THE HISTOEY
OF
ENGLISH LAW
BEFORE THE TIME OF EDWARD I.
BY
SIB FREDERICK POLLOCK, BART., M.A., LL.D.,
CORPUS PBOFES3OB OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD, OF LINCOLN'S INN, BABBISTER-AT-LAW,
AND
FREDERIC WILLIAM MAITLAND, LL.D.,
DOWNING PKOFESSOB OF THE LAWS OF ENGLAND IN THE UNIVERSITY OF CAMBRIDGE, OF LINCOLN'S INN, BABBISTEB-AT-LAW.
SECOND EDITION.
VOLUME I.
CAMBRIDGE:
AT THE UNIVERSITY PRESS. 1898
[AU Bights reserved.]
(EatntmSgr:
PBINTED BY 3. AND C. P. CLAY, AT THE UKIVEB8ITY PBESB.
PEEFACE TO THE SECOND EDITION.
TN this edition the first chapter, by Prof. Maitland, is new. In Book II., c. ii. § 12, on 'Corporations and Churches' (formerly ' Fictitious Persons'), and c. iii. § 8, on ' The Borough,' have been recast. There are no other important alterations: but we have to thank our learned critics, and especially Dr Brunner of Berlin, for various observations by which we have endeavoured to profit. We have thought it convenient to note the paging of the first edition in the margin.
F. P. F. W. M.
Preface.
PREFACE TO FIRST EDITION.
rilHE present work has filled much of our time and thoughts -•- for some years. We send it forth, however, well knowing that in many parts of our field we have accomplished, at most, a preliminary exploration. Oftentimes our business has been rather to quarry and hew for some builder of the future than to leave a finished building. But we have endeavoured to make sure, so far as our will and power can go, that when his day comes he shall have facts and not fictions to build with. How near we may have come to fulfilling our purpose is not for us to judge. The only merit we claim is that we have given scholars the means of verifying our work throughout.
We are indebted to many learned friends for more or less frequent help, and must specially mention the unfailing care and attention of Mr R. T. Wright, the Secretary of the University Press.
Portions of the book have appeared, in the same words or in substance, in the Contemporary Review, the English Historical Review and the Harvard Law Review, to whose editors and proprietors we ofier our acknowledgments and thanks.
F. P. F. W. M.
Note. It is proper for me to add for myself that, although the book was planned in common and has been revised by both of us, by far the. greater share of the execution belongs to Mr Maitland, both as to the actual writing and as to the detailed research which was constantly required.
F. P.
21 Feb. 1895.
CONTENTS.
PAGE
PREFACE.......... v
TABLE OF CONTENTS ....... vii
LIST OF ABBREVIATIONS....... xviii
LIST OF TEXTS........ xix
ADDENDA .......... xxii
INTRODUCTION ........ xxiii
BOOK I.
SKETCH OF EARLY ENGLISH LEGAL HISTORY.
CHAPTER I. THE DARK AGE IN LEGAL HISTORY, pp. 1—24.
The difficulty of beginning, 1. Proposed retrospect, 1. The classical age of Roman law, 2. The beginnings of ecclesiastical law, 2. Century in. Decline of Roman law, 3. Century IV. Church and State, 3. Century V. The Theodosian Code, 5. Laws of Euric, 5. Century VI. The century of Justinian, 6. The Lex Salica, 6. The Lex Ribuaria, and Lex Burgundionwm, 7. The Lex Romana Burgundionum, 7. The Lex Romana Visigothorum, 8. The Edict of Theoderic, 9. The Dionysian collection of canons, 9. Justinian's books, 9. Justinian and Italy, 10. Laws of jEthelbert, 11. Centuries VH and vm. Germanic laws, 12. System of personal laws, 13. The vulgar Roman law, 14. The latent Digest, 15. The capitularies, 16. Growth of canon law, 16. Centuries IX and X. The false Isidore, 17. The forged capitularies, 17. Church and State, 18. The darkest age, 18. Legislation in England, 19. England and the Continent, 20. Century XI. The Pavian law-school, 21. The new birth of Roman law, 22. The recovered Digest, 23. The influence of Bolognese jurisprudence, 24.
CHAPTER II. ANGLO-SAXON LAW, pp. 25—63.
Imperfection of written records of early Germanic law, 25. Anglo-Saxon dooms and custumals, 27. Anglo-Saxon land-books, 28. Survey of Anglo-Saxon institutions, 29. Personal conditions : lordship, 29. The family, 31. Banks : ceorl, eorl, gesfS, 32. Thegn, 33. Other distinctions, 34. Privileges of the clergy, 34. Slavery and slave trade, 35. Manumission, 36. Courts and justice, 37. Procedure, 38. Temporal and spiritual jurisdiction, 40. The king's jurisdiction, 40. The Witan, 41. County and hundred courts, 42. Private jurisdiction, 43. Subject-matter of Anglo-Saxon justice, 43. The king's peace, 44. Feud and atonement, 46. Wer, wife and b6t, 48. Difficulties in compelling submission to the courts, 49. Maintenance of offenders by great men, 50. Why no trial by battle, 50. Treason, 51. Homicide, 52. Personal injuries : misadventure, 53. Archaic responsibility, 55. Theft, 55. Property, 56. Sale and other contracts, 57. Claims for stolen goods: warranty, 58. Land tenure, 60. Book-land, 60. Lren-land, 61. Folkland, 61. Transition to feudalism, 62.
CHAPTER III. NOKMAN LAW, pp. 64—78.
Obscurity of early Norman legal history, 64. Norman law was French, 66. Norman law was feudal, 66. Feudalism in Normandy, 67. Dependent land tenure, 69. Seignorial justice, 72. Limits of ducal power, 73. Legal procedure, 74. Criminal law, 74. Ecclesiastical law, 74. The truce of God, 75. Condition of the peasantry, 76. Jurisprudence, 77. Lanfranc of Pavia, 77.
CHAPTER IV. ENGLAND UNDER THE NOKMAN KINGS, pp. 79—110.
Effects of the Norman Conquest, 79. No mere mixture of national laws, 79. History of our legal language, 80. Struggle between Latin, French and English, 82. The place of Latin, 82. Struggle between French and English, 83. Victory of French, 84. French documents, 85. French law-books, 87. Language and law, 87.
Preservation of old English law, 88. The Conqueror's legislation, 88. Character of William's laws, 89. Personal or territorial laws, 90. Maintenance of English land-law, 92. The English in court, 93. Norman ideas and institutions, 93. Legislation : Rufus and Henry I., 94. Stephen, 96. The law-books or Leges, 97. Genuine laws of William I., 97. The Quadripartitus, 98. Leges Henrici, 99. Consiliatio Cnutf, 101. Instituta Cnwti, 101. French Leis of William I., 101. Leges Edwardi Confessoris, 103. Character of the law disclosed by the Leges, 104. Practical problems in the Leges, 105. Practice of the king's court, 107. Royal justice, 108.
CHAPTER V. ROMAN AND CANON LAW, pp. Ill—135.
Contact of English with Roman and Canon law, 111. Cosmopolitan claims of Roman law, 112. Growth of Canon law, 112. Gratian, 113. Decretales Gregarii, 113. The Canonical system, 114. Relation of Canon to Roman law, 116. Roman and Canon law in England, 117. Vacarius, 118. English legists and canonists, 120. Scientific work in England, 120. The civilian in England, 122.
Province of ecclesiastical law, 124. Matters of ecclesiastical economy, 125. Church property, 126. Ecclesiastica] dues, 127. Matrimonial causes, 127. Testamentary causes, 128. Fidei laesio, 128. Correction of sinners, 129. Jurisdiction over clerks, 130. Miserabiles personae, 131. The sphere of Canon law, 131. Influence of Canon upon English law, 131. English law administered by ecclesiastics, 133. Nature of canonical influence, 134.
CHAPTER VI. THE AGE OF GLANVILL, pp. 136—173.
The work of Henry II., 136. Constitutions of Clarendon, 137. Assize of Clarendon, 137. Inquest of Sheriffs, 137. Assize of Northampton, 137. Henry's innovations. The jury and the original writ, 138. Essence of the jury, 138. The jury a royal institution, 140. Origin of the jury : The Frankish inquest, 140. The jury in England, 141. The jury and fama publica, 142. The inquest in the Norman age, 143. Henry's use of the inquest, 144. The assize utrum, 144. The assize of novel disseisin, 145. Import of the novel disseisin, 146. The grand assize, 147. The assize of mort d'ancestor, 147. The assize of darrein presentment, 146. Assize and jury, 149. The system of original writs, 150. The accusing jury, 151.
Structure of the king's courts, 153. The central court, 154. Itinerant justices, 155. Cases in the king's court, 156. Law and letters, 160. Richard Fitz Neal, 161. Dialogue on the Exchequer, 161. Ranulf Glanvill: his life, 162. Tractatus de Legibus, 163. Roman and Canon law in Glanvill, 165. English and continental law-books, 167.
The limit of legal memory, 168. Reigns of Richard and John, 169. The central court, 169. Itinerant justices, 170. Legislation, 170. The Great Charter, 171. Character of the Charter, 172.
CHAPTER VII. THE AGE OP BRACTON, pp. 174—225.
Law under Henry III., 174 General idea of law, 174. Common law, 176. Statute law. The Charters, 178. Provisions of Merton, Westminster and Marlborough, 179. Ordinance and Statute, 181. The king and the law, 181. Unenacted law and custom, 183. Local customs, 184. Kentish customs, 186. Englishry of English law, 188. Equity, 189.
