SELECT ESSAYS

IN

ANGLO-AMERICAN LEGAL HISTORY

BY VAEIOUS AUTHOES

COMPILED AND EDITED BY A COMMITTEE OF THE

ASSOCIATION OF AMERICAN LAW SCHOOLS

IN THREE VOLUMES VOLUME I

BOSTON

LITTLE, BKOWN, AND COMPANY 1907

PREFACE

Copyright, 1907, BY LITTLE, BROWN, AND COMPANY.

All rights reserved Published August, 1907

COLONIAL PRESS

Electrotyped and Printed ly C. ff. S intends if Co. Boston, U. S.A.

DE QUINCEY, in one of his Letters to a Young Man whose Education has been Neglected, quotes Dr. Johnson's pronouncement upon French literature (and it was the kindest thing he had to say about it), that " he valued it chiefly for this reason: that it had a book upon every subject." Even so much as this could hardly be claimed for our own literature in English. To this day it has no complete book upon the history of its own law. The attempts of Blackstone, Crabb, and Reeves are of a past epoch. The progress of a century of historical thought has fixed a great gulf between us and them. To-day, this branch of our literature dates virtually from Mr. Justice Holmes' " The Common Law " and Sir Frederick Pollock's and Professor Maitland's " History " — the first writers in this field (as Hallam says of Montaigne among French classical writers) " whom a gentleman is ashamed not to have read."

The present state of our knowledge of the history of our law may be likened to an unfinished building, whose foundations have been laid and whose frame and beams have been erected. The roof, the walls, the floors, the furnishings and decoration, are yet lacking. Its scope and internal plan, its architecture and its relation of parts, can be already plainly seen. But it cannot yet be inhabited; and many kinds of workmen must labor longer upon it. These foundations are the volumes of Sir Frederick Pollock and Professor Maitland, — resting upon the still deeper Germanic caissons of Professor Heinrich Brunner and his co-workers. This frame and these cross-beams are, on the one hand, the few larger monographs, from Mr. Justice Holmes' " The Common Law " and Professor Bigelow's " Anglo-Norman Procedure,"

of thirty years ago, to the Selden Society's source-books and Mr. Holdsworth's recent first volume; and, on the other hand, the more numerous essays and chapters of the authors represented in these present volumes. But, until now, most of these lesser structural members of the framework have lain scattered about upon the ground, here and there, — ready for use, and yet not fully serviceable because not easily accessible and not assembled in their relations to each other and to the whole. It is the purpose of these volumes to assemble and make accessible these valuable parts of the structure of our legal history.

The season is ripe for this work. It is probable that another generation will pass before the final elaboration of the structure can be attempted. Until the Year Books are entirely re-edited and printed, most of the work will be of a limited and topical scope. It is now time for our profession to take account of past progress, — to put together and to possess in mastery that which has been so far achieved; following the dictate of Goethe: " My maxim in the study of Nature is this: Hold fast what is certain, and keep a watch on what is uncertain."

The times demand, too, of our profession, more cultivation of the taste for history. A counter-balance against the hasty pressure for reform, and against an over-absorption in the narrow experience of the present, is to be sought in the solid influence of history. A true conservatism, and an intelligent progress, must alike be based on historical knowledge, — a knowledge not remaining in the possession of a few scholars, but penetrating abroad into the general consciousness of the profession.

For student and for practitioner alike, we believe that these historical essays will be a welcome enlargement of the horizon of our law. " It is the historians who are my true men," says the genial Montaigne, " for they are pleasant and easy; wherein immediately man in general (the knowledge of whom I hunt after) appears more lively and entire than anywhere besides." And his ingenuous reason for best liking Plutarch and Seneca is a reason which (we confess) has seemed to us likely to commend these present composite vol-

umes to that class of our expected readers who are already immersed in practice; for those ancient writers, he says, " have this great convenience (suited to my humour) that the knowledge I there seek is discoursed in several pieces, not requiring any great trouble of reading long, of which I am incapable; 'tis no great undertaking to take one of them in hand, and I give over to them at pleasure, for they have no necessary chain or dependence upon one another."

To the profession, then, and to all its members, whether in school or out of it, we commend this Collection, in the hope that it may bring into general knowledge the main part of the historical achievements which are not yet contained in independent volumes, and that it may help to stimulate a deeper and wider knowledge of the present meaning of our law as seen in the light of its past. Sooner or later the number of those who themselves take an efficient part in historical legal research will have to be, and will be, much increased. But that day will the sooner come to pass if meantime the number of those can be increased who will read and appreciate what has already been done, and will thus give support and encouragement for such research. Science expands with culture, and, in Matthew Arnold's phrase, " Culture is reading, -— but reading with a purpose to guide it, and with system. He docs a good work who does anything to help this; indeed, it is the one essential service now to be rendered to education."

In giving account of our labors in the preparation of this Collection, it is our first duty, on behalf of our profession, to thank those authors and publishers who have so freely allowed the reprinting of these essays and chapters. From th§ leaders of the historical vanguard (so to speak)—of whom Professor Brunner of Berlin, the lamented Professor Maitland of Cambridge, Sir F. Pollock of Oxford, Mr. Justice Holmes of Washington, Professor Ames of Harvard, and Professor Bigelow of Boston, are representative — this consent has been especially welcome.

We must, secondly, express our regret that the limitations of scope and space have forced the omission of many essays

which merited reprinting. All matters of public law, for example — including the history of constitutional law and of municipal corporations — have been left aside; perhaps a later series may be made to include them. Furthermore, in several essays and monographs, the narrow range of details, the lengthy marshalling of the historical evidence, or the impossibility of separating usable parts, has made them ineligible; though a reference-list of such authorities has been appended in the proper places.

A main motive for the Collection was to rescue, from scattered series of periodicals or general treatises on present law, and to assemble in one convenient form, those essays or chapters which are of permanent value and would otherwise fail of the constant and wide perusal which they deserve. Hence the plan did not propose to include any extracts from works devoted entirely and professedly to the history of any part of the law, -— such acknowledged masterpieces, for example, as Sir F. Pollock's and Professor Maitland's History of English Law, or Mr. Digby's History of the Law of Real Property, or Mr. Justice Holmes' The Common Law. But, in several instances, exceptions to this plan were allowed. The impelling reason was the Committee's desire to give a certain symmetry to some topics and periods which would otherwise have been imperfectly represented. The present volumes may therefore, it is hoped, serve to illumine in outline the legal history of the last six centuries, and thus to supplement the great treatise of Sir F. Pollock and Professor Maitland, — at least provisionally and until by the completion of the larger undertakings of Mr. Holdsworth and others the same period shall have been more adequately covered.

A more detailed explanation of the Committee's preparatory labors, and of the motives leading to its appointment, will be found in the Proceedings of the Association of American Law Schools for 1905 and 1906, published with the Proceedings of the American Bar Association for those years.

All of the material here collected has been already published elsewhere as essays, articles, or chapters, — with the

exception of Mr. Zane's studies of the Bench and Bar of England, which are now printed for the first time.

The bibliographical footnotes for each of the authors were in some instances furnished by the authors themselves, pursuant to the Committee's request. In other instances, owing to the authors' modest ignoring of that request, the Committee used such notes as could be found in biographical dictionaries; and in still others, no information was obtainable. The brief extra reference-lists, prefixed to the topical divisions of this Collection, include only those articles (the result of the Committee's preliminary gleanings) which it was impossible to include in the reprint. These lists are found chiefly under the special topics of volumes II and III. Following the prevailing American custom, no attempt has been made to designate the authors, in the title-heading of these essays, by their academic degrees or similar marks of distinction; but in a footnote is placed a record of such distinctions, so far as information was obtainable.

With these explanations, and with apologies for such errors as must inevitably have accompanied the work of a Committee cooperating from three separate headquarters, and corresponding with authors and publishers widely sundered by sea and land, the volumes are committed to the good-will of the profession.

THE COMMITTEE OF THE

ASSOCIATION OF AMERICAN LAW SCHOOLS. ERNST FREUND,

University of Chicago. WM. E. MIKELL,

University of Pennsylvania. JOHN H. WIGMORE, Chairman.

Northwestern University. June SO, 1907.

"Sine historici caecam esse jurisprudentiam." FEANCISCUS BALDXIINUS.

" I have no expectation that any man will read history aright who thinks that what was done in a remote age, by men whose names have resounded far, has any deeper sense than what he is doing to-day. There is no age, or state of society, or mode of action, in history to which there is not somewhat corresponding in his life. . . . History must be this or it is nothing: Every law which the State enacts indicates a fact in human nature; that is all. We must in ourselves see the necessary reason for every fact, — see how it could and must be. We assume that we under like influence should be alike affected, and should achieve the like; and we aim to master intellectually the steps, and reach the same height or the same degradation that our fellow, our proxy, has done. All inquiry into antiquity is the desire to do away this wild, savage, and preposterous There or Then, and introduce in its place the Here and Now." RALPH WALDO EMERSON, Essay on History.

" For the true historian, two attitudes (as I opine) are requisite. On the one hand, he must find interest and pleasure in the truth of individual facts, — must value details for their own sake. If he possesses genuinely this avidity for the pursuit of truth in its manifold variety, for the bare facts of human life, then he will surely attain satisfaction in his research, regardless of their larger interpretations and tendencies,— just as he takes pleasure in the flowers, without attempting to solve the problems of their botanical classification. Yet, on the other hand, the historian must cultivate breadth of view, — the faculty of generalization. He is not to proceed a priori, like the metaphysician. But, while he observes and describes the unfolding of the details, he is to let their general trend be made manifest, — their inter-actions, their developments, their epochs. One after another, the events appear before him; the series unites; it culminates in an Epoch. That distinction between dates which we term an Epoch lies in this, that out of the struggle of the two great opposing forces — the predetermined causation of the past, and the spontaneous variability of the present — new conditions, and thus new periods, gradually emerge. And out of a series of Epochs is built up the whole. . . . Thus, while each separate event of history has its intrinsic value, is worth investigation for its own sake, yet — in view of the direction which modern research is taking (and must indeed insist on taking, if we desire accurate knowledge) —it is fair to say that we run some danger of ignoring the larger aspects, that broad outlook for which every one has a legitimate yearning. Thus to unravel the full trend and meaning of events, while remaining steadfast to the strict principles of scientific research, will indeed be always an unattainable ideal. Yet a true scholarship recognizes that the two processes may and must go hand in hand. Facts without their philosophy are but barren and frigid chronicles. And philosophies of history not built on a rigid basis of fact are but delusive fancies." LEOPOLD vox RANKE, World History, Part IX, Sect. II, The Epochs of Modern History, Introduction.

SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY

VOLUME I GENERAL, SURVEYS

CONTENTS

BOOK I: GENERAL SURVEYS

PART I. BEFORE THE NORMAN CONQUEST

1. A Prologue to a History of English Law . . 7

FREDERIC WILLIAM MAITLAND

2. The Development of Teutonic Law ... 34

EDWARD JENKS

3. English Law before the Norman Conquest . . 88

SIR FREDERICK POLLOCK, BART.

PART II. FROM THE NORMAN CONQUEST TO THE EIGHTEENTH

CENTURY

4>. The Centralization of Norman Justice under

Henry II.......Ill

ALICE STOPFORD (MRS. JOHN RICHARD) GREEN

5. Edward I, the English Justinian . . . 139

EDWARD JENKS

6. English Law and the Renaissance . . . 168

FREDERIC WILLIAM MAITLAND

7. Roman Law Influence in Chancery, Church

Courts, Admiralty, and Law Merchant . . 208 THOMAS EDWARD SCRUTTON

8. The History of the Canon Law in England . . 248

WILLIAM STUBBS

9. The Development of the Law Merchant . . 289

WILLIAM SEARLE HOLDSWORTH

10. A Comparison of the Histoi-y of Legal Development at Rome and in England . . . 332

-TAArtra Tluvr'T?

PART III. THE AMERICAN COLONIAL PERIOD

11. English Common Law in the Early American

Colonies . . . PAUL SAMUEL REINSCH 367

12. The Extension of English Statutes to the Plan-

tations . ST. GEORGE LEAKIN SIOUSSAT 416

13. The Influence of Colonial Conditions, as Illus-

trated in the Connecticut Intestacy Law . . 431 CHARLES McLEAN ANDREWS

PART IV. EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY

14. Anticipations under the Commonwealth of

Changes in the Law . . R. ROBINSON 467

15. Bentham's Influence in the Reforms of the Nine-

teenth Century . JOHN FORREST DILLON 492

16. Progress in the Administration of Justice during

the Victorian Period ..... 516 CHARLES SYNGE CHRISTOPHER, BARON BOWEN

17. The Development of Jurisprudence during the

Nineteenth Century ..... 558 JOSEPH HENRY BEALE, JR.

18. The Extension of Roman and English Law

throughout the World . JAMES BRYCE 574

PART V. BENCH AND BAR FROM NORMAN TIMES TO THE NINETEENTH CENTURY

19. The Five Ages of the* Bench and Bar of Eng-

land . . . JOHN MAXCY ZANE 625

20. A Century of English Judicature . . . 730

VAN VECHTEN VEEDER

21. An American Law Student of a Hundred Years

Ago.....JAMES KENT 837

A TABLE OF BRITISH REGNAL YEARS

Sovereigns

Commencement of Reign

William I................................October U, 1066

William II...............................September 26, 1087-

Henry I..................................August 5, 1100

Stephen .................................December 26, 1135 -

Henry II.................................December 19, 1154

Richard I...............................September 23, 1189

John .....................................May 27, 1199

Henry III ................................October 28, 1216

Edward I................................November 20, 1272

Edward II...............................July 8, 1307

Edward III.............................January 25, 1326

Richard II...............................June 22, 1377

Henry IV................................September 30, 1399.

Henry V.................................March 21, 1413

Henry VI................................September 1, 1422

Edward IV..............................March 4, 1461

Edward V................................April 9, 1483

Richard III..............................June 26, 1483

Henry VII...............................August 22, 1485

Henry Vill..............................April 22, 1509

Edward VI..............................January 28, 1517

Mary ....................................July 6, 1553

Elizabeth ................................November 17, 1558

James I..................................March 24, 1603

Charles I.................................March 27, 1625

The Commonwealth ......................January 30, 1649

Charles II¹...............................May 29, 1660

James II.................................February 6, 1685

William and Mary .......................February 13, 1689

Anne ....................................March 8, 1702

George I.................................August 1, 1714

George II................................June 11, 1727

George III................................October 25, 1760

George IV................................January 29, 1820

William IV.............................". .June 26, 1830

Victoria ...................................June 20, 1837

Edward VII..............................January 22, 1901

¹ Although Charles II. did not ascend the throne until 29th May, 1660, his regnal years were computed from the death of Charles I., January 30, 1649, so that the year of his restoration is styled the twelfth year of his reign.

PART I.

BEFORE THE NORMAN CONQUEST

1. A Prologue to a History of English Law.

FREDERIC WILLIAM MAITLAND.

2. The Development of Teutonic Law.

EDWARD JENKS.

3. English Law Before the Norman Conquest.

SIR FREDERICK POLLOCK.

SELECT ESSAYS

IN ANGLO-AMERICAN LEGAL HISTORY

1. A PROLOGUE TO A HISTORY OF ENGLISH LAW»

BY FREDERIC WILLIAM MAITLAND ²

SUCH is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it: words such as bishop, priest, and deacon.³ If we would search out the origins of Roman law, we must study Babylon: this at least was the opinion of the great Romanist of our own day.⁴ A statute of limitations must be set; but it must be arbitrary. The web must be rent; but, as we rend it, we may watch

•This essay was first published in the Law Quarterly Review, 1898, vol. XIV, pp. 13-33; and afterwards was prefixed to the second edition of the "History of English Law," 1899 (Cambridge, University Press; Boston, Little, Brown & Co.).

= 1850-1906; Jl. A., Trinity College (Cambridge); Barrister of Lincoln's Inn; Reader of English Law at Cambridge, 1888; Downing Professor of the Laws of England at Cambridge, 1888-1906; Bencher of Lincoln's Inn; LL.D., D. C. L., Oxford, Glasgow, Cracow.

Other Publications: Gloucester Pleas, 1884; Justice and Police, 1885; Bracton's Note-Book, 1887; History of English Law before the Time of Edward I (with Sir F. Pollock), 1895; Domesday Book and Beyond, 1897; Township and Borough, 1898; Canon Law in England, 1898; Introduction to Gierke's Political Theories of the Middle Ages, 1900; English Law and the Renaissance, 1901; prefaces to several volumes of the Selden Society's publications; editor of the Year-Books of Edward II (Selden Society, 1904-6). The miscellaneous essays and minor books of Professor Maitland are now being edited for publication m collected form by the University Press, Cambridge (Eng.).

•^Ethelb.-1.

•Ihering, Vorgeschichte der Indoeuropaer; see especially the editor's preface.

the whence and whither of a few of the severed and ravelling threads which have been making a pattern too large for any man's eye.

To speak more modestly, we may, before we settle to our task, look round for a moment at the world in which our English legal history has its beginnings. We may recall to memory a few main facts and dates which, though they are easily ascertained, are not often put together in one English book, and we may perchance arrange them in a useful order if we make mile-stones of the centuries.¹

By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212,² Ulpian in 228.³ Ulpian's pupil Modestinus may be accounted the last of the great lawyers.* All too soon they became classical; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak; but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its tough identity. In the year 200 six centuries and a half of definite legal history, if we measure only from the Twelve Tables, were consciously summed up in the living and growing body of the law.

Dangers lay ahead. We notice one in a humble quarter. Certain religious societies, congregations (ecclesiac) of nonconformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be; but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, if not a crim-

¹ The following summary has been compiled by the aid of Karlowa, Romische Rechtsgeschichte, 1885 — Kriiger, Gesehichte der Quellen des riimischen Rechts, 1888 — Conrat, Gesehichte der Quellen des romischen Rechts im friiheren Mittelalter, 1889 — Maassen, Gesehichte der Quellen des canonischen Rechts, 1870 — Lb'ning, Gesehichte des deutschen Kir-chenrechts, 1878 — Sohm, Kirchenreeht, 1892 — Hinschius, System des katholischen Kirchenrechts, 18G9 ff. — A. Tardif, Histoire des sources du droit canonique, 1887 — Brnnner, Deutsche Rechtsgeschichte, 1887 — Schroder, Lehrbuch der deutschen Rechtsgeschichte, ed. 2, 1891 — Esmein, Cours d'histoire du droit franc.ais, ed. 2, 1895 — Viollet, Histoire du droit civil francais, 1893.

² Kriiger, op. cit. 198; Karlowa, op. cit. i. 736.

* Kriiger, op. cit. 215; Karlowa, op. cit. i. 741.

* Kriiger, op. cit. 220; Karlowa, op. cit. i. 752.

inal purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of " benefit and burial societies " they would obtain some protection for their communal property.¹ But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (episcopus) of every congregation with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful.² Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire was winning a pre-eminence for itself and its overseer.³ Long indeed would it be before this overseer of a non-conformist congregation would, in the person of his successor, place his heel upon the neck of the prostrate Augustus by virtue of God-made law. This was not to be foreseen; but already a merely human jurisprudence was losing its interest.' The intellectual force which some years earlier might have taken a side in the debate between Sabinians and Proculians now invented or refuted a christo-logical heresy. Ulpian's priesthood * was not priestly enough.⁵

The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility;⁶ it was sharing the fate of art.⁷ Its eyes were

¹ Loning, op. cit. i. 195 ff.; Sohm, op. cit. 75. Loning asserts that in the intervals between the outbursts of persecution the Christian communities were legally recognized as collegia tenuiorum, capable of holding property. Sohm denies this.

² Excommunication gradually assumes its boycotting traits. The clergy were prohibited, while as yet the laity were not, from holding converse with the offender. Loning, op. cit. i. 264; Hinschius, op. cit. iv. 704.

^a Sohm, op. cit. 378 ff.; Loning, op. cit. i. 423 ff.

'Dig. 1. 1. 1.

"The moot question (Kriiger, op. cit. 203; Karlowa, op. cit. i. 739) whether the Tertullian who is the apologist of Christian sectaries is the Tertullian from whose works a few extracts appear in the Digest may serve as a mnemonic link between two ages.

•Kriiger, op. cit. 260; Karlowa, op. cit. i. 932.

⁷ Gregorovius, History of Rome (transl. Hamilton), i. 85.

turned backwards to the departed great. The constitutions of the emperors now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made: the Codex Gregorianus, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient.¹ The shifting eastward of the imperial centre and the tendency of the world to fall in two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germans were taking up their abode within the limit of the empire.² The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king.³

It is on a changed world that we look in the year 400. After one last flare of persecution (303), Christianity became a lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The " confessor" of yesterday was the persecutor of to-day.. Heathenry, it is true, died hard in the West; but already about 350 a pagan sacrifice was by the letter of the law a capital crime.⁴ Before the end of the century cruel statutes were being made against heretics of all sorts and kinds.⁵ No sooner was the new faith lawful, than the state was compelled to take part in the multifarious quarrels of the Christians. Hardly had Constantine issued the edict of tolerance, than he was summoning the bishops to Aries (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa.⁰ In the history of law, as well as in the history of dogma, the fourth century is the century of ecclesiastical councils. Into the debates of the spiritual parliaments of the empire ⁷ go what-

¹ Krliger, op. cit. 277 ff.; Karlowa, op. cit. i. 941 ff. It is thought that the original edition of the Gregorianus was made about A. D. 295, that of the Hermogenianus between 314 and 324. But their dates are uncertain. For their remains see Corpus luris Anteiustiniani.

