Front Page Titles (by Subject) CHAPTER XIII.: judicial and executive systems. - Political Institutions, being Part V of the Principles of Sociology
The Online Library of Liberty
A project of Liberty Fund, Inc.
CHAPTER XIII.: judicial and executive systems. - Herbert Spencer, Political Institutions, being Part V of the Principles of Sociology 
Political Institutions, being Part V of the Principles of Sociology (The Concluding Portion of Vol. II) (London: Williams and Norgate, 1882).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
judicial and executive systems.
§ 522. That we may be prepared for recognizing the primitive identity of military institutions with institutions for administering justice, let us observe how close is the kinship between the modes of dealing with external aggression and internal aggression, respectively.
We have the facts, already more than once emphasized, that at first the responsibilities of communities to one another are paralleled by the responsibilities to one another of family-groups within each community; and that the kindred claims are enforced in kindred ways. Various savage tribes show us that, originally, external war has to effect an equalization of injuries, either directly in kind or indirectly by compensations. Among the Chinooks, “has the one party a larger number of dead than the other, indemnification must be made by the latter, or the war is continued;” and among the Arabs “when peace is to be made, both parties count up their dead, and the usual blood-money is paid for excess on either side.” By which instances we are shown that in the wars between tribes, as in the family-feuds of early times, a death must be balanced by a death, or else must be compounded for; as it once was in Germany and in England, by specified numbers of sheep and cattle, or by money.
Not only are the wars which societies carry on to effect the righting of alleged wrongs, thus paralleled by family-feuds in the respect that for retaliation in kind there may be substituted a penalty adjudged by usage or authority; but they are paralleled by feuds between individuals in the like respect. From the first stage in which each man avenges himself by force on a transgressing neighbour, as the whole community does on a transgressing community, the transition is to a stage in which he has the alternative of demanding justice at the hands of the ruler. We see this beginning in such places as the Sandwich Islands, where an injured person who is too weak to retaliate, appeals to the king or principal chief; and in quite advanced stages, option between the two methods of obtaining redress survives. The feeling shown down to the 13th century by Italian nobles, who “regarded it as disgraceful to submit to laws rather than do themselves justice by force of arms,” is traceable throughout the history of Europe in the slow yielding of private rectification of wrongs to public arbitration. “A capitulary of Charles the Bald bids them [the freemen] go to court armed as for war, for they might have to fight for their jurisdiction;” and our own history furnishes an interesting example in the early form of an action for recovering land: the “grand assize” which tried the cause, originally consisted of knights armed with swords. Again we have evidence in such facts as that in the 12th century in France, legal decisions were so little regarded that trials often issued in duels. Further proof is yielded by such facts as that judicial duels (which were the authorized substitutes for private wars between families) continued in France down to the close of the 14th century; that in England, in 1768, a legislative proposal to abolish trial by battle, was so strongly opposed that the measure was dropped; and that the option of such trial was not disallowed till 1819.
We may observe, also, that this self-protection gradually gives place to protection by the State, only under stress of public needs—especially need for military efficiency. Edicts of Charlemagne and of Charles the Bald, seeking to stop the disorders consequent on private wars, by insisting on appeals to the ordained authorities, and threatening punishment of those who disobeyed, sufficiently imply the motive; and this motive was definitely shown in the feudal period in France, by an ordinance of 1296, which “prohibits private wars and judicial duels so long as the king is engaged in war.”
Once more the militant nature of legal protection is seen in the fact that, as at first, so now, it is a replacing of individual armed force by the armed force of the State—always in reserve if not exercised. “The sword of justice” is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.
Thus recognizing the original identity of the functions, we shall be prepared for recognizing the original identity of the structures by which they are carried on.
§ 523. For that primitive gathering of armed men which, as we have seen, is at once the council of war and the political assembly, is at the same time the judicial body.