The king's courts, 190. The exchequer, 191. Work of the exchequer, 191. The chancery, 193. The original writs, 195. The chancery not a tribunal, 197. The two benches and the council, 198. Council and parliament, 199. Itinerant justices, 200. Triumph of royal justice, 202. The judges, 203. Clerical justices, 205.
Bracton, 206. His book, 207. Character of his work : Italian form, 207. English substance, 208. Later law books, 209. Legal literature, 210.
The legal profession, 211. Pleaders, 211. Attorneys, 212. Non-professional attorneys, 213. Professional pleaders, 214. Regulation of pleaders and attorneys, 215. Professional opinion, 217. Decline of Romanism, 217. Notaries and conveyancers, 218. Knowledge of the law, 220.
English law in Wales, 220. English law in Ireland, 221. English and Scottish law, 222. Characteristics of English law, 224.
BOOK II.
THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES.
CHAPTER I. TENUBE, pp. 229—406.
Arrangement of this book, 229. The medieval scheme of law, 229. The modern scheme, 230. Our own course, 231.
§ 1. Tenure in General, pp. 232—240.
Derivative and dependent tenure, 232. Universality of dependent tenure, 234. Feudal tenure, 234. Analysis of dependent tenure, 236. Obligations of tenant and tenement, 237. Intrinsec and forinsec service, 238. Classification of tenures, 239.
§ 2. Frankalmoin, pp. 240—251.
Free alms, 240. Meaning of 'alms,' 241. Spiritual service, 242. Gifts to God and the saints, 243. Free alms and forinsec service, 244. Pure alms, 245. Frankalmoin and ecclesiastical jurisdiction, 246. The assize Utrum, 247. Defeat of ecclesiastical claims, 248. Frankalmoin in cent, xiii., 250.
§ 3. Knight's Service, pp. 252—282.
Military tenure, 252. Growth and decay of military tenure, 252. Units of military service, 254. The forty days, 254. Knight's fees, 256. Size of knight's fees, 256. Apportionment of service, 257. Apportion-
ment between king and tenant in chief, 258. Honours and baronies, 259. The barony and the knight's fee, 260. Relativity of the knight's fee, 261. Duty of the military tenant in cMef, 262. Position of military subtenants, 263. Knigfat's service due to lords who owe none, 264. Scutage, 266. Scutage between king and tenant in chief, 267- Scutage and fines for default of service^ 269. Scutage and the military sub-tenants, 271. Tenure by escuage, 272. The lord's right to scutage, 274. Eeduction in the number of knight's fees, 275. Meaning of this reduction, 276. Military combined with other services, 277. Castle-guard, 278. Thegnage and drengage, 279. Tenure by barony, 279. The baronage, 280. Escheated honours, 281.
§ 4. Serjeanty, pp. 282—290.
Definition of serjeanty, 282. Serjeanty and service, 283. Types of serjeanty owed by the king's tenants in chief, 283. Serjeanties due to mesne lords, 285. Military serjeanties due to mesne lords, 286. Essence of serjeanty, 287. The serjeants in the army, 288. Serjeanty in Domesday Book, 288. Serjeanty and other tenures, 290.
§ 5. Socage, pp. 291—296.
Socage, 291. Types of socage, 291. Extension of socage, 293. Fee farm, 293. Meaning of 'socage,' 293. Socage in contrast to military tenure, 294. Socage as the residuary tenure, 294. Burgage, 295. Bur-gage and borough customs, 295. One man and many tenures, 296.
§ 6. Homage and Fealty, pp. 296—307.
Homage and fealty, 296. Legal and extra-legal effects of homage, 297. The ceremony of homage, 297. The oath of fealty, 298. Liegeance, 298. Vassalism in the Norman age, 300. Bracton on homage, 301. Homage and private war, 301. Sanctity of homage, 303. Homage and felony, 303. Feudal felony, 305. Homage, by whom done and received, 306. The lord's obligation, 306.
§ 7. Belief and Primer Seisin, pp. 307—318.
The incidents of tenure, 307. Heritable rights in land, 307. Reliefs, 308. Rights of the lord on the tenant's death, 310. Prerogative rights of the king, 311. Earlier history of reliefs, 312. Relief and heriot, 312. Heritability of fees in the Norman age, 314. Mesne lords and heritable fees, 315. History of the heriot, 316. Relief on the lord's death, 317.
§ 8. Wardship and Marriage, pp. 318—329.
Bracton's rules, 319. Wardship of female heirs, 320. Priority among lords, 320. What tenures give wardship, 321. Prerogative wardship, 321. The lord's rights vendible, 322. Wardship and the serjeanties, 323. The law in Glanvill, 323. Earlier law, 33&. Norman law, 326. The Norman apology, 3.26. Origin of wardship and marriage, 327.
§ 9. Restraints on Alienation, pp. 329—349.
Historical, theories, 329. Modes of alienation, 330. Preliminary distinctions, 331. Glanvill, 332. The Great Charter, 332. Bracton, 332. Legislation as to mortmain, 333. Alienation of serjeanties, 334. Special law for the king's tenants in chief, 335. Growth of the prerogative right, 336. Quia emptores, 337. Disputed origin of the prerogative right, 338. Summary of law after the Charter, 339. Older law, 340. Anglo-Norman charters, 340. Discussion of the charters, 341. Conclusions as to law of the Norman age, 343. Usual form of alienation, 345. General summary, 345. Gifts by the lord with his court's consent, 346. Alienation of seignories, 346. Law of attomment, 347. Practice of alienating seigno-ries, 348.
§ 10. Aids, pp. 349—351.
Duty of aiding the lord, 349.
§ 11. Escheat and Forfeiture, pp. 351—356.
Escheat, 351. The lord's remedies against a defaulting tenant, 352. Action in the king's court, 352. Distress, 353. Proceedings in the lord's court, 354. Survey of the various free tenures, 355.
§ 12. Unfree Tenure, pp. 356—383.
Freehold tenure, 356. Technical meaning of ' freehold,' 357. Villeinage as tenure and as status, 358. Villein tenure: iinproteeted by the king's court, 359. Want of right and want of remedy, 360. Protection by manorial courts, 361. Evidence of the 'extents,' 362. Attempt to define villein tenure, 362. The manorial arrangement, 362. The field system, 364. The virgates, 364. Villein services, 365. A typical case of villein services, 366. Week work and boon days, 367. Merchet and tallage, 368. Essence of villein tenure, 368. The will of the lord, 370. Villeinage and labour, 370. Uncertainty of villein services, 372. Tests of villeinage, 372. Binding force of manorial custom, 376. Treatment of villein tenure in practice, 377. Heritable rights in villein tenements, 379. Unity of the tenement, 381. Alienation of villein tenements, 382. Villein tenure and villein status, 382.
§ 13. The Ancient Demesne, pp. 383—406.
The ancient demesne and other royal estates, 383. Immunities of the ancient demesne, 384. Once ancient demesne, always ancient demesne, 385. Peculiar tenures on the ancient demesne, 385. The little writ of right, 385. The Monstraverunt, 388. The classes of tenants, 389. Bracton's theory, 389. Theory and practice, 391. Difficulties of classification, 393. Sokemanry and socage, 394. Later theory and practice, 396. Why is a special treatment of the ancient demesne necessary 3 397. The king and the conquest settlement, 398. Royal protection of royal tenants, 400. Customary freehold, 401. No place for a tenure between freehold and villeinage, 404. The conventioners, 405. Conclusion, 406.
CHAPTER II.
THE SORTS AND CONDITIONS OF MEN, pp. 407—511. Law of personal condition, 407. Status and estate, 408.
§ 1. The Earls and Barons, pp. 408—411. The baronage, 408. Privileges of the barons, 409.
§ 2. The Knights, pp. 411—412. Knighthood, 412.
§ 3. The Unfree, pp. 412—432.
The unfree, 412. General idea of serfage, 413. Relativity of serfage, 415. The serf in relation to his lord, 415. Sightlessness of the serf, 416. Serfdom de iure and serfdom de facto, 417. Covenant between lord and serf, 418. The serf in relation to third persons, 419. The serf's property, 419. Difficulties of relative serfdom, 420. The serf in relation to the state, 421. How men become serfs, 422. Servile birth, 422. Mixed marriages, 423. Influence of the place of birth, 424. Villeins by confession, 424. Serfdom by prescription, 425. How serfdom ceases, 427. Manumission, 427. The freedman, 428. Modes of enfranchisement, 429. Summary, 429. Retrospect. Fusion of villeins and serfs, 430. The levelling process, 431. The number of serfs, 431. Rise of villeins, 432.
§ 4. The JBeligiotts, pp. 433—438.
Civil death, 433. Growth of the idea of civil death, 433. Difficulties arising from civil death, 435. The monk as agent, 436. The abbatial monarchy, 437. Return to civil life, 437. Civil death as a development of the abbot's mund, 438.
§ 5. The Clergy, pp. 439—457.
Legal position of the ordained clerk, 439. The clerk under temporal law, 439. Exceptional rules applied to the clerk, 440. Benefit of clergy, 441. Trial in the courts of the church, 443. Punishment of felonious clerks, 444. What persons entitled to the privilege, 445. What offences within the privilege, 446. The Constitutions of Clarendon, 447. Henry II.'s scheme, 448. Henry's scheme and past history, 449. Henry's allegations, 449. Earlier law: the Conqueror's ordinance, 449. The Leges Henrici, 450. Precedents for the trial of clerks, 450. Summary, 452. Henry's scheme and the Canon law, 454. The murderers of clerks, 456.
