THE COURTS AND PROCEDURE

18 The courts of the early Middle Ages bear no resemblance to those of the late Roman empire, as the following points show. The hierarchy of courts, with the possibility of appeal to Rome, had disappeared and was replaced by a system Oflocaljurisdictions, the mallus of the county (pagus) in the Frankish kingdom.

The development of feudal law produced a parallel system of feudal courts, juxtaposed to the old court organization of different areas (pagi - counties - and smaller districts). The vassals of a lord sat in the feudal courts under his presidency and resolved disputes about their fiefs (e.g. succession) or among themselves (e.g. disputes between vassals or between a lord and his vassal). With the manorial system's there also came �seigneurial’ courts Withjurisdiction over the subjects of the manors. To complete the picture, the church courts and (at a later period) the municipal courts should also be mentioned. This variety and fragmentation of the organization of justice (if it may be called organization) lasted to the end of the ancien regime.

The procedure adopted by the courts and tribunals of the early Middle Ages was of course very different from the procedure extra

^,3 This is a type of agricultural concern based on the great estate. It has an economic and a public order aspect, since it is exploited economically, but also ruled and administered by the lord and great landowner. ordinem of the late empire. Cases were now heard in public in the open air near a sacred place, perhaps a mountain, tree or spring. The people took an active part in the administration of justice, and expressed agreement or disagreement with the proposed verdict; the procedure was oral, with very limited use of written documents; no minutes or pleadings were in writing, and no records were kept; the case was essentially a dispute between the parties, in which the role played by the legal authorities was limited to formal control and simple ratification of the victorious party. The most striking expres­sion of this conception of procedure is without doubt the judicial duel, which is nothing but an institutionalized combat designed to resolve the dispute.

Modes of proof were for the most part irrational. Justice made use of divine and supernatural powers, as in the case ofjudicial duels and other ordeals, and also in the oaths taken by one party and his supporters. Rational proof by means of documents and witnesses was not excluded, but proof by confronting the witnesses for either party with each other was undeveloped and highly formalistic. When the witnesses of the two parties refused to retract their testimony and the judges consequently found themselves in an impasse, a duel was the only possible outcome. In any event, the judges did not undertake any critical examination of the parties or witnesses which might have exposed a contradiction. By contrast with this purely mechanical confrontation of witnesses for and against, the royal inquisitio came much closer to an inquiry into the actual facts. The inquisitio was a Carolingian innovation, which consisted in having the inhabitants of an area interrogated under oath by royal agents. It mainly related to questions of landed property in which the king or the church had an interest. This inquisitio (which is no relation of the Inquisition instituted in the thirteenth century to repress heretics) is the historical origin of the jury system in both criminal and civil procedure.