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 succeeding 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 the 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 connection 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 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 connection 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 authorised 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. p. 395. 408. 507, &c. The contemporary historians describe the excesses committed in prosecution of these quarrels in such terms as excité 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 hostilitatibus, totius Francorum regni facta turbatio; crebra ubiq; latrocinia, viarum obsessio; audiebantur passim, immo fiebant incendia infinita; nullis præter sola & indomita cupiditate existentibus causis extruebantur prælia; & 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 dif

1

ferent crime. The injured person was originally the sole judge concerning the nature of 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 ex tinguished, the prosecution may cease, and peace may be restored. Leg. Langob. lib. i. tit. 7. § 10.-2. About the beginning of the ninth century, Charlemagne struck at the root of the evil, 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 the 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 animosi ties, and to swear that they would not for the future violate the public peace by their private hostilities. Bouquet Recueil des Histor. vol. x. p. 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