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What bestowed an additional merit on the civil law, was the extreme imperfection of that jurisprudence which preceded it among all the European nations, especially among the Saxons or ancient English. The absurdities which prevailed at that time in the administration of justice, may be conceived from the authentic monuments which remain of the ancient Saxon laws; where a pecuniary commutation was received for every crime, where stated prices were fixed for men’s lives and members, where private revenges were authorized for all injuries, where the use of the ordeal, corsnet, and afterwards of the duel, was the received method of proof, and where the judges were rustic freeholders, assembled of a sudden, and deciding a cause from one debate or altercation of the parties. Such a state of society was very little advanced beyond the rude state of nature: violence universally prevailed, instead of general and equitable maxims: the pretended liberty of the times was only an incapacity of submitting to government: and men, not protected by law in their lives and properties, sought shelter, by their personal servitude and attachments, under some powerful chieftain, or by voluntary combinations.
The gradual progress of improvement raised the Europeans somewhat above this uncultivated state; and affairs, in this island particularly, took early a turn which was more favorable to justice and to liberty. Civil employments and occupations soon became honorable among the English: the situation of that people rendered not the perpetual attention to wars so necessary as among their neighbors, and all regard was not confined to the military profession: the gentry, and even the nobility, began to deem an acquaintance with the law a necessary part of education: they were less diverted than afterwards from studies of this kind by other sciences; and in the age of Henry VI., as we are told by Fortescue, there were in the inns of court about two thousand students, most of them men of honorable birth, who gave application to this branch of civil knowledge: a circumstance which proves, that a considerable progress was already made in the science of government, and which prognosticated a still greater.
One chief advantage which resulted from the introduction and progress of the arts, was the introduction and progress of freedom; and this consequence affected men both in their personal and civil capacities.
If we consider the ancient state of Europe, we shall find, that the far greater part of the society were every where bereaved of their personal liberty, and lived entirely at the will of their masters. Every one that was not noble, was a slave: the peasants were sold along with the land: the few inhabitants of cities were not in a better condition: even the gentry themselves were subjected to a long train of subordination under the greater barons or chief vassals of the crown; who, though seemingly placed in a high state of splendor, yet, having but a slender protection from law, were exposed to every tempest of the state, and, by the precarious condition in which they lived, paid dearly for the power of oppressing and tyrannizing over their inferiors. The first incident which broke in upon this violent system of government, was the practice, begun in Italy, and imitated in France, of erecting communities and corporations, endowed with privileges and a separate municipal government, which gave them protection against the tyranny of the barons, and which the prince himself deemed it prudent to respect.[*]
* There appear early symptoms of the jealousy entertained by
the barons against the progress of the arts, as destructive
of their licentious power. A law was enacted, 7 Kenry IV.
chap. 17, prohibiting any one who did not possess twenty
shillings a year in land from binding his sons apprentices
to any trade. They found already that the cities began to
drain the country of the laborers and husbandmen: and did
not foresee how much the increase of commerce would increase
the value of their estates. See further, Cotton, p. 179. The
kings, to encourage the boroughs, granted them this
privilege, that any villein who had lived a twelvemonth in
any corporation, and had been of the guild, should be
thenceforth regarded as free.
The relaxation of the feudal tenures, and an execution somewhat stricter of the public law, bestowed an independence on vassals which was unknown to their forefathers. And even the peasants themselves, though later than other orders of the state, made their escape from those bonds of villenage or slavery in which they had formerly been retained.
It may appear strange that the progress of the arts, which seems, among the Greeks and Romans, to have daily increased the number of slaves, should, in later times, have proved so general a source of liberty; but this difference in the events proceeded from a great difference in the circumstances which attended those institutions. The ancient barons, obliged to maintain themselves continually in a military posture, and little emulous of elegance or splendor, employed not their villains as domestic servants, much less as manufacturers; but composed their retinue of freemen, whose military spirit rendered the chieftain formidable to his neighbors, and who were ready to attend him in every warlike enterprise. The villains were entirely occupied in the cultivation of their master’s land, and paid their rents either in corn and cattle, and other produce of the farm, or in servile offices, which they performed about the baron’s family, and upon the farms which he retained in his own possession. In proportion as agriculture improved and money increased, it was found that these services, though extremely burdensome to the villain, were of little advantage to the master; and that the produce of a large estate could be much more conveniently disposed of by the peasants themselves, who raised it, than by the landlord or his bailiff, who were formerly accustomed to receive it. A commutation was therefore made of rents for services, and of money-rents for those in kind; and as men, in a subsequent age, discovered that farms were better cultivated where the farmer enjoyed a security in his possession, the practice of granting leases to the peasant began to prevail, which entirely broke the bonds of servitude, already much relaxed from the former practices. After this manner villenage went gradually into disuse throughout the more civilized parts of Europe: the interest of the master, as well as that of the slave, concurred in this alteration. The latest laws which we find in England for enforcing or regulating this species of servitude, were enacted in the reign of Henry VII. And though the ancient statutes on this subject remain still unrepealed by parliament, it appears that before the end of Elizabeth, the distinction of villain and freeman was totally, though insensibly abolished, and that no person remained in the state, to whom the former laws could be applied.
Thus personal freedom became almost general in Europe; an advantage which paved the way for the increase of political or civil liberty, and which, even where it was not attended with this salutary effect, served to give the members of the community some of the most considerable advantages of it.