§ 6. Aliens, pp. 458—467.
The classical common law, 458. Who are aliens ? 458. Disabilities of the alien, 459. Naturalization, 460. Law of earlier times, 460. Growth of the law disabling aliens, 461. The king and the alien, 462. The kinds of aliens, 464. The alien merchants, 464. The alien and the common law, 465. Has the merchant a peculiar status? 466. The law merchant, 467.
§ 7. The Jews, pp. 468—475.
General idea of the Jew's position, 468. The Exchequer of the Jews, 469. Relation of the Jew to the king, 471. Eelation of the Jew to the world at large, 473. Law between Jew and Jew, 474. Influence of the Jew upon English law, 475.
§ 8. Outlaws and Convicted Felons, pp. 476—478. Outlawry, 476. Condition of the outlaw, 477.
§ 9. Excommunicates, pp. 478—480.
Excommunication, 478. Spiritual leprosy, 478. Excommunication and civil rights, 480.
§ 10. Lepers, Lunatics and Idiots, pp. 480—481. The leper, 480. The idiot, 481. The lunatic, 481.
§ 11. Women, pp. 482—485.
Legal position of women, 482. Women in private law, 482. Women in public law, 483. Married women, 485.
§ 12. Corporations and Churcfos, pp. 486—511.
The corporation, 486. Beginnings of corporateness, 487. Personality of the corporation, 488. The anthropomorphic picture of a corporation, 489. Is the personality fictitious? 489. The corporation at the end of the middle ages, 489. The corporation and its head, 491. The corporation in earlier times, 492. Gradual appearance of the group-person, 493. The law of Bracton's time, 494. The universitas and the communitas, 494. Bracton and the universitas, 495. No law as to corporations in general, 497.
Church lands, 497. The owned church, 497. The saints as persons, 499. The saint's administrators, 500. Saints and churches in Domesday Book, 500. The church as person, 501. The church as universitas and persona fata, 502. The temporal courts and the churches, 503. The parish church, 503. The abbatial church, 504. The episcopal church, 505. Disintegration of the ecclesiastical groups, 506. Communal groups of secular clerks, 507. Internal affairs of clerical groups, 508. The power of majorities, 509. The ecclesiastical and the temporal communities, 509. The boroughs and other land communities, 510.
§ 13. The King and the Crown, pp. 511—526.
Is there a crown? 511. Theories as to the king's two bodies, 511. Personification of the kingship not necessary, 512. The king's rights as intensified private rights, 512. The king and other lords, 513. The kingship as property, 513. The king's rights can be exercised by him, 514. The king can do wrong but no action lies against him, 515. King's land and crown land, 518. Slow growth of a law of 'capacities,' 518. No lay corporations sole, 520. Is the kingdom alienable? 521. The king can die, 521. The king can be under age, 522. Germs of a doctrine of 'capacities,' 523. Personification of the crown, 524. Re-trospect, 526.
CHAPTER III. JURISDICTION AND THE COMMUNITIES OF THE LAND, pp. 527—532.
Place of the law of jurisdiction in the medieval scheme, 527. All temporal jurisdiction proceeds from the king, 528. The scheme of courts, 529. Division of the land, 529. The county court, 529. The hundred court, 530. The sheriffs turn, 530. Seignorial courts, 530. Feudal courts, 531. Franchise courts, 531. Leets, 532. Borough courts, 532. The king's courts, 532.
§ 1. The County, pp. 532—556.
The county, 532. The county officers, 533. The county community, 534. The county court, 535. Identity of county and county court, 536. Constitution of the county court, 537. Suit of court no right, but a burden, 537. Suit of court is laborious, 538. Sessions of the court, 538. Full courts and intermediate courts, 539. The suitors, 540. Suit is a 'real'burden, 541. ' Reality'of suit, 542. The vill as a suit-owing unit, 542. Inconsistent theories of suit, 543. The court in its fullest form, 544. The communal courts in earlier times, 545. Struggle between various principles, 546. Suit by attorney, 547. Representative character of the county court, 547. The suitors as doomsmen, 548. A session of the county court, 549. The suitors and the dooms, 550. Powers of a majority, 552. The buzones, 553. Business of the court, 553. Outlawry in the county court, 554. Governmental functions, 554. Place of session, 555.
§ 2. The Hundred, pp. 556—560.
The hundred as a district, 556. The hundred court, 557. Hundreds in the king's hands, 557. Hundreds in private hands, 558. Duties of the hundred, 558. The sheriff's turn, 559.
§ 3. The Vill and the Township, pp. 560—567.
England mapped out into vills, 560. Vill and parish, 560. Discrete vills, 561. Hamlets, 562. Vill and village, 562. Vill and township, 563. Ancient duties of the township, 564. Statutory duties, 565.
Contribution of township to general fines, 566. Exactions from townships, 566. Miscellaneous offences of the township, 566. Organization of the township, 567.
§ 4. The Tithing, pp. 568—571.
Frankpledge, 568. The system in cent, xiii., 568. Township and tithing, 568. The view of frankpledge, 570. Attendance at the view, 570. Constitution of tithings, 571.
§ 5. Seignorial Jurisdiction, pp. 571—594.
Regalities and feudal rights, 571. Acquisition of regalities, 572. Theories of royal lawyers, 573. Various kinds of franchises, 574. Fiscal immunities, 574. Immunities from personal service, 574. Immunities from forest law, 575. Fiscal powers, 575. Jurisdictional powers, 576. Contrast between powers and immunities, 577. Sake, soke, toll and team, 578. Sake and soke in cent, xiii., 579. View of frankpledge, 580. The leet, 580. The vill and the view, 581. The assize of bread and beer, 581. High justice, 582. High franchises claimed by prescription, 584. The properly feudal jurisdiction, 584. The feudal court is usually a manorial court, 585. Jurisdiction of the feudal court, 586. Civil litigation : personal actions, 587. Actions for freehold land, 587. Actions for villein land, 588. Litigation between lord and man, 588. Presentments, 589. Governmental powers and by-laws, 590. Appellate jurisdiction, 590. Constitution of the feudal court, 592. The president, 592. The suitors, 592.
§ 6. The Manor, pp. 594—605.
The manor, 594 ' Manor' not a technical term, 595. Indefiniteness of the term, 596. A typical manor, 596. The manor house, 597. Occupation of the manor house, 598. Demesne land, 599. The freehold tenants, 600. The tenants in villeinage, 601. The manorial court, 602. Size of the manor, 603. Administrative unity of the manor, 604. Summary, 604.
§ 7. The Manor and the Township, pp. 605—634.
Coincidence of manor and vill, 605. Coincidence assumed as normal, 606. Coincidence not always found, 607. Non-manorial vills, 608. Manors and sub-manors, 609. The affairs of the non-manorial vill, 610. Permanent apportionment of the township's duties, 610. Allotment of financial burdens, 611. The church rate, 612. Apportionment of taxes on movables, 615. Actions against the hundred, 616. Economic affairs of the non-manorial vill, 617. Intercommoning vills, 618. Return to the manorial vill, 620. Rights of common, 620. Rights of common and communal rights, 620. The freeholder's right of common, 621. The freeholder and the community, 622. Freedom of the freeholder, 623. Communalism among villeins, 624. The villein community, 624. Com-munalism and collective liability, 627. The community as farmer, 628. Absence of communal rights, 629. Communal rights disappear upon
examination, 629. Co-ownership and corporate property, 630. The township rarely has rights, 632. The township in litigation, 632. Transition to the boroughs, 633.
§ 8. The Borough, pp. 634—688.
Cities and boroughs, 634. The vill and the borough, 634. The borough and its community, 635. Sketch of early history, 636. Borough and shire, 636. The borough as vill, 637. The borough's heterogeneity, 637. The borough and the king, 638. The borough and the gilds, 639. Transition to cent, xiii., 639.
Inferior limit of burgality, 640. Representation in parliament, 641. The typical boroughs and their franchises, 642. Jurisdictional privileges, 643. Civil jurisdiction, 644. Criminal jurisdiction, 644. Return of writs, 644. Privileged tenure, 645. Mesne tenure in the boroughs, 645. Seignorial rights in the boroughs, 646. Customary private law, 647. • Emancipation of serfs, 648. Freedom from toll, 649. The firma burgi, 650. What was farmed, 650. The farm of the vill and the soil of the vill, 652. Lands of the borough, 652. Waste land, 653. The borough's revenue, 655. Chattels of the borough, 656. Elective officers, 656. Borough courts and councils, 657. By-laws and self-government, 660. Limits to legislative powers, 661. Enforcement of by-laws, 661. Rates and taxes, 662. The borough's income, 663. Tolls, 664. The gild merchant, 664. The formation of a gild, 664. The gild and the government of the borough, 665. Objects of the gild, 666. The gild and the burgesses, 667. The gild courts, 667. The borough as a franchise holder, 668.
Corporate character of the borough community, 669. Corporateness not bestowed by the king, 669. Gild-like structure of the community, 670. Admission of burgesses, 671. The title to burgherhood, 671. The 'subject' in the borough charters, 672. Discussion of the charters, 673. Charters for the borough, the county and the whole land, 674. Charters and laws, 674. The burgesses as co-proprietors, 676. The community as bearer of rights, 676. Inheritance, succession and organization, 677. Criminal liability of the borough, 678. Civil liability, 679. The communities in litigation, 680. Debts owed to the community, 682. The common seal, 683. The borough's property, 685. The borough's property in its tolls, 685. The ideal will of the borough, 686. The borough corporation, 686. The communities and the nation, 687.
