honourably with his people and nobles, appointed the matter to be decided by battle two champions. He who appeared in behalf of the right of children to represent their deceased father was victorious; and it was established, by a perpetual decree, that they should hereafter share in the inheritance together with their uncles». Wittikindus Corbiensis, lib. Annal. ap. M. de Laurière, Préf. Ordon. vol. I, p. XXXIII, If we can suppose the caprice of folly to lead men to any action more extravagant than this of settling a point in law by combat, it must be that of referring the truth or falsehood of a religious opinion to be decided in the same manner. To the disgrace of human reason, it has been capable even of this extravagance. A question was agitated in Spain in the eleventh century, whether in Musarabic liturgy and ritual which had been used in the churches of Spain, or that approved of by the see of Rome, which differed in many particulars from the other, contained the form of worship most acceptable to the Deity. The Spaniards contended zealously for the ritual of their ancestors. The popes urged them to receive that to which they had given their infallible sanction. A violent contest arose. The nobles proposed to decide the controversy by the sword. The king approved of this method of decision. Two knights in complete armour entered the lists. John Ruyus de Matanca, the champion of the Musarabic liturgy, was victorious. But the queen and aechbishop of Toledo, who favoured the other form, insisted on having the matter submitted to another trial, and had interest enough to prevail in a request, inconsistent with the laws of combat, which being considered as an appeal to God, the decision ought to have been acquiesced in as final. A great fire was kindled. A copy each liturgy was cast into the flames. It was agreed that the book which stood this proof, and remained untouched, should be received in all the churches of Spain. The Musarabic liturgy triumphed likewise in this trial, and if we may believe Roderigo de Toledo, remained unhurt by the fire, when the other was reduced to ashes. The queen and archbishop had power or art sufficient to elude this decision also, and the use of the Musarabic form of [561] devotion was permitted only in certain churches. A determination no less extraordinary than the whole transaction. Roder. de Toledo, quoted by P. Orleans, Hist. des Révol. d’Espagne, tom. I, p. 417. Mariana, lib. I, c. 18, vol. I, p. 378.

A remarkable proof of the general use of trial by combat, and of the predilection for that mode of decision, occurs in the laws of the Lombards. It was a custom in the middle ages, that any person might signify publicly the law to which he chose to be subjected; and by the prescriptions of that law he was obliged to regulate his transactions, without being bound to comply with any practice authorized by other codes of law. Persons who had subjected themselves to the Roman law, and adhered to the ancient jurisprudence, as far as any knowledge of it was retained in those ages of ignorance, were exempted from paying any regard to the forms of proceedings established by the laws of the Burgundians, Lombards, and other barbarous people. But the Emperor Otho, in direct contradiction to this received maxim, ordained «That all persons, under whatever law they lived, even although it were the Roman law, should be bound to conform to the edicts concerning the trial by combat». Leg. Longob. lib. II, tit. 55. § 38. While the trial by judicial combat subsisted, proof by charters, contracts, or other deeds, became ineffectual; and even this species of written evidence, calculated to render the proceeding of courts certain and decisive, was eluded. When a charter or other instrument was produced by one of the parties, his opponent might challenge it, affirm that it was false and forged, and offer to prove this by combat. Leg. Long. ibid. § 34. It is true that among the reasons enumerated by Beaumanoir, on account of which judges might refuse to permit a trial by combat, one is, «If the point in contest can be clearly proved or ascertained by other evidence». Const. de Beauv., ch. 63, p. 323. But that regulation removed the evil only a single step. For the party who suspected that a witness was about to depose in a manner unfavourable to his cause, might accuse him of being suborned, give him the lie, and challenge him to combat; if the witness was vanquished in battle, no other evidence could be admitted, and the party by whom he was summoned to appear lost his cause. Leg. Baivar. tit. 16, § 2. Leg. Burgund. tit. 45. Beauman. ch. 61, p. 315. The reason given for obliging a witness to accept of a defiance, and to defend himself by combat, is remarkable, and contains the same idea which is still the foundation of what is called the point of honour; «for it is just, that if any one affirms that he perfectly knows the truth of anything, and offers to give oath upon it, that he should not hesitate to maintain the veracity of his affirmation in combat». Leg. Burgund. tit. 45.

