Karel
Schelle – Ilona Schelleová
The
Faculty of Law of the Masaryk University, Brno, Czech Republic
Legal system in the Middle
Ages
1. General characteristic
Although judicial development during
the Middle Ages had its specific features in each state, it is due to some
common features in the development of law possible to identify also a whole
range of common features in the judicial organization.
The first common feature of the
medieval judicial system was its connection with public and feudal administration.
Put in a little simplified way, each of the more important administration
officials had a certain jurisdiction. It is only the period of absolutism that
brings gradual separation of judiciary from public administration.
With regard to legal particularism,
which was the basic feature of the medieval system of law in all European
states, another common feature of the medieval judicial system is its
fragmentation caused by fragmentation of the system of law. We can therefore
from this point of view distinguish between courts for the nobility,
bourgeoisie, church and subjects. Each of these social groups had its laws and
therefore also its own courts.
Further division of the medieval
judicial system is according to whose interests the appropriate courts
defended. The division in this respect to a certain extent overlaps with the
previous division. We distinguish between royal courts, which defended in
particular the interests of the royal treasury, and professional courts, the
most important of which were the manor courts. Urban and church judicature had
its own organization. Trials against subjects rested with the feudal.
Another common feature of the
medieval judicial system was the fact that courts were for a long period of
time unprofessional from the current point of view. It is in particular at the
time of absolutism that bureaucratization and professionalisation of the
judicial system take place.
A crucial period, when the medieval
judicial organization started to dissolve, was no sooner than during
absolutism. It is a period, during which the judicial system not only becomes
professional, as was already mentioned above, but also when there gradually
forms a hierarchy of courts, which brought in its train the possibility of
appealing against decisions of inferior courts. Each state however had its
specifics originating from its different development of constitutional law,
development of the system of law, but also for example also was a result of
smaller or larger influence of the Roman law. We will therefore have a look at
the basic features of development of the court structure in dominant European
states.
2.
Byzantine Empire
The Roman Emperor Diocletian divided
the Roman Empire into eastern and western part in 284. Constantine the Great founded
in the East a new capital called Constantinople in 330. A new state known under
the name of Byzantine Empire was formed. The state power has a pyramid
structure, with the ruler – emperor who was since the 7th
century called the Greek basileus - at the top. In the same manner as the
public administration was centralised also the judicial system. The emperor was
a titular chairman of the Supreme Court. He was however often
substituted for in the proceedings by a legal expert. It tried severe criminal
offences, in particular those aimed against national security, and also had
jurisdiction of an appeal court. It was sometimes consolidated with another
high court of justice, the quaestor’s court. It was staffed with
senators, analogously to the so called Hippodrome Court (velum court).
The courts sat in senates and about their verdicts decided members’ voting.
The first major reform of the
judicial system caused formation of the court of civil lawsuits, which
on the one hand heard its own, that is civil, trials and on the other hand
prepared material for proceedings held in front of high courts of justice,
There was another reform of the
judicial system in the 13th century, which was accompanied by
introduction of various supervisory bodies, consisting of both laymen and
clergymen, such as the body called General Roman judges. Further
“controlling commissions”, called Local municipal judges, were
established to supervise provincial courts.
3. Frankish Empire
The most important of the Germanic
states that were created on the territory of the Roman Empire was the Frankish
state. Founded by the tribe of Franks, the Frankish Empire was a monarchy,
which had a king as its head. He was also the Lord Chief Justice.
The whole judicial structure was a follow-up of generic institutions. During
the first period the ordinary court was the century court, the head of
which was an elective judge called Thunginus, who appointed his
associate judges called Rachinburgii to help him with searching for
justice.
In the middle of the 6th century the chair at court
passed to an Earl, and people’s court transformed into a royal court.
The century court remained, but dealt only with causae minores,
whereas causae maiores were under the jurisdiction of the Earl’s court.
Important changes occurred under the reign of Charles the Great, who cancelled
the duty of participation in courts and replaced the Rachinburgii with
permanent associate judges (Scabini), who were appointed by the king, his
messenger or the Earl.
The royal court had general
jurisdiction on the one hand, i.e. it could decide about everything, and it was
exclusive in some affairs. It was chaired by the king or his deputy the
majordomo, later by the palace Earl. That was the first step towards creating
an independent palatinum court.
