<h1>XXIII <br/> JUSTICE AND LEGAL DEVELOPMENT.</h1>
<p>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 [Footnote 30] 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:</p>
<p class="footnote">
[Footnote 30: Life of St. Elizabeth of Hungary by the Count De
Montalembert, translated by Francis Deming Hoyt, New York,
Longman's, Green and Company, 1904.]</p>
<p class="cite">
"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 <i>Mirrors</i> 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 <i>Common Law</i> of Pierre
des Fontaines, and the <i>Statutes of Beauvoisis</i> of Philip of
Beaumanoir; and lastly the French version of the <i>Assizes of
Jerusalem</i>, 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."</p>
<p>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.</p>
<p>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.</p>
<p class="cite">
"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.</p>
<p class="cite">
"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 not 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."</p>
<p>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
Century they were used only in the most beneficial and liberal spirit,
supplying a means of redress at a time when the public administration
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.</p>
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CITY GATE (NEUBRANDENBURG)</p>
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RATHHAUS (STRALSUND)</p>
<p>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. They 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.</p>
<p>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.</p>
<p>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.</p>
<p>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 <i>Pater Juris</i>, 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 Pennafort, 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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PORTRAIT OF POPE BONIFACE VIII. (GIOTTO, ROME)</p>
<p>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.</p>
<p>He says in part:</p>
<p class="cite">
"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.
<br/><br/>
"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."</p>
<p>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.</p>
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DECORATION THIRTEENTH CENTURY PSALTER MS.</p>
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