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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

THE PEACE OF GOD AND THE LAND-PEACE1

The theme that Dr Huberti has chosen for elaborate treatment is fascinating; indeed, to an historian who would write about a great movement the whole middle ages will hardly offer a more fascinating theme. It has so many and such deep roots, so many and such luxuriant branches; it is of primary importance in the history of civilisation; it becomes implicated with other great themes, and yet it preserves its unity. He who would paint the pax et treuga Dei has a splendid if an arduous task before him.

In this book Dr Huberti aspires to show himself rather as an accurate draughtsman than as a colourist. He asks us not to overlook the three letters “zur” which stand upon his title-page2 . His method may be briefly described; it is the commentator's method. What can be known of the earliest stages of the movement that is under review is to be found almost exclusively in documents which profess to give the canons that were made, the resolutions that were passed, and the oaths that were sworn at various councils and assemblies held in France—for France is the movement's “domicile of origin,” and with France only is this first volume concerned—during the tenth and eleventh centuries. These documents our author prints at full length in his text. He attempts—this is not always an easy feat—to assign to each its proper date; he then carefully analyses its contents and discusses the relation which it bears to its predecessors and successors. This is the commentator's method, and regard being had to the nature of the subject matter, it may well appear to us as not only the most scientific, but also the most artistic method. It is very doubtful whether the most skilful word-painter could improve upon the language of these documents or substitute for it any that would be half so picturesque. Take, for example, these extracts from an oath exacted by Bishop Warin of Beauvais in the year 1023:—

“Villanum et villanam vel servientes aut mercatores non prendam nec denarios eorum tollam, nec redimere eos faciam, nec suum habere eis tollam, ut perdant propter werram senioris sui, nec flagellabo eos propter substantiam suam....Bestias villanorum non occidam nisi ad meum et meorum conductum....Villanum non praedabo nec substantiam eius tollam perfide iussione senioris sui [pro fideiussione senioris sui?]. Nobiles feminas non assaliam, neque illas quae cum eis ambulaverint sine maritis suis, nisi per propriam culpam, et nisi in meo malefacto illas invenero; similiter de viduis ac de sanctimonialibus attendam.”

The cautious particularity of the canons, resolutions, oaths, their provisoes and exceptions and saving clauses can only be brought home to us by the original documents, and yet they are the very essence of the story. Those who strive for peace are in the end successful, because they are content with small successes, and will proceed from particular to particular, placing now the villanus and now the femina nobilis, now the sheep and now the olive tree, now the Saturday and now the Thursday outside the sphere of blood-feud and private war. When they are in a hurry they fail, for they are contending with mighty forces.

It is among Dr Huberti's merits that he does not underrate the might of these forces, that he perceives them to be moral forces. We miss the point and thread of the tale if we think that the movement is directed only against the brigand and the marauder, the robber baron who fears not God, neither regards man. It has also to contend against what has been, and is only by slow degrees ceasing to be, a righteous self-help. It has to aim not merely at the enforcement of law, but at the transfiguration of law. It cannot suppress, and we may say that it ought not to suppress, the blood feud, until it has something better, a true criminal law, wherewith to fill the void. Over and over again legislators under the influence of Roman law and Christian teaching have been too hasty; their laws have from the first been idle, or have become idle so soon as some strong king made way for a feebler son. Dr Huberti has spent pains over what we may call the background of his picture, and has therefore refrained from an indiscriminate use of those lurid colours in which some of his predecessors have delighted. There is a great deal that is good in self-help and vengeance, and, as a bishop of Cambrai thought, there is questionable wisdom in forcing men to swear impossible oaths.

A new phenomenon appears late in the tenth century. Dr Huberti fixes as the occasion of its first appearance an ecclesiastical council held at Charroux in the year 989. That council pronounces a general prospective anathema against three classes of persons, (1) infractores ecclesiarum, (2) res pauperum diripientes, (3) clericorum percussores—a cautious anathema set about with provisoes. A council at Narbonne in 990, a council at Anse in 994 do the like. In Dr Huberti's eyes these are not merely die ersten kirchlichen Friedensatzungen, but also die ersten Friedensatzungen überhaupt. One has to quote his German words, for one could hardly translate them without some small misrepresentation of their meaning, for they are used in the performance of a delicate operation. There is something that is new about these canons of Charroux, and yet when we analyse them it is difficult for us to detect the novel element. Legislative attempts to limit the range of the blood feud are not new; excommunication as a punishment for sacrilege is not new; the privilege of sanctuary is not new. even a special care for the defenceless is not new. What is new, if I have caught Dr Huberti's meaning, is the fusion of old elements in a conscious endeavour to mark off by general definitions a sphere of peace from the surrounding sphere of feud, so that peace itself and for its own sake now becomes the object that is aimed at. Having defined the new phenomenon, he has to account for its appearance in a particular form, to wit, that of purely ecclesiastical canons, at a particular place and time, to wit, Aquitaine and the last years of the tenth century. This is a problem that he discusses at length, and if his solution of it is not complete he certainly has fulfilled one of the conditions of success. Some of his forerunners seem to have fancied that they had given explanation enough when they had daubed the tenth century with plenty of black and red and left their readers to supply some such suppressed premiss as that when night is darkest dawn is nighest. But night is not really the cause of day, nor order of disorder. One does not account for “the temperance movement” by saying that drunkenness has been on the increase. Dr Huberti, therefore, tries to show that the Aquitaine of the age that saw the coronation of Hugh Capet was the predestined scene of the first “peace movements”; and in this context his newest and most valuable suggestion is that which would connect these movements with the survival of Roman law in Aquitaine and the emergence of the principle of territorial law.