Of existing savages the Hottentots show this. The court of justice “consists of the captain and all the men of the kraal.… ‘Tis held in the open fields, the men squatting in a circle.… All matters are determined by a majority.” … If the prisoner is “convicted, and the court adjudges him worthy of death, sentence is executed upon the spot.” The captain is chief executioner, striking the first blow; and is followed up by the others. The records of various historic peoples yield evidence of kindred meaning. Taking first the Greeks in Homeric days, we read that “sometimes the king separately, sometimes the kings or chiefs or Gerontes, in the plural number, are named as deciding disputes and awarding satisfaction to complainants; always however in public, in the midst of the assembled agora,” in which the popular sympathies were expressed: the meeting thus described, being the same with that in which questions of war and peace were debated. That in its early form the Roman gathering of “spearmen,” asked by the king to say “yes” or “no” to a proposed military expedition or to some State-measure, also expressed its opinion concerning criminal charges publicly judged, is implied by the fact that “the king could not grant a pardon, for that privilege was vested in the community alone.” Describing the gatherings of the primitive Germans, Tacitus says:— “The multitude sits armed in such order as it thinks good… It is lawful also in the Assembly to bring matters for trial and to bring charges of capital crimes… In the same assembly chiefs are chosen to administer justice throughout the districts and villages. Each chief in so doing has a hundred companions of the commons assigned to him, to strengthen at once his judgment and his dignity.” A kindred arrangement is ascribed by Lelevel to the Poles in early times, and to the Slavs at large. Among the Danes, too, “in all secular affairs, justice was administered by the popular tribunal of the Lands-Ting for each province, and by the Herreds-Ting for the smaller districts or sub-divisions.” Concerning the Irish in past times, Prof. Leslie quotes Spenser to the effect that it was their usage “to make great assemblies together upon a rath or hill, there to parley about matters and wrongs between township and township, or one private person and another.” And then there comes the illustration furnished by old English times. The local moots of various kinds had judicial functions; and the witenagemót sometimes acted as a high court of justice.
Interesting evidence that the original military assembly was at the same time the original judicial assembly, is supplied by the early practice of punishing freemen for non-attendance. Discharge of military obligation being imperative, the fining of those who did not come to the armed gathering naturally followed; and fining for absence having become the usage, survived when, as for judicial purposes, the need for the presence of all was not imperative. Thence the interpretation of the fact that non-attendance at the hundred-court was thus punishable.
In this connexion it may be added that, in some cases where the primitive form continued, there was manifested an incipient differentiation between the military assembly and the judicial assembly. In the Carolingian period, judicial assemblies began to be held under cover; and freemen were forbidden to bring their arms. As was pointed out in § 491, among the Scandinavians no one was allowed to come armed when the meeting was for judicial purposes. And since we also read that in Iceland it was disreputable (not punishable) for a freeman to be absent from the annual gathering, the implication is that the imperativeness of attendance diminished with the growing predominance of civil functions.
§ 524. The judicial body being at first identical with the politico-military body, has necessarily the same triune structure; and we have now to observe the different forms it assumes according to the respective developments of its three components. We may expect to find kinship between these forms and the concomitant political forms.
Where, with development of militant organization, the power of the king has become greatly predominant over that of the chiefs and over that of the people, his supremacy is shown by his judicial absoluteness, as well as by his absoluteness in political and military affairs. Such shares as the elders and the multitude originally had in trying causes, almost or quite disappear. But though in these cases the authority of the king as judge, is unqualified by that of his head men and his other subjects, there habitually survive traces of the primitive arrangement. For habitually his decisions are given in public and in the open air. Petitioners for justice bring their cases before him when he makes his appearance out of doors, surrounded by his attendants and by a crowd of spectators; as we have seen in § 372 that they do down to the present day in Kashmere. By the Hebrew rulers, judicial sittings were held “in the gates” —the usual meeting-places of Eastern peoples. Among the early Romans the king administered justice “in the place of public assembly, sitting on a ‘chariot-seat.’” Mr. Gomme’s Primitive Folk-Moots contains sundry illustrations showing that among the Germans in old times, the Königs-stuhl, or king’s judgment-seat, was on the green sward; that in other cases the stone steps at the town-gates constituted the seat before which causes were heard by him; and that again, in early French usage, trials often took place under trees. According to Joinville this practice long continued in France.