² Brunner, op. cit. i. 32-39. ³ Ibid. 38. ' Loning, op. cit. i. 44. ⁵ Loning, op. cit. i. 97-98, reckons 68 statutes from fifty-seven years

(380-438).

' Hefele Conciliengeschichte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7.

'Sohm, op. cit. 443: "Das okumenische Koncil, die Reichssynode . . . bedeutet ein geistliches Parlament des Kaiserturns."

ever juristic ability and whatever power of organization are left among mankind. The new supernatural jurisprudence was finding another mode of utterance; the bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor.¹ In 380 Theodosius himself commanded that all the peoples which owned his sway should follow, not merely the religion that Christ had delivered to the world, but the religion that St. Peter had delivered to the Romans.² For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled.³ As arbitrators in purely secular disputes they were active; it is even probable that for a short while under Constantine one litigant might force his adversary unwillingly to seek the episcopal tribunal.⁴ It was necessary for the state to protest that criminal jurisdiction was still in its hands.⁵ Soon the church was demanding, and in the West it might successfully demand, independence of the state and even a dominance over the state: the church may command and the state must obey.⁶ If from one point of view we see this as a triumph of anarchy, from another it appears as a triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a supernatural sort, in order that it may rule the world.

Among the gigantic events of the fifth century the issue of a statute-book seems small. Nevertheless, through the turmoil we see two statute-books, that of Theodosius II and that of Euric the West Goth. The Theodosian code was an official collection of imperial statutes beginning with those of Constantine I. It was issued in 438 with the consent of Valentinian III who was reigning in the West. No perfect copy of it has reached us.⁷ This by itself would tell a sad

¹ Sohm, op. cit. 418. If a precise date may be fixed in a very gradual process, we may perhaps see the first exercise of legislative power in the decretal (A. D. 385) of Pope Siricius. ' Cod. Theod. 16. 1. 2. *_t Loning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff.

Loning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1.

Loning, op. cit. i. 305; Hinschius, op. cit. iv. 794.

Loning, op. cit. i. (i4-94.

Kriiger, op. cit. 285 ff.; Karlowa, op. cit. i. 944.

tale; but we remember how rapidly the empire was being torn in shreds. Already Britain was abandoned (407). We may doubt whether the statute-book of Theodosius ever reached our shores until it had been edited by Jacques Godefroi.¹ Indeed we may say that the fall of a loose stone in Britain brought the crumbling edifice to the ground.² Already before this code was published the hordes of Alans, Vandals, and Sucves had swept across Gaul and Spain; already the Vandals were in Africa. Already Rome had been sacked by the West Goths; they were founding a kingdom in southern Gaul and were soon to have a statute-book of their own. Gaiseric was not far off, nor Attila. Also let us remember that-this Theodosian Code was by no means well designed if it was to perpetuate the memory of Roman civil science in a stormy age. It was no " code " in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read; bloody laws against heretics, for example.

We turn from it to the first monument of Germanic law that has come down to us. It consists of some fragments of what must have been a large law-book published by Euric for his West Goths, perhaps between 470 and 475.³ Euric was a conquering king; he ruled Spain and a large part of southern Gaul; he had cast off, so it is said, even the pretence of ruling in the emperor's name. Nevertheless, his laws are not nearly so barbarous as our curiosity might wish them to be. These West Goths who had wandered across Europe were veneered by Roman civilization. It did them little good. Their later law-books, that of Reckcssuinth (652-672), that of Erwig (682), that of Egica (687-701), are said to be verbose and futile imitations of Roman codes. But Euric's laws are sufficient to remind us that the order of date among these Leges Barbarorum is very different from the order of

¹ The Breviary of Alaric is a different matter.

² Bury, History of the Later Roman Empire, i. 143: "And thus we mav say that it was the loss or abandonment of Britain in 407 that led to the further loss of Spain and Africa."

³ Zeumer, Leges Visigothorum Antiquiores, 1894; Brunner, op. cit. i. 320; Schroder, op. cit. 230.

barbarity. Scandinavian laws that are not written until the thirteenth century will often give us what is more archaic than anything that comes frota the Gaul of the fifth or the Britain of the seventh. And, on the other hand, the mention of Goths in Spain should remind us of those wondrous folk-wanderings and of their strange influence upon the legal map of Europe. The Saxon of England has a close cousin in the Lombard of Italy, and modern critics profess that they can see a specially near kinship between Spanish and Icelandic law.¹

In legal history the sixth century is the century of Justinian. But in the west of Europe this age appears as his, only if we take into account what was then a remote future. How powerless he was to legislate for many of the lands and races whence he drew his grandiose titles — Alamannicus, Gothicus, Francicus and the rest •— we shall see if we inquire who else had been publishing laws. The barbarians had been writing down their customs. The barbarian kings had been issuing law-books for their Roman subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled.²

The discovery of fragments of the laws of Euric the West Goth has deprived the Lex Salica of its claim to be the oldest extant statement of Germanic custom. But if not the oldest, it is still very old ; also it is rude and primitive.³ It comes to us from the march between the fifth and the sixth centuries; almost certainly from the victorious reign of Chlodwig (486-511). An attempt to fix its date more closely brings out one of its interesting traits. There is nothing distinctively heathen in it; but (and this makes it unique⁴) there is

¹ Picker, Untersuchungen zur Erhenfolge, 1891-5; Picker, Ueber nahere Verwandtschaft zwischen gothisch-spanischem und norwegisch-" islandischem Recht (Mittheilungen des Instituts fur osterreichische Geschichtsforschung, 1888, ii. 456 ff.). These attempts to reconstruct the genealogy of the various Germanic systems are very interesting, if hazardous.

* For a map of Europe at the time of Justinian's legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1.

"• Brunner, op. cit. i. 292 ff.; Schroder, op. cit. 226 ff.; Esmein, op. cit. 102 ff.; Dahn, Die Konige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880.

'However, there are some curious relics of heathenry in the Lex tnsionum: Brunner, op. cit. i. 342.

nothing distinctively Christian. If the Sicambrian has already bowed his neck to the catholic yoke, he is not yet actively destroying by his laws what he had formerly adored.¹ On the other hand, his kingdom seems to stretch south of the Loire, and he has looked for suggestions to the laws of the West Goths. The Lex Salica, though written in Latin, is very free from the Roman taint. It contains in the so-called Malberg Glosses many old Frankish words, some of which, owing to mistranscription, are puzzles for the philological science of our own day. Like the other Germanic folk-laws, it consists largely of a tariff of offences and atonements ; but a few precious chapters, every word of which has been a cause of learned strife, lift the curtain for a moment and allow us to watch the Frank as he litigates. We see more clearly here than elsewhere the formalism, the sacramental symbolism of ancient legal procedure. We have no more instructive document; and let us remember that, by virtue of the Norman Conquest, the Lex Salica is one of the ancestors of English law.

Whether in the days when Justinian was legislating, the Western or Ripuarian Franks had written law may not be certain; but it is thought that the main part of the Lex Ribuaria is older than 596.² Though there arc notable variations, it is in part a modernized edition of the Salica, showing the influence of the clergy and of Roman law. On the other hand, there seems little doubt that the core of the Lex Burgundionum was issued by King Gundobad (474-516) in the last years of the fifth century.³

Burgundians and West Goths were scattered among Roman provincials. They were East Germans; they had long been Christians, though addicted to the heresy of Arius. They could say that they had Roman authority for their occupation of Roman soil. Aquitania Secunda had been made over to the West Goths; the Burgundians vanquished by

¹ Greg. Turon. ii. 22 (ed. Omont, p. 60): " Mitis depone colla, Sicam-ber; adora quod inccndisti, inccnde quod adorasti."

² Brunner, op. cit. i. 303 ff.; Schroder, op. cit. 229; Esmein, op. cit.

107. Edited by Sohm in Monumenta Germanica.

³ Brunner, op. cit. i. 332 ff.; Schroder, op. cit. 234; Esmein, op. cit.

108. Edited by v. Salis in M. G.

Aetius had been deported to Savoy.¹ In their seizure of lands from the Roman possessors they had followed, though with modifications that were profitable to themselves, the Roman system of billeting barbarian soldiers.² There were many Romani as well as many barbari for whom their kings could legislate. Hence the Lex Romana Burgundionum and the Lex Romana Visigothorum. The former ³ seems to be the law-book that Gundobad promised to. his Roman subjects; he died in 516. Rules have been taken from the three Roman codices, from the current abridgments of imperial constitutions and from the works of Gaius and Paulus. Little that is good has been said of this book. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum.* Euric's son, Alaric II, published it in 506 as a statute-book; among the Romani of his realm it was to supplant all older books. It contained large excerpts from the Theodosian Codex, a few from the Gregorianus and Hermogenianus, some post-Theodosian constitutions, some of the Sententiae of Paulus, one little scrap of Papinian and an abridged version of the Institutes of Gaius. The greater part of these texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form. It is thought nowadays that this " interpretation " and the sorry version of Gaius represent, not Gothic barbarism, but degenerate Roman science. A time had come when lawyers could no longer understand their own old texts and were content with debased abridgments.⁵ The West Goths' power was declining. Hardly had Alaric issued his statute-book when he was slain in battle by the Franks. Soon the Visigothic became a Spanish kingdom. But it was not in Spain that the Breviarium made its permanent mark. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race.⁰ On the other hand, it struck deep root in Gaul. It became the prin-

¹ Brunner, op. cit. i. 50-1. ² Ibid. 64-7.

"Kriiger, op. cit. 317; Brunner, op. cit. i. 354; Schroder, op. cit. 234. Edited by v. Salis in M. G.

' Kriiger, op. cit. 309; Brunner, op. cit. i. 358. Edited by Hanel, 1849.

Karlowa, op. cit. i. 976. 'See above, p. 17.

cipal, if not the only, representative of Roman law in the expansive realm of the Franks. But even it was too bulky for men's needs. They made epitomes of it and epitomes of epitomes.^l

Then, again, we must remember that while Tribonian was busy upon the Digest, the East Goths were still masters of Italy. We recall the event of 476; one emperor, Zeno at Byzantium, was to be enough. Odovacer had ruled as patrician and king. He had been conquered by the East Goths. The great Theodoric had reigned for more than thirty years (493-526) ; he had tried to fuse Italians and Goths into one nation; he had issued a considerable body of law, the Edictum Theodorici, for the more part of a criminal kind.²

Lastly, it must not escape us that about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus luris Canonici. He called himself Dionysius Exiguus. He was an expert chro-nologist and constructed the Dionysian cycle. He was collecting and translating the canons of eastern councils; he was collecting also some of the letters (decretal letters they will be called) that had been issued by the popes from Siri-cius onwards (384-498).³ This Collectio Dionysiana made its way in the West. Some version of it may have been the book of canons which our Archbishop Theodore produced at the Council of Hertford in 673.⁴ A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774.⁵ It helped to spread abroad the notion that the popes can declare, even if they can not make, law for the universal church, and thus to contract the sphere of secular jurisprudence.

