I. The pro religion gress of e When clesiastical When usurpation concerning these, it will appear in a different, SECT and a much more favourable light. In ages of ignorance and credulity, the ministers of are the obejcts of superstitious veneration. the barbarians who over-ran the Roman Empire first embraced the Christian faith, they found the clergy in possession of considerable power; and they naturally transferred to those new guides the profound submission and reverence which they were accustomed to yield to the priests of that religion which they had forsaken. They deemed their persons to be equally sacred with their function; and would have considered it as impious to subject them to the profane jurisdiction of the laity. The clergy were not blind to these advantages which the weakness of mankind afforded them. They established courts, in which every question relating to their own character, their function, or their property, was tried. They pleaded, and obtained an almost total exemption from the authority of civil judges. Upon different pretexts, and by a multiplicity of artifices, they communicated this privilege to so many persons, and extended their jurisdiction to such a variety of cases, that the greater part of those affairs which gave rise to contest and litigation, was drawn under the cognizance of the spiritual courts. The plan of cal juris more per BUT, in order to dispose the laity to suffer these ecclesiastiusurpations without murmur or opposition, it was prudence necessary to convince them, that the administration fect than of justice would be rendered more perfect by the civil courts. that in the I. SECT. establishment of this new jurisdiction. This was not a difficult undertaking at that period, when ecclesiastics carried on their encroachments with the greatest success. That scanty portion of science which served to guide men in the ages of darkness, was almost entirely engrossed by the clergy. They alone were accustomed to read, to inquire, and to reason. Whatever knowledge of ancient jurisprudence had been preserved, either by tradition, or in such books as had escaped the destructive rage of barbarians, was possessed by them. Upon the maxims of that excellent system, they founded a code of laws consonant to the great principles of equity. Being directed by fixed and known rules, the forms of their courts were ascertained, and their decisions became uniform and consistent. Nor did they want authority sufficient to enforce their sentences, Excommunica tion and other ecclesiastical censures, were punishments more formidable than any that civil judges could inflict in support of their decrees. The good effects of initating and adopt ing it. IT is not surprising then, that ecclesiastical jurisprudence should become such an object of admiration and respect, that exemption from civil jurisdiction was courted as a privilege, and conferred as a reward. It is not surprising, that, even to rude people, the maxims of the canon law should appear more equal and just than those of the ill-digested jurisprudence which directed all proceedings in civil courts. According to the latter, the differences between contending barons were terminated, as in a state of nature, by the I. sword; according to the former, every matter was SECT. subject to the decision of laws. The one, by permitting judicial combats, left chance and force to be arbiters of right or wrong, of truth or falsehood; the other, passed judgment with respect to these by the maxims of equity, and the testimony of witnesses. Any error or iniquity in a sentence pronounced by a baron to whom feudal jurisdiction belonged, was irremediable, because originally it was subject to the review of no superior tribunal; the ecclesiastical law established a regular gradation of courts, through all which a cause might be carried by appeal, until it was determined by that authority which was held to be supreme in the church. Thus the genius and principles of the canon law prepared men for approving those three great alterations in the feudal jurisprudence which I have mentioned. But it was not with respect to these points alone that the canon law suggested improvements beneficial to society. Many of the regulations, now deemed the barriers of personal security, or the safeguards of private property, are contrary to the spirit, and repugnant to the maxims of the civil jurisprudence known in Europe during several centuries, and were borrowed from the rules and practice of the ecclesiastical courts. By observing the wisdom and equity of the decisions in these courts, men began to perceive the necessity either of deserting the martial tribunals of the barons, or of attempting to reform them [AA]. [AA] NOTE XXIV, SECT. The revi- . VII. THE revival of the knowledge and study of the Roman law co-operated with the causes which I have mentioned, in introducing more just Roman law and liberal ideas concerning the nature of government, and the administration of justice. Among ideas con- the calamities which the devastations of the barcerning jus contributes towards more liberal der. cumstances law fell into oblivion. tice and or- barians who broke in upon the empire brought upon mankind, one of the greatest was their overturning the system of Roman jurisprudence, the noblest monument of the wisdom of that great people, formed to subdue and to govern the world. The cir- The laws and regulations of a civilized communifrom which ty were repugnant to the manners and ideas of the Roman these fierce invaders. They had respect to objects of which a rude people had no conception; and were adapted to a state of society with which they were entirely unacquainted. For this reason, wherever they settled, the Roman jurisprudence soon sunk into oblivion, and lay buried for some centuries under the load of those institutions which the inhabitants of Europe dignified with the name of laws. But towards the middle of the twelfth century, a copy of Justinian's Pandects was accidentally discovered in Italy. By that time, the state of society was so far advanced, and the ideas of men so much enlarged and improved by the occurrences of several centuries, during which they had continued in political union, that they were struck with admiration of a system which their ancestors could not comprehend. Though revival of it. they had not hitherto attained such a degree of refinement, as to acquire from the ancients a relish for true philosophy or speculative science; Circum stances which favoured the I. though they were still insensible, in a great de- SECT. gree, to the beauty and elegance of classical composition; they were sufficiently qualified to judge with respect to the merit of their system of laws, in which the many points most interesting to mankind were settled with discernment, precision, and equity. All men of letters studied this new science with eagerness; and within a few years after the discovery of the Pandects, professors of civil law were appointed, who taught it publicly in most countries of Europe. of this upon the dispen justice. THE effects of having such an excellent model The effects to study and to imitate were immediately perceiv- the ideas of ed. Men, as soon as they were acquainted with men, and fixed and general laws, perceived the advantage sation of of them, and became impatient to ascertain the principles and forms by which judges should regulate their decisions. Such was the ardour with which they carried on an undertaking of so great importance to society, that, before the close of the twelfth century, the feudal law was reduced into a regular system; the code of canon law was enlarged and methodized; and the loose uncertain customs of different provinces or kingdoms were collected and arranged with an order and accuracy acquired from the knowledge of Roman jurisprudence. In some countries of Europe the Roman law was adopted as subsidiary to their own municipal law; and all cases to which the latter did not extend, were decided according to the principles of the former. In others, the maxims as well as forms of Roman jurisprudence, mingled |