SECTION I.

 

The Right of Appeal

3. By authorizing the right of appeal from the courts of the barons to those of the king, and subjecting the decisions of the former to the review of the latter, a new step, not less considerable than those which I have already mentioned, was taken towards establishing the regular, consistent, and vigorous administration of justice.

Among all the encroachments of the feudal nobles on the prerogative of their monarchs, their usurping the administration of justice with supreme authority, both in civil and criminal causes, within the precincts of their own estates, was the most singular. In other nations, subjects have contended with their sovereigns, and have endeavored to extend their own power and privileges; but in the history of their struggles and pretensions, we discover nothing similar to this right which the feudal barons claimed and obtained. It must have been something peculiar in their genius and manners that suggested this idea, and prompted them to insist on such a claim.

Among the rude people who conquered the various provinces of the Roman Empire, and established new kingdoms there, the passion of resentment, too impetuous to their control, was permitted to remain almost unrestrained by the authority of laws. The person offended, as has been observed, retained not only the right of prosecuting, but of punishing his adversary. To him it belonged to inflict such vengeance as satiated his rage, or to accept of such satisfaction as appeased it. But while fierce barbarians continued to be the sole judges in their own cause, their enmities were implacable and immortal; they set no bounds either to the degree of their vengeance, or to the duration of their resentment. The excesses which this occasioned, proved so destructive of peace and order in society, as to render it necessary to devise some remedy.

At first, recourse was had to arbitrators, who by persuasion or entreaty prevailed on the party offended to accept of a fine or composition from the aggressor, and to drop all farther prosecution. But as submission to persons who had no legal or magisterial authority was altogether voluntary, it became necessary to establish judges, with power sufficient to enforce their own decisions. The leader whom they were accustomed to follow and to obey, whose courage they respected, and in whose integrity they placed confidence, was the person to whom a martial people naturally committed this important prerogative.

Every chieftain was the commander of his tribe in war, and their judge in peace. Every baron led his vassals to the field, and administered justice to them in his hall. Their high-spirited dependants would not have recognized any other authority, or have submitted to any other jurisdiction. But in times of turbulence and violence, the exercise of this new function was attended not only with trouble, but with danger. No person could assume the character of a judge, if he did not possess power sufficient to protect the one party from the violence of private revenge, and to compel the other to accept of such reparation as he enjoined. In consideration of the extraordinary efforts which this office required, judges, besides the line which they appointed to be paid as a compensation to the person or family who had been injured, levied an additional sum as a recompense for their own labor; and in all the feudal kingdoms the latter was not only as precisely ascertained, but as regularly exacted, as the former.

Thus, by the natural operation of circumstances peculiar to the manners or political state of the feudal nations, separate and territorial jurisdictions came not only to be established in every kingdom, but were established in such a way, that the interest of the barons concurred with their ambition in maintaining and extending them. It was not merely a point of honor with the feudal nobles to dispense justice to their vassals; but from the exercise of that power arose one capital branch of their revenue; and the emoluments of their courts were frequently the main support of their dignity. It was with infinite zeal that they asserted and defended this high privilege of their order.

By this institution, however, every kingdom in Europe was split into as many separate principalities as it contained powerful barons. Their vassals, whether in peace or in war, were hardly sensible of any authority, but that of their immediate superior lord. They felt themselves subject to no other command. They were amenable to no other jurisdiction. The ties which linked together these smaller confederacies became close and firm; the bonds of public union relaxed, or were dissolved. The nobles strained their invention in devising regulations which tended to ascertain and perpetuate this distinction. In order to guard against any appearance of subordination in their courts to those of the crown, they frequently constrained their monarchs to prohibit the royal judges from entering their territories, or from claiming any jurisdiction there; and if, either through mistake, or from the spirit of encroachment, any royal judge ventured to extend his authority to the vassals of a baron, they might plead their right of exemption, and the lord of whom they held could not only rescue them out of his hands, but was entitled to legal reparation for the injury and affront offered to him. The jurisdiction of the royal judges scarcely reached beyond the narrow limits of the king's demesnes. Instead of a regular gradation of courts, all acknowledging the authority of the same general laws, and looking up to these as the guides of their decisions, there were in every feudal kingdom a number of independent tribunals, the proceedings of which were directed by local customs and contradictory forms. The collision of jurisdiction among these different courts often retarded the execution of justice. The variety and caprice of their modes of procedure must have for ever kept the administration of it from attaining any degree of uniformity or perfection.