“Many a time did it happen that, in summer, he [Lewis IX] would go and sit in the forest of Vincennes after mass, and would rest against an oak, and make us sit round him…he asked them with his own mouth, ‘Is there any one who has a suit?’… I have seen him sometimes in summer come to hear his people’s suits in the garden of Paris.”
And something similar occurred in Scotland under David I. All which customs among various peoples, imply survival of the primitive judicial assembly, changed only by concentration in its head of power originally shared by the leading men and the undistinguished mass.
Where the second component of the triune political structure becomes supreme, this in its turn monopolizes judicial functions. Among the Spartans the oligarchic senate, and in a measure the smaller and chance-selected oligarchy constituted by the ephors, joined judicial functions with their political functions. Similarly in Athens under the aristocratic rule of the Eupatridæ, we find the Areopagus formed of its members, discharging, either itself or through its nine chosen Archons, the duties of deciding causes and executing decisions. In later days, again, we have the case of the Venetian council of ten. And then, certain incidents of the middle ages instructively show us one of the processes by which judicial power, as well as political power, passes from the hands of the freemen at large into the hands of a smaller and wealthier class. In the Carolingian period, besides the bi-annual meetings of the hundred-court, it was—
“convoked at the Graf’s will and pleasure, to try particular cases…in the one case, as in the other, non-attendance was punished…it was found that the Grafs used their right to summon these extraordinary Courts in excess, with a view, by repeated fines and amercements, to ruin the small freeholders, and thus to get their abodes into their own hands. Charlemagne introduced a radical law-reform…the great body of the freemen were released from attendance at the Gebotene Dinge, at which, from thenceforth, justice was to be administered under the presidency, ex officio, of the Centenar, by…permanent jurymen…chosen de melioribus—i.e., from the more well-to-do freemen.”
But in other cases, and especially where concentration in a town renders performance of judicial functions less burdensome, we see that along with retention or acquirement of predominant power by the third element in the triune political structure, there goes exercise of judicial functions by it. The case of Athens, after the replacing of oligarchic rule by democratic rule, is, of course, the most familiar example of this. The Kleisthenian revolution made the annually-appointed magistrates personally responsible to the people judicially assembled; and when, under Perikles, there were established the dikasteries, or courts of paid jurors chosen by lot, the administration of justice was transferred almost wholly to the body of freemen, divided for convenience into committees. Among the Frieslanders, who in early times were enabled by the nature of their habitat to maintain a free form of political organization, there continued the popular judicial assembly:— “When the commons were summoned for any particular purpose, the assembly took the name of the Bodthing. The bodthing was called for the purpose of passing judgment in cases of urgent necessity.” And M. de Laveleye, describing the Teutonic mark as still existing in Holland, “especially in Drenthe,” a tract “surrounded on all sides by a marsh and bog” (again illustrating the physical conditions favourable to maintenance of primitive free institutions), goes on to say of the inhabitants as periodically assembled:—
“They appeared in arms; and no one could absent himself, under pain of a fine. This assembly directed all the details as to the enjoyment of the common property; appointed the works to be executed; imposed pecuniary penalties for the violation of rules, and nominated the officers charged with the executive power.”
The likeness between the judicial form and the political form is further shown where the government is neither despotic nor oligarchic, nor democratic, but mixed. For in our own case we see a system of administering justice which, like the political system, unites authority that is in a considerable degree irresponsible, with popular authority. In old English times a certain power of making and enforcing local or “bye-laws” was possessed by the township; and in more important and definite ways the hundred-moot and the shire-moot discharged judicial and executive functions: their respective officers being at the same time elected. But the subsequent growth of feudal institutions, followed by the development of royal power, was accompanied by diminution of the popular share in judicial business, and an increasing assignment of it to members of the ruling classes and to agents of the crown. And at present we see that the system, as including the power of juries (which arose by selection of representative men, though not in the interest of the people); is in part popular; that in the summary jurisdiction of unpaid magistrates who, though centrally appointed, mostly belong to the wealthy classes, and especially the landowners, it is in part aristocratic; that in the regal commissioning of judges it continues monarchic; and that yet, as the selection of magistrates and judges is practically in the hands of a ministry executing, on the average, the public will, royal power and class-power in the administration of justice are exercised under popular control.
