« AnteriorContinuar »
their customs, and actuated all their habits. This spirit was permanently incorporated in their institutions. Montesquieu affirms that the first hint of the British constitution was found in the forests of Germany. Not only was the outline of their government derived thence, but the very germ of English liberty was transplanted from the same hardy soil ; and in the great migration of the nations,' the same principles and institutions were disseminated throughout the continent. The form of government among the various tribes was mingled and different, but its chief features were republican. The exercise of the elective franchise was universal Public affairs were discussed, either in select councils, or before the assemblies of the citizens. But all measures were canvassed by the magistrates before they were submitted to the people. The states were divided into cantons, as the Swiss now are, and each canton was subdivided into hundreds. A limited prerogative was accorded to the rulers — whether kings or leaders — but the rights and power of the people were always predominant Subordination was voluntary, and their freedom acknowledged no control except that which was self-imposed. Such were the general features of the laws and manners of that vast succession of tribes which, swarming from the northern hive, precipitated themselves upon the western empire of declining Rome, and overwhelmed every thing in their impetuous course. The diffusion of their population over the subjugated country wrought an immediate and important change in their government. As the people were spread over a vast extent of territory, it became impossible to continue their primary assemblies,. and this difficulty introduced the principle and practice of representation, the great organ and safeguard of civil liberty. After this constitution had been extended over the greater part of Europe, in total exclusion of the Roman laws, it gradually assumed the form and compass of that stupendous establishment, the feudal system.
It would perhaps be just to reduce the principles of the Germanic laws and customs to these two general characteristics: the preponderance of popular influence, and a certain balance between the different powers of government both essential elements of civil liberty. But the system also contained within itself, or generated as an excrescence, an antagonist tendency, which subsequently overwhelmed the simplicity and utility of the true principles of the constitution. This tendency was afterward developed through the establishment of military tenures.
The occupancy of a vast territory rendered this feudal partition originally necessary, in order to preserve the victors against the evils of dismemberment, and the consequent loss of their new acquisitions. It was the most expedient plan both for distribution and protection. But the ultimate consequence of this policy grew into the monstrous system of baronial tyranny, which eventually gave rise to a contest not yet completely determined. This contest was the struggle, then begun, of the many against the few ; a struggle continued, with occasional intermissions, through successive ages, and in various forms, down to the present period, and of which we only now begin clearly to foresee the triumphant event. It will be a noble task for the united effort of history and philosophy to trace and record the onward progress of this mighty conflict, alternately abandoned and renewed, bequeathed from age to age, and though often baffled, never forgotten or forsa- ,
ken. It would form a distinct and impressive chapter in the history of the human mind. But the task is not for the age which is still identified with the struggle, and which is not yet finally assured of the end. It must be left for the accomplishment of that era which shall witness, not only the consummation but the results; for until they be completely realized, the theme would remain imperfect.
The feudal polity rapidly extended itself over continental Europe, but it appears not to have been formally adopted in England until a period subsequent to the Conquest. But its prominent features may be traced in the laws and manners existent anterior to the Norman in vasion. The elements of feudalism were most probably introduced by the Saxons, but they were not extended so generally throughout the Island, ror so complete in themselves as to possess any claim to the formation of a system. Indeed, among the German tribes, in their original state, this policy was at most but initiate ; it had not assumed the definite shape it afterward exhibited, when it became, as a civil establishment, the · Law of Nations in those countries over which it was extended. The prior existence of feudal principles familiarized the English to an easy and voluntary adoption of the system, and it appears to have been established with the common consent of the nation.
Thus, after many and fierce struggles with the Roman power, the Germanic constitution was at length firmly and universally established. Comparative liberty superseded unmingled despotism. It was the beginning of practical liberty — not that which lives in the transient excitement of popular impulse — not that which has been adored as the classical idol of individual or national enthusiasm — but that palpable and enduring freedom which true wisdom or unerring nature had embodied in political institutions, and which was calculated to withstand the shocks of tyranny and time, and survive as an imperishable principle, when its originators were mouldering in the silent dust of centuries. Let its merits be acknowledged in its durability. What memorials of the original supremacy of Rome were left in the laws and manners of modern Europe ? Almost every moral trace of their empire was swept away, and their very code of jurisprudence remained buried and forgotten for ages; and, although since revived and adopted, as a science, its original sway left no inherent impress upon the polity or manners of those nations over which its jurisdiction had extended. Not so with the Germanic code. Although its original character has been much modified by time and change, or improvement, it never has lost, it never can lose its identity. We still acknowledge the traces and influence of those pristine elements which have given strength and consistency, in various degrees, to the systems of modern Europe. Trial by jury, the best guardian of private and public liberty, derived from the Germanic constitution, remains a sufficient monument to its merit.