That the trial by judicial combat was established in every country of Europe, is a fact well known, and requires no proof. That this mode of decision was frequent, appears not only from the codes of ancient laws which established it, but from the earliest writers concerning the practice of law in the different nations of Europe. They treat of this custom at great length: they enumerate the regulations concerning it with minute accuracy; and explain them with much solicitude. It made a capital and extensive article in jurisprudence. There is not any one subject in their system of law which Beaumanoir, Defontaines, or the compilers of the Assises de Jérusalem, seem to have considered as of greater importance; and none upon which they have bestowed so much attention. The same observation will hold with respect to the early authors of [562] other nations. It appears from Madox that trials of this kind were so frequent in England, that fines, paid on these occasions, made no inconsiderable branch of the king’s revenue. Hist. of the Excheq. vol. I, p. 349. A very curious account of a judicial combat between Messire Robert de Beaumanoir and Messire Pierre Tournemine, in presence of the duke of Bretagne, A. D. 1385., is published by Morice, Mém. pour servir de Preuves à l’Hist. de bretagne, tom. II, p. 498. All the formalities observed in such extraordinary proceedings are there described more minutely than in any ancient monument which I have had an opportunity of considering. Tournemine was accused bu Beaumanoir of having murdered his brother. The former was vanquished, but was saved from being hanged upon the spot by the generous intercession of his antagonist. A good account of the origin of the laws concerning judicial combat is published in the History of Pavia, by Bernardo Sacci, lib. IX, c. 8, in Græv., Thes. Antiquit. Ital. vol. III, p. 743.

This mode of trial was so acceptable, that ecclesiastics, notwithstanding the prohibitions of the church, were constrained not only to connive at the practice, but to authorize it. A remarkable instance of this is produced by Pasquier, Recherches, lib. IV, c. I, p. 350. The Abbot Wittikindus, whose words I have produced in this note, considered the determination of a point in law by combat, as the best and most honourable mode of decision. In the year 978, a judicial combat was fought in the presence of the emperor. The Archbishop Aldebert advised him to terminate a contest which had arisen between two noblemen of his court by this mode of decision. The vanquished combatant, though a person of high rank, was beheaded on the spot. Chronic. Ditmari, Episc. Mersb. apud Bouquet, Recueil des Hist. tom. X, p. 121. Questions concerning the property of churches and monasteries were decided by combat. In the year 961 a controversy concerning the church of St. Médard, whether it belonged to the abbey of Beaulieu or not, was terminated by judicial combat. Bouquet, Recueil des Hist. tom. IX, p. 729. Ibid. p. 612, &c. The Emperor Henry I declares that this law, authorizing the practice or judicial combats, was enacted with consent and applause of many faithful bishops. Ibid. p. 231. So remarkably did the martial ideas of those ages prevail over the genius and maxims of the canon law, which in other instances was in the highest credit and authority with ecclesiastics. A judicial combat was appointed in Spain, by Charles V, A. D. 1522. The combatants fought in the emperor’s presence, and the battle was conducted with all the rites prescribed by the ancient laws of chivalry. The whole transaction is described at great length by Pontus Heuterus, Rer. Austriac. lib. VIII, c. 17, p. 205.

The last instance which occurs in the history of France, of a judicial combat authorized by the magistrate, was the famous one between M. Jarnac and M. de la Chaistaignerie, A. D. 1547. A trial by combat was appointed in England, A. D. 1571, under the inspection of the judges in the court of Common Pleas; and though it was not carried to the same extremity with the former, Queen Elizabeth having interposed her authority, and enjoined the parties to compound the matter, yet, in order to preserve their honour, the lists were marked out, and all the forms previous to the combat were observed with much ceremony. Spelm. Gloss. voc. Campus, p. 103. In the year 1631, a judicial combat was appointed between Donald Lord Rea, and David Ramsay, Esq., by the authority of the lord high constable and earl marshal of England; [563] but that quarrel likewise terminated without bloodshed, being accommodated by Charles I, Another instance occurs seven years later. Rushworth, in Observations on the Statutes, &c. p. 266.

Note [XXIII], page 54.

