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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)

Section I - Par iii-v

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

§ III.

The inhabitants of cities, having obtained personal freedom and municipal jurisdiction, soon acquired civil liberty and political power. It was a fundamental principle in the feudal system of policy, that no freeman could be subjected to new laws or taxes unless by his own consent. In consequence of this, the vassals of every baron were called to his court, in which they established, by mutual consent, such regulations as they deemed most beneficial to their small society, and granted their superior such supplies of money as were proportioned to their abilities, or to his wants. The barons themselves, conformably to the same maxim, were admitted into the supreme assembly of the nation, and concurred with the sovereign in enacting laws, or in imposing taxes. As the superior lord, according to the original plan feudal policy, retained the direct property of those lands which he granted in temporary possession to his vassals; the law, even after fiefs became hereditary, still supposed this original [32] practice to subsist. The great council of each nation, whether distinguished by the name of a parliament, a diet, the cortes, or the states-general, was composed entirely of such barons and dignified ecclesiastics, as held immediately of the crown. Towns, whether situated within the royal domain of on the lands of a subject, depended originally for protection on the lord of whom they held. They had no legal name, no political existence, which could entitle them to be admitted into the legislative assembly, or could give them any authority there. But as soon as they were enfranchised, and formed into bodies corporate, they became legal and independent members of the constitution, and acquired all the rights essential to freemen. Amongst these, the most valuable was, the privilege of a decisive voice in enacting public laws, and granting national subsidies. It was natural for cities, accustomed to a form of municipal government, according to which no regulation could be established within the community, and no money could be raised, but by their own consent, to claim this privilege. The wealth, the power, and consideration, which they acquired on recovering their liberty, added weight to their claim; and favourable events happened, or fortunate conjunctures occurred, in the different kingdoms of Europe, which facilitated their obtaining possession of this important right. In England, one of the first countries in which the representatives of boroughs were admitted into the great council of the nation, the barons who took arms against Henry III. [1265] summoned them to attend parliament, in order to add greater popularity to their party, and to strengthen the barrier against the encroachment of regal power. In France, Philip the Fair, a monarch no less sagacious than enterprising, considered them as instruments which might be employed with equal advantage to extend the royal prerogative, to counterbalance the exorbitant power of the nobles, and to facilitate the imposition of new taxes. With these views, he introduced the deputies of such towns as were formed into communities into the [33] states-general of the nation (23). In the empire, the wealth and immunities of the imperial cities placed them on a level with the most considerable members of the Germanic body. Conscious of their own power and dignity, they pretended to the privilege of forming a separate bench in the diet; and made good their pretensions (24).

[1293.] 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, actives 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 [T].



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 [34], 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 (25). 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 dependants, 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, 1315-18. Louis X. and Philip the Long issued ordinances, declaring, [that as all men were by nature free born, and as their kingdom was [35] called the kingdom of Franks, they determined that it should be so in reality as well as in name; therefore they appointed that enfranchisements should be grated throughout the whole kingdom, upon just and reasonable conditions (26). 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 [U]. 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 other, 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 [36] 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.



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 [37] to pursue the aggressor, and to exact or to remit the punishment. From a system of judicial procedure so crude and defective, 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 administration 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.



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 unalienable 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 [38].

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 (27). 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 dependants of the aggressor, as well as of the defender, were involved in the quarrel. They had not even the liberty of remaining neutral. Such as refused to act in [39] 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 (28), 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 (29); but the reign of one monarch, however vigorous and active, was too short to extirpate a custom so firmly established. 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 commerce 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 cooperated with the civil magistrate [40] 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 have manifested, by visions and revelations to different persons, his disapprobation of that spirit of revenge, which armed 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 everything 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 or circumscribe 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 progress of juster sentiments concerning government, order, and public security [X].