§ 525. A truth above implied and now to be definitely observed, is that along with the consolidation of small societies into large ones effected by war, there necessarily goes an increasing discharge of judicial functions by deputy.
As the primitive king is very generally himself both commander-in-chief and high priest, it is not unnatural that his delegated judicial functions should be fulfilled both by priests and soldiers. Moreover, since the consultative body, where it becomes established and separated from the multitude, habitually includes members of both these classes, such judicial powers as it exercises cannot at the outset be monopolized by members of either. And this participation is further seen to arise naturally on remembering how, as before shown, priests have in so many societies united military functions with clerical functions; and how, in other cases, becoming local rulers, having the same tenures and obligations with purely military local rulers, they acquire, in common with them, local powers of judgment and execution; as did mediæval prelates. Whether the ecclesiastical class or the class of warrior-chiefs acquires judicial predominance, probably depends mainly on the proportion between men’s fealty to the successful soldier, and their awe of the priest as a recipient of divine communications.
Among the Zulus, who, with an undeveloped mythology, have no great deities and resulting organized priesthood, the king “shares his power with two soldiers of his choice. These two form the supreme judges of the country.” Similarly with the Eggarahs (Inland Negroes), whose fetish-men do not form an influential order, the first and second judges are “also commanders of the forces in time of war.” Passing to historic peoples, we have in Attica, in Solon’s time, the nine archons, who, while possessing a certain sacredness as belonging to the Eupatridæ, united judicial with military functions—more especially the polemarch. In ancient Rome, that kindred union of the two functions in the consuls, who called themselves indiscriminately, prœtores or judices, naturally resulted from their inheritance of both functions from the king they replaced; but beyond this there is the fact that though the pontiffs had previously been judges in secular matters as well as in sacred matters, yet, after the establishment of the republic, the several orders of magistrates were selected from the non-clerical patricians,—the original soldier-class. And then throughout the middle ages in Europe, we have the local military chiefs, whether holding positions like those of old English thanes or like those of feudal barons, acting as judges in their respective localities. Perhaps the clearest illustration is that furnished by Japan, where a long-continued and highly-developed military régime, has been throughout associated with the monopoly of judicial functions by the military class: the apparent reason being that in presence of the god-descended Mikado, supreme in heaven as on earth, the indigenous Shinto religion never developed a divine ruler whose priests acquired, as his agents, an authority competing with terrestrial authority.
But mostly there is extensive delegation of judicial powers to the sacerdotal class, in early stages. We find it among existing uncivilized peoples, as the Kalmucks, whose priests, besides playing a predominant part in the greatest judicial council, exercise local jurisdiction: in the court of each subordinate chief, one of the high priests is head judge. Of extinct uncivilized or semi-civilized peoples, may be named the Indians of Yucatan, by whom priests were appointed as judges in certain cases—judges who took part in the execution of their own sentences. Originally, if not afterwards, the giving of legal decisions was a priestly function in ancient Egypt; and that the priests were supreme judges among the Hebrews is a familiar fact: the Deuteronomic law condemning to death any one who disregarded their verdicts. In that general assembly of the ancient Germans which, as we have seen, exercised judicial powers, the priests were prominent; and , according to Tacitus, in war “none but the priests are permitted to judge offenders, to inflict bonds or stripes; so that chastisement appears not as an act of military discipline, but as the instigation of the god whom they suppose present with warriors.” In ancient Britain, too, according to Cæsar, the druids alone had authority to decide in both civil and criminal cases, and executed their own sentences: the penalty for disobedience to them being excommunication. Grimm tells us that the like held among the Scandinavians. “In their judicial character the priests seem to have exercised a good deal of control over the people… In Iceland, even under Christianity, the judges retained the name and several of the functions of heathen gothar.” And then we have the illustration furnished by that rise of ecclesiastics to the positions of judges throughout mediæval Europe, which accompanied belief in their divine authority. When, as during the Merovingian period and after, “the fear of hell, the desire of winning heaven,” and other motives, prompted donations and bequests to the Church, till a large part of the landed property fell into its hands—when there came increasing numbers of clerical and semi-clerical dependents of the Church, over whom bishops exercised judgment and discipline—when ecclesiastical influence so extended itself that, while priests became exempt from the control of laymen, lay authorities became subject to priests; there was established a judicial power of this divinely-commissioned class to which even kings succumbed. So was it in England too. Before the Conquest, bishops had become the assessors of ealdormen in the scire-gemót, and gave judgments on various civil matters. With that recrudescence of military organization which followed the Conquest, came a limitation of their jurisdiction to spiritual offences and causes concerning clerics. But in subsequent periods ecclesiastical tribunals, bringing under canon law numerous ordinary transgressions, usurped more and more the duties of secular judges: their excommunications being enforced by the temporal magistrates. Moreover, since prelates as feudal nobles were judges in their respective domains; and since many major and minor judicial offices in the central government were filled by prelates; it resulted that the administration of justice was largely, if not mainly, in the hands of priests.
