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It must not be thought because we have devoted so much time to the
triumphs of English law-making in the Thirteenth Century that,
therefore, there is little or nothing to be said about this same
admirable feature of the time in other countries. As a matter of fact
every nation in Europe saw the foundation of its modern legal system
laid, and was responsive witness to the expression of the first
principles of popular rights and popular liberties. Montalembert in
his Life of St. Elizabeth of Hungary[28] makes no mention in
the Introduction which is really a panegyric of the Thirteenth
Century, of the progress of English law-making, and yet considers
that he is able to bring together enough evidence to show that
legislation had its acme of development just at this time. His
paragraph on the subject will serve as the best possible preface to the
scant treatment of continental law- making and enforcement of justice
in this period, that our limited space will allow. He says:
"Legislation never, perhaps, had a more illustrious period. On the
one hand, the Popes, supreme authorities in matters of law as well as
of faith, gave to canon law the fullest development possible to this
magnificent security of Christian civilization; sat themselves as
judges with exemplary assiduity, published immense collections, and
founded numerous schools. On the other hand, that period gave birth
to most of the national legislation of the various states of Europe;
the great Mirrors of Swabia and Saxony, the first laws published in
the German language by Frederick II. at the diet of Mentz, and
the code given by him to Sicily; in France, the Institutes of St.
Louis, together with the Common Law of Pierre des Fontaines, and
the Statutes of Beauvoisis of Philip of Beaumanoir; and lastly the
French version of the Assizes of Jerusalem, in which is to be found
the most complete résumé now extant of Christian and chivalric law.
All these precious monuments of the old Christian organization of the
world are preserved in the native languages of the various people, and
are distinguished less even by this fact than by their generous and
pious spirit, from that pernicious Roman law, the progress of which
was destined soon to change all the principles of the former."
Most of Montalembert's paragraph refers to the law-making in France
with which he is naturally more familiar. He has supplied ample
material for consultation for those who wish to follow out this
interesting theme further. Even more significant, however, than the
law-making in France, were the new ideas with regard to the
enforcement in law that came in during the reign of Louis IX. We
have not had to wait until this generation to realize, that as a rule
it is not the absence of law so much as the lack of enforcement of such
laws as exist, that gives rise to many of the injustices between men.
St. Louis made it his business to bring about the enforcement of the
laws with proper construction of their terms in such a way as to secure
the rights of all. He himself sat under the famous old oak of
Versailles as a Court of Appeals, reviewing especially the cases of
the poor. It soon came to be known, that it would be a sad occasion
for any and every court official who was found to have given judgment
against the poor because of partiality or the yielding to unlawful
influence. On the other hand, in order to keep the right of appeal
from being abused, punishments were meted out to those who made appeals
without good reason.
Finding that he was unable to hear so many causes as were appealed to
him, Louis chose Stephen Boileau to act as Chief Justice and
committed the care of proper legal enforcement with confidence into his
hands. Boileau had become famous by having condemned some very near
relatives, under circumstances such that relationship might have been
expected to weigh down the wrong side of the scales of justice, and in
a few years he enhanced his reputation by the utter disregard of all
motives in the settlement of suits at law, except those of the
strictest justice. How much Louis himself did in order to safeguard
the rights of the poor can be judged from the famous incident told by
all his biographers, in which he risked the enmity of the most powerful
among his barons, in order to secure the punishment of one of them who
had put two students to death. This was the first time that the rights
of men, as men, were asserted and it constitutes the best possible
testimony to the development of law and true liberty in France.
"Three young nobles of the county of Flanders were surprised,
together with the abbot of St. Nicholas, in a wood pertaining to
Coucy, with bows and arrows. Although they had neither dogs nor
hunting implements, they were found guilty of having gone out to hunt
and were hanged. The abbot and several women of their families made
complaint to the king, and Enguerrard was arrested and taken to the
Louvre. The king summoned him before him; he appeared, having with
him the King of Navarre, the King of Burgundy, the counts of
Bar, Soissons, Brittany, and Blois, the Archbishop of Rheims,
Sire John of Thorote, and nearly all the great men in the kingdom.
The accused said that he wished to take counsel, and he retired with
most of the seigneurs who had accompanied him, leaving the king alone
with his household. When he returned, John of Thorote, in his
name, said that he would not submit to this inquiry, since his
person, his honour, and his heritage were at stake, but that he was
ready to do battle, denying that he had hanged the three young men, or
ordered them to be hanged. His only opponents were the abbot and the
women, who were there to ask for justice. The king answered that in
causes in which the poor, the churches, and persons worthy of pity,
took part, it was not fitting to decide them in battle; for it was not
easy to find anyone to fight for such sorts of people against the barons
of the kingdom. He said that his action against the accused was no new
thing, and he alleged the example of his predecessor Philip
Augustus. He therefore agreed to the request of the complainants,
and caused Enguerrard to be arrested by the sergeants and taken to the
Louvre. All prayers were useless; St. Louis refused to hear
them, rose from his seat, and the barons went away astonished and
confused.