It was the proposed object of this article to trace the progress of modern liberty from its feudal origin down to the present time. But the subject is too vast to be compressed within the prescribed limits. It is, therefore, only practicable to touch the most important periods
per saltum. Perhaps, too, it would be a forced task to wander, even idly, along the fretted and sometimes subterranean course of the swel. ling tide of those events which mark its onward career. There is a
natural, a native impulse to rush forward to that point where foams the whirlpool to our thoughts — which every American images as the Niagara of Liberty, over-pouring a ‘rising world of waters' in its mighty deluge.
T'hose great events which form the epochs of their respective eras must necessarily create a wide spread and permanent influence, working either weal or wo to the interests of mankind. The world cannot be agitated by a moral convulsion, and yet retain no trace of its existence. But the motives of human action are so various and so mingled, the dependency of cause and effect oftentimes so slender, and the just relation between principle and event so difficult of perception, that it frequently becomes most perplexing to determine whether a particular result is to be referred to its apparently proximate cause, or whether both ought not properly to be ascribed to more remote agents, and classed together in a common category. However this may be, it is most certain that such occurrences denote an era of visible influence a period when the march of civilization was either quickened or retarded. In observing the moral phenomena which mark the progress of civil liberty, the mind naturally reverts to that great spectacle which stands in such prominent relief upon the gorgeous picture of the Middle Ages. Occurring at an important period of the advancement of Europe from barbarism to refinement, it would naturally be presupposed that the Crusades had an important bearing upon the great cause of humanity. Their good or evil effects have been equally affirmed and denied. Without, therefore, attempting to demonstrate a moral relation between them and civilization, it will be sufficient to point out the most important of those circumstances, which may at least claim a chronological coincidence. The object is not to inquire into the general consequences of these expeditions — whether beneficial or injurious - but briefly to designate certain events of coëval or consequent occurrence, which tended to the advancement of civil liberty. The most immediate of these were the universality of national intercommunication, and the consequent increase of commerce and manufactures. The revival of learning, although but partially attributable to the Crusades them. selves, yet began to distinguish the era, and exerted the bappiest influence in the acknowledged amelioration of the political and moral condition of mankind. But the great incidents which contributed to the cause of liberty, were – a forced diminution of the unbalanced power of the baronial aristocracy, and the correspondent accession of influence in the hands of the people. The estates of the feudal lords were dissipated in the costly preparations and burthensome expenses necessary for their distant expeditions to the Iloly Land. Charters of freedom were wrested from their poverty, and privileges and property secured to the peasants and artificers ; thus restoring a substance and a soul to the most useful part of the community,' and superseding martial ostentation by industry and improvement. This change was effected by the establishment of Municipal Corporations. The abuses of the feudal system had rendered the cities and towns dependant, and tribu. tary to the princes and nobles. Their superiority, like all arbitrary power, had been grievously abused for selfish aggrandizement, and the depression of their feudatories, who were deprived of all the essential and inherent rights of man, both public and domestic. Insecurity
blasted the happiness of their life, and the prosperity of business. The right of holding property was precarious, and they enjoyed no power of disposal, either by will or deed. Marriage was a purchased privilege, and the guardianship of children was vested in their oppressors. Unmitigated vassalage palsied exertion, and precluded improvement. Those who were mocked with the name of freemen, were but little elevated above the most abject of their fellow-slaves. But while the costly fanaticism of the feudal aristocracy was rapidly lessening their power, by the loss of wealth, and the slaughter of their immediate hereditary bondsmen,' the strength and influence of the people were steadily advancing, and securing to them the means of breaking the iron bondage with which their energies were fettered. The cities of Italy, many of which had been advanced by the crusades to considerable maritime importance, were enabled to obtain, either by force, favor, or purchase, very considerable corporate privileges. Their example was followed, with the same success, by great numbers of towns through. out Europe. The efforts of the people were assisted by the anxiety of their monarchs to fortify themselves against baronial ascendency. The former were incited to these exertions by a renovated spirit of liberty. They had been trampled down to the lowest stage of depression, and a natural reaction gave ascensive energy to their attempts. Human nature is perhaps capable of degradation infinitely accumulated, because there is a moral tendency to depravity ; but there is an ultimate period of oppression when despair arms itself with its very shackles. The towns were erected into corporations, a name now most usually expressive of very different institutions. The powers and capacities they acquired are more significantly exhibited by the attribute franchise. This, in its broad sense, includes many political rights, such as enfranchisement, the right of trial by jury, of holding offices and of suffrage, in the members of the body-politic, and the corporate privilege of the enactment and administration of free and voluntary laws. The general result of this great change, as regards civilization, was the revival of the arts, industry, and commerce: the peculiar effect upon the advancement of civil liberty was the establishment of order and security.