The first movement spreads outwards from Aquitaine. We can see it in progress between the years 989 and 1039; it aims at placing certain things and certain persons outside the province of fair fighting and legitimate self-help. Meanwhile, however, a second movement has begun in Aquitaine about the year 1027, or even somewhat earlier. The chronological order of our documents is not, therefore, the logical order. We have to think of successive waves starting in Aquitaine, and while the first is yet breaking over northern Gaul the second is flowing in the south. The characteristic of this second movement is the attempt to put not merely certain persons and certain things, but also certain seasons beyond the limits of the feud—to establish, we may say, “a close time” even for the militant classes. This, the true treuga Dei, makes its first recorded appearance, so our author argues, in a synod held at Elne, in Roussillon, during the year 1027. “The close time” is at first but a brief space: it extends only from noon on Saturday to daybreak on Monday; but already before 1041 its beginning has been thrown back to vesper-tide on Wednesday, so that but a very short half of every week is left open. Then other holy seasons get exempted, until at length almost the whole period that lies between Advent and the octave of Pentecost is close. Here again Dr Huberti is at pains to show how much and how little is new, and the task is not a very easy one, for the attempt to make Sundays and others festival days of rest and peace and immunity from legal process is old enough. What seems new is the conscious effort to use the sanctification of these days as a means for obtaining as much peace as possible and the application to them of the idea of “truce,” of an armistice ordained by God and sanctioned by sworn contract.

The true “truce of God,” which consecrates seasons, becomes part of that “peace” for which men are striving; they now desire pacem et treugam Dei. Many persons, many things, as well as many seasons are taboo to the decently conscientious man-at-arms, even to the reasonably prudent man-at-arms, for—and here there is a very interesting episode—both church and state will be against him if he exceeds the narrow boundaries of lawful warfare, and indeed the two powers can now afford to be a little jealous of each other and inclined to quarrel over the right to punish him. A great deal more remains to be said. In one chapter Dr Huberti deals with the adoption of this originally French institution by the popes and the catholic church; in a last chapter he traces the legislation by which the French kings gradually destroyed that right of warfare, which in the thirteenth century had already become the distinctive privilege of gentix hons. Here he has paused. As yet, except when speaking of the canon law, he has confined himself to France or Gaul, and, unless I am mistaken, he is reserving even Normandy, about which there is much to be said, for separate treatment. We are allowed to hope that in connexion with Normandy he will tell us something of England, for the last word about “the peace of God and of our lord the king” has not yet been uttered. At any rate his next volume will concern itself with the German Landfrieden, an institution as essentially German as the treuga Dei is essentially French.

I dare say but little more of this first volume than that I have read it with great interest, and that some of its merits are more apparent at a second than they are at a first reading. This is due to the method that I have called the commentator's method. One gradually learns where to look for the main arguments which are at times hidden from view by subsidiary discussions. Signs of solid industry are everywhere apparent. There is a little more bickering with forerunners and fellow-labourers than is to our English taste. One sometimes wishes that Dr Huberti would leave Sémichon and Kluckhohn alone and just tell us his own version of the story regardless of other versions. Still his theme is one that has suffered from a too lax use of terms such as “peace of God” and “truce of God,” and his efforts to establish a stricter usage, and one better warranted by the ancient documents, are praiseworthy and—so it seems to me—in the main successful.

At the same time I cannot but think that he has allowed his book to grow to an unnecessary size, and that the average quality of his matter would have been better if its quantity had been less. For example, he makes, as already said, the interesting remark that the country in which each successive “peace movement” begins is the country of the written, the Roman law. On this there follow some ten or twelve pages which deal with the survival of Roman law in Aquitaine and contain some paragraphs which are almost wholly made up of references. Such is one which begins thus: Wir bemerken eine Beeinflussung durch Gaius in formulae Bituricenses 9; “dum lex Romana declarat etc.”; durch Paulus in formulae Turonenses 17, Turonenses 16, Marculfi II. 19, Bituricenses 2; durch Ulpianus in formulae Andegavenses 41—and so forth. There is a place for all this erudition (which can be now somewhat easily collected), but it is not the place that Dr Huberti has found for it. It should be put where it will be looked for, and it will not be looked for here. Two or three well-chosen sentences, stating in general terms the results attained by those who have made the mediaeval history of Roman law the object of their researches, would have been far more to the purpose than this heap of notes.

[1]English Historical Review, April, 1893.

[2]Studien zur Rechtsgeschichte des Gottesfrieden und Landfrieden, von L. Huberti, vol. I. 1892.