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Additions and Corrections - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 
The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1.
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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.
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Additions and Corrections
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 cannot 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 cannot 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 incorporated 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 cannot 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 cannot 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 defined in the series of dooms which stretches from Æthelbirht 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 importance.1 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 successors.2
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 persistence 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 have 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 cannot 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 have 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.
[1 ] The story that Augustine offended the Welsh bishops by not rising to receive them may be accepted as symbolically if not literally true.
[2 ] According to Bede (ii. 5) Æthelbirht of Kent set dooms in writing “iuxta exempla Romanorum.” It is of course quite possible that a few of the more learned among the clergy may at times have studied some books of Roman 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 Jaffé, Monumenta Moguntina, 32. On this see Savigny, Geschichte des römischen Rechts, c. 6 § 135.