In 528 Justinian began the work which gives him his fame in legal history; in 534, though there were novel constitu-

¹ The epitomes will^ be found in Hanel's edition, Lex Romana Visigothorum, 1849.

² Brunner, op. cit. i. 365; Karlowa, op. cit. i. 947 ff. Edited by Bluhme in M. G.

⁸ Maassen, op. cit. i. 422 if.; Tardif, op. cit. 110. Printed in Migne, Patrologia, vol. 67.

⁴ Haddan and Stubbs, Councils, iii. 119. See, however, the remarks of Mr. C. H. Turner, Eng. Hist. Rev. ix. 727.

⁶ Maassen, op. cit. i. 441.

tions to come from him, it was finished. Valuable as the code of imperial statutes might be, valuable as might be the modernized and imperial edition of an excellent but ancient schoolbook, the main work that he did for the coming centuries lies in the Digest. We are told nowadays that in the Orient the classical jurisprudence had taken a new lease of life, especially in the schools at Berytus.¹ We are told that there is something of a renaissance, something even of an antiquarian revival visible in the pages of the Digest, a desire to go back from vulgar practice to classical text, also a desire to display an erudition that is not always very deep. Great conqueror, great builder, great theologian, great law-giver, Justinian would also be a great master of legal science and legal history. The narrow escape of his Digest from oblivion seems to tell us that, but for his exertions, very little of the ancient treasure of wisdom would have reached modern times; and a world without the Digest would not have been the world that we know. Let us, however, remember the retrospective character of the book. The ius, the unenacted law, ceased to grow three hundred years ago. In time Justinian stands as far from the jurists whose opinions he collects as we stand from Coke or even from Fitzherbert.

Laws have need of arms: Justinian knew it well. Much depended upon the fortunes of a war. We recall from the Institutes the boast that Africa has been reclaimed. Little was at stake there, for Africa was doomed to the Saracens; nor could transient success in Spain secure a western home for the law-books of Byzantium.² All was at stake in Italy. The struggle with the East Goths was raging; Rome was captured and recaptured. At length the emperor was victorious (552), the Goths were exterminated or expelled; we hear of them no more. Justinian could now enforce his laws in Italy, and this he did by the pragmatic sanction pro petition* Vigilii (554).⁸ Fourteen years were to elapse and then the Lombard hordes under Alboin would be pouring

' Kriiger, op. cit. 319. * Conrat, op. cit. i. 32.

' Kriiger, op. cit. 354; Karlowa, op. cit. i. 938; Hodgkin, Italy and her Invaders, vi. 519.

down upon an exhausted and depopulated land. Those fourteen years are critical in legal history; they suffer Justinian's books to obtain a lodgment in the West. The occidental world has paid heavily for Code and Digest in the destruction of the Gothic kingdom, in the temporal power of the papacy, and in an Italy never united until our own day; but perhaps the price was not too high. Be that as it may, the coincidence is memorable. The Roman empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her heathen jurisprudence, now "enucleated" (as Justinian says) in a small compass, and then loses for ever the power of legislating for the West. True that there is the dwindling exarchate in Italy ; true that the year 800 is still far off; true that one of Justinian's successors, Constantine IV, will pay Rome a twelve days' visit (663) and rob it of ornaments that Vandals have spared;¹ but with what we must call Grasco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise, the West, if we except some districts of southern Italy,² has no concern. Two halves of the world were drifting apart, were becoming ignorant of each other's language, intolerant of each other's theology. He who was to be the true lord of Rome, if he loathed the Lombard, loved not the emperor. Justinian had taught Pope Vigilius, the Vigil-ius of the pragmatic sanction, that in the Byzantine system the church must be a department of the state. ^s The bishop of Rome did not mean to be the head of a department.

During some centuries Pope Gregory the Great (590-604) is one of the very few westerns whose use of the Digest can be proved.⁴ He sent Augustin to England. Then " in Au-gustin's day," about the year 600, JSthelbert of Kent set in writing the dooms of his folk " in Roman fashion." ⁵ Not

' Gregorovius, History of Rome (transl. Hamilton), ii. 153 ff.; Oman, Dark Ages, 237, 245.

² For Byzantine law in southern Italy, see Conrat, op. cit. i. 49.

³ Hodgkin, Italy and her Invaders, iv. 571 ff.: " The Sorrows of Vigilius."

* Conrat, op. cit. i. 8.

⁵ Liebermann, Gesetze der Angelsachsen, p. 3. The first instalment of Dr. Liebermann's great work comes to our hands as these pages go through the press. Bede, Hist. Eccl. lib. 2, c. 5 (ed. Plummer, i. 90):

improbably he had heard of Justinian's exploits; but the dooms, though already they are protecting with heavy bot the property of God, priests and bishops, are barbarous enough. They are also, unless discoveries have yet to be made, the first Germanic laws that were written in a Germanic tongue. In many instances the desire to have written laws appears so soon as a barbarous race is brought into contact with Rome.¹ The acceptance of the new religion must have revolutionary consequences in the world of law, for it is likely that heretofore the traditional customs, even if they have not been conceived as instituted by gods who are now becoming devils, have been conceived as essentially unalterable. Law has been the old; new law has been a contradiction in terms. And now about certain matters there must be new law. What is more, " the example of the Romans " shows that new law can be made by the issue of commands. Statute appears as the civilized form of law. Thus a fermentation begins and the result is bewildering. New resolves are mixed up with statements of old custom in these Leges Barbarorum.

The century which ends in 700 sees some additions made to the Kentish laws by Hlothasr and Eadric, and some others made by Wihtrad; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex.² It also secs the beginning of written law among the Lombards; in 643 Rothari published his edict;³ it is accounted to be one of the best statements of ancient German usages. A little later the Swabians have their Lex Alamannorum,^and the Bavarians their Lex Baiurvariorum.⁵

"iuxta exempla Romanorum." Bede himself (Opera, ed. Giles, vol. vi. p. 321) had read of Justinian's Codex; but what he says of it seems to prove that he had never seen it: Conrat, op. cit. i. 99.

¹ Brunner, op. cit. i. 283. So native princes in India have imitated the Indian Penal Code within their states.

² Whether we have Ine's code or only an Alfredian recension of it is a difficult question, lately discussed by Turk, Legal Code of Alfred (Halle, 1893), p. 42.

⁸ Brunner, op. cit. i. 368; Schroder, op. cit. 236. Edited by Bluhme in M.G.

* Brunner, op. cit. i. 308; Schroder, op. cit. 238. Edited by Lehmann in M. G. There are fragments of a Pactus Alamannorum from circ. 600. The Lex is supposed to come from 717-9.

⁶ Brunner, op. cit. i. 313; Schroder, op. cit. 239. Edited by Merkel in M. G. This is now ascribed to the years 739-48.

It is only in the Karolingian age that written law appears among the northern and eastern folks of Germany, the Frisians, the Saxons, the Angli and Warni of Thuringia, the Franks of Hamaland.¹ To a much later time must we regretfully look for the oldest monuments of Scandinavian law.² Only two of our " heptarchic " kingdoms leave us law, Kent and Wessex, though we have reason to believe that Offa the Mercian (ob. 796) legislated.³ Even Northumbria, Bede's Northumbria, which was a bright spot in a dark world, bequeaths no dooms. The impulse of Roman example soon wore out. When once a race has its Lex, its aspirations seem to be satisfied. About the year 900 Alfred speaks as though Offa (circ. 800), Ine (circ. 700), JEthelbert (circ. 600) had left him little to do. Rarely upon the mainland was there any authoritative revision of the ancient Leges, though transcribers sometimes modified them to suit changed times, and by so doing have perplexed the task of modern historians. Only among the Lombards, who from the first, despite their savagery, seem to show something that is like a genius for law,* was there steadily progressive legislation. Grimwald (668), Liutprand (713-35), Ratchis (746), and Aistulf (755) added to the edict of Rothari. Not by abandoning, but by developing their own ancient rules, the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman prudentcs.

As the Frankish realm expanded, there expanded with it a wonderful " system of personal laws." ⁵ It was a system of racial laws. The Lex Salica, for example, was not the law of a district, it was the law of a race. The Swabian, wherever he might be, lived under his Alamannic law, or, as an expressive phrase tells us, he lived Alamannic law (legem vivere). So Roman law was the law of the Romani. In a famous, if exaggerated sentence, Bishop Agobard of Lyons

¹ Brunner, op. cit. i. 340 ff.; Schroder, op. cit. 240 ff. Edited by v. Richthofen and Sohm in M. G.

* K. Maurer, Ueberblick iiber die Geschichte der nordgermanischen Rechtsquellen in v. Holtzendorff, Encyklopadie.

⁸ Alfred, Introduction, 49, §9 (Liebermann, Gesetze, p. 46).

¹ Brunner, op. cit. i. 370; Schroder, op. cit. 235.

' Brunner, op. cit. i. 259; Schroder, op. cit. 225; Esmein, op. cit. 57.

has said that often five men would be walking or sitting together and each of them would own a different law.¹ We are now taught that this principle is not primitively Germanic. Indeed in England, where there were no Romani, it never came to the front, and, for example, " the Danelaw " very rapidly became the name for a tract of land.² But in the kingdoms founded by Goths and Burgundians the intruding Germans were only a small part of the population, the bulk of which was Gallo-Roman, and the barbarians, at least in show, had made their entry as subjects or allies of the emperor. It was natural then that the Romani should live their old law, and, as we have seen, their rulers were at pains to supply them with books of Roman law suitable to an age which would bear none but the shortest of law-books. It is doubtful whether the Salian Franks made from the first any similar concession to the provincials whom they subdued; but, as they spread over Gaul, always retaining their own Lex Salica, they allowed to the conquered races the right that they claimed for themselves. Their victorious career gave the principle an always wider scope. At length they carried it with them into Italy and into the very city of Rome. It would seem that among the Lombards, the Romani were suffered to settle their own disputes by their own rules, but Lombard law prevailed between Roman and Lombard. However, when Charles the Great vanquished Desi-derius and made himself king of the Lombards, the Frankish system of personal law found a new field. A few years afterwards (800) a novel Roman empire was established. One of the immediate results of this many-sided event was that Roman law ceased to be the territorial law of any part of the lands that had become subject to the so-called Roman Emperor. Even in Rome it was reduced to the level of a personal or racial law, while in northern Italy there were many Swabians who lived Alamannic, of Franks who lived

¹ Agobardi Opera, Migne, Patrol, vol. 104, col. 116: "Nam plerumque contmgit ut simul eant aut sedeant quinque homines et nullus eorum communem legem cum altero habeat."