4. France
If we want to outline the
development of the French judicial system, we have to follow separately its
development before and after the Great French Revolution. Until the revolution
we can talk about a typical mediaeval judicial organization. At the beginning,
when the central power was weak, the judicature was executed by individual
feudal lords, who obtained jurisdiction in connection with granting of
immunities. Feudal judicature was gradually limited in favour of royal
courts, which were represented by the royal officials called prevots, or
baillis. Since the 13th century they began to appoint special deputies
for legal affairs.
Depending on emphasizing of royal
courts increased the demand for creating a special royal judicial organ. This
was achieved by separation of the Parisian parliament from the royal
court in the 13th century. In the period of further consolidation of
royal power the parliaments were established gradually also in the provinces.
The position of royal courts was
definitely consolidated at the period absolutism. Royal power besides that
controlled also municipal, feudal and church judicature.
A turning point in organization of
the judicature was brought by the Great French Revolution and the events that followed.
Judicature began to be perceived as an important institution that has to be
separated from public administration and lawmaking power. The development of
judicial reforms since 1789 had several stages. The first stage lasted from
1790-1791. The jurisdiction began to divide consequently into civil, commercial
and criminal jurisdiction. Judges were usually elected, in criminal
jurisdiction operated juries. There began to appear a basis for administrative
jurisdiction.
The following period was also in the
area of jurisdiction to a great extent affected by the political development.
Jacobin terror brought in its train also political abuse, in particular of
criminal jurisdiction. In 1793 was established a special criminal court,
which was speedily renamed to revolutionary tribunal. It judged without
attorneys and even without witnesses. Death penalty was the only type of
punishment this court knew.
The Jacobin terror ended in 1794 a
new constitution was issued. Thermidorian constitution introduced civic,
penitentiary and criminal courts. Eligibility of judges was to a large
extent preserved, and there was a considerable increase in the importance of
justices of peace, both in criminal and civil lawsuits. The juries also
continued in their operation.
The definitive shape of the French
judicature was brought by judicial reforms of 1800-1801. In the area of civil
jurisdiction served justices of peace, civil courts of first instance
and appellate courts. Criminal jurisdiction consisted of justices of
peace, penitentiary courts and criminal courts. There still existed the juries.
It is necessary to enlarge upon
assize courts. These courts were created on the pattern of the English assize
courts, yet they dealt only with criminal cases. There were two boards created
according to the original amendment, administered by the Act of 1791:
accusatory jury, which carried out an investigation and brought a case before
the court, and trial jury, which was in charge of deciding about fault. The
accusatory jury was dissolved under Napoleon after issue of the Code of
Criminal Procedure of 1808 and was replaced by accusatory chamber. Until 1941
members of the jury (there were 12 of them) decided separately upon guilt and a
bench of professional judges consisting of three members inflicted the
punishment. The Act of 25th November 1941 brought a change by
stating that both the members of the jury and professional judges are to decide
about guilt and punishment together. This modification became also part of the
Code of Criminal Procedure of 1959, which was issued after enforcement of the
new constitution of the fifth French Republic by General de Gaul.
The supreme judicial institution was
the Court of Cassation (Cour de Cassation), which dealt with both
criminal cases and civil cases. Administrative judicature was represented by Prefecture
Councils, from which it was possible to appeal to the Council of State.
5. Germany
The medieval German state, to be
found in the references since the beginning of the 10th century
under the name Regnum Teutonicum, was created during the decline of the
Frankish Empire. Its further development is connected with enforcement of the
idea of a Holy Roman Empire, which originated from medieval conceptions of a
continuity of the irrevocable ancient Roman Empire and its transfer to the
following states. The Holy Roman Empire was an inhomogeneous conglomerate of
states and mini-states of various types and importance, and of both municipal
and church nature. The importance of central power changed significantly in the
course of individual stages of development of the Empire. The central power was
weakened in particular in the later periods, when the power of local feudal
lords increased. Decentralization of power became in the end a permanent cause of
Germany lagging in its development behind the states of Western Europe. That is
why it is very difficult to deal in a more complex way about the development of
the judicature on German territory, individual parts of which were very
inhomogeneous.
Put in a slightly simplified way, it
is necessary to distinguish between central (royal) judicature and local
judicature of individual feudal lords, or more precisely imperial nobility, on
the German territory.
The most important central court was
the royal court, which was by means of a reform of Maximilian transformed into
the Imperial Chamber Court. In its operation were to be involved both
aristocrats and the King. The court started to operate in October 1495 in
Frankfurt am Main. It was composed of 16 judges who were appointed by the
Emperor on the motion of all aristocrats. Its main duty was to prosecute
violations of municipal peace and it was at the same time the supreme instance
court in civil cases.