The text contains the great outlines which mark the course of private and public jurisdiction in the several nations of Europe. I shall here follow more minutely the various steps of this progress, as the matter is curious and important enough to merit this attention. The payment of a fine by way of satisfaction to the person or family injured, was the first device of a rude people, in order to check the career of private resentment, and to extinguish those faidæ, or deadly feuds, which were prosecuted among them with the utmost violence. This custom may be traced back to the ancient Germans, Tacit. de Morib. Germ. c. 21, and prevailed among other uncivilized nations. Many examples of this are collected by the ingenious and learned author of Historical Law Tracts, vol. I, p. 41. These fines were ascertained and levied in three different manners. At first they were settled by voluntary agreement between the parties at variance. When their rage began to subside, and they felt the bad effects of their continuing in enmity, they came to terms of concord, and the satisfaction made was called a composition, implying that it was fixed by mutual consent. De l’Esprit des Lois, liv. XXX, c. 19. It is apparent from some of the more ancient codes of laws, that at the time when these were compiled, matters still remained in that simple state. In certain cases, the person who had committed an offence, was left exposed to the resentment of those whom he had injured, until he should recover their favour, «quoquo modo potuerit». Leg. Frision. tit. 11, § 1. The next mode of levying these fines was by the sentence of arbiters. An arbiter is called in the Regiam Majestatem amicabilis compositor, lib. XI, c. 4, § 10. He could estimate the degree of offence with more impartiality than the parties interested, and determine with greater equity what satisfaction ought to be demanded. It is difficult to bring an authentic proof of a custom previous to the records preserved in any nation of Europe. But one of the Formulæ Andegavenses compiled in the sixth century seems to allude to a transaction carried on, not by the authority of a judge, but by the mediation of arbiters chosen by mutual consent. Bouquet, Recueil des Histor. tom. IV, p. 566. But as an arbiter wanted authority to enforce his decisions, judges were appointed with compulsive power to oblige both parties to acquiesce in their decisions. Previous to this last step, the expedient of paying compositions was an imperfect remedy against the pernicious effects of private resentment. As soon as this important change was introduced, the magistrate, putting himself in place of the person injured, ascertained the composition with which he ought to rest satisfied. Every possible injury that could occur in the intercourse of civil society was considered, and estimated, and the compositions due to the person aggrieved were fixed with such minute attention as discovers, in most cases, amazing discernment and delicacy, in some instances unaccountable caprice. Besides the composition payable to the private party, a certain sum, called a fredum, was paid to the king or state, as Tacitus expresses it, or to the fiscus, in the language of the barbarous laws. Some authors, blending the refined ideas of modern policy with their reasonings concerning ancient transactions, have imagined that the fredum was a compensation due to the [564] community, on account of the violation of the public peace. But it is manifestly nothing more than the price paid to the magistrate for the protection which he afforded against the violence of resentment. The enacting of this was a considerable step towards improvement in criminal jurisprudence. In some of the more ancient codes of laws, the freda are altogether omitted, or so seldom mentioned, that it is evident they were but little known. In the later codes, the fredum is as precisely specified as the composition. In common cases, it was equal to the third part of the composition. Capitul. vol. I, p. 52. In some extraordinary cases, where it was more difficult to protect the person who had committed violence, the fredum was augmented. Capitul. vol. I, p. 515. These freda made a considerable branch in the revenues of the barons; and in whatever district territorial jurisdiction was granted, the royal judges were prohibited from levying any freda. In explaining the nature of the fredum, I have followed, in a great measure, the opinion of M. de Montesquieu, though I know that several learned antiquaries have taken the word in a different sense. De l’Esprit des Lois, liv. XXX, c. 20, &c. The great object of judges was to compel the one party to give, and the other to accept, the satisfaction prescribed. They multiplied regulations to this purpose, and enforced them by grievous penalties. Leg. Longob. lib. I, tit. 9, § 1, 2. Capitul. vol. I, p. 371, § 22. The person who received a composition was obliged to cease from all further hostility, and to confirm his reconciliation with the adverse party by an oath. Leg Longob. lib. I, tit. 9, § 8. As an additional and more permanent evidence of reconciliation, he was required to grant a bond of security to the person from whom he received a composition, absolving him from all further prosecution. Marculfus, and the other collectors of ancient writs, have preserved several different forms of such bonds. Marc. lib. XI, § 18. Append. § 23. Form. Sirmondicæ, § 39. The letters of Slanes, known in the law of Scotland, are perfectly similar to these bonds of security. By the letters of Slanes, the heirs and relations of a person who had been murdered bound themselves, in consideration of an assythment, or composition paid to them, to forgive, «pass over, and for ever forget, and in oblivion inter, all rancour, malice, revenge, prejudice, grudge, and resentment, that they have or may conceive against the aggressor or his posterity, for the crime which he had committed, and discharge him of all action, civil or criminal, against him or his estate, for now and ever». System of Stiles by Dallas of St. Martin’s, p. 862. In the ancient form of letters of Slanes, the private party not only forgives and forgets, but pardons and grants remission of the crime. This practice, Dallas, reasoning according to the principles of his own age, considers as an encroachment on the rights of sovereignty, as none, says he, could pardon a criminal but the king. Ibid. But in early and rude times, the prosecution, the punishment, and the pardon of criminals, were all deeds of the private person who was injured. Madox has published two writs, one in the reign of Edward I, the other in the reign of Edward III, by which private persons grant a release or pardon of all trespasses, felonies, robberies, and murders committed. Formul. Anglican. no. 702, 705. In the last of these instruments, some regard seems to be paid to the rights of the sovereign, for the pardon is granted en quant que en nous est. Even after the authority of the magistrate was interposed in punishing crimes, the punishment of criminals is long considered chiefly as a gratification to the resentment of the persons who [565] have been injured. In Persia a murderer is still delivered to the relations of the person whom he has slain, who put him to death with their own hands. If they refuse to accept of a sum of money as a compensation, the sovereign, absolute as he is, cannot pardon the murderer. Voyages de Chardin, III, p. 417, edit. 1735, 4to Voyages de Tavernier, liv. V, c. 5, 10. Among the Arabians, though one of the first polished people in the East, the same custom still subsists. Description de l’Arabie par M. Niebuhr, p. 28. By a law in the kingdom of Aragon, as late as the year 1564, the punishment of one condemned to death cannot be mitigated but by consent of the parties who have been injured. Fueros y Observancias del Reyno de Aragon, p. 204, 6.

