SECT. 1.

THUS, by the natural operation of circumstan ces peculiar to the manners or political state of and bad ef- the feudal nations, separate and territorial jurisfects of this dictions came not only to be established in every

The extent

privilege.

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 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. The 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 ex

tend 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 of it from attaining any degree of uniformity or perfection.

employed

limit or

ALL the monarchs of Europe perceived these Expedients encroachments on their jurisdiction, and bore in order to them with impatience. But the usurpations of the abolish it. 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 merit 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 cognizance

I.

SECT. 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 recognizing this pri vilege 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 baron's 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 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

1.

de lay or the refusal of justice in the baron's court; SECT. 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 justice 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, relinquish ing the tribunals of their lords, were eager to bring

SECT.

The regula

tions of the

promote a

fect administration.

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 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].

VI. THE forms and maxims of the canon law, canon law which were become universally respectable from more per- their authority in the spiritual courts, contributed not a little towards those improvements in jurisprudence which I have enumerated. If we consider the canon law politically, and view it either as a system framed on purpose to assist the clergy in usurping powers and jurisdiction no less repugnant to the nature of their function, than inconsistent with the order of government; or as the chief instrument in establishing the dominion of the popes, which shook the throne, and endangered the liberties of every kingdom in Europe, we must pronounce it one of the most formidable engines ever formed against the happiness of civil society. But if we contemplate it merely as a code of laws respecting the rights and property of individuals, and attend only to the civil effects of its decisions

[Z] NOTE XXIII,