LIST OF ABBREVIATIONS.
A. -S. = Anglo-Saxon.
Bl. Com. = Blackstone's Commentaries.
Co. =Coke.
Co. Lit. =Coke upon Littleton.
D. B. , = Domesday Book
D. G.. R. =Deutsches Genossenschaftsrecht.
D. R. G. = Deutsche Rechtsgeschichte1.
E. H. R. = English Historical Review. Fitz. Abr. =Fitzherbert's Abridgement. Fitz. Nat Brev. = Fitzherbert's Natura Brevium. Harv. L. R. = Harvard Law Review.
Lit. = Littleton's Tenures.
L. Q. R. =Law Quarterly Review.
Hon. Germ. =Monumenta Germaniae.
P. C. = Pleas of the Crown.
P. Q. W. =Placita de Quo Warranto.
Reg. Brev. =Registrum Brevium.
Rep. = Coke's Reports.
R. H. = Hundred Rolls.
Rot. Cart. = Charter Rolls.
Rot. Cl. = Close Rolls.
Rot. Parl. = Parliament Rolls.
Rot. Pat. = Patent Rolls.
Sec. Inst. = Coke's Second Institute.
Sel. Chart. =Stubbs's Select Charters.
X. =Decretales Gregorii IX.
Y. B. =Year Book.
1 The second edition of Schroder's D. E. G. is referred to.
LIST OF TEXTS USED1.
[R=Bolls Series. Bee. Com. = Record Commission. Seld. = Selden Society. Camd. = Camden Society. Surt. = Snrtees Society.]
Die Gesetze der Angelsachsen, ed. F. Liebermann, in progress.
Die Gesetze der Angelsachsen, ed. Reinhold Schmid, 2nd ed., Leipzig, 1858.
Ancient Laws and Institutes of England, 8vo. ed. (Kec. Com.).
Councils and Ecclesiastical Documents, ed. Haddan and Stubbs, vol. iii.
Oxford, 1871.
Quadripartitus, ed. F. Liebermann, Halle, 1892. Consiliatio Cnuti, ed. F. Liebermann, Halle, 1893. Leges Edwardi Confessoris, ed. F. Liebermann, Halle, 1894. Institute Cnuti, ed. F. Liebermann, Transactions of Royal Hist. Soc.
N. S. vol. vii. p. 77.
Codex Diplomaticus JSvi Saxonici, ed. J. M. Eemble (Eng. Hist Soc.). Diplomatarium Anglicum Mvi Saxonici, ed. B. Thorpe, London, 1865. Cartularium Saxonicum, ed. W. de G. Birch, 1885 ff.
Placita Anglo-Normannica, ed. M. M. Bigelow, London, 1879.
Select Charters, ed. W. Stubbs, Oxford, 1881.
Chartes des Liberties Anglaises, ed. Ch. Bemont, Paris, 1892.
Statutes of the Realm, vol. i. (Rec. Com.), 1800.
Bolls of the King's Court, Kic. I. (Pipe Roll Soc.).
Rotuli Curiae Regis temp. Ric. I. et Joh., ed. Palgrave (Rec. Com.).
Placitorum Abbreviatio (Rec. Com.).
Select Pleas of the Crown, 1200-1225 (Seld.).
Select Civil Pleas, 1200-1203 (Seld.).
Pleas of the Crown for the County of Gloucester, 1221, ed. Maitland,
London, 1884.
Bracton's Note Book, ed. Maitland, Cambridge, 1887. Three Assize Rolls for the County of Northumberland (Surt.). Placita de Quo Warranto (Rec. Com.). Somersetshire Assize Rolls (Somers. Record Soc.).
1 For texts relating to Normandy see below, vol. i. pp. 64-5; and for texts relating to the English boroughs, see below, vol. i. pp. 642-3.
Collections of ancient laws and documents.
Judicial Records.
Select Cases from Coroners' Rolls (Seld.). Eotuli Parliamentorum, vol. i. (official edition). Memoranda de Parliamento, 1305 (R).
Select Pleas in Manorial Courts (Seld.).
The Court Baron (Seld.).
Durham Halmote Rolls (Surt).
The Leet Jurisdiction in Norwich (Seld.).
Domesday Book (official edition).
Pipe Roll of 31 Henry I. (Rec. Com.).
Pipe Rolls of Henry II. (Pipe Roll Soc.).
Red Book of the Exchequer (R).
Liber Niger Scaccarii, ed. Hearne, Oxford, 1728.
Rotuli Literarum Clausarum, 1204-1227 (Rec. Com.).
Rotuli Literarum Patentium, 1201-1216 (Rec. Com.).
Rotuli Chartarum, 1199-1216 (Rec. Com.).
Rotuli de Oblatis et Finibus, temp. Joh. (Rec. Com.).
Excerpta e Rotulis Finium, 1216-1272 (Rec. Com.).
Fines, sive Pedes Finium, 1195-1215, ed. Hunter (Rec. Com.).
Feet of Fines, 1182-1196 (Pipe Roll Soc.).
Rotuli Hundredorum, Hen. III. et Edw. I. (Rec. Com.).
Parliamentary Writs (Rec. Com.).
Testa de Neville (Rec. Com.).
Documents illustrative of English History, ed. Cole (Rec. Com.).
Calendarium Genealogicum (Rec. Com.).
Foedera, Conventiones etc., ed. 1816 (Rec. Com.).
Prynne, Records, i.e. An exact Chronological Vindication...of the King's Supreme Ecclesiastical Jurisdiction, etc., London, 1655.
Munimenta Gildhallae (R), containing Liber Albus and Liber Custumarum.
Bracton, Tractatus de Legibus, ed. 1569.
Bracton and Azo (Seld.).
Britton, ed. F. M. Nichols, Oxford, 1865.
Fleta, seu Commentarius luris Anglican!, ed. 1685.
Glanvill, Tractatus de Legibus, ed. 1604.
Hengham, Summae, printed at the end of Selden's ed. of Fortescue, De
Laudibus. The Mirror of Justices (Seld.).
Year Books of 20-1, 21-2, 30-1, 32-3, 33-5 Edward I. (R).
Abbatum. Gesta Abbatum Monasterii S. Albani (R). Abingdon, Chronicon Monasterii de (R). Anglo-Saxon Chronicle (R). Annales Monastic! (R).
Miscellaneous Becords.
Lawbooks.
Law
reports.
Chronicles, Annals etc.
Antiquis Legibus, Liber de (Camd.).
Becket Materials for the Life of Thomas Becket (E).
Benedictus Abbas. See Gesta Henrici.
Brakelonda, Chronica Jocelini de (Camd.).
Burton, Annales de, in Annales Monastici, voL i. (R).
Cambrensis. See Giraldus.
Canterbury. See Gervase.
Coggeshall, Radulphi de, Chronicon Anglicanum (B).
Cotton, Bartholomaei de, Historia Anglicana (R).
Diceto, Radulfi de, Opera Historica (R).
Dunstaplia, Annales Prioratus de, in Annales Monastic!, vol. iii. (R).
Durham, Symeon of, The Historical Works of (R).
Eadmeri, Historia Novorum (R).
Edward I. and Edward II., Chronicles of (R).
Eveshamensis, Chronicon Abbatiae (R).
Flores Historiarum (R).
Franciscans, Monumenta (R).
Gervase of Canterbury, Works of (R).
Gesta Henrici Secundi (Benedict of Peterborough) (R).
Giraldus Cambrensis, The Works of (R).
Gloucester, Metrical Chronicle of Robert of (R).
Hemingburgh, Walteri de, Chronicon (Eng. Hist. Soc.).
Hovedene, Rogeri de, Chronica (R).
Hugonis, Magna Vita S. (R).
Huntendunensis, Henrici, Historia (R).
Liber de Antiquis Legibus (Camd.).
Malmesbiriensis, Willelmi, Gesta Regum (R).
Mapes, Gualterus, de Nugis Curiah'um (Camd.).
Melsa, Chronicon Monasterii de (R).
Monte, Roberti de, Chronica, in Chronicles of Stephen etc. voL iv. (R).
Newborough, William of, in Chronicles of Stephen etc. vol. i. (R).
Parisiensis, Matthaei, Chronica Majora (R).
„ „ Historia Anglorum (R).
Ramsey, Chronicle of the Abbey of (R). Rishanger, Willelmi, Chronica et Annales (R). Tewkesbury, Annals of, in Annales Monastici, voL i. (R). Torigneio, Roberti de, Chronica, in Chronicles of Stephen etc. vol. iv. (R). Triveti, Nicholai, Annales (Eng. Hist. Soc.). Waverleia, Annales de, in Annales Monastici, vol. ii. (R). Wigorniensis, Florentii, Chronicon (Eng. Hist. Soc.). Wykes, Thomae, Chronicon, in Annales Monastici, vol. iv. (R). York, Historians of the Church of (R).
Academica, Munimenta (R).
Cantuarienses, Epistolae, in Chronicles etc. of Richard I., voL ii. (R).
Cantuarienses, Literae (R).
Dunelmense, Registrum Palatinum (R).
Grosseteste, Letters of Bishop (R).
Lanfranci Opera, ed. Giles, Oxford, 1844
Northern Registers, Historical Papers and Letters from (R).
Osmund, Register of St (R).