If, after all the engagements to cease from enmity which I have mentioned, any person renewed hostilities, and was guilty of any violence, either towards the person from whom he had received a composition, or towards his relations and heirs, this was deemed a most heinous crime, and punished with extraordinary rigour. It was an act of direct rebellion against the authority of the magistrate, and was repressed by the interposition of all his power. Leg. Longob. lib. I, tit. 9, § 8, p. 34. Capit. vol. I, p. 371, § 22. Thus the avenging of injuries was taken out of private hands, a legal composition was established, and peace and amity were restored under the inspection, and by the authority of a judge. It is evident, that at the time when the barbarians settled in the provinces of the Roman empire, they had fixed judges established among them with compulsive authority. Persons vested with this character are mentioned by the earliest historians. Du Cange, voc. Judices. The right of territorial jurisdiction was not altogether an usurpation of the feudal barons, or an invasion of the prerogative of the sovereign. There is good reason to believe, that the powerful leaders, who seized different districts of the countries which they conquered, and kept possession of them as allodial property, assumed from the beginning the right of jurisdiction, and exercised it within their own territories. This jurisdiction was supreme, and extended to all causes. The clearest proofs of this are produced by M. Bouquet, Le Droit publique de France éclairci, &c. tom. I, p. 206, &c. The privilege of judging his own vassals, appears to have been originally a right inherent in every baron who held a fief. As far back as the archives of nations can conduct us with any certainty, we find the jurisdiction and fief united. One of the earliest charters to a layman which I have met with is that of Ludovicus Pius, A. D. 814; and it contains the right of territorial jurisdiction in the most express and extensive terms. Capitul. vol. II, p. 1405. There are many charters to churches and monasteries of a more early date, containing grants of similar jurisdiction, and prohibiting any royal judge to enter the territories of those churches or monasteries, or to perform any act of judicial authority there. Bouquet, Recueil des Hist. tom. IV, pp. 628, 631, 633; tom. V, pp. 703, 710, 752, 762. Muratori has published many very ancient charters containing the same immunities. Antiq. Ital. Dissert. LXX, In most of these deeds, the royal judge is prohibited from exacting the freda due to the possessor of territorial jurisdiction, which shows that they constituted a valuable part of the revenue of each superior lord at that juncture. The expense of obtaining a sentence in a court of justice during the middle ages was so considerable, that this circumstance alone was sufficient to render men unwilling to decide any contest in iudicial form. It appears from a charter in the thirteenth century, that the [566] baron who had the right of justice received the fifth part of the value of every subject, the property of which was tried and determined in his court. If, after the commencement of a lawsuit, the parties terminated the contest in an amicable manner, or by arbitration, they were, nevertheless, bound to pay the fifth part of the subject contested to the court before which the suit had been brought. Hist de Dauphiné, Genève, 1722, tom. I, p. 22. Similar to this is a regulation in the charter of liberty granted to the town of Friburg, A. D. 1120. If two of the citizens shall quarrel, and if one of them shall complain to the superior lord or to his judge, and after commencing the suit shall be privately reconciled to his adversary, the judge, if he does not approve of this reconciliation, may compel him to go on with his lawsuit, and all who were present at the reconciliation shall forfeit the favour of the superior lord. Historia Zaringo-Badensis, Auctor. Jo. Dan. Schoepflinus. Carolsr. 1765, 4to vol. V, p. 55.

