The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0088/00880.txt

Text File | 1992-08-07 | 35KB | 555 lines

$Unique_ID{bob00880}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Part V}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{de
aragon
footnote
justiciary
zurita
cortes
fol
king
ii
que}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book IV: The History Of Spain To The Conquest Of Granada
Author:      Hallam, Henry

Part V

     The justiza or justiciary of Aragon has been treated by some writers as a
sort of anomalous magistrate, created originally as an intermediate power
between the king and people, to watch over the exercise of royal authority.
But I do not perceive that his functions were, in any essential respect,
different from those of the chief justice of England, divided, from the time
of Edward I., among the judges of the King's Bench.  We should undervalue our
own constitution by supposing that there did not reside in that court as
perfect an authority to redress the subject's injuries as was possessed by the
Aragonese magistrate.  In the practical exercise, indeed, of this power, there
was an abundant difference.  Our English judges, more timid and pliant, left
to the remonstrances of parliament that redress of grievances which very
frequently lay within the sphere of their jurisdiction.  There is, I believe,
no recorded instance of a habeas corpus granted in any case of illegal
imprisonment by the crown or its officers during the continuance of the
Plantagenet dynasty.  We shall speedily take notice of a very different
conduct in Aragon.

     The office of justiciary, whatever conjectural antiquity some have
assigned to it, is not to be traced beyond the capture of Saragossa in 1118,
when the series of magistrates commences. ^h But for a great length of time
they do not appear to have been particularly important; the judicial authority
residing in the council of ricoshombres, whose suffrages the justiciary
collected, in order to pronounce their sentence rather than his own.  A
passage in Vitalis Bishop of Huesca, whom I have already mentioned, shows this
to have been the practice during the reign of James I. ^i Gradually, as
notions of liberty became more definite, and laws more numerous, the reverence
paid to their permanent interpreter grew stronger, and there was fortunately a
succession of prudent and just men in that high office, through whom it
acquired dignity and stable influence.  Soon after the accession of James II.,
on some dissensions arising between the king and his barons, he called in the
justiciary as a mediator whose sentence, says Blancas, all obeyed. ^j At a
subsequent time in the same reign the military orders, pretending that some of
their privileges were violated, raised a confederacy or union against the
king.  James offered to refer the dispute to the justiciary, Ximenes Salanova,
a man of eminent legal knowledge.  The knights resisted his jurisdiction,
alleging the question to be of spiritual cognizance.  He decided it, however,
against them in full cortes at Saragossa, annulled their league, and sentenced
the leaders to punishment. ^k It was adjudged also that no appeal could lie to
the spiritual court from a sentence of the justiciary passed with assent of
the cortes.  James II. is said to have frequently sued his subjects in the
justiciary's court, to show his regard for legal measures; and during the
reign of this good prince its authority became more established. ^l Yet it was
not perhaps looked upon as fully equal to maintain public liberty against the
crown, till in the cortes of 1348, after the Privilege of the Union was
forever abolished, such laws were enacted, and such authority given to the
justiciary, as proved eventually a more adequate barrier against oppression
than any other country could boast.  All the royal as well as territorial
judges were bound to apply for his opinion in case of legal difficulties
arising in their courts, which he was to certify within eight days.  By
subsequent statutes of the same reign it was made penal for any one to obtain
letters from the king, impeding the execution of the justiza's process, and
they were declared null.  Inferior courts were forbidden to proceed in any
business after his prohibition. ^m Many other laws might be cited,
corroborating the authority of this great magistrate; but there are two parts
of his remedial jurisdiction which deserve special notice.

[Footnote h: Biancae Comment. p.  638.]

[Footnote i: Id. p. 772.  Zurita indeed refers the justiciary's pre-eminence
to an earlier date, namely, the reign of Peter II., who took away a great part
of the local jurisdictions of ricoshombres.  t. i. fol. 102. But if I do not
misunderstand the meaning of Vitalis, his testimony seems to be beyond
dispute.  By the General Privilege of 1283, the justiciary was to advise with
the ricoshombres, in all cases where the king was a party against any of his
subjects.  Zurita, f. 281.  See also f. 180.]

[Footnote j: Zurita, p. 663.]

[Footnote k: Ibid., t. i. f. 403; t. ii. f. 34; Bian. p. 666.  The assent of
the cortes seems to render this in the nature of a legislative, rather than a
judicial proceeding; but it is difficult to pronounce anything about a
transaction so remote in time, and in a foreign country, the native historians
writing rather concisely.]

[Footnote l: Bianc. p. 663.  James acquired the surname of Just, el
Justiciero, by his fair dealings towards his subjects.  Zurita, t. ii. fol.
82.  El Justiciero properly denotes his exercise of civil and criminal
justice.]

[Footnote m: Fueros de Aragon: Quod in dubiis non crassis.  (A.D. 1348.) Quod
impetrans (1372), &c.  Zurita, t. ii. fol. 229.  Bianc. pp. 671 and 811.]

     These are the processes of jurisfirma, or firma del derecho, and of
manifestation.  The former bears some analogy to the writs of pone and
certiorari in England, through which the Court of King's Bench exercises its
right of withdrawing a suit from the jurisdiction of inferior tribunals.  But
the Aragonese jurisfirma was of more extensive operation. Its object was not
only to bring a cause commenced in an inferior court before the justiciary,
but to prevent or inhibit any process from issuing against the person who
applied for its benefit, or any molestation from being offered to him; so
that, as Blancas expresses it, when we have entered into a recognizance (firme
et graviter asseveremus) before the justiciary of Aragon to abide the decision
of law, our fortunes shall be protected, by the interposition of his
prohibition, from the intolerable iniquity of the royal judges. ^n The process
termed manifestation afforded as ample security for personal liberty as that
of jurisfirma did for property.  "To manifest any one," says the writer so
often quoted, "is to wrest him from the hands of the royal officers, that he
may not suffer any illegal violence; not that he is at liberty by this
process, because the merits of his case are still to be inquired into; but
because he is now detained publicly, instead of being as it were concealed,
and the charge against him is investigated, not suddenly or with passion, but
in calmness and according to law, therefore this is called manifestation." ^o
The power of this writ (if I may apply our term) was such, as he elsewhere
asserts, that it would rescue a man whose neck was in the halter.  A
particular prison was allotted to those detained for trial under this process.

[Footnote n: p. 751.  Fueros de Aragon, f. 137.]

[Footnote o: Est apud nos manifestre, reum subito sumere, atque e regiis
manibus extorquere, ne qua ipsi contra jus vis inferatur.  Non quod tunc reus
judicio liberetur; nihilominus tamen, ut loquimur, de meritis causae ad plenum
cognoscitur.  Sed quod deinceps manifesto teneatur, quasi antea celatus
extitisset; necesseque deinde sit de ipsius culpa, non impetu et cum furore,
sed sedatis prorsus animis, et juxta constitutas leges judicari.  Ex eo autem,
quod hujusmodi judicium manifesto deprehensum, omnibus jam patere debeat,
Manifestationis sibi nomen arripuit. p. 675.