Peckham, Registrutn Johannis (R).
Royal and other Historical Letters, Henry III. (R).
Saresberiensis, Joannis, Opera, ed. Giles, Oxford, 1848.
Carta-lanes.
Bath, Two Chartularies (Somerset Record Soc. 1893).
Battle, Cartulary (Camd.).
Brinkburn, Cartulary (Surt.).
Burton, Cartulary (Salt Society, 1884).
Gloucester, History and Cartulary (R).
Guisborough, Cartulary (Surt).
Malmesbury, Register (R).
Newminster, Cartulary (Surt.).
Paul's, Domesday of St (Camd.).
Peterborough, Black Book of, at the end of Chronicon Petroburgense
(Camd.).
Ramsey, Cartulary (R). Rievaulx, Cartulary (Surt). Sarum, Charters and Documents of (R). Selby, Coucher Book (Yorkshire Archaeological Soc. 1891-3). WhaJley, Coucher Book (Chetham Soc. 1847). Whitby, Cartulary (Surt).
Winchcombe, Landboc, voL i., ed. D. Royce, Exeter, 1892. Worcester, Register (Camd.).
Round, Ancient Charters (Pipe Roll Soc.). Madox, Fonnulare Anglican urn, London, 1702. Monasticon Anglicanum, ed. 1817 etc.
ADDITIONS AND CORRECTIONS.
p. 33, last lines. As to the bwh-geat (not burh-geat-seff) see W. H. Stevenson, E. H. R. xii. 489 ; Maitland, Township and Borough, 209.
p. 118. Dr Liebermann has withdrawn the suggestion that Vacarius was the author of the tract on Lombard law. See E. H. R. vol. xiii. p. 297. The Summa de Matrimonio has been printed in L. Q. R. xiii. 133, 270.
p. 556, note 1. Add a reference to J. H. Round, The Hundred and the
Geld, E. H. R. x. 732. p. 663. As causes of municipal expenditure we ought to have mentioned
the many presents, of a more or less voluntary kind, made by the
burgesses to kings, magnates, sheriffs and their underlings. For these
see the Records of Leicester, ed. Bateson, passim.
INTRODUCTION.
IN the First of the two Books into which our work is divided we have endeavoured to draw a slight sketch, which becomes somewhat fuller as time goes on, of the general outlines of that part of English legal history which lies on the other side of the accession of Edward I. In the Second Book we have tried to set forth at some length the doctrines and rules of English law which prevailed in the days of Glanvill and the days of Bracton, or, in other words, under Henry II., his sons and grandson. The chapters of our First Book are allotted to various periods of history, those of the Second to various branches of law. In a short Introduction we hope to explain why we have been guilty of what may be regarded as certain offences, more especially certain offences of omission.
It has been usual for writers commencing the exposition of any particular system of law to undertake, to a greater or less extent, philosophical discussion of the nature of laws in general, and definition of the most general notions of jurisprudence. We purposely refrain from any such undertaking. The philosophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics. A philosopher who is duly willing to learn from lawyers the things of their own art is full as likely to handle the topic with good effect as a lawyer, even if that lawyer is acquainted with philosophy, and has used all due diligence in consulting philosophers. The matter of legal science is not an ideal result of ethical or political analysis; it is the actual result of facts of human nature and history. Common knowledge assures us that in every tolerably settled community there are rules by which men are expected to order
their conduct. Some of these rules are not expressed in any authentic form, nor declared with authority by any person or "body distinct from the community at large, nor enforced by any power constituted for that purpose. Others are declared by some person or body having permanently, or for the time being, public authority for that purpose, and, when so declared, are conceived as binding the members of the community in a special manner. In civilized states there are officers charged with the duty and furnished with the means of enforcing them. Of the former kind are the common rules of morals and manners, in so far as they do not coincide with rules of law. We shall find that in England, as elsewhere, and in times which must be called recent as compared with the known history of ancient civilization, many things were left to the rule of social custom, if not to private caprice or uncontrolled private force, which are now, as a matter of course, regulated by legislation, and controlled by courts of justice. By gradual steps, as singularly alike in the main in different lands and periods, at the corresponding stages of advance, as they have differed in detail, public authority has drawn to itself more and more causes and matters out of the domain of mere usage and morals; and, where several forms of public authority have been in competition (as notably, in the history of Christendom, the Church has striven with secular princes and rulers to enlarge her jurisdiction at their expense), we find that some one form has generally prevailed, and reigns without serious rivalry. Thus, in every civilized Commonwealth we expect to find courts of justice open to common resort, where judges and magistrates appointed in a regular course by the supreme governors of the Commonwealth, or, at least, with their allowance and authority, declare and administer those rules of which the State professes to compel the observance. Moreover, we expect to find regularly appointed means of putting in force the judgments and orders of the courts, and of overcoming resistance to them, at need, by the use of all or any part of the physical power at the disposal of the State. Lastly, we expect to find not only that the citizen may use the means of redress provided and allowed by public justice, but that he may not use others. Save in cases particularly excepted, the man who takes the law into his own hands puts himself in the wrong, and offends the community. " The law is open, and there are deputies; let
them implead one another." Such are for the citizen, the lawyer, and the historian, the practical elements of law. When a man is acquainted with the rules which the judges of the land will apply to any subject of dispute between citizens, or to any act complained of as an offence against the common weal, and is further acquainted with the manner in which the decision of the competent court can be enforced, he must be said to know the law to that extent. He may or may not have opinions upon the metaphysical analysis of laws or legal duty in general, or the place of the topic in hand in a scientific arrangement of legal ideas. Law, such as we know it in the conduct of life, is matter of fact; not a thing which can be seen or handled, but a thing perceived in many ways of practical experience. Commonly there is no difficulty in recognizing it by its accustomed signs and works. In the exceptional cases where difficulties are found, it is not known that metaphysical definition has ever been of much avail.
It may be well to guard ourselves on one or two points. We have said that law may be taken for every purpose, save that of strictly philosophical inquiry, to be the sum of the rules administered by courts of justice. We have not said that it must be, or that it always is, a sum of uniform and consistent rules (as uniform and consistent, that is, as human fallibility and the inherent difficulties of human affairs permit) administered under one and the same system. This would, perhaps, be the statement of an ideal which the modern history of law tends to realize rather than of a result yet fully accomplished in any nation. Certainly it would not be correct as regards the state of English legal institutions, not only in modern but in quite recent times. Different and more or less conflicting systems of law, different and more or less competing systems of jurisdiction, in one and the same region, are compatible with a high state of civilization, with a strong government, and with an administration of justice well enough liked and sufficiently understood by those who are concerned.
Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are not merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law; no less is it true, though
less commonly recognized, that there are and must be rules of law beyond or outside the direct precepts of morality. There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even wholly indifferent what that rule shall be. When, indeed, the rule is fixed by custom or law, then morality approves and enjoins obedience to it. But the rule itself is not a moral rule. In England men drive on the left-hand side of the road, in the United States and nearly all parts of the Continent of Europe on the right. Morality has nothing to say to this, except that those who use the roads ought to know and observe the rule, whatever it be, prescribed by the law of the country. Many cases, again, occur, where the legal rule does not profess to fulfil anything like perfect justice, but where certainty is of more importance than perfection, and an imperfect rule is therefore useful and acceptable. Nay, more, there are cases where the law, for reasons of general policy, not only makes persons chargeable without proof of moral blame, but will not admit proof to the contrary. Thus, by the law of England, the possessor of a dangerous animal is liable for any mischief it may do, notwithstanding that he may have used the utmost caution for its safe keeping. Thus, in our modern law, a master has to answer for the acts and defaults of a servant occupied about his business, however careful he may have been in choosing and instructing the servant. Thus, again, there are cases where an obviously wrongful act has brought loss upon innocent persons, and no redress can be obtained from the primary wrong-doer. In such cases it has to be decided which of those innocent persons shall bear the loss. A typical example is the sale of stolen goods to one who buys them in good faith. The fraudulent seller is commonly out of reach, or, if within reach, of no means to make restitution. Either the true owner must lose his goods, or the purchaser must lose his money. This question, simple enough as to the facts, is on the very border-line of legal policy. Some systems of law favour the first owner, some the purchaser, and in our English law itself the result may be one way or the other, according to conditions quite independent of the actual honesty or prudence of the parties. In the dealings of modern commerce, questions which are reducible to the same principle arise in various ways which may be complicated to an indefinite extent. Evidently there
must be some law for such cases; yet no law can be made which will not seem unjust to the loser. Compensation at the public expense would, perhaps, be absolutely just, and it might be practicable in a world of absolutely truthful and prudent people. But in such a world frauds would not be committed on individuals any more than on the State.
Another point worth mention is that the notion of law does not include of necessity the existence of a distinct profession of lawyers, whether as judges or as advocates. There can not well be a science of law without such a profession ; but justice can be administered according to settled rules by persons taken from the general body of citizens for the occasion, or in a small community even by the whole body of qualified citizens; and under the most advanced legal systems a man may generally conduct his own cause in person, if so minded. In Athens, at the time of Pericles, and even of Demosthenes, there was a great deal of law, but no class of persons answering to our judges or counsellors. The Attic orator was not a lawyer in the modern sense. Again, the Icelandic sagas exhibit a state of society provided with law quite definite as far as it goes, and even minutely technical on some points, and yet without any professed lawyers. The law is administered by general assemblies of freemen, though the court which is to try a particular cause is selected by elaborate rules. There are old men who have the reputation of being learned in the law; sometimes the opinion of such a man is accepted as conclusive ; but they hold no defined office or official qualification. In England, as we shall see hereafter, there was no definite legal profession till more than a century after the Norman Conquest. In short, the presence of law is marked by the administration of justice in some regular course of time, place, and manner, and on the footing of some recognized general principles. These conditions appear to be sufficient, as they are necessary. But if we suppose an Eastern despot to sit in the gate and deal with every case according to the impression of the moment, recognizing no rule at all, we may say that he is doing some sort of justice, but we can not say that he is doing judgment according to law. Probably no prince or ruler in historical times ever really took upon himself to do right according to his mere will and pleasure. There are always points of accepted faith which even the strongest of
despots dares not offend, points of custom which he dares not disregard.