The prohibition of the form of trial by judicial combat, was another considerable step towards the introduction [41] 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 anything 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. The greater part of affairs in common life and business was 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 understood by barbarous nations. To define with accuracy that species of 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 [42] 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 (30). 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 could inspire religious reverence, or superstitious terror (31). 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 had uttered to be true. These were called compurgators, and their number varied according to the importance of the subject in dispute, or the nature of the crime with which a person was charged (32). In some cases, the concurrence of no less than three hundred of these auxiliary witnesses was requisite to acquit the person accused (33). But even this device w as found to be ineffectual It was a point of honour with every man in Europe, during several ages, not to desert the chief on whom he depended, and to stand by those with whom the ties of blood connected him. Whoever then was bold enough to violate the laws, was sure of devoted adherents, willing to abet and [43] eager to Serve him in whatever manner he required. The formality of callings compurgators proved an apparent, not a real security against falsehood and perjury; and the sentences of courts, while they continued to refer every point in question to the oath of the defendant, became so flagrantly iniquitously as to excite universal indignation against this method of procedure (34).

Sensible of these defects, but strangers to the manner of correcting theme or of introducing a more proper form, our ancestors, as an infallible method of discovering truth, and of guarding against deception, appealed to heaven, and referred every point in dispute to be determined, as they imagined, by the decisions of unerring wisdom and impartial justice. The person accused, in order to prove his innocence, submitted to trial, in certain cases, either by plunging his arm in boiling-water, or by lifting a red-hot iron with his nailed hand; or by walking barefoot over burning ploughshares; or by other experiments equally perilous and formidable. On other occasions, he challenged his accuser to fight him in single combat. All these various forms of trial were conducted with many devout ceremonies; the ministers of religion w ore employed, the Almighty was called upon to interpose for the manifestation of guilt, and for the protection of innocence; and whoever escaped unhurt, or came off victorious, was pronounced to be acquitted by the judgment of God (35).

Among all the whimsical and absurd institutions which owe their existence to the weakness of human reason, this, which submitted questions that affected the property, the reputation, and the lives of men, to the determination of chance, or of bodily strength and address, appears to be the most extravagant and preposterous. There were circumstances, however which led the nations of Europe to consider this equivocal mode of deciding any point in contest, as [44] a direct appeal to heaven, and a certain method of discovering its will. As men are unable to comprehend the manner in which the Almighty carries on the government of the universe, by equal, fixed, and general laws, they are apt to imagine, that in every case which their passions or interest render important in their own eyes, the Supreme Ruler of all ought visibly to display his power in vindicating innocence and punishing guilt. It requires no inconsiderable degree of science and philosophy to correct this popular error. But the sentiments prevalent in Europe during the dark ages, instead of correcting, strengthened it. Religion, for several centuries, consisted chiefly in believing the legendary history of those saints whose names crowd and disgrace the Romish calendar. The fabulous tales concerning their miracles had been declared authentic by the bulls of popes and the decrees of councils; they made the great subjects of the instructions which the clergy offered to the people and were received by them with implicit credulity and admiration. By attending to theses men were accustomed to believe that the established laws of nature might be violated on the most frivolous occasions, and were taught to look rather for particular and extraordinary acts of power under the divine administration, than to contemplate the regular progress and execution of a general plan. One superstition prepared the way for another; and whoever believed that the Supreme Being had interposed miraculously on those trivial occasions mentioned in legends, could not but expect his intervention in matters of greater importance, when solemnly referred to his decision.