Typical of the development of the
Empire in particular after the Thirty Year War was the fact that imperial laws
were limited to a minimum and were based only upon formal continuation of
feudal relationships. Individual members of the municipal nobility started to
concentrate in their hands all power and were among others the high judicial
instance. The Courtly or Chamber Courts were created more or less after the
fashion of the Imperial Chamber Court. Where the municipal nobleman had at the
same time the privilege “de non appellando” were established as the Supreme
Court instances the supreme appellate courts or tribunals.
The administration in towns was
entrusted to town councils. State domains were administered by a municipal
official (Amtsmann), who executed judicial power and police power at the same
time. Patrimonial judicature still existed in noble manors.
6. England
The development of judicial
organization in England had certain specific features, which were caused by
particularities in its constitutional development. English judicature was already
as far back as in the 11th-12th century divided into inferior
and superior. Among inferior courts belonged century courts and county
courts, which heard lawsuits and criminal offences of freemen from the
relevant territory. Affairs of subjects were heard by the feudal court of
the lord, the chair of which was either the lord himself or his mandatory.
Suits on land and other disputes between feudal lords belonged under the
jurisdiction of a county court, which was chaired by a justice itinerant.
The sheriff also had certain own jurisdiction in the county. Into the
category of superior courts belonged royal courts. The Royal Council
(Curia Regis) originally had jurisdiction, yet its jurisdiction was rather
limited by establishment of the Court of the Chamber of Exchequer Table.
Half of its members were lawyers. This court followed the king on all of his
journeys. Another central court, the Court of Common Pleas, was
established owing to his occasional absence from Westminster. The Court of
King’s Bench was created later.
The sovereign also had jurisdiction,
which he exercised in form of summary jurisdiction. When criminal
offences against the state were involved, he delivered judgments against which
it was impossible to appeal.
Under the reign of Henry I. were
formed itinerary justices, which under the command of itinerary judges
resolved disputes in various parts of England, which they visited four times a
year. In lawsuits held in front of them was used the jury, which is why
people began to call them assize courts. The original conception of
these courts was that they were a body of men who have sworn to bring to court
all people from their district who were considered to have committed a crime.
A special position had the church
courts. Their jurisdiction applied to all clergymen and they judged
according to the canon law.
The first English university was
established in 1163 in Oxford, where they also established university court
for members of the university, both the teachers and students.
A reform of Henry II. increased the
jurisdiction of royal courts. All free citizens could from then on submit their
common pleas to a royal court on payment of a certain fee. The royal court was
also competent for the most severe criminal cases. Local county or century
courts under the command of an itinerary judge in fact became a branch office
of the royal court.
A more significant change in the
organization of judicature occurred in the period of aristocratic monarchy
since the beginning of the 14th century. It was in particular
introduction of the institution of Justices of Peace, whom the king
appointed from among the wealthiest aristocrats. The Justice of Peace in
co-operation with the grand jury held preliminary hearings and pronounced
judgments on committing the case to trial. The case could either be submitted
to the Quarter Session or itinerary justice. The Quarter Session
consisted of a Justice of Peace and a petty jury.
Since the 14th century
began to develop in England courts that passed judgment on the basis of rules
of equity. It was in particular the Court of Chancery, also called the Court
of Equity.
During the period of aristocratic
monarchy in England were laid the foundations of parliament. In the second half
of the 14th century was the House of Lords granted authorization to
pass judgment on torts that were committed by its members (peers, pairs). It
was the supreme instance, when political criminal offences were involved. It
also served as a court for members of both Houses of Parliament, when a charge
was made in the House of Commons.
Further changes in organization of
the judicature took place in the period of absolutism. The position of Justices
of Peace changed and they became also administration officials. In this period
were also formed two superior courts. It was in particular the Star Chamber,
which separated itself from the Privy Council. It was an exceptional royal
administrative tribunal that was in charge of hearing political criminal
offences, such as riot, unlawful assembly, etc. The second exceptional tribunal
was after formation of the Church of England the High Committee, which
in addition to administrative functions concerning the Church also had the
jurisdiction to judge criminal offences against faith. Although the Petition of
Right demanded in 1628 dissolution of both exceptional courts, they were
actually dissolved only by the Great Remonstrance in 1641.
If we do not take into consideration
the changes in jurisdiction of church courts from the 17th century
and enforcement of the principle of irremovability of judges, which was
definitely legislated in 1701 by the Act of Settlement in the course of the 17th
and 18th century, there were no significant changes in judicial
organization in England.