At the same time the conscious separation of law from morals and religion has been a gradual process, and it has largely gone hand in hand with the marking off of special conditions of men to attend to religious and to legal affairs, and the development, through their special studies, of jurisprudence and theology as distinct sciences. If there be any primitive theory of the nature of law, it seems to be that laws are the utterance of some divine or heroic person who reveals, or declares as revealed to him, that which is absolutely right. The desire to refer institutions to a deified or canonized legislator is shown in England, as late as the fourteenth century, by the attribution to King Alfred of everything supposed to be specially national and excellent. In the extant Brahmanical recensions of early Hindu law this desire is satisfied with deliberate and excessive minuteness. Wherever and whenever such notions prevail, the distinction between legal and moral duty can at best be imperfectly realized. During the age of which we are to speak in this book a grand attempt was being made to reduce morality to legal forms. In the system of the medieval Church the whole of ' external' moral duty is included in the law of God and of Holy Church. Morality becomes a thing of arguments and judgments, of positive rules and exceptions, and even of legislative declaration by the authority supreme on earth in matters of faith and morals. Many things on which Protestants are accustomed to spend their astonishment and indignation are merely the necessary consequences of this theory. We shall often have to observe that the wide and flexible jurisdiction of the spiritual power was of great service in the middle ages, both in supplementing the justice of secular courts, and in stimulating them by its formidable competition to improve their doctrine and practice; but a discussion of the Church's penitential system will not be expected of us.
We have spoken but briefly of the law which prevailed in England before the coming of the Normans, and therefore we ought perhaps to say here that in our opinion it was in the main pure Germanic law. Question has been made at various times as to how much of ancient British custom survived the conquest of Britain by successive invaders, and became in-
corporated in English law. We are unable to assign any definite share to this Celtic element. The supposed proofs of its existence have, so far as we are aware, no surer foundation than coincidence. Now the mere coincidence of particulars in early bodies of law proves nothing beyond the resemblance of all institutions in certain stages. There are, again, many points of real organic connexion between Celtic and English law even if there has been no borrowing from the Welshman on the Englishman's part. If there be a true affinity, it may well go back to a common stock of Aryan tradition antecedent to the distinction of race and tongue between German and Celt. And if in a given case we find that an institution or custom which is both Welsh and English is at the same time Scandinavian, Greek, Roman, Slavonic or Hindu, we may be reasonably assured that there is nothing more specific in the matter. Or, if there be a true case of survival, it may go back to an origin as little Celtic or even Aryan as it is Germanic. Some local usages, it is quite possible, may be relics of a prehistoric society and of an antiquity now immeasurable, saved by their obscurity through the days of Celt, Saxon and Norman alike. There is no better protection against the stronger hand; bracken and lichens are untouched by the storm that uproots oak and beech. But this is of no avail to the Celtic enthusiast, or rather of worse than none. Those who claim a Celtic origin for English laws ought to do one of two things: prove by distinct historical evidence that particular Celtic institutions were adopted by the . English invaders, or point out similar features in Welsh and English law which can not be matched either in the laws of continental Germany or in those of other Aryan nations. Neither of these things, to the best of our knowledge, has ever been effectually done. Indeed the test last named would be hardly a safe one. The earliest documents of Welsh law known to exist are in their present form so much later than the bulk of our Anglo-Saxon documents that, if a case of specific borrowing could be made out on the face of them, we should need further assurance that the borrowing was not the other way. The favourite method of partisans in this kind is, as has been said, to enumerate coincidences. And by that method our English medieval law could with little ado be proved to be Greek, Slavonic, Semitic, or, for aught one knows, Chinese. We can not say that no element derived from the Celtic
inhabitants of Britain exists in it, for there is no means of proving so general a negative. But there seems to be no proof nor evidence of the existence of that element in any such appreciable measure as would oblige us to take account of it in such a work as the present. Again, there is the possibility that Celtic details, assimilated in Gaul by French law during its growth, passed into England at the Norman Conquest. But it is not for us to discuss this possibility. On the other hand, no one can doubt that the English law stated and denned in the series of dooms which stretches from ./Ethelbirht to Cnut finds nearer kinsfolk in the law that prevailed in Saxony and Norway and on the Lombard plain than those that it finds among the Welsh or Irish.
Coming to the solid ground of known history, we find that our laws have been formed in the main from a stock of Teutonic customs, with some additions of matter, and considerable additions or modifications of form received directly or indirectly from the Roman system. Both the Germanic and the Romanic elements have been constituted or reinforced at different times and from different sources, and we have thus a large range of possibilities to which, in the absence of direct proof, we must attend carefully in every case before committing ourselves to a decision.
Taking first the Germanic material of our laws, we begin with the customs and institutions brought in by the English conquest of Britain, or rather by the series of conquests which led to the formation of the English kingdom. This is the prime stock; but it by no means accounts for the whole of the Germanic elements. A distinct Scandinavian strain came in with the Danish invasions and was secured by the short period of Danish sovereignty. A third of England, a populous and wealthy third, became known as the Danelaw. To some extent, but probably to no great extent, the Norman law and practice of William the Conqueror may have included similar matter. The main importance of the Norman contribution, however, was in other kinds. Much Anglo-Norman law is Germanic without being either Anglo-Saxon or Norse. Indeed of recent years it has become the fashion upon the Continent to speak of Anglo-Norman law as a daughter of Frankish law. The Frankish monarchy, the nearest approach to a civilized power that existed in Western Europe since the barbarian invasions, was in many
things a pattern for its neighbours and for the states and principalities that rose out of its ruins. That we received from the Normans a contribution of Frankish ideas and customs is indubitable. It was, indeed, hardly foreign to us, being of kindred stock, and still not widely removed from the common root of Germanic tradition. We must not omit, however, to count it as a distinct variation. Neither must we forget that English princes had already been following in some measure the same models that the Dukes of the Normans copied. From the time of Charles the Great onward, the rulers of both Mercia and Wessex were in intimate relations with the Frankish kings.
Now each of these Germanic strains, the purely Anglo-Saxon, the Scandinavian, the Frankish, has had its champions. To decide between them is often a difficult, and sometimes in our opinion an impossible task. A mere ' method of agreement' is, as already said, full of dangers, and such is the imperfection of our record that we can seldom use a ' method of differences' in any convincing fashion. Even for the sake of these somewhat remote and obscure problems, the first thing needful seems to be that we should have a fairly full statement of the English law of the Angevin time. Before we speculate about hypothetical causes, we ought to know as accurately as possible the effect that has to be accounted for. The speculation we must leave for the more part to those who can devote their time to a close study of Anglo-Saxon, Scandinavian and Frankish law. The English law of the Angevin age is for the present our principal theme, though we have sometimes glanced at earlier and at later times also.
As to the Roman, or more properly Romanic, element in our English law, this also is a matter which requires careful distinction. It has been maintained at various times, and sometimes with great ingenuity, that Roman institutions persisted after Britain was abandoned by the Roman power, and survived the Teutonic invasions in such force as to contribute in material quantity to the formation of our laws. But there is no real evidence of this. Whether the invaders may not have learnt something in the arts of peace and war from those whom they were conquering, something of strategy, architecture, agriculture, is not here the question. We speak of law, and within the sphere of law everything that is Roman or Romanized can
be accounted for by later importation. We know that the language and the religion of Rome were effaced. Roman Christianity had to make a fresh conquest of the English kingdom almost as if the British Church had never existed. The remnant of that Church stood aloof, and it would seem that Augustine did not think it entitled to much conciliation, either by its merits or by its importance1. It is difficult to believe that civil institutions remained continuous in a country where the discontinuity of ecclesiastical affairs is so pointedly marked, and in an age when the Church was far more stable and compact than any civil institution whatever. And, in point of fact, there is no trace of the laws and jurisprudence of imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents. Whatever is Roman in them is ecclesiastical. The danger of arguing in these matters from a mere enumeration of coincidences has already been pointed out with reference to the attempt, in our opinion a substantially similar one, to attribute English law to a Celtic origin. This inroad of the Roman ecclesiastical tradition, in other words, of the system which in course of time was organized as the Canon Law, was the first and by no means the least important of the Roman invasions, if we may so call them, of our Germanic polity. We need not doubt the statement that English princes began to collect their customary laws in writing after the Roman example made known to them by Augustine and his successors2.
Somewhat later the intercourse of English princes with the Frankish court brought in a fresh accession of continental learning and continental forms, in the hands of clerks indeed, but applicable to secular affairs. In this way the Roman materials assimilated or imitated by the Franks easily found their way into England at a second remove. Many, perhaps most, of the facts that have been alleged to show the per-
1 The story that Augustine offended the Welsh bishops by not rising to receive them may be accepted as symbolically if not literally true.