With this superstitious opinion, the martial spirit of Europe, during the middle ages, concurred in establishing the mode of trial by judicial combat. To be ready to maintain with his sword whatever his lips had uttered, was the first maxim of honour with every gentleman. To assert their own rights by force of arms, to inflict vengeance on those who had injured or affronted them, were the distinction [45] and pride of high-spirited nobles. The form of trial by combat coinciding with this maxim, flattered and gratified these passions. Every man was the guardian of his own honour and of his own life; the justice of his cause, as well as his future reputation, depended on his own courage and prowess. This mode of derision was considered, accordingly, as one of the happiest efforts of wise policy; and as soon as it was introduced, all the forms of trial, by fire or water, and other superstitious experiments, fell into disuse, or were employed only in controversies between persons of inferior rank. As it was the privilege of a gentleman to claim the trial by combat, it was quickly authorised over all Europe, and received in every country with equal satisfaction. Not only questions concerning uncertain or contested facts, but general and abstract points in law, were determined by the issue of a combat; and the latter was deemed a method of discovering truth more liberal, as well as more satisfactory, than that by investigation and argument. Not only might parties, whose minds were exasperated by the eagerness and the hostility of opposition, defy their antagonist, and require him to make good his charge, or to prove his innocence, with his sword; but witnesses, who had no interest in the issue of the question, though called to declare the truth by laws which ought to have afforded there protection, were equally exposed to the danger of a challenge, and equally bound to assert the veracity of their evidence by dint of arms. To complete the absurdities of this military jurisprudence, even the character of a judge was not sacred from its violence. Any one of the parties might interrupt a judge when about to deliver his opinion; might accuse him of iniquity and corruption in the most reproachful terms, and, throwing down his gauntlet, might challenge him to defend his integrity in the field; nor could he, without infamy, refuse to accept the defiance, or decline to enter the lists against such an adversary.

Thus the form of trial by combat, like other abuses, [46] spread gradually, and extended to all persons, and almost to all cases. Ecclesiastics, women, minors, superannuated and infirm persons, who could not with decency or justice be compelled to take arms, or to maintain their own cause, were obliged to produce champions, who offered from affection, or were engaged by rewards, to fight their battles. The solemnities of a judicial combat were such as were natural in an action, which was considered both as a formal appeal to God, and as the final decision of questions of the highest moment. Every circumstance relating to them was regulated by the edicts of princes, and explained in the comments of lawyers, with a minute and even superstitious accuracy. Skill in these laws and rites was frequently the only science of which warlike nobles boasted, or which they were ambitious to attaine (36).

By this barbarous custom, the natural course of proceeding both in civil and criminal questions, was entirely perverted. Force usurped the place of equity in courts of judicature, and justice was banished from her proper mansion. Discernment, learning, integrity, were qualities legs necessary to a judge than bodily strength and dexterity in the use of arms. Daring courage, and superior vigour or address, were of more moment towards securing the favourable issue of a suit, than the equity of a cause, or the clearness of the evidence. Men, of course, applied themselves to cultivate the talents which they found to be of greatest utility. As strength of body and address in arms were no less requisite in those lists which they were obliged to enter in defence of their private rights than in the field of battle where they met the enemies of their country, it became the great object of education, as well as the chief employment of life, to acquire these martial accomplishments. The administration of justice, instead of accustoming men to listen to the voice of equity, or to reverence the [47] decisions of law, added to the ferocity of their manners, and taught them to consider force as the great arbiter of right and wrong.

