A Source Book for Mediæval History / Selected Documents illustrating the History of Europe in the Middle Age

by Oliver J. Thatcher; Edgar Holmes McNeal

VII. COURTS, JUDICIAL PROCESSES, AND THE PEACE

It is not our purpose to give a complete account of all the mediæval courts, nor to show fully their mutual connection. Because of the great difficulties of the subject and the lack of suitable documents we name only the most important courts and offer a few passages to illustrate them. It is not that such documents are scarce that we have presented so few of them; but they contain so much that would require long explanations that they would demand far more space than we felt could properly be given to this subject. The materials which we offer illustrate the courts for the most part after 1100, but they throw light on those of the earlier period. In many other documents contained in this book there are references to courts and judicial processes which the student should carefully observe.

I. The royal court. According to mediæval theory the king was the judge in the whole realm. He had jurisdiction over all things. But because he could not be present everywhere and hear all cases, he appointed men (dukes, counts, etc.) to act as judges in his place. But they merely represented him. So whenever the king in his travels comes to a place, he at once replaces the local judge and all the machinery for the administration of justice. Since he was present in person, he needed no one to represent him. Eventually the great princes refused to receive him into their palaces because of the heavy expense in entertaining him and his numerous retinue, so his journeys as judge into their territories gradually ceased. In 1220 Frederick II agreed that he would exercise his rights as judge in the cities of the bishops only during the diets which he should hold in them and a week before and a week after. (See no. [136], par. 10.) He soon ceased to travel as judge, and after 1250 acted as judge only in and during the diets which he held.

Since in theory all judges and courts merely represented the king, he had the right to call before himself any case, no matter where it was pending. This was called the jus evocandi, the "right of calling." Rudolph of Hapsburg and his successors granted both princes and cities exemption from this. In the Golden Bull ([no. 160, chs. VIII and XI]) Charles IV renounced all right to call any of the subjects of the electoral princes before his court. These exemptions were gradually extended to all the princes, imperial cities, bishops, and other territorial lords, until in 1487 the crown completely lost its jus evocandi.

In the same way everyone had the right to appeal to the king, against the decision of any court. But in time the king surrendered this also in the same way to the electoral princes and agreed never to receive appeals from any of their subjects. See [no. 160].

Frederick II found it impossible to attend to all the business of the royal court, and so in 1235 appointed a justiciar to represent him in all minor cases. See [no. 232], par. 28. He also made provision for keeping complete records of the imperial court, and appointed a court secretary and put him under the control of the justiciar. See no. 232, par. 29.

II. The county courts. The county was composed of several districts called hundreds. Each hundred had its court, which was always held in the same place. The count received his authority as judge from the king, and with it the right to inflict the king’s ban or fine of sixty shillings. The count went about from one court place to another, holding three courts a year in each place. This regular court was in session three days. If the business of the court could not be attended to in these three days, the count announced another court to be held a few weeks later. All the freemen of the hundred in which the court was held were bound to be present at it. The courts of the count were called the greater courts (judicia majora) and had jurisdiction over property, criminal actions of a serious character, and suits to recover serfs. The lower or hundred courts (judicia minora, see nos. [139], §7; [no. 231], I, 58) had jurisdiction over cases involving debts, chattels, and trespass. These lower courts were presided over by judges of inferior rank called Schultheissen, Gografen, or hundred-counts, who were either appointed by the count or elected by the people. They merely represented the count, and could not inflict the king’s ban.

The counts were at first regarded as officials of the king, but under the influence of feudalism they became vassals and received their judgeships as fiefs.

III. Courts on the royal domain. All who lived on the crown lands, or royal domain, as they were called, were exempt from the county courts. The king appointed an official to administer justice to them. He was called an advocate and his office an advocacy. His position was similar to that of the count in the county courts. He presided over the judicia majora, and appointed Schultheissen to preside over the judicia minora.

IV. Courts on the lands of bishops and abbots. All those who lived on the lands of bishops and abbots who held directly from the king, were also exempt from the county courts. They were under the jurisdiction of the bishop or abbot, who appointed an advocate to preside over the higher courts, and Schultheissen to preside over the lower. These courts were quite like those on the royal domain.