"They did not, however, consider that they were beaten. They again
came together; the King of Navarre, the Count of Brittany, and
with them the Countess of Flanders, who ought rather to have
intervened for the victims. It was as if they had conspired against
the king's power and honour; for they were not content to implore
Coucy's release, but asserted that he could not be kept in prison.
The Count of Brittany maintained that the king had no right to
institute inquiries against the barons of his kingdom in matters which
concerned their persons, their heritage or their honour. The king
replied, 'You did not speak thus in former times when the barons in
direct dependence upon you came before me with complaints against
yourself, and offered to sustain them in battle. You then said that
to do battle was riot in the way of justice.' The barons put forward
a final argument, namely, that according to the customs of the
kingdom, the king could only judge the accused and punish him in person
after an inquiry to which he had refused to submit. The king was
resolute, and declared that neither the rank of the guilty man nor the
power of his friends should prevent him from doing full justice.
Coucy's life was, however, spared. The fact that he had not been
present at the judgment, nor at the execution, prevailed in his
favour. By the advice of his counsellors, the king condemned him to
pay 1200 livres parisis, which, considering the difference in the
purchasing power of money, may be estimated at considerably more than
400,000 pounds, and he sent this sum to St. John of Acre for
the defense of Palestine. The wood in which the young men were hanged
was confiscated to the abbey of St. Nicholas. The condemned man was
also constrained to found three perpetual chapelries for the souls of
his victims, and he forfeited jurisdiction over his woods and fish
ponds, so that he was forbidden to imprison or execute for any offense
which had to do with them. Since Enguerrard's defender, John of
Thorote, had in his anger told the barons that the king would do well
to hang them all, the king, who had been told of this, sent for him
and said, 'How comes it, John, that you have said I should hang
my barons? I certainly will not have them hanged, but I will punish
them when they do amiss.' John of Thorote denied that he had said
this, and offered to justify himself on the oath of twenty or thirty
knights. The king would not carry the matter further, and let him
go."
One of the best evidences of the development of the spirit of law in
Germany during this time is the establishment of the famous Fehmic
Courts, or Vehmgerichte, which achieved their highest importance
during the Thirteenth Century. As with regard to the universities,
there is a tradition that carries the origin of these courts back to the
time of Charlemagne. They are much more likely to have been
developments out of the relics of the ancient free courts of the old
Teutonic Tribe. The first definite knowledge of their existence
cannot be traced much earlier than a decade or two before the
Thirteenth Century. They had their principal existence in
Westphalia. Practically the whole country between the Rhine and the
Weser was ruled to a subordinate degree by these Fehmic courts.
During the Thirteenth Centuiy they were used only in the most
beneficial and liberal spirit, supplying a means of redress at a time
when the public administiation of justice was almost completely in
abeyance. As a matter of fact, before their establishment disregard
for authority to the extent of utter lawlessness prevailed in this part
of Germany.
The significance of these courts has sometimes been missed. They
arose, however, out of the justice loving spirit of the people
themselves and were meant to supply legal enforcements when the
regularly constituted authorities were unable to secure them. They
remind one very much of the vigilance committees, which in our own
country, in the cities of the distant West, bravely and with the
admirable prudence of the race, have so often supplied the place of
regular courts and have brought justice and order out of the chaos of
lawlessness. The last place most people would expect their
prototypes, however, would be here in the Germany of the Thirteenth
Century. How much these Vehmgerichte accomplished during the
Thirteenth and Fourteenth centuries it would be difficult to say.
Their represent an outgrowth of the spirit of the people themselves,
that constitutes another striking feature of the practical side of the
generations of the Thirteenth Century. They had much more to do with
bringing about the development of the modern acute sense of justice
among the Teutonic peoples than is usually thought. They are the
German expression of the same feelings that in England dictated trial
by jury, and secured for the English speaking people of all time the
precious privileges of even-handed justice and the right to be judged
by one's peers.
It was not alone in the western countries of Europe that great
advances were made in liberty. The democratic spirit that was abroad
made itself felt everywhere and the foundations of rights for the people
were laid even in central Europe, in countries which ordinarily are
thought of at this time as scarcely more than emerging from barbarism.