These pernicious effects of the trial by combat were so obvious, that they did not altogether escape the view of the unobserving age in which it was introduced. The clergy from the beginning remonstrated against it as repugnant to the spirit of Christianity, and subversive of justice and order (37). But the maxims and passions which favoured it had taken such hold of the minds of Len, that they disregarded admonitions and censures, which, on other occasions, would have struck them with terror. The evil was too great and inveterate to yield to that remedy, and continuing to increase, the civil power at length found it necessary to interpose. Conscious, however, of their own limited authority, monarchs proceeded with caution, and their first attempts to restrain or to set any bounds to this practice were extremely feeble. One of the earliest restrictions of this practice which occurs in the history of Europe, is that of Henry I of England. It extended no farther than to prohibit the trial by combat in questions concerning property of small value (38). Louis VII of France imitated his example, and issued an edict to the same effect (39). St. Louis, whose ideas as a legislator were far superior to those of his age, endeavoured to introduce a more perfect jurisprudence, and to substitute the trial by evidence in place of that by combat; but his regulations with respect to this were confined to his own domains, for the great vassals of the crown possessed such independent authority, and were so fondly attached to the ancient practice, that he had not power to venture to extend it to the whole kingdom. Some barons voluntarily adopted his regulations. The spirit of courts of justice became averse to the mode of decision by combat, and discouraged it on every occasion. The nobles, [48] nevertheless, thought it so honourable to depend for the security of their lives and fortunes on their own courage alone, and contended with so much vehemence for the preservation of this favourite privilege of their order, that the successors of St. Louis, unable to oppose, and afraid of offending such powerful subjects, were obliged not only to tolerate, but to authorize the practice which he had attempted to abolish (40). In other countries of Europe efforts equally zealous were employed to maintain the established custom, and similar concessions were extorted from their respective sovereigns. It continued, however, to be an object of policy with every monarch of abilities or vigour to explode the trial by combat, and various edicts were issued for this purpose. But the observation which was made concerning the right of private war, is equally applicable to the mode of trial under review No custom, how absurd soever it may be, if it has subsisted long, or derived its source from the manners and prejudices of the age in which it prevails, was ever abolished by the bare promulgation of laws and statutes. The sentiments of the people must change, or some new power sufficient to counteract the prevalent custom must be introduced. Such a change accordingly took place in Europe, as science gradually increased, and society advanced towards more perfect order. In proportion as the prerogative of princes extended and came to acquire new force, a power interested in suppressing every practice favourable to the independence of the nobles was introduced. The struggle, nevertheless, subsisted for several centuries; sometimes the new regulations and ideas seemed to gain ground; sometimes ancient habits recurred: and though, upon the whole, the trial by combat went more and more into disuse, yet instances of it occur as late as the sixteenth century, in the history both of France and of England. In proportion as it declined, the regular administration of justice was restored, the [49] proceedings of courts were directed by known laws, the study Of these became an object of attention to judges, and the people of Europe advanced fast towards civility, when this great cause of the ferocity of their manners was removed [Y].



By authorising the right of appeal from the courts of the barons to those of the king, and subjecting the decisions of the former to the review of the latter, a new step, not less considerable than those which I have already mentioned, was taken towards establishing the regular, consistent, and vigorous administration of justice. Among all the encroachments of the feudal nobles on the prerogative of their monarchs, their usurping the administration of justice with supreme authority, both in civil and criminal causes, within the precincts of their own estates, was the most singular. In other nations subjects have contended with their sovereigns, and have endeavoured to extend their own power and privileges, but in the history of their struggles and pretensions we discover nothing similar to this right which the feudal barons claimed and obtained. It must have been something peculiar in their genius and manners that suggested this idea, and prompted them to insist on such a claim. Among the ruby people who conquered the various provinces of the Roman empire, and established new kingdoms there, the passion of resentment, too impetuous to bear control, was permitted to remain almost unrestrained by the authority of laws. The person offended, as bas been observed, retained not only the right of prosecuting, but of punishing his adversary. To him it belonged to inflict such vengeance as satiated his rage, or to accept of such satisfaction as appeased it. But while fierce barbarians continued to be the sole judges in their own cause, their enmities were implacable and immortal; they set no bounds either to the degree of their vengeance, or to the duration of their resentment. The excesses which this occasioned proved so destructive of peace and order in society, as to render it necessary to devise some remedy. [50] At first, recourse was had to arbitrators, who, by persuasion or entreaty, prevailed on the party offended to accept of a fine or composition from the aggressor, and to drop all farther prosecution. But as submission to persons who had no legal or magisterial authority was altogether voluntary, it became necessary to establish judges, with power sufficient to enforce their own decisions. The leader, whom they were accustomed to follow and to obey, whose courage they respected, and in whose integrity they placed confidence, was the person to whom a martial people naturally committed this important prerogative. Every chieftain was the commander of his tribe in war, and their judge in peace. Every baron led his vassals to the field, and administered justice to them in his hall. The high-spirited dependants would not have recognised any other authority, or have submitted to any other jurisdiction. But in timers of turbulence and violence, the exercise of this new function was attended not only with trouble, but with danger. No person could assume the character of a judge, if he did not possess power sufficient to protect the one party from the violence of private revenge, and to compel the other to accept of such reparation as he enjoined. In consideration of the extraordinary efforts which this office required, judges, besides the fine which they appointed to be paid as a compensation to the person or family who had been injured, levied an additional sum as a recompense for their own labour; and in all the feudal kingdoms the latter was not only as precisely ascertained but as regularly exacted as the former.