The twelfth century was also distinguished by the revival of the civil law, which, according to Mr. Justice Blackstone, • established a new Roman empire over most of the states of the continent. The same learned writer attributes to this cause the subsequent depression of liberty in Europe, and asserts that the preservation of the free constitution of England was owing to the resistance offered by their AngloSaxon laws to the repeated attacks of the Roman code. Through the introduction of the civil law, ecclesiastical influence, already much extended by the crusades, increased throughout Europe to the most dangerous ascendancy. Whatever the genius of the popish church may have been, its temporal power was always hostile to freedom. Whether the latter assertion of the distinguished commentator be or be not unqualifiedly true, certain it is, that to England we must look for the most substantial triumphs of liberty, and for the sure and steady progression of her cause.
(Our Muse is a proud limitary cherub', and will not permit us to advert to the Patriot Tell' who woo'd and won the free and beautiful sister spirit of his native hills. She still liveth in the romantic dells of Switzerland. Forever may her rosy smiles be reflected on the snowcapped summits of those everlasting mountains which sentinel the freedom of a brave and gallant people !)
In the earlier periods of English' history, the increased perfection of law was identical with the advancement of liberty. The reign of Edward the First was an era of conspicuous improvement. This monarch confirmed and enlarged the operation of Magna Charta ; he restrained popish encroachments, defined judicial jurisdiction, abolished arbitrary taxation, relinquished the royal prerogative of interference in private litigation, removed restraints upon the alienation of property, and diminished those conveyances to religious societies which threatened to concentrate all the landed influence of the kingdom in the hands of the clergy. But as nothing human is unmixed with evil, the legislation of the English Justinian was cumbered with one counteracting error. During his reign was invented the method of creating estates-tail — an evil which at this very day weighs like an incubus on the awakening exertions of a spirit more enlightened, more anthropic than even the boasted genius of English Liberty. The fabric constructed by Edward the First remained almost untouched until the reign of the eighth Henry, when the world was again agitated by a moral convulsion more centripetal than any which preceded it.
From the period of the Crusades until the beginning of the sixteenth century, the wealth and power of the clergy had rapidly augmented, and the evil influence of the Church of Rome yawned like a frightful gulf, threatening to swallow the wholesome energies and the best institutions of civil society in its all-absorbing vortex. The wealth of the Church had increased to such exorbitancy, that the greater portion of the property in several countries had been usurped into its possession. The personal immunities of the clergy were almost unlimited, and their exemption from secular authority had not only freed themselves from all moral and external restraint, but by the correspondent extension of ecclesiastical jurisdiction they had encircled almost the whole body of the laïty with a palpable subjection, as well as with the mental fetters of fear and superstition. The various devices of an universal inquisition had imposed a common slavery on the minds of men, and drained the resources of every country into the meretricious lap of the Church. Horror of spiritual censure was the great engine by which unwilling obedience was extorted. The crushing weight of such accumulated imposition had compressed the elasticity of human nature to that compass when rëaction must commence its opposing movement. The preceding circumstances concurred to produce the motive, and the previous invention of printing, together with the complete revival of learning, and its attendant spirit of inquiry, had prepared the means of accomplishing the Reformation. This great event constituted an intellectual as well as a religious revolution, and in this respect exerted an incalculable influence upon the cause of liberty. The fountain of religion was cleansed of the grosser impurities of earthly passion and temporal interest, and the rank and poisonous evils which its corrupted current had nourished were forever eradicated from a soil no longer genial to their growth. In England, the most obvious effect of the Reformation was an entire and permanent dissolution of popish