Clovis, is familiar to all. Among the first signs of a tendency to repose that we find after the period of the settlement, we see its consequences developing themselves in the rude institutions which sprung up for the administration of justice. Here, as in the appointment of their chiefs in war, the magistrate must be elected by those over the settlement of whose disputes he was to preside. They would not submit to be tried by any save their peers and neighbours, with whom they were acquainted, and of whose impartiality, in that society of clashing ambitions, they could not entertain a doubt. The Centenarius, or hundredary, was elected by those over whom his jurisdiction extended; while every ten families chose another magistrate, called by the Franks Decanus, and by our Anglo-Saxon ancestors, Tythingman. These seem to have been the first courts that were instituted. The crown, however, in the time of Charlemagne, and chiefly through his instrumentality and genius, seems to have acquired an important accession to its originally limited share of power and authority. In one of his celebrated capitularies we find it laid down that no man should be judged in the court of the centenary regarding anything affecting his life, his liberty, his property, or his slaves. "Sed," it is added, "ista aut in praesentia comitis vel missorum nostrorum judicentur." The comes or count was elected by the king, and though it appears that assessors sat with him, over whom the people exercised some control, it could scarcely have been otherwise than in every instance of plurality of judges— the chief took the lead, very slightly controlled by the minor officers who sat with him. This further appears from the fact, that, owing to multiplied complaints made against the comites, Charlemagne appointed a number of circuit judges, referred to (nostrorum missorum) along with the former in the capitulary above quoted, whose duty it was to exercise a superintendence over the counts, and to see generally that justice was regularly and properly administered. The feudal system had in the meantime been gradually growing up, and with it, other and more anomalous ideas of the administration of justice. The system sketched above had ceased to be national and universal, and exceptions were gradually permitted. The privilege of administering justice was, in many instances, being attached to the land, as was almost everything else, not excepting the baron and all his retinue of dependants. It seems to have always been the custom, in ecclesiastical grants of land, to exempt the lands granted from the entrance of the ordinary judges, or, in other words, to give to the ecclesiastical grantees the sole privilege of dispensing justice within the granted lands. We are certain that such an exemption accompanied the grants made by the church-loving Dagobert of France, in the seventh century. It certainly was not contained in the original grants to laymen. Those were not times, however, when such a precedent could be spared by the aspiring lords. "Excelsior" was then the device inscribed on the baronial banner, and the spirit of that device they cherished and acted on with a determined perseverance, and desisted not from it till their ambitious purposes were fully, and, to them, most satisfactorily accomplished. Step by step, their grants were confirmed for life, rendered descendable by hereditary succession, and finally inalienable. Honorary titles and civil offices were next usurped, and subjected to the hereditary principle in the same manner as their lands. By men who had contended successfully for such unprecedented prerogatives, it could not be matter of surprise that another, already possessed by their brother landholders in the church, should long remain unclaimed. The mighty power of Charlemagne, which, like a fitful gleam of the sun's rays in a dark day, blazed forth for a time upon revolutionized Europe, and then departed, leaving it in cloudiness and gloom as before, imposed upon their avidity a temporary restraint. Yet it was but transient. The prophecy of the great Emperor, which he uttered in an agony of tears, as he thought on the dark future in store for his successors and his people, was, ere a few short years had closed around his tomb, more than fully accomplished. Under his puerile successors, the old spirit of aristocratic aggrandizement burst forth as vividly as usual prior to the time of Charlemagne. In the charter of Louis referred to, there is a reservation in cases of illegal judgment of the right of appeal to the courts of the crown. Originally the prerogative could not have been of much value to its possessors. The sub-infeudations, however, which afterwards became frequent, considerably increased the emolument derivable from it. The inferior owners created thereby were of course obliged to resort to the court of their immediate lord, and the exactions levied on the suitors in each case became a fruitful source of revenue to the unscrupulous judges. It was therefore cherished as one of their most precious privileges, and was one of the last which, when the tide turned, they could bring themselves to surrender. In France, a curious distinction was made of the baronial jurisdiction into high, middle, and low. The first was alone competent to convict for capital crimes, except in cases of palpable guilt: and Du Cange refers to a custom which prevailed in Arragon, and which is highly characteristic of the spirit of the times, which allowed a lord possessed of the middle or low jurisdiction to inflict death upon a convict by starvation, by cold or by thirst (jurisdictionem fame, frigore et siti), though not by public execution. Such were the courts of the middle ages, at first strongly tinged by popular influence, and afterwards entirely accommodated to the oligarchical supremacy of the feudal system. On this part of the subject we have been purposely very concise and summary, in order that we may be enabled to devote the more space to the system of juris prudence, according to which rights were vindicated and wrongs redressed in these courts. And here it is necessary that we should consider briefly a custom perhaps the most anomalous of all that prevailed in the middle ages, that of private war. We have already said that among the barbarians, or at least among the higher orders of them, personal vengeance and valour were the modes by which all differences were determined. It appears to have been so, as well among the Germans as among the more Northern tribes. We have it on the authority of Tacitus, that the most unlimited power of re venge was claimed by the German nobles. The result of the struggle was associated with the will of the Almighty; and a German warrior is represented by Tacitus as saying, "Valour is the only proper goods for men. The gods range themselves on the side of the strongest." These ideas they retained when they settled in Europe, and, while they left to the lower orders to obtain their remedies in the courts, it was held to be the right of the nobles to settle their differences by an appeal to arms. Thus arose the right of private war, a custom which contributed, perhaps more than any other, to the disorder and confusion that reigned in Europe after the settlement. It was regulated by established rules, which were punctually observed. The pious dignitaries of the church were obliged to submit to it, and for this purpose, persons of known influence and valour were selected by the different monasteries and bishoprics, whose duty it was to fight the battles of their constituents, and protect them in all the quarrels in which they became embroiled by the inevitable spirit of the times. And even ecclesiastics themselves seem to have been occasionally animated by the martial spirit, and having laid aside for a time the robes of their peaceful profession, to have gone forth at the head of their dependents, to fight to the death in defence of the temporalities of the church. On this it is but just to remark that, in doing so, they seem to have been actuated by a stern necessity. It must be conceded to the honour of the Christian Church, that all its most strenuous efforts were directed, throughout those times of turbulence, to the mitigation and reformation of the wide-spread barbarism. The crown united its efforts, though from a different motive, for the attainment of the same objects; but church and king were alike without avail against the proud and obstinate barons. The practice was continued and improved upon; and we may well conclude that it was at the option of the ecclesiastical landholders, to submit to spoliation, or else to assume the unpriestly garb of the warrior. In such times, when not even religion escaped the contamination of the universal barbarism, it is not difficult to infer that the latter alternative would be the churchman's choice. Of the precepts and regulations by which it was governed, we may briefly speak. The combatants must be of equal rank, and both nobles. Every one who witnessed the original cause of quarrel was obliged, on penalty of infamy, to take part in the succeeding contest with one or other of the hostile parties. The same rule applied to the kindred of both, so far as the seventh, and latterly the fourth degree; and also to their vassals and dependents. As a consequence of the rule regarding the relations, two brothers could not engage in private war, but brothers of the half blood were exempt from this exception. Under such rules gravely laid down, and faithfully observed, it was that a custom was conducted, which, for several centuries, blasted the industry, deformed the justice, and scattered waste and havoc across the plains of Europe. And now of the system of jurisprudence by which the business of the courts was conducted. This could, of necessity, owing to the barbarism and illiteracy of the times, bear little resemblance to that of a civilized people. The man who could write was looked upon, by the vast majority of the population, with little less regard than that with which we view a Niebuhr or a Macaulay. The general use of written instruments, therefore, as evidence in courts of justice, was entirely out of the question. The nice balancing of minute circumstances, which a modern jury would bestow upon the most trivial point of doubt, was completely alien to the mind of the mediaeval judge. The care and perseverance with which evidence is collected and arranged by a modern solicitor, was never thought of by either party. Perjury and corruption, on the part of witnesses, were the natural consequences that resulted from such incertitude. Oaths, administered to either or both parties, with all the solemnities that the church could bring to bear upon them, were tried for a time, but only resulted in perjury more foul, and in crime more bold and rampant than before. Other modes of determination, therefore, of a more decisive character, and calculated to inspire with greater confi. dence, were sought after; and these, not the universal principles of scientific jurisprudence, or the equitable code of fallen Rome, but the abundant superstition of the age, supplied. Tales of wonder, detailing the miraculous interposition of Almighty