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.

 

 

Literature:

 

Kincl, J.: Všeobecné dějiny státu a práva, Praha 1983

Koranyi, K.: Powszechna historia panstwa i prawa, Warszawa 1963 – 1967

Plundr, O.: Organizace justice a prokuratury, Praha 1987

Saturnik, T.: Dějiny veřejného práva ve střední Evropě, Praha 1938

Saturnik, T.: Přehled dějin veřejného práva ve střední Evropě, Praha 1946

Schelle, K. a kol.: Právní dějiny, Praha 2007