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High, middle and low justices are notions dating from Westernfeudalism to indicate descending degrees ofjudicial power to administerjustice by the maximal punishment the holders could inflict upon their subjects and other dependents. The scale of punishment generally matched the scale of spectacle (e.g. a public hanging = high justice), so that in France, Paul Friedland argues: "The degree of spectacle [was] originally the basis for a distinction between high and low justice", with an intervening level of 'middle justice', characterised by limited or modest spectatorship, added around the end of the fourteenth century.[1]
Low justice regards the level of day-to-daycivil actions, including voluntary justice, minorpleas, andpetty offences generally settled byfines or lightcorporal punishment. It was held by many lesser authorities, including manylords of the manor, who sat in justice over theserfs, unfreetenants, and freeholders on their land. Middle justice would involve full civil andcriminal jurisdiction, except forcapital crimes, and notably excluding the right to pass thedeath penalty,torture and severe corporal punishment, which was reserved to authorities holding high justice, or theius gladii ("right of the sword").
Although the termshigh andlow suggest a strict subordination, this was not quite the case; a case could often be brought in any of several courts, with the principle of "prevention" (in the etymological sense of Latinpraevenire, "to come before") grantingjurisdiction to the court in which the case was first filed or otherwise brought.
As a rule, each court administered justice in general (criminal cases were generally not separate from civil actions and other types of justice, while certain matters were separated such ascanon law), as long as the matter was not reserved for a higher court or by virtue of someprivilegium fori (e.g., of clerics to be judged in canon courts by other clergy, sometimes under ecclesiastical law, the origin of the Englishcommon-law concept—benefit of clergy). In addition to civil and criminal trials, the notion of justice also includedvoluntary justice, which is really the official recording of deeds (unilateral or bilateral) such as marital agreements, wills, grants, etc.
A right of appeal was not automatically available, only when explicitly established, and if so not always to a court of the superior political level or a higher degree of the trio. In fact, feudal justice was a labyrinth of specific customs and rules in nearly endless variation, not governed by any clear legal logic, and subject to significant historical evolution in time. However, the largelycustomary law tended by nature to be quite conservative. In judicial matters—as in all spheres of life—feudal society did not see uniformity as either possible or necessarily desirable, each town and region has its customs and ways of doing things, and resented attempts to interfere with them.
While the right of justice is held by many "unique" courts, relatively strong states make it a pillar of their absolutist (re)emergence to establish numerous courts to administer justice in their name in different territorial circumscriptions, such as the royal (high) sheriffs in England, or to impose an appeal (at least unifying the law as such) to a royal court, as to the various French provincialparlements.
High justice, also known asLatin:ius gladii ("right of the sword") or in German asBlutgerichtsbarkeit,Blutgericht (lit. 'blood justice', "blood-court";[2] sometimes alsoHalsgericht,lit. 'neck-justice', orpeinliches Gericht[3]) is the highest penal authority, includingcapital punishment, as held by a sovereign—thesword of justice and hand of justice areregalia that symbolize it. In the earlyHoly Roman Empire, high justice was reserved to theking. From the 13th century, it was transferred to the king'svassals along with their fiefs.
The first codification of capital punishment was theHalsgerichtsordnung passed byMaximilian I in 1499, followed in 1507 by theConstitutio Criminalis Bambergensis. Both codes formed the basis of theConstitutio Criminalis Carolina (CCC), passed in 1532 underCharles V. In theHabsburg monarchy, all regional codes were superseded by theConstitutio Criminalis Theresiana in 1768.
TheBlutbanner ("blood banner") orBlutfahne ("blood flag") was a solid red flag. It was presented to feudal lords as a symbol of their power of high jurisdiction (Blutgerichtsbarkeit) together with the heraldic banner of the fief. Some feudal houses adopted a red field symbolic of the blood banner into their coat of arms, the so-calledRegalienfeld. TheTalschaft (forest canton) ofSchwyz used the blood banner as awar flag fromc. 1240, and was later incorporated into theflag of Schwyz and theflag of Switzerland.
Often it is proudly displayed, in the form of relevant status symbols. Thus permanentgallows are often erected in prominent public places; the very word for them in French,potence, is derived from the Latin "potentia" meaning "power".
High justice is held by all states and the highest vassals in the European type of feudal society, but may also be acquired by other authorities as part of a high degree of legal autonomy, such as certain cities; which in time often obtained other high privileges originally reserved for high nobility and sometimes high clergy. Other such privileges could include a seat in adiet or a similar feudal representative assembly, before thethird estate as such even aspired to such "parliamentary" representation, or the right tomint coins. These privileges indicating its so-calledliberty was an "equal" enclave in the territorial jurisdiction of the neighboring feudal (temporal or ecclesiastical) Lord, sometimes even extending rather like apolis in Antiquity.
Not everyVogt held high justice. Up to the 18th century, for example, the blood court of much of what is now thecanton of Zürich lay withKyburg, even in the territory ruled by the counts ofGreifensee. The self-administration of the blood court was an important factor ofImperial immediacy.
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