power, in aid of its most zealous and devoted servants, held, at that time, a prominent position among the teachings of the church. Men's minds were familiarised to a belief in the continuance of preternatural interposition, by the constant relation of special cases said to be then occurring. They believed that God was ready to interpose in defence of truth and equity, wherever they were imperilled. Thence naturally arose the ordeal, something kindred to which has existed among almost every barbarous or half-civilized people. And anything more truly barbarous than some of the modes in which it was conducted, it would be difficult for the depraved ingenuity of man to devise. In the technical language of the courts, it was called an appeal to the judgment of God. God was supposed to be present on every occasion, as in olden times among His people of Israel, and consequently the idea of cruelty never once presented itself, as a consideration in the smallest degree to be attended to, by the devisers of the different ordeals. Almighty power stood by the side of injured innocence or vindicatory truth, prepared to bring it forth, with a high hand, unscathed from every trial, however fierce and fiery. They plunged their hands into boiling water; they lifted red-hot irons in their naked hands; they walked barefoot across burning ploughshares. The luckless wretch, whose flesh happened to be no more callous than that which usually falls to the lot of humanity, must pay the penalty, in most instances, with his blood. Other modes of a less terrible character, but-if degrees in such a case can be admitted-still more ridiculously absurd, were also resorted to. These it is not necessary to particularise. Suffice it to say, that most of them seem as if dictated rather by whim and frivolity than by the common sense of man. But the ordeal gave way at length to a custom far more congenial to the spirit of the age, that of the judicial combat. Tired of the tame passiveness of the former, they began to look back, through the dim medium of tradition, to the judicial system which their fathers had observed among the forest wilds of their early home. The times when, with the bright visions of their rudely-pictured heaven before their eyes, promising to the brave a final restingplace among its gorgeous halls, they had revered the sword as the sole and proper arbiter between right and wrong, began to present themselves to their minds once more, and to awaken something of the olden spirit. To the eyes of the war-loving baron, the judicial combat had more potent charms than the unexciting ordeal. It was therefore introduced, and, despite of the earnest disapproval of the Romish authorities, soon spread over the whole of Europe, everywhere displacing the ordeal, and meeting with the tacit approbation of many even of the ministers of the church. It was everywhere cultivated with assiduous care, and soon extended to every variety of legal practice, civil as well as criminal. But not only so, abstract questions in law, and even in religion, were submitted to its decision. The right of representation, or that of a grandson to take his deceased father's place as heir to the estate of his grandfather, was, in the tenth century, tried by this test, and decided in the affirmative. In the following century the comparative orthodoxy of the Romish and Musarabic liturgies was tested by the same means. Written evidence was now tacitly proscribed by being rendered useless, unless supported by the sword and valour of the producer of it. It was the same with evidence given orally. Immediately on the witness presenting himself, the party against whom he was about to testify had the power of giving him the lie, or otherwise insulting him, and offering to try his integrity by an appeal to arms. And, as if to crown the system, the judge himself must not deliver any decision, the justice of which he was not prepared to vindicate on the challenge of the party against whom it ran. It was governed and regulated, like private war, by specific rules, laid down and sanctioned by the edicts of monarchs. To be intimately acquainted with these laws in their minute particulars, was the pride and boast of a feudal baron, and entitled him to hold a high rank among the lawyers of his day. They were regarded as occupying the most important chapter in the whole range of jurisprudence. Large treatises were written and published, explaining and commenting on them with the same gravity and solemnity as a legal writer of the present day does on the law of property or the jurisdiction of the Court of Chancery. The court of justice became the court of valour; bodily power and address were the most essential qualifications for the office of a judge; the weak were robbed of their rights, or innocently condemned to the most disgraceful and painful of punishments; and the prevailing principle in law, jurisprudence, and theology, came to be, that the strongest man must have the strongest cause. In the combat the noble and plebeian were provided with different armour; the former appearing on horseback, equipped in the usual armour of his class, while the latter fought on foot, with his target and club. Where the case at issue respected a civil right, the conquered party lost his right and was obliged to pay a fine; the additional penalty of having his hand cut off being exacted in case he were a champion. In criminal cases the accused, if defeated, underwent the punishment due to the offence of which he was charged, while the same was inflicted on the plaintiff, in case the result of the combat declared the falsity of