All the monarchs of Europe perceived these encroachments on their jurisdiction, and bore them with impatience. But the usurpations of the nobles were so firmly established, and the danger of endeavoring to overturn them by open force was so manifest, that kings were obliged to remain satisfied with attempts to undermine them. Various expedients were employed for this purpose; each of which merits attention as they mark the progress of law and equity in the several kingdoms of Europe.

At first, princes endeavored to circumscribe the jurisdiction of the barons, by contending that they ought to take cognizance only of smaller offences, reserving those of greater moment, under the appellation of Pleas of the Crown, and Royal Causes, to be tried in the king's courts. This, however, affected only the barons of inferior note; the more powerful nobles scorned such a distinction, and not only claimed unlimited jurisdiction, but obliged their sovereigns to grant them charters, conveying or recognizing this privilege in the most ample form. The attempt, nevertheless, was productive of some good consequences, and paved the way for more.

It turned the attention of men towards a jurisdiction distinct from that of the baron whose vassals they were; it accustomed them to the pretensions of superiority which the crown claimed over territorial judges; and taught them, when oppressed by their own superior lord, to look up to their sovereign as their protector. This facilitated the introduction of appeal, by which princes brought the decision, of the barons' courts under the review of the royal judges.

While trial by combat subsisted in full vigour, no point decided according to that mode could be brought under the review of another court. It had been referred to the judgment of God; the issue of battle had declared his will; and it would have been impious to have called in question the equity of the divine decision. But as soon as the barbarous custom began to fall into disuse, princes encouraged the vassals of the barons to sue for redress, by appealing to the royal courts. The progress of this practice, however, was slow and gradual.

The first instances of appeals were on account of the delay or refusal of justice in the baron's court feudal and as these were countenanced by the ideas of subordination in the feudal constitution, the nobles allowed them to be introduced without much opposition. But when these were followed by appeals on account of the injustice or iniquity of the sentence, the nobles then began to be sensible, that if this innovation became general, the shadow of power alone would remain in their hands, and all real authority and jurisdiction would centre in those courts which possessed the right of review.

They instantly took the alarm, remonstrated against the encroachment, and contended boldly for their ancient privileges. But the monarchs in the different kingdoms of Europe pursued their plan with steadiness and prudence. Though forced to suspend their operations on some occasions, and seemingly to yield when any formidable confederacy of their vassals united against them, they resumed their measures as soon as they observed the nobles to be remiss or feeble, and pushed them with vigor.

They appointed the royal courts, which originally were ambulatory, and irregular with respect to their times of meeting, to be held in a fixed place, and at stated seasons. They were solicitous to name judges of more distinguished abilities than such as usually presided in the courts of the barons. They added dignity to their character, and splendor to their assemblies. They labored to render their forms regular and their decrees consistent.

Such judicatories became, of course, the objects of public confidence as well as veneration. The people, relinquishing the partial tribunals of their lords, were eager to bring every subject of contest under the more equal and discerning eye of those whom their sovereign had chosen to give judgment in his name. Thus kings became once more the heads of the community, and the dispensers of justice to their subjects. The barons, in some kingdoms, ceased to exercise their right of jurisdiction, because it sunk into contempt; in others, it was circumscribed by such regulations as rendered it innocent, or it was entirely abolished by express statutes. Thus the administration of justice taking its rise from one source, and following one direction, held its course in every state with more uniformity, and with greater force.

The Canon Law