PARTICIPATORY JUSTICE

It was a basic principle of justice throughout the West that every lord had the right to hold court, that is, to preside over his vassals -- or over his tenants, whether or not they were vassals-in court proceedings.

One way to view the emergence of feudal courts in the tenth and eleventh centuries is to emphasize the breakdown of centralized royal authority during the ninth century, accompanied by royal grants of immunity to great landowners. This view must be qualified, however, by the recognition that centralized royal authority had never been firmly established even in Charlemagne's empire. To be sure, Charlemagne and his successors had tried to provide in each district of their domain a permanent group of "law-finders" (scabini), centrally appointed, who were to decide cases under the presidency of the centrally appointed governor of the district (Graf, or count). Yet these lay tribunals, which usually consisted of prominent local landowners, could hardly be controlled from the center. Moreover, local justice continued to be administered to a very considerable extent by popular assemblies. It was these popular assemblies, as well as such scabini courts as continued to exist, that were largely replaced by feudal courts in the tenth and eleventh centuries in the Frankish Empire. Similarly, in England after the Norman Conquest it was the local popular assemblies -- the hundred courts and the shire courts -- that were replaced by feudal courts, though to a lesser extent than in France.

Thus the tradition of group adjudication was strong, while the tradition of professional adjudication by legally trained officials hardly existed, prior to the late eleventh century. The dominant concept of the judicial process was "suit of court": the lord presided, either in person or through his steward, but the judging was done by the "suitors," that is, the vassals or tenants. A person charged with an offense or an obligation was entitled to be judged by his fellows -- his equals (pares, "peers"). This

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phrase___ the right of a person to be tried "by judgment of his peers" (per indicium parium)__ was

made famous in England by its inclusion in Magna Carta in 1215; it may be found, however, in similar documents issued in other countries of Europe. Thus a constitution promulgated by Emperor Conrad II in 1037 declared that no vassal should be deprived of an imperial or ecclesiastical fief "except in accordance with the law of our predecessors and the judgment of his peers." 13 _

Feudal courts were not merely agencies of dispute resolution or law enforcement in the narrow sense; they were assemblies for consultation and deliberation on all matters of common concern. Thus seignorial courts might be asked to fix the amount of aids to be paid by vassals to support a military campaign, or to declare rules concerning the use of common fields or forests, or to consent to the enfeoffment of a new tenant or the expulsion of a defaulting tenant. At the same time, seignorial courts might exercise what in France was called haute justice ("high justice"): that is, they might decide cases of capital offenses, such as murder, robbery, and other felonies. Eventually, first in the Norman kingdoms of Sicily and England and subsequently in Normandy and France and elsewhere, the king's (or duke's) courts acquired a large share of the jurisdiction over haute justice -- also called "pleas of the sword".

Either the lord himself or his steward presided over the feudal court, and the suitors gave judgment. In communal and civil cases, proof was generally by compurgation or battle or, prior to its abolition in 1215, ordeal. In addition, juries were often appointed to decide disputed matters. Procedure was oral and informal. These were characteristics of seignorial justice throughout Western Europe.

A striking feature of seignorial justice was the jurisdiction of the seignorial court over claims by a lord against a vassal. The lord used his court to sue his tenants for defaults in paying feudal dues, for trespasses on the lord's domain, and for other breaches of obligation. Maitland writes: "As to the objection that the lord is both judge and party, that fails, for the lord is not judge; the defendant has the judgment of his peers." 14Of course, the lord could make life difficult for those who voted against him. However, the vassal could appeal from a decision of the court of his immediate lord to the court of that lord's superior. This right of appeal was articulated in specific legal terms. For example, the French

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jurist Philippe de Beaumanoir, writing at the end of the thirteenth century but describing a legal regime_that of the county of BeauvaisisJhat had existed for more than a hundred years, listed the following grounds upon which a knight could appeal from a judgment of the court of his lord to the next higher seignorial court: (1) the denial of justice, (2) false judgment, (3) lack of jurisdiction, (4) authorization to appeal granted by writ of the count or of the king, (5) direct concern in the case on the part of the count, as when the knight claimed that he had recently been unjustly disseised of his freehold land.

The vassal's right of recourse to a higher seignorial court to enforce a claim against his immediate lord, though not often exercised, is a dramatic illustration of the importance both of the feudal court system and of the principle of reciprocity of rights between lords and vassals. Feudal law gave the West its first secular experience of mutuality of legal obligation between persons of superior and inferior rank. ¹⁶ Indeed, the entire feudal hierarchy was viewed as an integrated legal structure; the upper classes, from knights to barons to counts to dukes and earls and even kings, were considered to be subject to common legal standards. This was, in part, a manifestation of the ideal of legality. It was also, in part, a reflection of the actual experience of subinfeudation, in which the lord of one vassal was himself vassal to another lord. Both the ideal of legality and the practice of subinfeudation helped to maintain a common upper-class consciousness, in sharp contrast to the feudal structures of many non-Western cultures, in which there were sharp divisions within the aristocracy, especially between the higher nobility and the gentry. Such divisions also characterized Western society in later stages of its own development. But in the formative era of the Western legal tradition, under feudal law, the knightly class could claim a fundamental legal equality with all those who were politically, economically, and socially above it in the feudal hierarchy.

Mutuality of feudal legal obligation, equalization of feudal privilege, and the hierarchy of feudal jurisdictions were buttressed by a high degree of litigiousness on the part of the feudal aristocracy. This was linked with chivalry itself. "Litigation was second only to feuding and warfare as a form of conflict favored by the baronage," writes Heer. Indeed, as he points out, "trial by battle and trial by law were both forms of single combat. 'God and my right': let God determine the issue, in the duel and in the ordeal." 17The litigiousness of the upper classes, like the concept of reciprocity of rights between lords and vassals, not only constituted a structural element in the system of feudal law but also marked an important contribution of feudal law to the development of Western

309- legal consciousness, which is distinguished from the legal consciousness of many non_Western cultures by its strong attachment to formal adjudication of rights as a mode of dispute resolution.