Stubbs, Constit. Hist. i. 216. See, however, Dahn, Konige der Oermanen, vii. (3), p. 1 ff.

Salic or Ripuarian law, besides the Lombards.¹ In the future the renovatio imperil was to have a very different effect. If the Ottos and Henries were the successors of Augustus, Constantine, and Justinian, then Code and Digest were Kaiscrrecht, statute law for the renewed empire. But some centuries were to pass before this theory would be evolved, and yet other centuries before it would practically mould the law of Germany. Meanwhile Roman law was in Rome itself only the personal law of the Romani.

A system of personal laws implies rules by which a " conflict of laws " may be appeased, and of late years many of the international or intertribal rules of the Frankish realm have been recovered.² We may see, for example, that the law of the slain, not that of the slayer, fixes the amount of the wergild, and that the law of the grantor prescribes the ceremonies with which land must be conveyed. We see that legitimate children take their father's, bastards their mother's law. We see also that the churches, except some which are of royal foundation, are deemed to live Roman law, and in Italy, though not in Frankland, the rule that the individual cleric lives Roman law seems to have been gradually adopted.³ This gave the clergy some interest in the old system. But German and Roman law were making advances towards each other. If the one was becoming civilized, the other had been sadly barbarized, or rather vulgarized. North of the Alps the current Roman law regarded Alaric's Lex as its chief authority. In Italy Justinian's Institutes and Code and Julian's epitome of the Novels were known, and someone may sometimes have opened a copy of the Digest. But everywhere the law administered among the Romani seems to have been in the main a traditional, customary law which paid little heed to written texts. It was, we are told, ein romisches Vulgarrccht, which stood to pure Roman law in the same relation as that in which the vulgar Latin or Romance that people talked stood to the literary language.⁴ Not a few of the rules and ideas which

¹ Brunner, op. cit. i. 260. ² Ibid. 261 ff.

" Brunner, op. cit. i. 269; Loning, op. cit. ii. 284.

• Brunner, op. cit. i. 255.

were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern conveyancing. The Anglo-Saxon " land-book " is of Italian origin.^J That England produces no formulary books, no books of " precedents in conveyancing," such as those which in considerable numbers were compiled in Frankland,² is one of the many signs that even this low Roman law had no home here; but neither did our forefathers talk low Latin.

In the British India of to-day we may see, and on a grand scale, what might well be called a system of personal laws, of racial laws ³ If we compared it with the Frankish, one picturesque element would be wanting. Suppose that among the native races there was one possessed of an old law-book, too good for it, too good for us, which gradually, as men studied it afresh, would begin to tell of a very ancient but eternally modern civilization and of a skilful jurisprudence which the lawyers of the ruling race would some day make their model. This romance of history will not repeat itself.

During the golden age of the Frankish supremacy, the age which closely centres round the year 800, there was a good deal of definite legislation: much more than there was to be in the bad time that was coming. The king or emperor issued capitularies (capitula).* Within a sphere which can not be readily defined he exercised a power of laying commands upon all his subjects, and so of making new territorial law for his whole realm or any part thereof; but in principle any change in the law of one of the folks would require that folk's consent. A superstructure of capitularies might be reared, but the Lex of a folk was not easily alterable. In 1827 Ansegis, Abbot of St. Wan-drille, collected some of the capitularies into four books.⁵ His work seems to have found general acceptance, though it shows that many capitularies were speedily forgotten and

Brunner, Zur Rechtsgeschichte der rbmischen und germanischen Urkunde, i. 187.

¹ Brunner, D. R. G. i. 401; Schroder, op. cit. 254. Edited in M. G. by Zeumer; also by E. de Roziere, Recueil general des formules.

* The comparison has occurred to M. Esmein, op. cit. 56. . * Brunner, op cit. i. 374; Schroder, op. cit. 247; Esmein, op. cit. 116. Edited in M. G. by Boretius and Krause; previously by Pertz.

Brunner, op. cit. i. 382; Schroder, op. cit. 251; Esmein, op. cit. 117.

that much of the Karolingian legislation had failed to produce a permanent effect. Those fratricidal wars were beginning. The legal products which are to be characteristic of this unhappy age are not genuine laws; they are the forged capitularies of Benedict the Levite and the false decretals of the Pseudo-Isidore.

Slowly and by obscure processes a great mass of ecclesiastical law had been forming itself. It rolled, if we may so speak, from country to country and took up new matter into itself as it went, for bishop borrowed from bishop and transcriber from transcriber. Oriental, African, Spanish, Gallican canons were collected into the same book, and the decretal letters of later were added to those of earlier popes. Of the Dionysiana, we have already spoken. Another celebrated collection seems to have taken shape in the Spain of the seventh century; it has been known as the Hispana or Isidoriana,¹ for without sufficient warrant it has been attributed to that St. Isidore of Seville (ob. 636), whose Origines ² served as an encyclopaedia of jurisprudence and all other sciences. The Hispana made it sway into France, and it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.

Then out of the depth of the ninth century emerged a book which was to give law to mankind for a long time to come. Its core was the Hispana; but into it there had been foisted, besides other forgeries, some sixty decretals professing to come from the very earliest successors of St. Peter. The compiler called himself Isidorus Mercator; he seems to have tried to personate Isidore of Seville. Many guesses have been made as to his name and time and home. It seems certain that he did his work in Frankland and near the middle of the ninth century. He has been sought as far west as le Mans, but suspicion hangs thickest over the church

¹ Maassen, op. cit. i. 667 ff.; Tardif, op. cit. 117. Printed in Migne, Patrol, vol. 84.

² For the Roman law of the Origines, see Conrat, op. cit. i. 150. At first or second hand this work was used by the author of our Leges Henrici.. That the learned Isidore knew nothing of Justinian's books seems to be proved, and this shows that they were not current in Spain.

of Reims. The false decretals are elaborate mosaics made up out of phrases from the bible, the fathers, genuine canons, genuine decretals, the West Goth's Roman law-book; but all these materials, wherever collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power, the sacrosanctity of the persons and the property of bishops, and, though this is not so prominent, the supremacy of the bishop of Rome. Episcopal rights are to be maintained against the chore-piscopi, against the metropolitans, and against the secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as he is despoiled of his see: Spoliatus episcopus ante omnia debet restitui.

Closely connected with this fraud was another. Someone who called himself a deacon of the church of Mainz and gave his name as Benedict, added to the four books of capitularies, which Ansegis had published, three other books containing would-be, but false, capitularies, which had the same bent as the decretals concocted by the Pseudo-Isidore. These are not the only, but they are the most famous manifestations of the lying spirit which had seized the Frankish clergy. The Isidorian forgeries were soon accepted at Rome.

The popes profited by documents which taught that ever since the apostolic age the bishops of Rome had been declaring, or even making, law for the universal church. On this rock or on this sand a lofty edifice was reared.¹

And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly growing. The stream of capitularies ceased to flow; there was none to legislate; the Frankish monarchy was going to wreck and ruin ; feudalism was triumphant. Sacerdotalism also was triumphant, and its victories were closely connected with those of feudalism. The clergy had long been striving to place themselves beyond the reach of the state's tribunals. The dramatic struggle between Henry II

'The Decretales Pseudo-Isidorianae were edited by Hinschius in 1863. See also Tardif, op. cit. 133 ff. j Conrat, op. cit. i. 299; Brunner, op. cit i. 384.

and Becket has a long Frankish prologue. * Some concessions had been won from the Merovingians; but still Charles the Great had been supreme over all persons and in all causes. Though his realm fell asunder, the churches were united, and united by a principle that claimed a divine origin. They were rapidly evolving law which was in course of time to be the written law of an universal and theocratic monarchy. The mass, now swollen by the Isidorian forgeries, still rolled from diocese to diocese, taking up new matter into itelf. It became always more lawycrly in form and texture as it appropriated sentences from the Roman law-books and made itself the law of the only courts to which the clergy would yield obedience. Nor was it above borrowing from Germanic law, for thence it took its probative processes, the oath with oath-helpers and the ordeal or judgment of God. Among the many compilers of manuals of church law three are especially famous: Rcgino, abbot of Prum (906-915) ;² Burch-ard, bishop of Worms (1012-1023);³ and Ivo, bishop of Chartres (ob. 1117).⁴ They and many others prepared the way for Gratian, the maker of the church's Digest, .and events were deciding that the. church should also have a Code and abundant Novels. In an evil day for themselves the German kings took the papacy from the mii'e into which it had fallen, and soon the work of issuing decretals was resumed with new vigour. At the date of the Norman Conquest the flow of these edicts was becoming rapid.

Historians of French and German law find that a well-marked period is thrust upon them. The age of the folk-laws and the capitularies, " the Frankish time," they can restore. Much indeed is dark and disputable; but much has been made plain during the last thirty years by their unwearying labour. There is no lack of materials, and the materials are of a strictly legal kind: laws and statements of law. This done, they are compelled rapidly to pass through several centuries to a new point of view. They

¹ Hinschius, op. cit. iv. 849 ff.

⁸ Tardif, op. cit. 162. Printed in Migne, Patrol, vol. 132; also edited by Wasserschleben, 1840.

⁸ Ibid. 164. Printed in Migne, Patrol, vol. 140. ⁴ Ibid. 1TO. Printed in Migne, Patrol, vol. 161.

take their stand in the thirteenth among law-books which have the treatises of Glanvill and Bracton for their English equivalents. It is then a new world that they paint for us. To connect this new order with the old, to make the world of " the classical feudalism "¹ grow out of the world of the folk-laws is a task which is being slowly accomplished by skilful hands; but it is difficult, for, though materials are not wanting, they are not of a strictly legal kind; they are not laws, nor law-books, nor statements of law. The intervening, the dark age, has been called " the diplomatic age," whereb}⁷ is meant that its law must be hazardously inferred from diplomata, from charters, from conveyances, from privileges accorded to particular churches or particular towns. No one legislates. The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carloman II in 884, and that the first legislative ordonnance is issued by Louis VII in 1155.² Germany and France were coming to the birth, and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars; perhaps we are right in saying that it was saved by feudalism. ³ Meanwhile the innermost texture of human society was being changed; local customs were issuing from and then consuming the old racial laws.