This sharing of delegated judicial functions between the military class and the priestly class, with predominance here of the one and there of the other, naturally continued while there was no other class having wealth and influence. But with the increase of towns and the multiplication of traders, who accumulated riches and acquired education, previously possessed only by ecclesiastics, judicial functions fell more and more into their hands. Sundry causes conspired to produce this transfer. One was lack of culture among the nobles, and their decreasing ability to administer laws, ever increasing in number and in complexity. Another was the political unfitness of ecclesiastics, who grew distasteful to rulers in proportion as they pushed further the powers and privileges which their supposed divine commission gave them. Details need not detain us. The only general fact needing to be emphasized, is that this transfer ended in a differentiation of structures. For whereas in earlier stages, judicial functions were discharged by men who were at the same time either soldiers or priests, they came now to be discharged by men exclusively devoted to them.
§ 526. Simultaneously, the evolution of judicial systems is displayed in several other ways. One of them is the addition of judicial agents who are locomotive to the pre-existing stationary judicial agents.
During the early stages in which the ruler administers justice in person, he does this now in one place and now in another; according as affairs, military or judicial, carry him to this or that place in his kingdom. Societies of various types in various times yield evidence. Historians of ancient Peru tell us that “the Ynca gave sentence according to the crime, for he alone was judge wheresoever he resided, and all persons wronged had recourse to him.” Of the German emperor in the 12th century we read that “not only did he receive appeals, but his presence in any duchy or county suspended the functions of the local judges.” France in the 15th century supplies an instance. King Charles “spent two or three years in travelling up and down the kingdom…maintaining justice to the satisfaction of his subjects.” In Scotland something similar was done by David I., who “settled marches, forest rights, and rights of pasture:” himself making the marks which recorded his decisions, or seeing them made. In England, “Edgar and Canute had themselves made judicial circuits;” and there is good evidence of such judicial travels in England up to the time of the Great Charter. Sir Henry Maine has quoted documents showing that King John, in common with earlier kings, moved about the country with great activity, and held his court wherever he might happen to be.
Of course with the progress of political integration and consequent growing power of the central ruler, there come more numerous cases in which appeal is made to him to rectify the wrongs committed by local rulers; and as State-business at large augments and complicates, his inability to do this personally leads to doing it by deputy. In France, in Charlemagne’s time, there were the “Missi Regii, who held assizes from place to place;” and then, not forgetting that during a subsequent period the chief heralds in royal state, as the king’s representatives, made circuits to judge and punish transgressing nobles, we may pass to the fact that in the later feudal period, when the business of the king’s court became too great, commissioners were sent into the provinces to judge particular cases in the king’s name: a method which does not appear to have been there developed further. But in England, in Henry II.’s time, kindred causes prompted kindred steps which initiated a permanent system. Instead of listening to the increasing number of appeals made to his court, personally or through his lieutenant the justiciar, the king commissioned his constable, chancellor, and co-justiciar to hear pleas in the different counties. Later, there came a larger number of these members of the central judicial court who made these judicial journeys: part of them being clerical and part military. And hence eventually arose the established circuits of judges who, like their prototypes, had to represent the king and exercise supreme authority.
