SECTION I.

 

Abolishment of All Private Wars

1. 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 alienable 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 honor 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.

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. 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 honor 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 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 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, 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 greatwas 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 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 commence 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 co-operated with the civil magistrate, 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 tranquility 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 nave 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 and circumscribe it; they eluded others; they petitioned; they remonstrated; they struggled for the right of private war as the highest and most honorable 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.

 

Prohibition on trial by judicial combat