XXVII

JUDICIAL INSTITUTIONS

1 GENERAL CHARACTERISTICS OF THE JUDICIAL SYSTEM

HOW were men tried? There is no better touchstone for a social system than this question. Let us therefore see how matters stood in this respect in the Europe of about the year 1000; on a first scrutiny, a few dominant features stand out in strong relief from the mass of legal detail. First, we may note the tremendous fragmentation of judicial powers; next, their tangled interconnections; and lastly, their ineffectiveness. The most serious cases could be heard in many different courts exercising parallel jurisdiction. Undoubtedly there were certain rules which, in theory, determined the limits of competence of the various courts; but in spite of them uncertainty persisted. The feudal records that have come down to us abound in charters relating to disputes between rival jurisdictions. Despairing of knowing before which authority to bring their suits, litigants often agreed to set up arbitrators of their own or else, instead of seeking a court judgment, they preferred to come to a private agreement—even at the risk that subsequently it might not be respected. Uncertain of its competence and doubtful of its strength, the court sometimes did not disdain to ask the parties to accept its judgment, either in advance or after it had been pronounced. Even if one had obtained a favourable decision there was often no other way to get it executed than to come to terms with a recalcitrant opponent. Nothing reminds us more forcibly than these conflicts that disorder can be a most important historic fact: a fact which nevertheless needs to be explained. In the present case it was clearly due in large part to the coexistence of contradictory principles which, being derived from diverse traditions and compelled to adapt themselves in a somewhat rough and ready fashion to the needs of a highly unstable society, were incessantly in conflict with each other. But it also had its source in the actual conditions imposed on the exercise of justice by the human environment.

In this society, in which protective relationships had multiplied, every chief—and there were certainly enough of them—desired to be a judge. One reason was that the right to sit in judgment on his subordinates, to the exclusion of other courts, alone enabled a lord both to protect them and to maintain effective control over them. Another was that this right was also

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