* According to Bede (ii. 5) .Sthelbirht of Kent set dooms in writing ' iuxta exempla Bomanorum.' It is of course quite possible that a few of the more learned among the clergy may at times have studied some books of Boman Law. St Aldhelm (ob. 709) speaks as if he had done so in a letter printed by Wharton, Anglia Sacra, vol. ii. p. 6, and by Jaffe', Monuments Moguntina, 32. On this see Savigny, Geschichte des romischen Bechts, c. 6, § 135.
sistence of Roman institutions in Britain are really of this kind. Such are for example the forms and phrases of the Latin charters or land-books that we find in the Codex Diplomaticus. A difficult question indeed is raised by these continental materials on their own ground, namely, what proportion of Germanic and Franco-Gallic usages is of Roman origin, and how far those parts that are Roman are to be ascribed to a continuous life of Roman institutions and habits in the outlying provinces of the empire, more especially in Gaul. Merovingian Gaul has been, and for a long time to come is likely to be, the battle-field of scholars, some of whom can see little that is Roman, some little that is Germanic. Interesting as these problems are, they do not fall within our present scope.
A further importation of more sudden and masterful fashion came with the Norman Conquest. Not only had the Normans learnt a Romance tongue, but the dukes of Normandy had adopted the official machinery of Frankish or French government, including of course whatever Roman elements had been taken up by the Franks. Here, again, a remoter field of inquiry lies open, on which we do not adventure ourselves. It is enough to say, at present, that institutions which have now-a-days the most homely and English appearance may nevertheless be ultimately connected, through the customs of Normandy, with .the system of government elaborated in the latter centuries of the Roman Empire. The fact that this kind of Romanic influence operated chiefly in matters of procedure does not make it the less important, for procedure is the life of ancient law. But this, it need hardly be remarked, is a very different matter from a continuous persistence of unadulterated Roman elements. It may be possible to trace a chain of slender but unbroken links from the court of our William or Henry to that of Diocletian or Constantine. Such a chain, however, is by no means strengthened by the fact that Papinian was once at York, as it would in no way be weakened if that fact could be discredited.
Soon after the Norman Conquest a new and a different wave of Roman influence began to flow. The first ripple of it reached our shore when Lanfranc the lawyer of Pavia became the Conqueror's trusted adviser. In the middle of the next century it was streaming outwards from Bologna in full flood. Hitherto we have been speaking of a survival of Roman law in institutions
and habits and customs; what we have now before us is of another kind, a scholarly revival of the classical Roman law that is to be found in Justinian's books. Of this we haye spoken at some length in various parts of our work. For about a century—let us say between 1150 and 1250—this tide was shaping and modifying our English law; and we have tried to keep before the eyes of our readers the question—to our mind one of the central questions of English history—why the rapid and, to a first glance, overwhelming flow of Romanic learning was followed in this country by an equally rapid ebb.
At a later time yet other Roman elements began to make their way into our system through the equity administered by the chancellor. But of these we shall not speak in this book, for we shall not here bring down the story of our law beyond the time when Edward I. began his memorable reforms. Our reason for stopping at that moment we can give in a few words. So continuous has been our English legal life during the last six centuries, that the law of the later middle ages has never been forgotten among us. It has never passed utterly outside the cognizance of our courts and our practising lawyers. We have never had to disinter and reconstruct it in that laborious and tentative manner in which German historians of the present day have disinterred and reconstructed the law of medieval Germany. It has never been obliterated by a wholesale 'reception* of Roman law. Blackstone, in order that he might expound the working law of his own day in an intelligible fashion, was forced at every turn to take back his readers to the middle ages, and even now, after all our reforms, our courts are still from time to time compelled to construe statutes of Edward I.'s day, and, were Parliament to repeal some of those statutes and provide no substitute, the whole edifice of our land law would fall down with a crash. Therefore a tradition, which is in the main a sound and truthful tradition, has been maintained about so much of English legal history as lies on this side of the reign of Edward I. We may find it in Blackstone; we may find it in Reeves; we may find many portions of it in various practical text-books. We are beginning to discover that it is not all true ; at many points it has of late been corrected. Its besetting sin is that of antedating the emergence of modern ideas. That is a fault into which every professional tradition is
wont to fall. But in the main it is truthful. To this must be added that as regards the materials for this part of our history we stand very much where Blackstone stood. This we write to our shame. The first and indispensable preliminary to a better legal history than we have of the later middle ages is a new, a complete, a tolerable edition of the Year Books. They should be our glory, for no other country has anything like them : they are our disgrace, for no other country would have so neglected them.
On the other hand, as regards the materials which come from a slightly earlier time, we do not stand nearly where Blackstone stood. The twelfth and thirteenth centuries have been fortunate in our own age. Very many and some of the best and most authentic of the texts on which we have relied in the following pages were absolutely unknown to Blackstone and to Reeves. To the antiquaries of the seventeenth century high praise is due; even the eighteenth produced, as it were out of due time, one master of records, the diligent Madox; but at least half of the materials that we have used as sources of first-hand knowledge have been published for the first time since 1800, by the Record Commissioners, or in the Rolls Series, or by some learned society, the Camden or the Surtees, the Pipe Roll or the Selden. Even while our pages have been in the press Dr Liebermann has been restoring to us the law-books of the twelfth century. Again, in many particular fields of old English law—villeinage, for example, and trial by jury and many another—so much excellent and very new work has been done by men who are still living, by Germans, Frenchmen, Russians as well as Englishmen and Americans, and so much of it lies scattered in monographs and journals—we should be ungrateful indeed did we not name the Harvard Law Review— that the time seemed to have come when an endeavour to restate the law of the Angevin age might prosper, and at any rate ought to be made.
One of our hopes has been that we might take some part in the work of bringing the English law of the thirteenth century into line with the French and German law of the same age. That is the time when French law is becoming clear in Les Olim, in Beaumanoir's lucid pages, in the so-called Establishments of St Louis, in the Norman custumal and in many other books. It is also the classical age of German law, the age of the
Sachsenspiegel. We have been trying to do for English law what has within late years been done for French and German law by a host of scholars. We have often had before our minds the question why it is that systems which in the thirteenth century were so near of kin had such different fates before them. The answer to that question is assuredly not to be given by any hasty talk about national character. The first step towards an answer must be a careful statement of each system by itself. We must know in isolation the things that are to be compared before we compare them. A small share in this preliminary labour we have tried to take. Englishmen should abandon their traditional belief that from all time the continental nations have been ruled by ' the civil law,' they should learn how slowly the renovated Roman doctrine worked its way into the jurisprudence of the parliament of Paris, how long deferred was ' the practical reception' of Roman law in Germany, how exceedingly like our common law once was to a French coutume. This will give them an intenser interest in their own history. What is more, in the works of French and German medievalists they will now-a-days find many an invaluable hint for the solution of specifically English problems.
We have left to Constitutional History the field that she has appropriated. An exact delimitation of the province of law that should be called constitutional must always be difficult, except perhaps in such modern states as have written constitutions. If we turn to the middle ages we shall find the task impossible, and we see as a matter of fact that the historians of our constitution are always enlarging their boundaries. Though primarily interested in such parts of the law as are indubitably constitutional, they are always discovering that in order to explain these they are compelled to explain other parts also. They can not write about the growth of parliament without writing about the law of land tenure; ' the liberty of the subject' can only be manifested in a discourse on civil and criminal procedure. It may be enough therefore if, without any attempt to establish a scientific frontier, we protest that we have kept clear of the territory over which they exercise an effective dominion. Our reason for so doing is plain. We nave no wish to say over again what the Bishop of Oxford has admirably said, no hope of being able to say with any truth -what he has left unsaid. Besides, for a long time past, ever
since the days of Selden and Prynne, many Englishmen have been keenly interested in the history of parliament and of taxation and of all that directly concerns the government of the realm. If we could persuade a few of them to take a similar interest in the history of ownership, possession, contract, agency, trust, legal proof and so forth, and if we could bring the history of these, or of some of these, matters within a measurable distance of that degree of accuracy and completion which constitutional history has attained in the hands of Dr Stubbs, we should have achieved an unlooked-for success. At the same time, we shall now and again discuss some problems with which he and his predecessors have busied themselves, for we think that those who have endeavoured to explore the private law of the middle ages may occasionally see even in political events some clue which escapes eyes that are trained to look only or chiefly at public affairs.
The constitutional is not the only department of medieval law that we have left on one side. We have said very little of purely ecclesiastical matters. Here again we have been compelled to draw but a rude boundary. It seemed to us that a history of English law which said nothing of marriage, last wills, the fate of an intestate's goods, the punishment of criminous clerks, or which merely said that all these affairs were governed by the law and courts of the church, would be an exceedingly fragmentary book. On the other hand, we have not felt called upon to speak of the legal constitution of the ecclesiastical hierarchy, the election and consecration of bishops, the ordination of clerks, the power of provincial councils and so forth, and we have but now and then alluded to the penitential system. What is still the sphere of ecclesiastical law we have avoided; into what was once its sphere we could not but make incursions.
At other points, again, our course has been shaped by a desire to avoid what we should regard as vain repetition. When the ground that we traverse has lately been occupied by a Holmes, Thayer, Ames or Bigelow, by a Brunner, Liebermann or Vinogradoff, we pass over it rapidly; we should have dwelt much longer in the domain of criminal law if Sir James Stephen had not recently laboured in it. And then we have at times devoted several pages to the elucidation of some question, perhaps intrinsically of small importance, which seemed to us
difficult and unexplored and worthy of patient discussion, for such is the interdependence of all legal rules that the solution of some vital problem may occasionally be found in what looks at first sight like a technical trifle.