Thus, by the natural operation of circumstances peculiar to the manners or political state of the feudal nations, separate and territorial jurisdictions came not only to be established in every kingdom, but were established in such a way, that the interest of the barons concurred with their ambition in maintaining and extending them. It was not merely a point of honour with the feudal nobles to dispense [51] justice to their vassals; but from the exercise of that power arose one capital branch of their revenue; and the emoluments of their courts were frequently the main support of their dignity. It was with infinite zeal that they asserted and defended this high privilege of their order. By this institution, however, every kingdom in Europe was split into as many separate principalities as it contained powerful barons. Their vassals, whether in peace or in war, were hardly sensible of any authority but that of their immediate superior lord. They felt themselves subject to no other command. They were amenable to no other jurisdiction. Tile ties which linked together these smaller confederacies became close and firm; the bonds of public union relaxed, or were dissolved. The nobles strained their invention in devising regulations which tended to ascertain and perpetuate this distinction. In order to guard against any appearance of subordination in their courts to those of the crown, they frequently constrained their monarchs to prohibit the royal judges from entering their territories, or from claiming any jurisdiction there; and if, either through mistake, or from the spirit of encroachment, any royal judge ventured to extend his authority to the vassals of a baron they might plead their right of exemption, and the lord of whom they held could not only rescue them out of his hands, but was entitled to legal reparation for the injury and affront offered to him. The jurisdiction of the royal Judges scarcely reached beyond the narrow limits of the king’s demesnes. Instead of a regular gradation of courts, all acknowledging the authority of the same general laws, and looking up to these as the guides of their decisions, there were in every feudal kingdom a number of independent tribunals, the proceedings of which were directed by local customs and contradictory forms. The collision of jurisdiction among these different courts often retarded the execution of justice: the variety and caprice of their modes of procedure must have for ever kept the administration [52] of it from attaining any degree of uniformity or perfection.