Strangely different, at least upon its surface, is our English story. The age of the capitularies (for such we well might call it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have heard that in the day of Mercia's greatness Offa (ob. 796), influenced perhaps by the example of Charles the Great, had published laws. These we have lost; but we have no reason to fear that we have lost much else. Even Egbert did not legislate. The silence was broken by

¹ We borrow ffodalite classique from M. Flach: Les origines de 1'ancienne France, ii. 551.

_K '^Esrnein, op. cit. 48T-8; Viollet, op. cit. 152. Schroder, op. cit. 624: Vom 10. bis 12. Jahrlnindert ruhte die Gesetzgebung fast ganz . . . Es war die Zeit der Alleinherrschaft des Gewohnheitsrechts." ' Oman, The Dark Ages, 511.

Alfred, and then we have laws from almost every king: from Edward, JSthelstan, Edmund, Edgar, JSthelred, and Cnut. The age of the capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I take up the tale.¹ Whether in the days of the Confessor, whom a perverse, though explicable, tradition honoured as a pre-eminent lawgiver, we were not on the verge of an age without legislation, an age which would but too faithfully reproduce some bad features of the Frankish decadence, is a question that is not easily answered. How-beit, Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code. If he is not the greatest legislator of the eleventh century, we must go as far as Barcelona to find his peer.² He had been to Rome; he had seen an emperor crowned by a pope; but it was not outside England that he learnt to legislate. He followed a fashion set by Alfred. We might easily exaggerate both the amount of new matter that was contained in these English capitularies and the amount of information that they give us; but the mere fact that Alfred sets, and that his successors, and among them the conquering Dane, maintain, a fashion of legislating, is of great importance. The Norman subdues, or, as he says, inherits a kingdom in which a king is expected to publish laws.

Were we to discuss the causes of this early divergence of English from continental history we might wander far. In the first place, we should have to remember the small size, the plain surface, the definite boundary of our country. This thought indeed must often recur to us in the course of our work: England is small: it can be governed by uniform law: it seems to invite general legislation. Also we

¹ As to the close likeness between the English dooms and the Frankish capitularies, see Stubbs, Const. Hist. i. 223. We might easily suppose direct imitation, were it not that much of the Karolingian system was in ruins before Alfred began his work.

* The Usatici Barchinonensis Patriae (printed by Giraud, Histoire du droit francais, ii. 465 ff.) are ascribed to Raymond Berengar I and to the year 1068 or thereabouts. But how large a part of them really comes from him is a disputable question. See Conrat, op. cit. i. 467; Picker, Mittheilungen des Instituts fiir osterreichische Geschichtsfor-schung, 1888, ii. p. 236.

should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned amo'ng brothers and cousins. Moreover we might find ourselves saying that the Northmen were so victorious in their assaults on our island that they did less harm here than elsewhere. In the end it was better that they should conquer a tract, settle in villages and call the lands by their own names, than that the state should go to pieces in the act of repelling their inroads. Then, again, it would not escape us that a close and confused union between church and state prevented the development of a body of distinctively ecclesiastical law which would stand in contrast with, if not in opposition to, the law of the land.¹ Such power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine,² indeed JEthelred's laws are apt to become mere sermons preached to a disobedient folk. However, we are here but registering the fact that the age of capitularies, which was begun by Alfred, does not end. The English king, be he weak like ^Ethelred or strong like Cnut, is expected to publish laws.

But Italy was to be for a while the focus of the whole world's legal history. For one thing, the thread of legislation was never quite broken there. Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy, and then from the Ottos and later German kings. But what is more important is that the old Lombard law showed a marvellous vitality and a capacity of being elaborated into a reasonable and progressive system. Lombardy was the country in which the principle of personal law struck its deepest roots. Besides Lombards and Romani, there were many Franks and Swabians who transmitted their law from father to son. It was long before the old question Qua lege vivis? lost its importance. The " conflict of laws " seems to have favoured the growth of a mediating and instructed jurisprudence.

'Stubbs, Const. Hist. i. 263: "There are few if any records of councils distinctly ecclesiastical held during the tenth century in England."

² There seem to be traces of the Frankish forgeries in the Worcester book described by Miss Bateson, E. H. R. x. 712 ff. English ecclesiastics were borrowing, and it is unlikely that they escaped contamination.

Then at Pavia, in the first half of the eleventh century, a law-school had arisen. In it men were endeavouring to systematize by gloss and comment the ancient Lombard statutes of Rothari and his successors. The heads of the school were often employed as royal justices (indices palatini) ; their names and their opinions were treasured by admiring pupils. From out this school came Lanfranc. Thus a body of law, which though it had from the first been more neatly expressed than, was in its substance strikingly like, our own old dooms, became the subject of continuous and professional study. The influence of reviving Roman law is not to be ignored. These Lombardists knew their Institutes, and, before the eleventh century was at an end, the doctrine that Roman law was a subsidiary common law for all mankind (lex omnium generalis) was gaining ground among them; but still the law upon which they worked was the old Germanic law of the Lombard race. Pavia handed the lamp to Bologna, Lombardy to the Romagna.¹

As to the more or less that was known of the ancient Roman texts there has been learned and lively controversy in these last years.² But, even if we grant to the champions of continuity all that they ask, the sum will seem small until the eleventh century is reached. That large masses of men in Italy and southern France had Roman law for their personal law is beyond doubt. Also it is certain that Justinian's Institutes and Code and Julian's Epitome of the Novels were beginning to spread outside Italy. There are questions still to be solved about the date and domicile of various small collections of Roman rules which some regard

¹ Boretius, Preface to edition of Liber legis Langobardorum, in M. G.; Brunner, op. cit. i. 387 ff.; picker, Forschungen zur Reichs- u. Rechtsgeschichte Italiens, iii. 44 ff., 139 ff.; Conrat, op. cit. i. 393 ff.

² It is well summed up for English readers by Rashdall, Universities of Europe, i. 89 ff. The chief advocate of a maximum of knowledge has been Dr. Hermann Fitting in Juristische Schriften des friiheren Mittelalters, 18TG, Die Anfiinge der Rcchtsschule zu Bologna, 1888, and elsewhere. He has recently edited a Sumina Codicis (1894) and some Quaestiones de iuris subtilitatibus, both of which lie ascribes to Irnerius. See also Pescatore, Die Glossen des Irnerius, 1888; Mommsen, Preface to two-volume edition of the Digest; Finch, Etudes critiques sur 1'his-taire du droit romain, 1890; Besta, L'Opera d'Irnerio, 1896; Picker, op. cit. vol. iii, and Conrat, op. cit. passim.

as older than or uninfluenced by the work of the Bolognese glossators. One critic discovers evanescent traces of a school of law at Rome or at Ravenna which others cannot see. The current instruction of boys in grammar and rhetoric involved some discussion of legal terms. Definitions of lex and ius and so forth were learnt by heart; little catechisms were compiled;¹ but of anything that we should dare to call an education in Roman law there are few, if any, indisputable signs before the school of Bologna appears in the second half of the eleventh century. As to the Digest, during some four hundred years its mere existence seems to have been almost unknown. It barely escaped with its life. When men spoke of " the pandects " they meant the Bible.² The romantic fable of the capture of an unique copy at the siege of Amalfi in 1135 has long been disproved; but, if some small fragments be neglected, all the extant manuscripts are said to derive from two copies, one now lost, the other the famous Florentina, written, we are told, by Greek hands in the sixth or seventh century. In the eleventh the revival began. In 1038 Conrad II, the emperor whom Cnut saw crowned, ordained that Roman law should be once more the territorial law of the city of Rome.³ In 1076 the Digest was cited in the judgment of a Tuscan court.⁴ Then, about 1100, Irnerius was teaching at Bologna.⁵

Here, again, there is room for controversy. It is said that he was not self-taught; it is said that neither his theme nor his method was quite new; it is said that he had a predecessor at Bologna, one Pepo by name. All this may be true and is probable enough: and yet undoubtedly he was soon regarded as the founder of the school which was

¹ See E. J. Tardif, Extraits et abreges iuridiques des etymologies d'Isidore de Seville, 1896.

² Conrat, op. cit. i. 65.

'M. G. Leges, ii. 40; Conrat, op. cit. i. 62.

•Picker, Forschungen, iii. 126, iv. 99; Conrat, op. cit. 67. Apparently the most industrious research has failed to prove that between 603 and 1076 any one cited the Digest. The bare fact that Justinian had issued such a book seems to have vanished from memorv. Conrat, op. cit. i. 69. .

^⁵In dated documents Irnerius (his name seems to have really been Warnerius, Guarnerius) appears in 1113 and disappears in 1125. The University of Bologna kept 1888 as its octocentenary.

teaching Roman law to an intently listening world. We with our many sciences can hardly comprehend the size of this event. The monarchy of theology over the intellectual world was disputed. A lay science claimed its rights, its share of men's attention. It was a science of civil life to be found in the human heathen Digest:¹

A new force had begun to play, and sooner or later every body of law in western Europe felt it. The challenged church answered with Gratian's Decretum (circ. 1139) and the Decretals of Gregory IX (1234). The canonist emulated the civilian, and for a long while maintained in the field of jurisprudence what seemed to be an equal combat. Unequal it was in truth. The Decretum is sad stuff when set beside the Digest, and the study of Roman law never dies. When it seems to be dying it always returns to the texts and is born anew. It is not for us here to speak of its new birth in the France of the sixteenth or in the Germany of the nineteenth century; but its new birth in the Italy of the eleventh and twelfth concerns us nearly. Transient indeed but all-important was the influence of the Bologna of Irnerius and Gratian upon the form, and therefore upon the substance, of our English law. The theoretical continuity or " translation" of the empire, which secured for Justinian's books their hold upon Italy, and, though after a wide interval, upon Germany also, counted for little in France or in England. In England, again, there was no mass of Romani, of people who all along had been living Roman law of a degenerate and vulgar sort and who would in course of time be taught to look for their law to Code and Digest. Also there was no need in England for that reconstitution de I'unite nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces. In England the new learning found

¹ Esmein, op. cit. 347: " Une science nouvelle naquit, independante et la'ique, la science de la societe civile, telle que 1'avaient degagee les Remains, et qui pouvait passer pour le chef-d'oeuvre de la sagesse humaine ... II en resulta qu'a c6te du theologien se placa le legiste qui avait, comme lui, ses principes et ses textes, et qui lui disputa la direction des esprits avides de savoir."

a small, well conquered, much governed kingdom, a strong, a legislating kingship. It came to us soon; it taught us much; and then there was healthy resistance to foreign dogma. But all this we shall see in the sequel.