What was the extent of that jurisdiction which those who held fiefs possessed originally, we cannot now determine with certainty. It is evident that, during the disorders which prevailed in every kingdom of Europe, the great vassals took advantage of the feebleness of their monarchs, and enlarged their jurisdiction to the utmost. As early as the tenth century, the more powerful barons had usurped the right of deciding all causes, whether civil or criminal. They had acquired the high justice as well as the low. Establ. de St. Louis, liv. I, c. 24, 25. Their sentence were final, and there lay no appeal from them to any superior court. Several striking instances of this are collected by Brussel. Traité des Fiefs, liv. III, c. 11, 12, 13. Not satisfied with this, the more potent barons got their territories created into regalities, with almost every royal prerogative and jurisdiction. Instances of these were frequent in France. Bruss. Ibid. In Scotland, where the power of the feudal nobles became exorbitant, they were very numerous. Historical Law Tracts, vol. I, tract. VI, Even in England, though the authority of the Norman Kings circumscribed the jurisdiction of the barons within more narrow limits than in any other feudal kingdom, several counties palatine were erected, into which the king’s judges could not enter, and no writ could come in the king’s name, until it received the seal of the county palatine. Spelman. Gloss. voc. Comites Palatini; Blackstone’s Commentaries on the Laws of England, vol. III, p. 78. These lords of regalities had a right to claim or rescue their vassals from the king’s judges, if they assumed any jurisdiction over them. Brussel, ubi supra. In the law of Scotland, this privilege was termed the right of repledging; and the frequency of it not only interrupted the course of justice, but gave rise to great disorders in the exercise of it. Hist. Law Tracts, ibid. The jurisdiction of the counties palatine seems to have been productive of like inconveniences in England.