We have thought less of symmetry than of the advancement of knowledge. The time for an artistically balanced picture of English medieval law will come: it has not come yet.
BOOK I.
SKETCH OF EARLY ENGLISH LEGAL HISTORY.
CHAPTER I.
THE DARK AGE IN LEGAL HISTORY.
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 deacon1. 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*. 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 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 ^Ethelb. l.
2 Ihering, Yorgeschichte der Indoeuropaer; eee especially the editor's preface.
* The following summary has been compiled by the aid of Karlowa, E6-mische Bechtsgeschichte, 1885—Kriiger, Geschichte der Quellen des romischen Bechts, 1888—Conrat, Geschichte der Quellen des romischen Bechts im friiheren Mittelalter, 1889—Maassen, Geschichte der Quellen des canonischen Bechts, 1870—Ldning, Geschichte des deutschen Kirchenrechts, 1878—Sohm, Kirchen-recht, 1892—Binschins, System des katholischen Kirchenrechts, 1869 ff.—A. Tardif, Histoire des sources da droit canonique, 1887—Brunner, Deutsche Bechtsgeschichte, 1887—Schroder, Lehrbuch der deutschen Bechtsgeschichte, ed. 2, 1894—Esmein, Cours d'histoire dn droit francais, ed. 2, 189C—Viollet, Histoire du droit civil fran^ais, 1893.
The difficulty of beginning.
Proposed retrospect.
By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 2121, Ulpian in 2282. 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 (ecclesiae) of non-conformists, 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, a criminal 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 property4. 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 faithful5. 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 preeminence for itself and its overseer8. Long indeed would it be before
1 Kriiger, op. cit. 198; Karlowa, op. cit. i. 736. s Kruger, op. cit. 215; Karlowa, op. cit. i. 741. 8 Kruger, op. cit. 226; Karlowa, op. cit. i. 752.
4 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 temtiorum, capable of holding property. Sohm denies this.
5 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.
6 Sohm, op. cit. 378 ff.; Loning, op. cit. i. 423 ff.
The
classical age of Roman law.
The beginnings of ecclesiastical law.
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 christological heresy. Ulpian's priesthood1 was not priestly enough*.
The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility8; it was sharing the fate of art4. Its eyes were 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 Gregoriamis, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient8. The shifting eastward of the imperial centre and the tendency of the world to fall into 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'. The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king7.
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 crime8. Before the end of
1 Dig. 1. 1. 1.
2 The moot question (Kriiger, op. cit. 203; Karlowa, op. oit. 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.
1 Kruger, op. cit. 260; Karlowa, op. cit. i. 932.
4 Gregorovius, History of Borne (transl. Hamilton), i. 85.
5 Kruger, op. cit. 277ff.; 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 these dates are -uncertain. For their remains see Corpus luris Anteiustiniani.
• Brunner, op. cit. i. 32-39. 7 Ibid. 38. 8 Loning, op. cit. i. 44.
Cent. III.
Decline of
Roman
law.
Cent. IV.
Church and State.
the century cruel statutes were being made against heretics of all sorts and kinds1. 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 Africa2. 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* go whatever juristic ability, and whatever power of organization are left among mankind. The new siipernatural jurisprudence was finding another mode of utterance; the bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor4. 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 Romans5. For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled6. 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 tribunal7. It was necessary for the state to protest that criminal jurisdiction was still in its hands8. 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*. If from one point of view we see this as a triumph of anarchy, from another it appears as a
1 Loning, op. cit. i. 97-98, reckons 68 statutes from 57 years (380-438).
2 Hefele, Conciliengeschiohte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7.
3 Sohm, op. cit. 443: 'Das okumenische Koneil, dieReiehssynode...bedeutet ein geistliches Parlament des Kaisertums.'
4 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.
5 Cod. Theod. 16. 1. 2.
6 Loning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff.
7 Loning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1.
8 Loning, op. cit. i. 305; Hinschius, op. cit. iv. 794. * Loning, op. cit. i. 64-94.
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 us1. This by itself would tell a sad 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 Godefroi2. Indeed we may say that the fall of a loose stone in Britain brought the crumbling edifice to the ground3. Already before this code was published the hordes of Alans, Vandals and Sueves 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 that 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 bis West Goths, perhaps between 470 and 475*. 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
1 Kriiger, op. cit. 285ff.; Karlowa, op. cit. i. 944.
2 The Breviary of Alario is a different matter.
3 Bury, History of the Later Koman Empire, 142: 'And thus we may say that it was the loss or abandonment of Britain in 407 that led to the further loss of Spain and Africa.'
4 Zenmer, Leges Visigothorum Antiqniores, 1894; Brnnner, op. cit. i. 320; Schroder, op. cit. 230.
Cent. V.
The Theodosian Code.
Laws of Euric.
Cent. VI.
The century of Justinian.
The Lex Salica.
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 lawbooks, that of Reckessuinth (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 barbarity. Scandinavian laws that are not written until the thirteenth century will often give us what is more archaic than anything that comes from 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 law1.
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 compiled8.
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*. It comes to us from the march between the fifth and the sixth centuries;
1 Ficker, Untersuchnngen zur Erbenfolge, 1891-5; Ficker, TJeber nahere Verwandtschaft zwischen gothisch-spanischem nnd^norwegiseh-ialandischem Becht (Mittheilungen des Instituts fur osterreichische Geschiohtsforechnng, 1888, ii. 456 ff.). These attempts to reconstruct the genealogy of the various Germanic systems are very interesting, if hazardous.
3 For a map of Europe at the time of Justinian's legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1.
8 Brnnner, op. cit. i. 292 ff.; Schroder, op. cit. 226 ff.; Esmein, op. cit. 102 ff.; Dahn, Die Kb'nige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880.
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 unique1) there is 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*. 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*. Though there are 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 Bur-gwndionum was issued by King Gundobad (474-516) in the last years of the fifth century4.
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
1 However, there are some curious relics ol heathenry in the Lex Frisionum: Brunner, op. cit. i. 342.
1 Greg. Tnron. ii. 22 (ed. Omont, p. 60): 'Mitis depone oolla, Sicamber; adora quod incendisti, inoende quod adorasti.'
* Brunner, op. cit. i. 303ff.; Schroder, op. cit. 229; Esmein, op. cit. 107. Edited by Sohm in M. G.
4 Brunner, op. cit. i. 332ff.; Schroder, op. eit. 234; Esmein, op. cit. 108. Edited by v. Salis in M. G.
The Lex Sibuaria and Lex Burgun-dionum.
The Lex Romana Burgun-dionum.
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 Aetius had been deported to Savoy1. In their seizure of lands from the Roman possessores they had followed, though with modifications that were profitable to themselves, the Roman system of billeting barbarian soldiers2. 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 former8 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 abridgements 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 Gregoriamis 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 now-a-days 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 abridgements5.
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 race6. On the other hand, it struck deep root in Gaul. It became the principal, if
1 Brunner, op. cit. i. 50-1. 2 Ibid. 64-7.
3 Krtiger, op. cit. 317; Brunner, op. cit. i. 354; Schroder, op. cit. 234. Edited by v. Satis in M. G.
4 Krfiger, op. cit. 309; Brunner, op. cit. i. 358. Edited by Hanel, 1849. 4 Karlowa, op. cit. i. 976. * See above, p. 6.
The Lex Romana Visigo-tharum.
Importance of the Breviary.
not the only, representative of Roman law in the expanse realm of the Franks. But even it was too bulky for men's needs. They made epitomes ©fit and epitomes of epitomes1.
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*.
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 Canoniei. He called himself Dionysius Exiguus. He was an expert chronologist 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 Siricius onwards (384-498)*, 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*. A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774°. 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 constitutions 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 school-book,
1 The epitomes vill be found in Hanel's edition, Lex Bomana Visigothorum, 1849.
> Brnnner, op. cit. i. 365; Karlowa, op. cit. i. 947ff. Edited by Bluhme in M. G.
» Maassen, op. cit. i. 422ff..; Tardif, op. cit. 110. Printed in Migne, Patrologia, vol. 67.
* Haddan and Stubbs, Councils, iii. 119. See, however, the remarks of Mr C. H. Turner, E. H. B. i*. 727.
9 Maassen, op. cit. i. 441.
The;
Edictnm Theodorici.
The
Collectio Dionysiana,.
Justinian's books.
the main work that he did for the coining centuries lies in the Digest. We are told now-a-days that in the Orient the classical jurisprudence had taken a new lease of life, especially in the school at Berytus1. 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 Byzantium2. 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 petitions Vigilii (554)s. Fourteen years were to elapse and then the Lombard hordes under Alboin would be pouring down upon an exhausted and depopulated land. Those fourteen years are critical in legal history; they suffer Justinian's books to obtain a lodgement 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
1 Kriiger, op. cit. 819. * Conrat, op. cit. i. 32.
s Kriiger, op. cit. 354; Karlowa, op. cit. i. 938; Hodgkin, Italy and her Invaders, vi. 519.
Justinian and Italy.
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 suc-. cessors, Constantine IV., will pay Rome a twelve days' visit (663) and rob it of ornaments that Vandals have spared1; but with what we must call Graeco-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 Italy8, 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 Vigilius of the pragmatic sanction, that in the Byzantine system the church must be a department of the state3. 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