It should be added that here again we meet with proofs that in the evolution of arrangements conducing to the maintenance of individual rights, the obligations are primary and the claims derived. For the business of these travelling judges, like the business of the king’s court by which they were commissioned, was primarily fiscal and secondarily judicial. They were members of a central body that was at once Exchequer and Curia Regis, in which financial functions at first predominated; and they were sent into the provinces largely, if not primarily, for purposes of assessment: as instance the statement that in 1168, “the four Exchequer officers who assessed the aid pur fille marier, acted not only as taxers but as judges.” In which facts we see harmony with those before given, showing that support of the ruling agency precedes obtainment of protection from it.
§ 527. With that development of a central government which accompanies consolidation of small societies into a large one, and with the consequent increase of its business, entailing delegation of functions, there goes, in the judicial organization as in the other organizations, a progressive differentiation. The evidence of this is extremely involved; both for the reason that in most cases indigenous judicial agencies have been subordinated but not destroyed by those which conquest has originated, and for the reason that kinds of power, as well as degrees of power, have become distinguished. A few leading traits only of the process can here be indicated.
The most marked differentiation, already partially implied, is that between the lay, the ecclesiastical, and the military tribunals. From those early stages in which the popular assembly, with its elders and chief, condemned military defaulters, decided on ecclesiastical questions, and gave judgments about offences, there has gone on a divergence which, accompanied by disputes and struggles concerning jurisdiction, has parted ecclesiastical courts and courts martial from the courts administering justice in ordinary civil and criminal cases. Just recognizing these cardinal specializations, we may limit our attention to the further specializations which have taken place within the last of the three structures.
Originally the ruler, with or without the assent of the assembled people, not only decides: he executes his decisions, or sees them executed. For example, in Dahomey the king stands by, and if the deputed officer does not please him, takes the sword out of his hand and shows him how to cut off a head. An account of death-punishment among the Bedouins ends with the words— “the executioner being the sheikh himself.” Our own early history affords traces of personal executive action by the king; for there came a time when he was interdicted from arresting any one himself, and had thereafter to do it in all cases by deputy. And this interprets for us the familiar truth that, through his deputies the sheriffs, who are bound to act personally if they cannot themselves find deputies, the monarch continues to be theoretically the agent who carries the law into execution: a truth further implied by the fact that execution in criminal cases, nominally authorized by him though actually by his minister, is arrested if his assent is withheld by his minister. And these facts imply that a final power of judgment remains with the monarch, not-withstanding delegation of his judicial functions. How this happens we shall see on tracing the differentiation.
Naturally, when a ruler employs assistants to hear complaints and redress grievances, he does not give them absolute authority; but reserves the power of revising their decisions. We see this even in such rude societies as that of the Sandwich Islands, where one who is dissatisfied with the decision of his chief may appeal to the governor, and from the governor to the king; or as in ancient Mexico, where “none of the judges were allowed to condemn to death without communicating with the king, who had to pass the sentence.” And the principle holds where the political headship is compound instead of simple. “When the hegemony of Athens became, in fact, more and more a dominion, the civic body of Attica claimed supreme judicial authority over all the allies. The federal towns only retained their lower courts.” Obviously by such changes are produced unlikenesses of degree and differences of kind in the capacities of judicial agencies. As political subordination spreads, the local assemblies which originally judged and executed in cases of all kinds, lose part of their functions; now by restriction in range of jurisdiction, now by subjection of their decisions to supervision, now by denial of executive power. To trace up the process from early stages, as for instance from the stage in which the old English tything-moot discharged administrative, judicial, and executive functions, or from the stage in which the courts of feudal nobles did the like, is here alike impracticable and unnecessary. Reference to such remnants of power as vestries and manorial courts possess, will sufficiently indicate the character of the change. But along with degradation of the small and local judicial agencies, goes development of the great and central ones; and about this something must be said.