2. THE DEVELOPMENT OF TEUTONIC LAW¹

BY EDWARD JENKS ²

nnHE epoch in which the states of Western Europe are now JL living, has a history and a unity of its own, and is peculiarly suitable as material for the study we are about to undertake. It is our own epoch, we know more about it than we know of any other, it appeals more powerfully to us than any other, we have inherited its traditions, we breathe its ideas. Dispute as we may about the details, we know that the Roman Empire fell as a political power, that the sceptre of Western Europe passed from the Roman to the Teuton. That the influence of Rome long overshadowed the new forces which took her place, may be readily admitted; the Teuton did not begin to write history on a clean sheet. But the child who starts by copying his letters, in time proceeds to make letters of his own; and if Clovis and his successors were fond of wearing the cast off clothes of the Ca?sars, they none the less set a new fashion of wearing them. Nowhere is this truth more abundantly clear than in the history of Teutonic law. Alongside of the elaborate system which generations of Roman

¹ This passage is extracted from " Law and Politics in the Middle Ages," 1898, cc. I, II, pp. 6-55, and Appendix, pp. 321-326 (New York: Henry Holt & Co.).

² Principal and Director of Legal Studies of the Law Society of London. B. A., LL. B. King's College, Cambridge; M. A. Oxford and Cambridge; D. C. L. Oxford; Lecturer at Pembroke and Jesus Colleges, Cambridge, 1888-1889; Dean of the Faculty of Law, Melbourne, 1889-1895; Professor of Law in University College, Liverpool, 1892-189G; Reader in English Law, and Lecturer at Balliol College, Oxford, 1896-1903.

Other Publications: Constitutional Experiments of tne Commonwealth, 1891; The Doctrine of Consideration in English Law, 1893; The Government of Victoria, Australia, 1893; History of the Australasian Colonies, 1896; Outline of English Local Government, 1895; Modern Land Law, 1899; A Short History of Politics, 1902; Edward I, 1902; Parliamentary England, 1903.

jurists had expounded, and Imperial legislators fashioned into shape, there grew up, under totally different circumstances, a group of kindred Teutonic laws, at first utterly incoherent, gradually assuming order and system. It is in these that we trace the growth of the idea of Law.

The oldest monuments of Teutonic legal history have received the name of Leges Barbarorum. But the title is apt to be misleading. Even in the Frank kingdoms, where the conscious imitation of Rome was strongest, there is at first no attempt at legislation in the modern sense. Beyond doubt the Leges were, in most cases, the work of kings, to the extent that they were drawn up by royal direction, and published under royal auspices. Quite possibly, too, the kings who collected them took the opportunity of modifying certain details during the process. But the notion of the king, i. e. the State, as the source of legislation, is yet far distant. Several of these codes profess to give their own account of the way in which they were drawn up; and, in spite of all the criticism which has been directed against the more extravagant pretensions of the so-called historical school, there can be little doubt that these accounts contain a large element of truth. The famous Lex Salica, the custumal of the race which became overlords of half Western Europe, contains a prologue which, though doubtless of later date than the first redaction of the custumal itself, is yet of great antiquity, and which describes the collection of the origincs causarum by four chosen men (whose names and districts are given) after lengthy discussions with the judices, or presidents of the local assemblies. The first Burgundian code (early sixth century), known as the Lex Gundobada, describes itself as a " definition," and is confirmed by the seals of thirty-one counts. The oldest code of the Alamanni, no longer extant in a complete form, is known by the suggestive title of Pactu-s or Agreement ; while the extant edition, dating from the early years of the eighth century, professes to have been drawn up by the king, with the aid of thirty-three bishops, thirty-four dukes, seventy-two counts, and a great multitude of people. The Anglo-Saxon kings describe themselves as " setting" (dsettan), "fastening" (gefastnode), or "securing"

(getrymede) their laws.¹ Owing to the scantiness of external evidence, it is impossible to assert with confidence the precise character of the process adopted in the earliest times. But a curious story preserved by the Saxon annalist Widukind ² shows that, even in the tenth century, and under so powerful a monarch as Otto the Great, Law was regarded as a truth to be discovered, not as a command to be imposed. The question was, whether the children of a deceased person ought to share in the inheritance of their grandfather, along with their uncles. It was proposed that the matter should be examined by a general assembly convoked for the purpose. But the king was unwilling that a question concerning the difference of laws should be settled by an appeal to numbers. So he ordered a battle by champions; and, victory declaring itself for the party which represented the claims of the grandchildren, the law was solemnly declared in that sense. The original proposal would have been an appeal to custom; but the plan actually adopted reveals the thought, that even custom is not conclusive proof, that Law is a thing which exists independently of human agency, and is discoverable only in the last resort by an appeal to supernatural authority.

There is one circumstance connected with the compilation of the Laws of the Barbarians which is specially suggestive of influences leading to the dcvelopemcnt of rudimentary ideas of Law. By far the most important of these codes are directly connected with migrations and conquests. The-Teutonic settlements west of the Rhine were the first to produce compilations of Teutonic law, and it may be, and indeed is, often asserted, that this fact is due to the example of the Code of Theodosius, the great monument of Roman jurisprudence which confronted the invaders of the Empire. But the real epoch of law-producing activity coincides closely with the conquering careers of Charles Martel, Pepin the Short, and Charles the Great. During this period are produced the Laws of the Alamanni, the Bavarians, the Frisians, the Thuringians, and the Saxons. In England, the Anglo-Saxon migrations give rise to a scanty crop of laws; but

'Sohmid, Oesetze der Anyelsachsen, ed 2. Jlthelbirt, p. 2, Ine. p. 20. ²Widukind, Annales (Mon. Germ., SS. fo. iii. p. 440).

the real activity comes with the conquests by the Danes. On the other hand, in Scandinavia, of all Teutonic countries the most isolated, the oldest extant code dates from the end of the twelfth century or the beginning of the thirteenth. The fact is an illustration of the great principle, that mixture or, at least, contact of races is essential to progress. The discovery of differences is needed to stimulate thought and produce coherence. Resistance and attack are alike provocative of definition. The conqueror wishes to enforce his customs upon his new subjects. He must needs explain what they are. The conquered demand the retention of their ancient practices. They are compelled to formulate their claims. So it is when Charles the Great conquers Western Europe. So it is again when William conquers the English, when the English conquer India, when Napoleon conquers Germany.

This fact will, perhaps, help to account for one feature of the Leges Barbarorum which has often puzzled readers of them. They omit so many things that we should consider important; and they relate in minute detail matters which seem to us trivial. But, if we remember that the process which produced them was probably a very troublesome one, we shall be inclined to think that their compilers only recorded what was absolutely necessary. And this comprised just those points which the processes of migration and conquest had rendered doubtful. The ancient custom had received a shock; men doubted how far some of its terms would apply to new conditions. Even very modern systems of law frequently omit all mention of rules which are really fundamental. No statute, no recorded decision of an English law court, says that a man may destroy a chattel which belongs to him. Why should it? No one doubts the fact, Much less does a primitive code trouble itself about theoretical completeness. Law is the expression, of order and settled rule; but it is none the less true that the law came because of offences, that is, because of variations from existing rule. And it is to law-breakers, paradox as it may sound, that the progress of law is due; for what we call Progress is simply the attempt of the individual to extend his freedom of action

beyond those bounds which have hitherto been deemed inexorable. The criminal and the reformer are alike law-breakers. The criminal is the man who endeavours to return to a state of things which society has once practised, but has condemned as the result of experience. The murderer, the thief, the bigamist, are unfortunate survivals from a bygone age. The reformer is the man who advocates what society has hitherto deemed unlawful, because it has not been tried. And so, when we read our Barbarian Codes, and find that they say a good deal about summoning to courts, about rules of inheritance, about foul language, and a very great deal about money compensation for acts of violence, we shall begin dimly to picture to ourselves an older state of things, in which differences of opinion were settled by clubs and spears, in which (whatever the reason) a dead man's belongings did not pass to his relatives, in which the most virulent abuse was common pleasantry, and in which the blood feud, itself, doubtless, a step towards better things, was treated as a fine art.

Many other features of the Leges Barbarorum deserve to be noticed; but space forbids the mention of more than one. They are laws of peoples, not of places. Even during the later Middle Ages, even in our own day, the principle, that all persons living in a certain place are subject to the law of that place, has to submit to substantial exceptions. In the days which followed the downfall of the Roman Empire, the principle was not recognized at all. The provincials of Gaul, at the time of the Teutonic invasions, lived under a great and uniform system, devised by the jurists and officials of the Roman empire, and embodied in the Theo-dosian Code and other monuments. The invaders had no thought of depriving them of this privilege. They did indeed, in some cases, publish special codes for their Roman subjects; and so we get a Lex Romana Wisigothorum, a Lex Romana Burgundionum and (possibly) a Lex Romana Curi-ensis. But it seems again probable, that these compilations are merely attempts to settle inevitable conflicts of legal principles; and, in any case, it is worthy of notice that they are full of references to the Theodosian Code, the Sentences

of Paulus, the Lex Aquilia, and other purely Roman sources.¹ Amongst the Teutonic populations of the north and east, the question of the provincials would, for obvious reasons, be less important; but the curious reference in the Lex Salica to the man qui legem salicam vivit,² seems to indicate a similar principle. For slightly later days, the matter is set at rest by the decree of Chlothar II. — " We have ordained that the conduct of cases between Romans shall be decided by the Roman Laws."

It is not to be supposed, that the invaders accorded to the provincials a principle which they denied to themselves. In truth, it is somewhat difficult to see how migratory groups could arrive at the notion of a lex terra;, unless they were prepared to change their customs with each migration. A great and luminous critic, the late M. Fustcl de Coulanges, has, indeed, attempted to deny the occurrence of a migratory epoch, or Volkerzvanderung, as well as the recognition of racial differences by the barbarians.³ But, as the same learned historian gives an excellent account of at least a score of new German settlements, hostile or friendly, with the Empire,⁴ the first question resolves itself into one of figures; while his elaborate attempt to prove that the terms Franci and Romani are names of ranks rather than of races," would seem, if successful, to point to the fact that the Teutons settled down as an aristocracy upon the enslaved provincials — a doctrine which is M. Fustel's pet aversion. Certain it is, that the barbarians themselves clearly recognized the principle of the personality of laws. The oldest part of the Lex Ribuaria (Tit. 31) contains the following conclusive passage : — " This also we determine, that a Frank, a Burgun-dian, an Alamann, or in whatever nation he shall have dwelt, when accused in court in the Ribuarian country, shall answer according to the law of the place where he was born. And

¹ Lex Romana Burgundionum, Titt. I. (3), IV. (3), V. (2), XIX. (2), etc.

'Lex Salica, Tit. XLI. (1).

³ Fustel de Coulanges, L'Invasion Germanique, pp. 340 and 513.

⁴ Ibid., Bk. II. capp. iv.-x.