Stabilisation of the English legal
system occurred only during the 19th century. In 1825 was issued an
Act regulating selection of the members of the jury. In 1846 was modified the
system of inferior courts. The basis of judicial organization became a new type
of court called the County Court. There were formed altogether 406
judicial districts.
The development of the English
jurisdiction was to a certain extent completed in years 1873-1875, when the
Judicature Acts were issued. The superior courts were thus united, forming a
single supreme court, which was seated in London and was called the Supreme
Court of Judicature. Internally it was divided into the High Court of
Justice, which functioned as the court of first instance and as appellate court
for inferior courts. It had three divisions: The King’s-Queen’s-Bench Division, where disputes in contradictory
lawsuits were resolved that originated from liabilities, contracts, and civil
duties, the Chancery Division, which judged written and inquisition
lawsuits concerning property of land, trusts, commercial companies, bankruptcy,
etc. The final division was The Probate, Divorce and Admirality Division,
which focused as the name implies, on various issues. This system remained
basically up to the present day. Appeals against decisions of individual
divisions were to be submitted to the Court of Appeal, which is part of
the Supreme Court of Judicature. An exceptional remedy against decisions of the
Court of Appeal was to protest in front of the House of Lords. In such
cases decided a senate consisting of three Law-Lords, i.e. judges created lords
not hereditary lords. It was possible to appeal at the House of Lords also
against decision of the Supreme Court of Judicature.
In Durham and Lancaster were
preserved also superior courts with the same jurisdiction as the Chancery
Division. Instead of the itinerary assize court was in London in 1834
established a permanent central criminal court (Old
Bailey), belonging to
the King’s Bench Division. In 1907 was at the King’s Bench Division established
the Court of Criminal Appeal.
As we will see later, the judicial
organization that was formed in the 19th century was the basis for
the current state of English judicature.
7. Italy
Development of Italy from the 5th
until the 19th century was very difficult, as its territory was
highly differentiated. That is why it is not possible to talk either about
development of a unified state or about development of a state apparatus and
judicature. We will therefore highlight only briefly the most important legal
institutions that were formed on this territory in the course of development.
Here it is possible to talk in
particular about the judicature of municipal communes, which was divided
into civil and criminal offence judicature. It was possible to appeal against
decisions of these courts to the Emperor or his deputy. Appellate judicature
however became the jurisdiction of individual towns as well in the 13th
century, which was subsequently legalized also by the Emperor. Appeals in
criminal offences were originally dealt with by the General Assembly or Great
Council. Special appellate tribunals (tribunali della apelazioni) were formed
later for this purpose.
The guilds executed internal
judicature itself over their members. Guild courts dissolved minor
criminal cases and affairs related to production. Naval courts, which
dissolved crimes related to sailing and naval trade, operated in seaport towns
on a similar principle. These courts developed in the course of time into State
commercial courts. Those Italian tows that owned colonies located outside the
territory of the Apennine peninsula administered these by means of consular
courts, which obeyed legislation of the mother town.
8. United States of America
The history of judicature of the
United States of America is not by far as complex as that of the European
states. American structure of judicature is in addition to that relatively
stable, unaltered since codification of the American constitutional system. The
USA has not besides that undergone a medieval stage and we can therefore talk
only about formation of the modern court structure.
It is necessary to distinguish in
the USA between both federal judicature and judicature in individual states.
Federal judicature was formed as a
three-level model: District Courts, Circuit Courts and the Supreme
Court of the United States.
A specific position in the USA
traditionally has the Supreme Court, which is organically incorporated
into the whole system of supreme federal bodies. It originally had six members,
but the number of members increased during the 19th century to 9. It
consists of a Chief Justice and Associate Justices. Members of
the Supreme Court are appointed by the President with the approval of the
senate. They continue to serve “as long as they deserve it”, which means
that they are practically irrevocable.
In individual states was also built
a multi-level system. The lowest tribunals are the Justices of Peace.
Their jurisdiction includes minor misdemeanors and disputes over less money. The
superior tribunals are the District Courts and Circuit Courts of
Appeal. The supreme tribunal in each state is the Supreme Court.
There is no unified way of
constituting judges, as it differs from state to state. They are elected in
most of the states, and only in some states appointed by the Governor or a
lawmaking body. Similarly differs also their term of office. In some states
they are constituted for life, in others only for a certain number of years.
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