Hungary may be cited as an example. Andrew II. is usually set down
by narrow-minded historians as having been entirely too visionary in
his character, and the fact that he led the fifth Crusade, apparently
even more fruitless than were most of the others, is supposed to be an
additional proof of this. Even Duruy in his History of the Middle
Ages says of him, "he organized a state of anarchy by decreeing his
Golden Bull, that if the King should violate the privileges of the
nobility, they should be permitted to resist him by force and such
resistance should not be treated as rebellion." As a matter of fact,
his people were thus granted a constitution more liberal even than that
of Magna Charta, but containing quite similar provisions in many
respects, and the curious historical analogy is heightened when we
recall that at the two ends of civilized Europe these constitutions
were given in the same decade. One cannot help but wonder whether the
Saxon elements which were in both peoples, for many Saxon and
Frisian colonists had been induced to settle in certain parts of
Transylvania just half a century before, did not have much to do with
this extremely interesting development in Hungary, so like the
corresponding evolution of the democratic spirit among their western
kinsfolk.
In Poland the development in law came a little later but evidently as
the result of the same factors that were at work during the.
Thirteenth Century. Casimir the Great, who was born shortly after
the close of the Thirteenth Century, gave wise laws to Poland which
have constituted the basis of Polish law ever since. At this time
Poland was one of the most important countries in Europe. Casimir,
besides giving laws to his people, also founded a university for them
and in every way encouraged the development of such progress as would
make his subjects intelligently realize their own rights and maintain
them, apparently foreseeing that thus the King would be better able to
strengthen himself against the many enemies that surrounded him in
central Europe.
How much the great Popes of the century accomplished for the
foundation and development of law, can only be appreciated by those who
realize the extent of their contributions to the codification of canon
law. It was the arrangement of this in definite shape that put the
civil jurists of the time at work setting their house in order.
Innocent III., who is deservedly called Pater Juris, devoted a
great deal of his wonderful energy and genius to the arrangement of
canon law. This placed for the first time the canon law on an
absolutely sure footing and filled up many gaps that formerly existed.
Gregory IX. commissioned his chaplain, the famous Raymond of
Pennaforte, who had been a professor of canon law in the University
of Bologna, to codify all the decretals since the time of Gratian.
This work was officially promulgated in 1234, four years of labor
having been devoted to it. The laws are in the form of decisions
pronounced in cases submitted to the Pope from all parts of
Christendom, including many from the distant East and not a few from
England and Scotland. Gregory's decretals were published in five
books; a supplement under the name of the sixth book was published
under Pope Boniface VIII. in 1298. In this for the first
time abstract rules of law are laid down extracted from actual
judgments. A compendium of Roman Law was added so as to approximate
canon and civil procedure.
This gives the best possible idea of how deeply the popes and the
authorities in canon law of the century were laying the foundations of
canonical practise and procedure for all times. The origins of modern
law are to be found here, and yet not, as might be anticipated because
of the distance in time, in such a confused or unmanageable fashion
that they are not worth while consulting, but on the contrary with such
clarity and distinctness and with such orderly arrangement, that they
have been the subjects of study on the part of distinguished jurists for
most of the centuries ever since, and have never lost their interest
for the great lawyers and canonists, who prefer to know things from the
foundation rather than accept them at second hand.
Some of the commentaries, or glosses as they were called, on canon
law serve to give an excellent idea of the legal ability as well as the
intellectual acumen of the canon lawyers of the century. The system of
teaching was oral, and careful study was devoted to original
authorities in law. Explanatory notes were added by the professors to
their copies of the text. When later these texts were given out or
lent for transcription, the notes were also copied, usually being
written in the margin. After a time the commentary, however, proved
to be, for students at least, as important as the text and so was
transcribed by itself and was called an apparatus, that is a series of
mechanical helps, as it were, to the understanding of the text.
Of the names of some of the most distinguished glossatores the memory
has been carefully preserved because they produced so much effect on
legal teaching. The gloss written on Gratian by Joannes Teutonicus
(John the German), probably during the first decade of the
Thirteenth Century, was revised and supplemented by Bartholomew of
Brescia about the middle of the Thirteenth Century. Some ten years
later Bernard of Parma wrote a commentary on the decretals of
Gregory. All of these are important fundamental works in canon law,
and they were of very great influence in bringing out the principles of
law and showing the basis on which they were founded. It is almost
needless to say that they aroused additional interest and made the
subject much more easy of approach than it had been. The fact that all
of these magnificent contributions to the science and literatures of law
should have been made during our Thirteenth Century, serves only to
emphasize the fact that everything that men touched during this period
was sure to be illuminated by the practical genius of the time, and put
into a form in which for many centuries it was to be appealed to as a
model and an authority in its own line. How much of legal commentary
writing there was besides these, can be readily understood from the
fact that these represent the activity only of the University of
Bologna which was, it is true, the greatest of universities in its
law department, but it must not be forgotten that many other
universities throughout Europe also had distinguished professors of law
at this time.
