I.

SECT. pects opened, and new incitements to ingenuity and enterprise presented themselves to those who were emancipated. The expectation of bettering their fortune, as well as that of raising themselves to a more honourable condition, concurred in calling forth their activity and genius; and a numerous class of men, who formerly had no political existence, and were employed merely as instruments of labour, became useful citizens, and contributed towards augmenting the force or riches of the society which adopted them as members.

The introduction of a more re

nistration

of justice contributes

to the im

provement

of society.

V. THE various expedients which were employed in order to introduce a more regular, equal, gular admi- 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 inay 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 so

1.

ciety by the regular execution of known laws; SECT to inflict vengeance on crimes destructive of the peace and safety of individuals, by a prosecution carried on in the name, and by the authority of the community; to consider the punishment of criminals as a public example to deter others from violating the laws; were objects of government little understood in theory, and less regarded in practice. The magistrate could hardly be said to hold the sword of justice; it was left in the hands of private persons. Resentment was almost the sole motive for prosecuting crimes; and to gratify that passion, was considered as the chief end in punishing them. He who suffered the wrong, was the only person who had a right to pursue the aggressor, and to exact or 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.

SECT.

1.

ed by abo

Original

concerning

justice.

I. The first considerable step towards establish

ing an equal administration of justice, was the This effect- abolishment of the right which individuals claimlishing the ed of waging war with each other, in their own practice of private war. 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 ideas of men 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 redresstheir 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.

These lead

tice of pri

vate war.

pu

THE maxims and practice of all uncivilized to the prac nations, with respect to the prosecution and nishment of offenders, particularly those of the ancient Germans, and other Barbarians who invaded the Roman Empire, are perfectly conformable to

I.

these ideas*. While they retained their native SECT. simplicity of manners, and continued to be divid ed 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 in dependence. 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 inte

*Tacit. de Mor. German. cap. 21. Vell. Paterc. lib. ii.

C. 118.

1.

1

SECT rested, to the slow determination of a judicial in quiry. Both trusted to their swords for the decision of the contest. The kindred and dependents of the aggressor, as well as of the defender, were involved in the quarrel. They had not even the liberty of remaining neutral. Such as refused to # act in concert with the party to which they belonged, were not only exposed to infamy, but subjected to legal penalties.

The perni

of it.

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

Various

methods employed in order to

abolish it.

. 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

* Beaumanoir Coustumes de Beauvoisis, ch. 59, et les notes de Thaumassiere, p. 447.