⁵ Fustel de Coulanges, L'Invasion Oermanique, pp. 340 and 543. (Nouvelles Recherches, pp. 561, sqq.).

if he be condemned, he shall bear the loss, not according to Ribuarian law, but according to his own law." Doubtless, even here, we may see foreshadowings of those influences which are soon to localize law. Doubtless, the mixing of races is rendering genealogical questions difficult, and we seem almost to discover a period in which a man may claim to live according to any law, may make any profcssio juris, that he likes, provided he does it in the proper way. But this is only a concession to practical difficulties. Law is at first as much personal as is religion; and a profession of law is much like a profession of faith.

The second stage in the history of Teutonic Law is, apparently, very modern in character. It looks like positive political legislation, as we understand it at the present day. The Capitularies of the Karolingian House, and of the Bene-ventine Princes, the statutes and edicts of the Lombard kings and dukes, and even some of the Dooms of the Anglo-Saxon kings, are alleged to be examples of this kind. But here we come upon one of the great sources of error in medieval history. The Frank Empire, in both its stages, was, in a very important sense, a sham Empire. It aimed at reproducing the elaborate and highly organized machinery of the Roman State. Just as a party of savages will disport themselves in the garments of a shipwrecked crew, so the Mcro-wingian and Karolingian kings and officials decked themselves with the titles, the prerogatives, the documents, of the Imperial State. No doubt the wisest of them, such as Charles the Great, had a deliberate policy in so doing. But the majority seem to have been swayed simply by vanity, or ambition, or admiration. Their punishment was the downfall of the Frank Empire; but they might have been consoled for their failure, could they have looked forward a thousand years, and seen their pretensions gravely accepted by learned historians on the faith of documents pillaged from the Imperial chancery, which they scattered abroad without understanding their contents. The Frank Empire was, from first to last, a great anachronism. With a genuine civilization equal in degree to that of their kindred in Britain and Scandinavia, the Germans of continental Europe found them-

selves called upon to live up to the elaborate civilization of the Roman Empire. They broke down under the strain ; and their breakdown is the first great tragedy in modern history, the parent of many tragedies to follow. Those who doubt the possibility of such an explanation, may be referred to the " Parliaments" and " Cabinets" of Samoa, and to the " Polynesian Empire."

Now one of the most splendid prerogatives of the Roman Emperor was his power of legislation. Quite naturally, his imitators, the Frankish kings and emperors, strove to exercise it. Hence the Capitula, or royal and imperial edicts, which, at any rate for some time, no doubt played a great part in the history of Teutonic law. The difficult questions connected with them have been acutely discussed by competent critics, who are not by any means unanimous.¹ But one or two results seem clear.

The Capitula are distinguishable from the Leges. They emanate directly from royal authority, they deal with less important matters, they have, probably, a less permanent effect. In the pure type of Capitulary, the Capitula per se scribenda, there is no pretence of collecting the law from the mouth of the people. Many of them are mere directions to royal officials. The great Capitulare de Villis, the equally important Capitulare de Justitns Facicndis, of Charles the Great, are of this character. It is very doubtful if the Capitula of one king- bound his successors; for we frequently find almost verbatim repetitions by successive monarchs. On the other hand, some of the Capitula are legibus addita — incorporated by general consent with, and treated thenceforward as part of, a Lex, or custumal. Many of these are now so embedded in the texts of the Leges, that it requires a trained eye to detect them. Others, like the great Capitulare Saxonicum of the year 797, declare openly their origin, and testify to the premature appearance of an idea which is, ultimately, to revolutionize law, the idea that the king

¹ Cf. Boretius, Beitraye zur CapituJarienkritik. F. de Coulanges, De la confection des lots aw temps des Carolingiens (Xouvelles Recherches). M. Thevenin, Lex el Capitula (Biblioth'eque de 1'Ecole des Hautes Etudes, 18T8, fasc. 35, p. 137, sqq.).

proposes new laws, and the people accept them. A large number of Saxons, gathered together from divers pagi, Westphalian and Eastphalian, unanimously consent to the adoption of the Frankish Capitula, with certain modifications.

Moreover, the Capitula are of great importance in stimulating the new idea that Law is territorial, for the Capitula of a monarch bound all within his realm, or such part of it as the Capitula might specify. We are obliged to suppose, also, that they secured practical obedience, at least during the better days of the Frank monarchy; for they were twice collected in a convenient form, once by the Abbot Ansegis in the year 827, again, with daring interpolations, by the so-called Benedict, some twenty years later.

But, it must be repeated, the Capitularies are hothouse plants, due to the stimulus of Roman ideals. The monuments of the purely German countries which resemble them in name, e. g. the Decrees of the Bavarian Tassilo, turn out, on inspection, to be true Leges, produced or, at least, accepted by a popular assembly under Frankish influence. The Anglo-Saxon Dooms are really declarations of folk-law by Clan chiefs, acting as mouthpieces of their clans, at least until Ecgberht has brought back imperial notions from the court of Charles the Great. In isolated Scandinavia, there is no trace of royal legislation at this period. And when the Frank empire falls to pieces in the ninth century, it will be long before the kings who rise up out of its ruins claim the power to make laws. If we leave England out of sight, there is an almost unbroken silence in the history of Teutonic law during the tenth and eleventh centuries. The Roman Empire, real and fictitious, is dead, and, with it, the idea of legislation, if not of Law. When the idea revives again, in the prospering France of the thirteenth century, we find the legists asserting the royal power of legislation in maxims which are simply translations of the texts of Roman Law. " That which pleases him " (the king) " to do, must be held for law," says Bcaumanoir. A century later, Boutcillier is careful to explain that the king may make laws, qui est em-pereur en son royaume.

And now, if we are asked the question — Did men during those tenth and eleventh centuries live without Law ? — the answer we must give is, that they mostly did, and that evil were the results. In the far south-west, where the Visigothic settlers had been crushed out of existence between the Saracens and the provincials, in Acquitaine, Gascony, Navarre, and Provence, the old Roman Law had remained the everyday law of the people. This is the country of the Langue d'Oc, the later pays de droit ecrit. But, elsewhere, the old Empire of Charles the Great had become a country of what the Germans call Sondcrrecht; each little district had its own special law. For this was just the epoch of feudalism, and the political unit was no longer the clan, or the people, but the fief, the district under the control of a seigneur, or lord. Of the place of feudalism in political history, we shall have to speak when we deal with the State; here we are concerned only with its influence on notions of Law.

The feudal seigneur derived his powers from two sources. On the one hand, he represented a little bit of the imperial authority of Charles the Great, which had, so to speak, set up for itself. This is the true droit seigncurial. On the other hand, he had become, not merely lord, but proprietor of his district, and, in this character, he exercised droit 'fonder. He might claim seigneurial rights over land in which he had ceased to have property; and he might be merely proprietor of land of which another was seigneur, although in this case he was hardly a feudal lord. Again, his claims as seigneur might be more or less extensive; he might be duke, count, baron, or simply seigneur justicier. He might claim High, Middle, or Low Justice. But the principle in any case was, that he administered the law of the fief, not the law of the land, or the king, or the people. If there is a dispute as to what this law is, we must go, as Bouteillier tells us, to the greffe, or register of the court of the fief. If this is silent on the point, we must call the men of the fief together, and hold an enquete par tourbe, an enquiry by the multitude.¹

^lLa Somme Rurale (eel Le Caron), Bk. I. Tit. 2.

This state of things, the result of the total breakdown of the Frankish scheme of government, had certain well-marked effects on the history of Law. In the first place, it stamps Law definitely as a local institution. Agriculture is .almost the sole industry of the period. To pursue agriculture, one must occupy land; to rule agriculturists, one must rule them through their land. Feudalism expressed itself through land-holding ; it was a military system with land as the reward of service.

So, too, the peculiar character of the Fief led up to the famous, but much misunderstood doctrine, of judicium per pares, "judgement by peers." The personal nature of the tie between lord and man forbade the hypothesis that any general rules would cover the terms of relationship. Therefore, the vassal demanded to be tried by the special law of his fief. The contractual character of the feudal bond enabled him to refuse to leave himself entirely at the mercy of the lord as sole judge. Besides, the question might be between a vassal and the lord himself; and the lord could hardly be judge in his own cause. So the principle was firmly established, that the feudal court, at least in the case of freemen, is a court in which the lord is merely president, and the pares, or homage, i. e. the men of the same fief, are judges. These are totally different in character from the modern jury, with which they arc often confused. The modern jury takes its law from the judge, and finds the truth of the facts. The pares declared the law, i. c. the rule of the fief; and left the facts to be settled by some formal process. Trial by jury gives, in fact, where it is successful, the death blow to trial by peers.

Once more, the law of the Fief is the law of a court. The power of holding a court was not the only privilege which the feudal seigneur inherited from the days of Charles the Great. But it was the one he valued most, because it brought him in a steady revenue, in fees and fines, and enabled him to keep an eye on what was happening among his vassals. Moreover, long after the military, the fiscal, and the administrative powers of the seigneur had disappeared or become unimportant, his judiciary powers remained almost intact.

So feudal law is essentially a law of courts. No doubt, certain general principles run through it all, and, later on, we shall see attempts, such as the Libri Feudorum, to state these in a universal form. No doubt, the right of appeal from lord to overlord tended to produce a certain uniformity in wide areas. But these appearances are apt to be delusive. The ideal type of feudal law is that so graphically depicted in the works which pass under the title of the Assises de Jerusalem, and which profess to describe the usages of that curious product of the Crusades, the Latin kingdoms of Palestine. These are divided into the Assises of the High and of the Low or Burgess Court respectively. Each court has its own law.

The results of this fact are not very easy to describe; but very important to understand. The law of a court, as opposed to the law declared by a king or a popular assembly, will be hesitating, very deferential to precedent, not always very consistent, delighting in small shades of difference, difficult to discover. These are the special characteristics of true feudal law. Where we find bold principles, simplicity, uniformity, in so-called feudal law — for example, in English law of the thirteenth century — we may be very sure that some alien influence has been at work.

Finally, the feudalism of law is responsible for one more result of great importance. Feudal law is for men of fiefs; but all men, even in the palmy days of feudalism, arc not men of fiefs. Priests are not, the rising class of merchants is not, the Jews are not. Yet they must have Law. Leaving the Jews for the present, let us look at the priests and the merchants.

In the early days of the Frank dominion, the churches lived under Roman Law. For one- thing, the Christian Emperors had legislated freely on ecclesiastical matters, long before the Teutons were converted to Christianity; and the Merowingians could hardly venture to meddle with the organization of that mighty power which had destroyed their ancient gods, and done so much to give them the victory over their enemies. For another, the churches were corporations, juristic persons; and it took the Teutonic mind a long time

to grasp the highly complex notion of a corporation.¹ No doubt, the individual mass priest of Frankish times lived under his folk-law; but the great foundations of regular clergy, which sprang up so thickly under the fostering care of the orthodox Franks, could find little in the