The remedies provided by princes against the bad effects of these usurpations of the nobles, or inconsiderate grants of the crown, were various, and gradually applied. Under Charlemagne and his immediate descendants, the regal prerogative still retained great vigour, and the duces, comites, and missi dominici, the former of whom were ordinary and fixed judges, the latter extraordinary and itinerant judges, in the different provinces of their extensive dominions, exercised a jurisdiction co-ordinate with the barons in some cases, and superior to them in others. Du Cange, voc. Dux, Comites, et MissI, Murat. [567] Antiq. Dissert. VIII, et IX. But under the feeble race of monarchs who succeded them, the authority of the royal judges declined, and the barons acquired that unlimited jurisdiction which has been described. Louis VI, of France attempted to revive the function of the missi dominici under the title of juges des exempts, but the barons were become too powerful to bear such an encroachment on their jurisdiction, and he was obliged to desist from employing them. Hainault, Abrégé Chron. tom. II, p. 730. His successor (as has been observed) had recourse to expedients less alarming. The appeal de défaute de droit, or on account of the refusal of justice, was the first which was attended with any considerable effect. According to the maxims of feudal law, if a baron had not as many vassals as enabled him to try by their peers the parties who offered to plead in his court, or if he delayed or refused to proced in the trial, the cause might be carried, by appeal, to the court of the superior lord of whom the baron held, and tried there. De l’Esprit des Loix, liv. XXVIII, c. 28. Du Cange, voc. Defectus Justitiæ. The number of peers or assessors in the courts of barons was frequently very considerable. It appears from a criminal trial in the court of the Viscount de Lautrec, A. D. 1299, that upwards of two hundred persons were present, and assisted in the trial, and voted in passing judgment. Hist. De Langued. par D.D. de Vic et Vaisette, tom. IV, Preuves, p. 114. But as the right of jurisdiction had been usurped by many inconsiderable barons, they were often unable to hold courts. This gave frequent occasion to such appeals, and rendered the practice familiar. By degrees, such appeals began to be made from the courts of the more powerful barons; and it is evident, from a decision recorded by Brussel. that the royal judges were willing to give countenance to any pretext for them. Traité des Fiefs, tom. I, pp. 235, 261. This species of appeal had less effect in abridging the jurisdiction of the nobles, than the appeal on account of the injustice of the sentence. When the feudal monarchs were powerful, and their judges possessed extensive authority, such appeals seem to have been frequent. Capitul. vol. I, pp. 175, 180; and they were made in a manner suitable to the rudeness of a simple age. The persons aggrieved resorted to the palace of their sovereign, and with outeries and loud noise called to him for redress. Capitul. lib. III, c. 59. Chronic. Lawterbergiense, ap. Mencken. Script. German. vol. II, p. 284, b. In the kingdom of Aragon, the appeals to the justiza, or supreme judge, were taken in such a form as supposed the appellant to be in immediate danger of death, or of some violent outrage; he rushed into the presence of the judge, crying with a loud voice, Avi, Avi, Fuerza, Fuerza, thus imploring (as it were) the instant interposition of that supreme judge in order to save him. Hier. Blanca, Comment. de Rebus Aragon. ap. Script. Hispanic. Pistorii, vol. III, p. 753. The abolition of the trial by combat facilitated the revival of appeals of this kind. The effects of the subordination which appeals established, in introducing attention, equity, and consistency of decision, into courts of judicature, were soon conspicuous; and almost all causes of importance were carried to be finally determined in the king’s courts. Brussel, tom. I, p. 252. Various circumstances which contributed towards the introduction and frequency of such appeals are enumerated De l’Esprit des Loix , liv. XXVIII, c. 27. Nothing, however, was of such effect as the attention which monarchs gave to the constitution and dignity of their courts of justice. It was the ancient custom for the feudal monarchs to preside [568] themselves in their courts, and to administer justice in person. Marculf. lib. I, § 25. Murat. Dissert. XXXI, Charlemagne, whilst he was dressing, used to call parties into his presence, and having heard and considered the subject of litigation, gave judgment concerning it. Eginhartus, Vita Caroli Magni, cited by Madox, Hist. of Exchequer, vol. I, p. 91. This trial and decision of causes by the sovereigns themselves could not fail of rendering their courts respectable. St. Louis, who encouraged to the utmost the practice of appeals, revived this ancient custom, and administered justice in person with all the ancient simplicity. «I have often seen the saint», says Joinville, «sit under the shade of an oak in the wood of Vincennes, when all who had any complaint freely approached him. At other times he gave orders to spread a carpet in a garden, and seating himself upon it, heard the causes that were brought before him». Hist. de St. Louis, p. 13, edit. 1761. Princes of inferior rank, who possessed the right of justice, sometimes dispensed it in person, and presided in their tribunals. Two instances of this occur with respect to the dauphins of Vienne. Hist. de Dauphiné, tom. I, p. 18. II, p. 257. But as kings and princes could not decide every cause in person, nor bring them all to be determined in the same court, they appointed baillis, with a right ofjurisdiction, in different districts of their kingdom. These possessed powers somewhat similar of the ancient comites. It was towards the end of the twelfth century and beginning of the thirteenth, that this office was first instituted in France. Brussel, liv. II, c. 35. When the king had a court established in different quarters of his dominions, this invited his subjects to have recourse to it. It was the private interest of the baillis, as well as an object of public policy, to extend their jurisdiction. They took advantage of every defect in the right of the barons, and of every error in their proceedings, to remove causes out of their courts, and to bring them under their own cognisance. There was a distinction in the feudal law and an extremely ancient one, between the high justice and the low. Capitul. 3, A. D. 812.,§ 4, A. D. 815, § 3. Establ. de St. Louis, liv. I, c. 40. Many barons possessed the latter jurisdiction, who had no title to the former. The former included the right of trying crimes of every kind, even the highest; the latter was confined to petty trespasses. This furnished endless pretexts for obstructing, restraining, and reviewing the proceedings in the baron courts. Ordon. II, 457, § 25, 458, § 29. A regulation of greater importance succeeded the institution of baillis. The king’s supreme court or parliament was rendered fixed as to the place, and constant as to the time of its meetings. In France, as well as in the other feudal kingdoms, the king’s court of justice was originally ambulatory, followed the person of the monarch, and was held only during some of the great festivals. Philip Augustus, A. D. 1305, rendered it stationary at Paris, and continued its terms during the greater part of the year. Pasquier, Recherches, liv. II, c. 2 et 3, &c. Ordon. tom. I, p. 366 § 62. He and his successors vested extensive power in that court; they granted the members of it several privileges and distinctions, which it would be tedious to enumerate. Pasquier, ibid. Velly, Hist. de France, tom. VI, p. 307. Persons eminent for integrity and skill in law were appointed judges there. Ibid. By degree the final decision of all causes of importance was brought into the parliament of Paris, and the other parliaments which administered justice in the king’s name, in different provinces of the kingdom. This jurisdiction, however, the [569] parliament of Paris acquired very slowly, and the great vassals of the crown made violent efforts in order to obstruct the attempts of that parliament to extend its authority. Towards the close of the thirteenth century, Philip the Fair was obliged to prohibit his parliament from taking cognisance of certain appeals brought into it from the courts of the count of Bretagne, and to recognise and respect his right of supreme and final jurisdiction. Mémoires pour servir de Preuves à l’Histoire de Bretagne par Morice, tom. I, p. 1037, 1074. Charles VI, at the end of the following century, was obliged to confirm the rights of the dukes of Bretagne in still more ample form. Ibid. tom. II, p. 580, 581. So violent was the opposition of the barons to this right of appeal, which they considered as fatal to their privileges and power, that the authors of the Encyclopédie have mentioned several instances in which barons put to death, or mutilated, such persons as ventured to appeal from the sentences pronounced in their courts, to the parliament of Paris, tom. XII, Art. Parlement, p. 25.

