XXIII JUSTICE AND LEGAL DEVELOPMENT.

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^{1} 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.

{1} Life of St. Elizabeth of Hungary by the Count De Montalembert, translated by Francis Deming Hoyt, New York, Longman's, Green and Company, 1904.