14
THE GREEN BAG
Nor does the sinner suppose that he will be excused from criminating himself on the day of final judgment. While the middle ages evolved no such complete single jurisdiction as that of Rome, they reached the same result by the coopera tion of Church and State. The Church regulated thought, while the State concerned itself more particularly with physical force. This was inevitable when war was chronic. Thus the middle ages contemplated a perfect jurisdiction, while we boast of our failure to approach an ideal of justice, not only by narrowly limiting our jurisdictions, but by avowing our preference for circumstantial evidence of the condition of the mind. Nothing can be more salutary as a check upon modern self-complacency than to recur in a philosophical spirit to the history of the past. If we are ever to comprehend anything of the scientific aspect of our early law we must bear in mind that, until after the close of the twelfth century, the socalled common-law courts played but a very subordinate part in the economy of English life. Glanvill became chief justice in 1180, and in Glanvill 's time the common law still remained almost purely a martial code. The army, in the shape of a territorial militia, represented the rent of the land. Hence the King's courts, on the civil side, dealt chiefly with tenures. They also took cognizance of such forms of debt as soldiers might be interested in collecting, or of such losses as landlords might meet with. As cattle stealing was rife and the aristocracy owned cattle, the law helped them to re cover a specific chattel, such as a cow which had been stolen, or, in debt, an action lay for the price of the wool they had clipped from their sheep, or maybe for a quarter's rent from some burgher who did not pay in service. A few simple processes, never theless, sufficed for the wants of a popula tion of military farmers. These hardly touched the relations of domestic life or of commerce. Controversies concerning capital and
labor, finance and trade, were generally disposed of in the merchants' courts of the incorporated towns or in the Jewry, or Exchequer of the Jews, down to a period long subsequent to Glanvill, while the litigation both civil and criminal which now goes to the police court then went to the courts of the manors. The Church, however, trans acted the bulk of the business. The spiritual courts had jurisdiction over domestic relations, over matters testamen tary, over many breaches of contract involv ing fraud, over most corporate law, since most corporations were religious, over most controversies to which a priest was a party, and over a multitude of purely intellectual crimes such as heresy and witchcraft. Furthermore the Church presided over that highly important branch of lay procedure, the ordeal. Nor was this, perhaps, the larger or the more important portion of the judicial functions of the Church. The King's courts undertook to deal with crimes of violence. A man might be appealed of felony in which case he defended himself by combat, and, if he prevailed, the law held that God had given him the victory because his heart was pure. The Church looked closer into the matter. It examined the mind of the accused at first hand. A man victorious in the duel had yet to confess and obtain absolution. If he did not confess, or if he lied in confession, or if having admitted his guilt he evaded penance, he was subject to excommunication, a punishment akin to outlawry, the most grievous sentence, next to death, pronounced in the middle ages. The Church reasoned rigorously. Dis regarding the act, it sought directly the cause of the act, that is to say the volition. Posing to itself as its end the discovery of the animus which stimulated the accused, the Church did not pretend to content itself with secondary evidence. It demanded the best evidence; that is to say the evidence* of the only witness who knew the facts of his own knowledge, and accordingly the whole