The progress of jurisdiction in the other feudal kingdoms was in a great measure similar to that which we have traced in France. In England, the territorial jurisdiction of the barons was both ancient and extensive. Leg. Edw. Conf. No. 5 and 9. After the Norman conquest, it became more strictly feudal; and it is evident, from facts recorded in the English history, as well as from the institution of counties palatine, which I have already mentioned, that the usurpations of the nobles in England were not less bold or extensive than those of their contemporaries on the continent. The same expedients were employed to circumscribe or abolish those dangerous jurisdictions. William the Conqueror established a constant court in the hall of his palace; from which the four courts now entrusted with the administration of justice in England took their rise. Henry II, divided his kingdom into six circuits, and sent itinerant judges to hold their courts in them at stated seasons. Blackstone’s Commentaries on the Laws of England, vol. III, p. 57. Justices of the peace were appointed in every county by subsequent monarchs, to whose jurisdiction the people gradually had recourse in many civil causes. The privileges of the counties palatine were gradually limited; with respect to some points they were abolished; and the administration of justice was brought into the king’s courts, or before judges of his appointment. The several steps taken for this purpose are enumerated in Dalrymple’s History of Feudal Property. chap. VII,

In Scotland the usurpations of the nobility were more exorbitant than in any other feudal kingdom. The progress of their encroachments, and the methods taken by the crown to limit or abolish their territorial and independent jurisdictions, both which I had occasion and explain in a former work, differed very little from those of which I have now given the detail. History of Scotland, vol. I, p. 37.

I should perplex myself and my readers in the labyrinth of German jurisprudence, if I were to attempt to delineate the progress of jurisdiction in the empire, with a minute accuracy. It is sufficient to observe, that the authority which the aulic council and imperial chamber now possess, took its rise from the same desire of redressing the abuses of territorial jurisdiction, and was acquired in the same manner that the royal courts attained influence in other countries of Europe. All the important facts, with respect to both these particulars, may [570] be found in Phil. Datt. de Pace Publica Imperii, lib. IV, The capital articles are pointed out in Pfeffel, Abrégé de l’Histoire du Droit Publique d’Allemagne, p. 556, 581; and in Traité du Droit Publique de l’Empire par M.le Coq. de Villeray. The two last treatises are of great authority, having been composed under the eye of M. Schoepflin of Strasburg, one of the ablest public lawyers in Germany.

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