Returning to the time when the king with his servants and chief men, surrounded by the people, administers justice in the open air, and passing to the time when his court, held more frequently under cover and consequently with less of the popular element, still consists of king as president and his household officers with other appointed magnates as counsellors (who in fact constitute a small and permanent part of that general consultative body occasionally summoned); we have to note two causes which cooperate to produce a division of these remaining parts of the original triune body—one cause being the needs of subjects, and the other the desire of the king. So long as the king’s court is held wherever he happens to be, there is an extreme hindrance to the hearing of suits, and much entailed loss of money and time to suitors. To remedy this evil came, in our own case, the provision included in the Great Charter that the common pleas should no longer follow the king’s court, but be held in some certain place. This place was fixed in the palace of Westminster. And then as Blackstone points out—
“This precedent was soon after copied by King Philip the Fair in France, who about the year 1302, fixed the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went… And thus also, in 1495, the Emperor Maximilian I. fixed the imperial chamber, which before always travelled with the court and household, to be constantly at Worms.”
As a sequence of these changes it of course happens that suits of a certain kind come habitually to be decided without the king’s presence: there results a permanent transfer of part of his judicial power. Again, press of business or love of ease prompts the king himself to hand over such legal matters as are of little interest to him. Thus in France, while we read that Charles V., when regent, sat in his council to administer justice twice a week, and Charles VI. once, we also read that in 1370 the king declared he would no longer try the smaller causes personally. Once initiated and growing into a usage, this judging by commission, becoming more frequent as affairs multiply, is presently otherwise furthered: there arises the doctrine that the king ought not, at any rate in certain cases, to join in judgment. Thus “at the trial of the duke of Brittany in 1378, the peers of France protested against the presence of the king.” Again “at the trial of the Marquis of Saluces, under Francis I., that monarch was made to see that he could not sit.” When Lewis XIII. wished to be judge in the case of the Duke de la Valette, he was resisted by the judges, who said that it was without precedent. And in our own country there came a time when “James I. was informed by the judges that he had the right to preside in the court, but not to express his opinion:” a step towards that exclusion finally reached.
While the judicial business of the political head thus lapses into the hands of appointed agencies, these agencies themselves, severally parting with certain of their functions one to another, become specialized. Among ourselves, even before there took place the above-named separation of the permanently-localized court of common pleas, from the king’s court which moved about with him, there had arisen within the king’s court an incipient differentiation. Causes concerning revenue were dealt with in sittings distinguished from the general sittings of the king’s court, by being held in another room; and establishment of this custom produced a division. Adaptation of its parts to unlike ends led to divergence of them; until, out of the original Curia Regis, had come the court of exchequer and the court of common pleas; leaving behind the court of king’s bench as a remnant of the original body. When the office of justiciar (who, representing the king in his absence, presided over these courts) was abolished, the parting of them became decided; and though, for a length of time, competition for fees led to trenching on one another’s functions, yet, eventually, their functions became definitely marked off. A further important development, different but allied, took place. We have seen that when appointing others to judge for him, the king reserves the power of deciding in cases which the law has not previously provided for, and also the power of supervising the decisions made by his deputies. Naturally this power comes to be especially used to over-ride decisions which, technically according to law, are practically unjust: the king acquires an equity jurisdiction. At first exercised personally, this jurisdiction is liable to be deputed; and in our own case was so. The chancellor, one of the king’s servants, who “as a baron of the exchequer and as a leading member of the curia” had long possessed judicial functions, and who was the officer to present to the king petitions concerning these “matters of grace and favour,” became presently himself the authority who gave decisions in equity qualifying the decisions of law; and thus in time resulted the court of chancery. Minor courts with minor functions also budded out from the original Curia Regis. This body included the chief officers of the king’s household, each of whom had a jurisdiction in matters pertaining to his special business; and hence resulted the court of the chamberlain, the court of the steward, the court of the earl marshal (now - at Herald’s College), the court of the constable (no longer extant), the court of the admiral, &c.
In brief, then, we find proofs that, little trace as its structure now shows of such an origin, our complex judicial system, alike in its supreme central parts and in its various small local parts, has evolved by successive changes out of the primitive gathering of people, head men, and chief.