his accusation. An appeal to a higher feudal court could only be tried by battle. In such an appeal, if the plaintiff impeached the judgment of the court below, he was bound, in one day, to meet in combat every one of its members successively, and, in case he did not succeed in vanquishing them all, his life was forfeited; whilst, if the judges were severally beaten, they, in like manner, must undergo the penalty of death, and the courts over which they presided be for ever deprived of their jurisdiction. We may judge that the plain object of such a regulation was very generally attained, and that against such fearful odds, appeals were few and far between. Another mode, of a less sweeping character, was this: the first judge who pronounced an adverse decision might be called out, and if he were vanquished, the judgment was reversed, but the court was not deprived of its jurisdiction. If a judge refused to try the case, an appeal might be made, and supported by testimony, for which two witnesses were required; but the defendant might challenge the second witness, and thus render the testimony of no avail whatever. We have thus endeavoured to trace the courts and jurisprudence of the darker portion of the middle ages. A pleasanter field now lies before us. But we must not enter upon it, lest we should extend the present article to an inordinate length. We must be content with a mere glance at one or two of its most prominent features. From the decline of the baronial, and the increase of the monarchical and ecclesiastical power, many advantages resulted to society. Not the least was that which affected the administration of justice. These two agencies were thrown into the scale of improvement, from what motives it is indifferent to the result to say, and ultimately triumphed over the barbarity of preceding times. The crown introduced new legislation and new courts. In France, these courts were presided over by officers appointed by the king, and, acting as his lieutenants, all the vassals of the royal domains were obliged to submit to the appeal to them, and regard it as supreme and final. It was now the time for royalty and order to assume the offensive, and rapid encroachments were accordingly made upon the feudal jurisdictions. A class of cases, termed royal, was introduced by the crown lawyers, and these feudal courts were pronounced incompetent to try. What the distinguishing characteristic of these cases was, could not be precisely ascertained. They were kept in studied ambiguity, and cases of the Inost opposite character were frequently included in them. There still were, however, barons too powerful to submit tamely to these invasions of their prerogatives. Many of them turned out openly against them, and compelled the monarchs to grant them charters, confirming them in all their ancient privileges. Still, however, the tide of progress was flowing on, despite of the rocks that interposed themselves in its way. The minds of men were directed to the new and more equitable code, and the better courts in which it was administered, and the reviving civilization of the age pointed out the vast advantages which they possessed over the rude and senseless institutions of the past. The royal courts gained the privilege of trying any case, provided the defendant did not object to the jurisdiction. The combat became less frequent; it had had its day, or rather its night, and, like a genuine bird of night, fled at the first symptoms of dawn. In the time of Philip the Bold, it had become circumscribed to cases containing the four following conditions. The crime must be of a capital nature; the commission of it a matter of certainty; the accused greatly suspected; and no proof of it by witnesses. Under these restrictions, we find solitary instances of it during several centuries, until the progress of intelligence and refinement finally drove it entirely from the stage. The latest instance of it that we find in the History of France, occurred in the year 1547. In England we find cases occurring in 1571, 1631, and 1638; but on none of these occasions did the combat really take place, the matter having been accommodated by the interposition of the reigning monarch. In England, under the Norman kings, the aula regis, or king's court, attained to great authority and importance, owing to the power possessed by the crown, which was perhaps greater than in any country in Europe. Its jurisdiction included three separate classes of cases, known by the names of Pleas of the Crown, Common Pleas, and Pleas of Exchequer, and it was presided over by an officer called the Chief Justiciary. This office was abolished in the reign of Edward the Third, and thenceforth the king's court ceased to be a court of justice, and was entirely confined to its legislative duties. The three classes of cases mentioned, were then administered in three separate courts, which remain to the present day, under the titles of the Courts of King's Bench, Common Pleas, and Exchequer. Owing to the amount of business which flowed into these, and the great inconvenience to suitors from remote parts of the kingdom, the system of circuits was adopted by the appointment of the justices in eyre, who made their circuits every seven years. These were discontinued in the reign of Edward the Third, and superseded by the justices of Nisi Prius, who have continued to the present day. To the influence of the civil and canon laws, and the ecclesiastical courts, we have not referred. These merit for themselves a separate consideration, which we may at some future time be enabled to accord to them. |