All the monarchs of Europe perceived these encroachments on their jurisdiction, and bore them with impatience. But the usurpations of the nobles were so firmly established, and the danger of endeavouring to overturn them by open force was so manifest, that kings were obliged to remain satisfied with attempts to undermine them. Various expedients were employed for this purpose, each of which merits attention, as they mark the progress of law and equity in the several kingdoms of Europe. At first, princes endeavoured to circumscribe the jurisdiction of the barons, by contending that they ought to take cognisance only of smaller offences; reserving those of greater moment, under the appellation of pleas of the crown, and royal causes, to be tried in the king’s courts. This, however, affected only the barons of inferior note; the more powerful nobles scorned such a distinction, and not only claimed unlimited jurisdiction, but obliged their sovereigns to grant them charters, conveying or recognising this privilege in the most ample form. The attempt, nevertheless, was productive of some good consequences, and paved the way for more. It turned the attention of men towards a jurisdiction distinct from that of the baron whose vassals they were; it accustomed them to the pretensions of superiority which the crown claimed over territorial judges; and taught them, when oppressed by their own superior lord, to look up to their sovereign as their protector. This facilitated the introduction of appeals, by which princes brought the decisions of the barons’ courts under the review of the royal Judges. While trial by combat subsisted in full vigour, no point decided according to that mode could be brought under the review of another court. It had been referred to the judgment of God; the issue of battle had declared his will; and it would have been impious to have called in question the equity of the divine decision. But as soon as that [53] barbarous custom began to fall into disuse, princes encouraged the vassals of the barons to sue for redress, by appealing to the royal courts. The progress of this practice, however, was slow and gradual. The first instances of appeals were on account of the delay or the refusal of justice in the barons’ court; and as these were countenanced by the ideas of subordination in the feudal constitution, the nobles allowed them to be introduced without much opposition. But when these were followed by appeals on account of the injustice or iniquity of the sentence, the nobles then began to be sensible, that, if this innovation became general, the shadow of power alone would remain in their hands, and all real authority and jurisdiction would centre in those courts which possessed the right of review. They instantly took the alarm, remonstrated against the encroachment, and contended boldly for their ancient privileges. But the monarchs in the different kingdoms of Europe pursued their plan with steadiness and prudence. Though forced to suspend their operations on some occasions, and seemingly to yield when any formidable confederacy of their vassals united against them, they resumed their measures as soon as they observed the nobles to be remiss or feeble, and pushed them with vigour. They appointed the royal courts, which originally were ambulatory, and irregular with respect to their times of meeting, to be held in a fixed place and at stated seasons. They were solicitous to name judges of more distinguished abilities than such as usually presided in the courts of the barons. They added dignity to their character, and splendour to their assemblies. They laboured to render their forms regular and their decrees consistent. Such judicatories became, of course, the objects of public confidence as well as veneration. The people relinquishing the tribunals of their lords, were eager to bring every subject of contest under the more equal and discerning eye of those whom their sovereign had chosen to give judgment in his name. Thus kings became once [54] more the heads of the community, and the dispensers of justice to their subjects. The barons, in some kingdoms, ceased to exercise their right of jurisdiction, because it sunk into contempt; in others, it was circumscribed by such regulations as rendered it innocent, or it was entirely abolished by express statutes. Thus the administration of justice, taking its rise from one source, and following one direction, held its course in every state with more uniformity, and with greater force [Z].

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Proofs & Illustrations


(23) Pasquier, Recherches de la France, ap. 81, edit. Par. 1633.

(24) Pfeffel, Abrégé de l’Histoire et Droit d’Allemagne, pp. 408, 451.

(25) Establissement de St. Louis, liv. II, ch. 34. Ordon., tom. I, p. 283, note (a).

(26) Ordon., tom. I, p. 583, 653.

(27) Tacit. De Mor. German., cap. 21. Vell. Paterc. lib. II. c. 118.

(28) Beaumanoir, Coustumes de Beauvoisis, ch. 59, et les notes de Thaumassière

(29) Capitul. A. D. 801, edit. Baluz., vol. I, p. 371.

(30) Leg. Burgund. tit. 8 et 45. Leg. Aleman. Tit. 89. Leg. Baiwar. tit. 8, § 2, 5 &c.

(31) Du Cange, Glossar., voc. Juramentum, vol. III, p. 1607, edit. Benedict.

(32) Du Cange, ibid., vol. III, p. 1599.

(33) Spelman, Glossar., voc. Assath, Gregor. Turon. Hist. Lib. VIII, c. 9.

(34) Leg. Langobard. lib. II, tit. 55, § 34.

(35) Murat. Dissertatio de Judiciis Dei, Antiquit. Ital. vol. III, p. 612.

(36) See a curious discourse concerning the laws of judicial combat, by Thomas Woodstock, duke of Gloucester, uncle to Richard II, in Spelman’s Glossar. voc. Campus.

(37) Du Cange, Glossar. voc. Duellum, vol. II, p. 1675 .

(38) Brussel, Usage des Fiefs, vol. II, p. 962.

(39) Ordon., tom. I, p. 16.

(40) Ordon. tom. I, pp. 328, 390, 435.

References to Proofs and Illustrations

[T] Note XIX

[U] Note XX

[X] Note XXI

[Y] Note XXII

[Z] Note XXIII

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