§ 528. Were further detail desirable, there might here be given an account of police-systems; showing their evolution from the same primitive triune body whence originate the several organizations delineated in this and preceding chapters. As using force to subdue internal aggressors, police are like soldiers, who use force to subdue external aggressors; and the two functions, originally one, are not even now quite separated either in their natures or their agents. For besides being so armed that they are in some countries scarcely distinguishable from soldiers, and besides being subject to military discipline, the police are, in case of need, seconded by soldiers in the discharging of their duties. To indicate the primitive identity it will suffice to name two facts. During the Merovingian period in France, armed bands of serfs, attached to the king’s household and to the households of dukes, were employed both as police and for garrison purposes; and in feudal England, the posse comitatus, consisting of all freemen between fifteen and sixty, under command of the sheriff, was the agent for preserving internal peace at the same time that it was available for repelling invasions, though not for foreign service—an incipient differentiation between the internal and external defenders which became in course of time more marked. Letting this brief indication suffice, it remains only to sum up the conclusions above reached.
Evidences of sundry kinds unite in showing that judicial action and military action, ordinarily having for their common end the rectification of real or alleged wrongs, are closely allied at the outset. The sword is the ultimate resort in either case: use of it being in the one case preceded by a war of words carried on before some authority whose aid is invoked, while in the other case it is not so preceded. As is said by Sir Henry Maine, “the fact seems to be that contention in Court takes the place of contention in arms, but only gradually takes its place.”
Thus near akin as the judicial and military actions originally are, they are naturally at first discharged by the same agency—the primitive triune body formed of chief, head men, and people. This which decides on affairs of war and settles questions of public policy also gives judgments concerning alleged wrongs of individuals and enforces its decisions.
According as the social activities develop one or other element of the primitive triune body, there results one or other form of agency for the administration of law. If continued militancy makes the ruling man all-powerful, he becomes absolute judicially as in other ways: the people lose all share in giving decisions, and the judgments of the chief men who surround him are overridden by his. If conditions favour the growth of the chief men into an oligarchy, the body they form becomes the agent for judging and punishing offences as for other purposes: its acts being little or not at all qualified by the opinion of the mass. While if the surrounding circumstances and mode of life are such as to prevent supremacy of one man, or of the leading men, its primitive judicial power is preserved by the aggregate of freemen—or is regained by it where it re-acquires predominance. And where the powers of these three elements are mingled in the political organization, they are also mingled in the judicial organization.
In those cases, forming the great majority, in which habitual militancy entails subjection of the people, partial or complete, and in which, consequently, political power and judicial power come to be exercised exclusively by the several orders of chief men, the judicial organization which arises as the society enlarges and complicates, is officered by the sacerdotal class, or the military class, or partly the one and partly the other: their respective shares being apparently dependent on the ratio between the degree of conscious subordination to the human ruler and the degree of conscious subordination to the divine ruler, whose will the priests are supposed to communicate. But with the progress of industrialism and the rise of a class which, acquiring property and knowledge, gains consequent influence, the judicial system comes to be largely, and at length chiefly, officered by men derived from this class; and these men become distinguished from their predecessors not only as being of other origin, but also as being exclusively devoted to judicial functions.
While there go on changes of this kind, there go on changes by which the originally-simple and comparatively-uniform judicial system, is rendered increasingly complex. Where, as in ordinary cases, there has gone along with achievement of supremacy by the king, a monopolizing of judicial authority by him, press of business presently obliges him to appoint others to try causes and give judgments: subject of course to his approval. Already his court, originally formed of himself, his chief men, and the surrounding people, has become supreme over courts constituted in analogous ways of local magnates and their inferiors—so initiating a differentiation; and now by delegating certain of his servants or assessors, at first with temporary commissions to hear appeals locally, and then as permanent itinerant judges, a further differentiation is produced. And to this are added yet further differentiations, kindred in nature, by which other assessors of his court are changed into the heads of specialized courts, which divide its business among them. Though this particular course has been taken in but a single case, yet it serves to exemplify the general principle under which, in one way or other, there arises out of the primitive simple judicial body, a centralized and heterogeneous judicial organization.