All this would seem to be of little interest for the secular
law-making of the period, but it must not be forgotten that civil law
was closely related to canon law at all times and that the development
of canon law always meant a renewed evolution of the principles, and
practise, and procedure of the civil law. In such countries as
Scotland, indeed, the canon law formed the basis of the civil
jurisprudence and its influence was felt even for centuries after the
so-called reformation. On the other hand it must not be forgotten
that the popes and the ecclesiastics helped to fight the battles of the
middle and lower classes against the king and the nobility in
practically every country in Europe. A very striking example of this
is to be found in the life of that much misunderstood Pope Boniface
VIII., the last pope of the century, who had received his legal
training at Bologna, and who was one of the great jurists of his
time. Circumstances differ so much, however, and obscure realities
to such a degree, that at the present time we need the light of
sympathetic interpretation to enable us to realize what Boniface
accomplished.
He did much to complete in his time that arrangement and codification
of canon law which his predecessors during the Thirteenth Century had
so efficiently commenced. Like Innocent III. he has been much
maligned because of his supposed attempt to make the governments of the
time subservient to the Pope and to make the Church in each nation
independent of the political government. With regard to the famous
Bull Clericis Laicos, "thrice unhappy in name and fortune" as it
has been designated, much more can be said in justification than is
usually considered to be the case. Indeed the Rev. Dr. Barry,
whose "Story of the Papal Monarchy" in the Stories of the Nations
series has furnished the latest discussion of this subject, does not
hesitate to declare that the Bull far from being subversive of
political liberties or expressive of too arrogant a spirit on the part
of the Church, was really an expression of a great principle that was
to become very prominent in modern history, and the basis of many of
the modern declarations of rights against the claims of tyranny.
He says in part:
"Imprudent, headlong, but in its main contention founded on
history, this extraordinary state-paper declared that the laity had
always been hostile to the clergy, and were so now as much as ever.
But they possessed no jurisdiction over the persons, no claims on the
property of the church, though they had dared to exact a tenth, nay,
even a half, of its income for secular objects, and time-serving
prelates had not resisted. Now, on no title whatsoever from
henceforth should such taxes be levied without permission of the Holy
See. Every layman, though king or emperor, receiving these moneys
fell by that very act under anathema; every churchman paying them was
deposed from his office; universities guilty of the like offense were
struck with interdict.
"Robert of Winchelsea, Langton's successor as primate, shared
Langton's views. He was at this moment in Rome, and had doubtless
urged Boniface to come to the rescue of a frightened, down-trodden
clergy, whom Edward I. would not otherwise regard. In the
Parliament at Bury, this very year, the clerics refused to make a
grant. Edward sealed up their barns. The archbishop ordered that in
every cathedral the pope's interdiction should be read. Hereupon the
chief-justice declared the whole clergy outlawed; they might be robbed
or murdered without redress. Naturally, not a few gave way; a
fifth, and then a fourth, of their revenue was yielded up. But
Archbishop Robert alone, with all the prelates except Lincoln
against him, and the Dominicans preaching at Paul's cross on behalf
of the king, stood out, lost his lands, and was banished to a country
parsonage. War broke out in Flanders. It was the saving of the
archbishop. At Westminster Edward relented and apologized. He
confirmed the two great charters; he did away with illegal judgments
that infringed them. Next year the primate excommunicated those royal
officers who had seized goods or persons belonging to the clergy, and
all who had violated Magna Charta. The Church came out of this
conflict exempt, or, more truly a self-governing estate of the
realm. It must be considered as having greatly concurred towards the
establishment of that fundamental law invoked long after by the thirteen
American Colonies, 'No taxation without representation,' which is
the corner stone of British freedom."
We have so often heard it said that there is nothing new under the
sun, that finally the expression has come to mean very little, though
its startling truth sometimes throws vivid light on historical events.
Certainly the last place in the world that one would expect to find if
not the origin, for all during the Thirteenth Century this great
principle had been gradually asserting itself, at least, a wondrous
confirmation of the principle on which our American revolution
justified itself, would be in a papal document of the end of the
Thirteenth Century. Here, however, is a distinguished scholar,
who insists that the Colonists' contention that there must be no taxes
levied unless they were allowed representation in some way, in the body
which determined the mode and the amount of taxation, received its
first formal justification in history at the hands of a Roman
Pontiff, nearly five centuries before the beginning of the quarrel
between the Colonies and the Mother Country. The passage serves to
suggest how much of what is modern had its definite though unsuspected
origin, in this earlier time.
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